Judge has a heavy lift trying to force DOE to prepare NEPA documents on plutonium disposition and it appears she can’t force mediation between the state & feds, as the state requested. Judge is concerned about plutonium remaining in SC – the state incorrectly called it “permanent” storage – but doesn’t get it that MOX will not get Pu out of the state. Judge may be leaning toward granting the preliminary injunction but she will have to figure out how to get around recent laws passed by Congress that allow the secretary of energy to halt spending on MOX. In any event, her ruling will likely be appealed or she will issue a schedule for a hearing to be held soon on a permanent injunction.
Federal judge denies National Nuclear Security Administration’s request to postpone hearing on State of South Carolina’s request for a preliminary injunction to stop termination of the bungled plutonium fuel (MOX) project at SRS – hearing to be held at 10:00 a.m., Tuesday, June 5 in Columbia, SC; details of partial stop work order revealed & MOX Services indicates number of workers to be terminated on August 11, 2018
On the morning of June 4, the MOX termination hearing is still listed for 10:00 a.m. on June 5.
Court rulings in Docket 1:18-cv-01431 – posted May 31, 2018; see key documents linked below:
NOTICE OF RESCHEDULED HEARING Motion Hearing set for 6/1/2018 10:00 AM in Columbia # 3, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle Childs. cancelled and rescheduled to: Motion Hearing set for 6/5/2018 10:00 AM in Columbia # 3, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle Childs. (asni, ) (Entered: 05/31/2018)
TEXT ORDER: This matter is before the court on Defendants’ Motion to Reconsider Order Granting Expedited Briefing Schedule on Plaintiff’s Motion for Preliminary Injunction (ECF No. 12). Specifically, Defendants maintain that a decision from the court on Plaintiff’s Motion for Preliminary Injunction (ECF No. 5) by June 8, 2018 is unnecessary. (Id. at 2.) “While Plaintiff demands that this court issue a decision on its motion for preliminary injunction on or before June 8, 2018, the facts show that even if the Department of Energy issues a full stop work order on the first day it is entitled by law to do so, June 11, 2018, that stop work order will not alter the status quo either in terms of the quantity and conditions of defense plutonium at Savannah River Site (“SRS”) or the employment status of those currently employed in construction jobs on the MOX facility for at least 60 days.” (Id. at 8.) Plaintiff filed a response in opposition to Defendants’ Motion. (See ECF No. 14.) Under Fed. R. Civ. P. 59(e), a court may alter or amend a judgment if the movant shows: (1) an intervening change in the controlling law; (2) new evidence that was not previously available; or (3) that there has been a clear error of law or a manifest injustice. Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th Cir. 2010). Because there has not been an intervening change in the controlling law or new evidence that was not previously available, the court only addresses whether there has been a clear error of law or manifest injustice. The court does not find that such a determination is present. First, there is no prejudice to the Federal Defendants in proceeding with the current schedule because the court has provided sufficient notice and an opportunity to oppose the Motion for Preliminary Injunction; in fact, just today the court filed a revised briefing schedule to give Defendants additional time. (See ECF No. 15.) By May 22, 2018, all of Defendants were notified that Plaintiff would be filing a complaint and motion for preliminary injunction on Friday, May 25, 2018, and would be seeking expedited resolution of the Preliminary Injunction Motion. (See ECF No. 14 at 2.) Plaintiff challenges Defendants’ contention regarding the effect of the stop work order focused solely on the temporary employment status of the terminated SRS employees. (ECF No. 14 at 4.) Instead, Plaintiff argues that once the stop work order is entered, construction activities will cease, funds will be directed towards termination, and the MOX project is effectively permanently terminated. (Id.) Therefore, an expedited hearing and ruling on Plaintiff’s Motion for Preliminary Injunction is necessary to ensure that the Federal Defendants’ decision can be properly vetted, so as to not evade meaningful judicial review of these contested issues. Accordingly, the court DENIES Defendants’ Motion to Reconsider Order Granting Expedited Briefing Schedule on Plaintiff’s Motion for Preliminary Injunction 12 . Signed by Honorable J Michelle Childs on 5/31/2018.(asni, ) (Entered: 05/31/2018)
>>>> Key documents posted in the docket on May 31, 2018:
1. NNSA filing, May 30, requesting that court not expedite the hearing on a preliminary injunction to stop MOX termination – request denied – linked here
2. Attachment to filing by NNSA, with “declaration” by NNSA official, includes copy of “partial stop work order,” explanation of the partial stop work order & email from MOX Services giving number of MOX craft workers to be terminated – with terminations taking place 60 days after the NNSA’s planned date of June 11 for lay-off notices (so, termination on August 11) – linked here
Update of June 4, 2018 – about 1000 pages of documents filed with the court by NNSA on 6/4/2018: “RESPONSE in Opposition re 5 MOTION for Preliminary Injunction and Memorandum in Support Response filed by Lisa E Gordon-Hagerty, National Nuclear Security Administration, Rick Perry, United States, United States Department of Energy.Reply to Response to Motion due by 6/11/2018 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit 1 – RAINES Declaration, # 2 RAINES – Attach A, # 3 RAINES – Attach B-D, # 4 RAINES – Attach E, # 5 RAINES – Attach F- G, # 6 RAINES – Attach H – Part 1, # 7 RAINES – Attach H – Part 2, # 8 RAINES – Attach I, # 9 Exhibit 2 – WALKER Declaration, # 10 Exhibit 3 – CALBOS Declaration, # 11 CALBOS – Attach A, # 12 CALBOS – Attach B – Part 1, # 13 CALBOS – Attach B – Part 2, # 14 CALBOS – Attach B – Part 3, # 15 CALBOS – Attach B – Part 4, # 16 CALBOS – Attach B – Part 5, # 17 CALBOS – Attach C, # 18 CALBOS – Attach D, # 19 CALBOS – Attach E and F, # 20 Exhibit 4 – HO Declaration)(Bowens, Barbara) (Entered: 06/04/2018)”
We have downloaded some of the above documents posted on June 4 – available on request: srswatch@gmail.com. See declaration of NNSA official, who states in his point #18 that “On June 11, 2018, issuance of the NNSA Contract Termination Notice…” will be issued.
Key document on MOX contract problems and contractor performance, and steps needed to minimize costs and risks to the US Government, posted in NNSA’s court filings of June 4, 2018: U.S. Army Corps of Engineers Report Assessment of the MOX Facility Contract, February 2017