Nevada wants plutonium removed as court fight proceeds

FILE - This Nov. 20, 2013 file photo, seen through thick protective glass, shows the area where workers sand-blast the large stainless steel tanks used in the vitrification process to rid them of contaminates at the Defense Waste Processing Facility at the Savannah River Site near Aiken, S.C. Nevada wants a federal appeals court to order the U.S. government to remove weapons-grade plutonium the Department of Energy secretly trucked to a site near Las Vegas until the court decides whether the clandestine move was illegal. (AP Photo/Stephen B. Morton, File)

RENO, Nev. (AP) — The state of Nevada is asking a federal appeals court to order the U.S. government to remove weapons-grade plutonium that was secretly trucked to a site near Las Vegas last year until the court decides whether the move was legal.

The request comes in an increasingly combative legal battle over the highly radioactive material the state says poses a danger to health and safety.

It's the first time the state specifically has asked to have the plutonium removed from the Nevada National Security Site.

A federal judge in Reno denied a related motion seeking to block any shipments pending the outcome of an appeal before the 9th U.S. Circuit Court of Appeals. Judge Miranda Du ruled the matter was moot given the plutonium already had been shipped from South Carolina and the U.S. Department of Energy says no additional shipments are planned.

Lawyers for the state argue in a new filing Monday that the federal government "cannot be trusted." They say removal of the plutonium is the only way to protect Nevada's rights.

"While the federal district court feels it can rely on the assurances of the U.S. Department of Energy, experience tells us otherwise," Nevada Attorney General Aaron Ford said in a statement.

The state filed a lawsuit in U.S. District Court in Reno in November after the Department of Energy completed an analysis in August concluding it had the authority to ship one metric ton (2,204 pounds) of plutonium from South Carolina to Nevada.

The Department of Energy said no additional environmental review was needed because it was complying with a 2017 court order to remove the material from South Carolina's Savannah River site by Jan. 1, 2020. It also argued it couldn't disclose any of the top-secret details of the shipment to protect national security.

On the same day the judge denied Nevada's request to block any shipments because any potential harm was speculative, the Department of Energy disclosed it already had shipped the plutonium.

Nevada lawyers said last week in court documents that the "stealth" truck shipment increased residents' radiation exposure to the equivalent of getting 100 to 200 chest X-rays annually for three years.

They said in Monday's new urgent request to move the shipment was made without warning state officials or emergency responders.

"Compounding the deception, DOE neglected to inform the district court during the evidentiary hearing that the plutonium was already in the state," the lawyers wrote.

"The district court mistakenly found that DOE's covert shipment cannot be undone," they said. "Given DOE's deceitful tactics, only an injunction will protect Nevada's sovereign interests."

A Department of Energy spokeswoman declined comment on Tuesday. Agency officials have until April 1 to file their initial response to the appeal.

"Given DOE's earlier lack of candor about the shipment's status, neither Nevada nor the court can trust DOE's representation that it will not ship" more plutonium to the state, the state's lawyers wrote Monday.

They said the Department of Energy hasn't provided any explanation for abandoning its original plan to transport a full metric ton (2,204 pounds) to Nevada.