The U.S. Department of Energy must remove 1 metric ton of plutonium from the Savannah River Site in South Carolina by Jan. 1, 2020, a federal judge ruled on Wednesday.
The injunctive order from U.S. District Judge J. Michelle Childs grants one of the key demands in a 2016 lawsuit filed by state Attorney General Alan Wilson, but denies other parts of the case against the Energy Department.
Two years is a reasonable amount of time for DOE to safely and legally remove the ton of plutonium, Childs wrote. The Energy Department has disagreed, but Childs noted Wednesday the time frame matches the schedule enacted in the original, 2003 plutonium removal agreement between DOE and South Carolina. The agreement called for plutonium removal by Jan. 1, 2016, if the federal government had not started recycling the material by January 2014.
Wilson said in a press release Wednesday the decision reaffirms South Carolina’s opposition to being a dumping ground for nuclear materials. “The State thanks the Court for holding DOE accountable, although it is unfortunate that the State had to resort to litigation to ask a Federal agency to do what the law requires,” he said.
The Energy Department did not respond to a request for comment.
The order comes after a 22-month battle in which South Carolina sought two primary outcomes after DOE missed the deadline set in the 2003 agreement on removal of the plutonium: taking that material out of SRS and the state, and payment of $100 million.
The plutonium in question is covered by a U.S.-Russian deal signed in 2000 that requires each nation to dispose of 34 metric tons of the nuclear weapon-usable material. The United States has planned to convert the plutonium into nuclear reactor fuel via the Mixed Oxide Fuel Fabrication Facility (MFFF) at Savannah River, though DOE in recent years has sought to cancel the project and instead process the material for disposal.
All told, about 13 metric tons of plutonium are stored at SRS. Seven of those are intended for MOX.
Under the original agreement, the Energy Department was supposed to remove at least 1 metric ton of the plutonium from the state by Jan. 1, 2016, or pay $1 million a day, capped at $100 million annually. Wilson filed suit in February 2016 against DOE, its semiautonomous National Nuclear Security Administration (NNSA), then-DOE Secretary Ernest Moniz, and NNSA Administrator Frank Klotz.
In February of this year, Childs dismissed the monetary claim and recommended South Carolina instead seek the money through the U.S. Court of Federal Claims (CFC). Wilson took the advice and is seeking the $100 million that accrued in 2017 in a CFC suit filed in August. The attorney general has said he will seek the money from 2016 there as well once the District Court case is resolved.
Also in February, Childs told both sides to try to mediate a resolution to the question of the plutonium. The parties to the lawsuit told her in August they could not reach a joint resolution.
In her Wednesday order, Childs wrote that by Jan. 1, 2020, DOE must “remove from the State of South Carolina, for storage or disposal elsewhere, not less than one metric ton of defense plutonium or defense plutonium materials.” The removal must work in compliance with safety regulations set by the National Environmental Policy Act (NEPA), the judge ordered.
Childs took issue with DOE’s stance that it would have to downblend the plutonium – mixing it with inhibitor materials to reduce its potency – before shipping it from SRS. The Energy Department said it would need until 2025 to complete the process, but Childs disagreed: “An agency should demonstrate that compliance with the deadline was impossible after attempting to comply with all due diligence, either in a proceeding to extend the deadline or in offering a defense of impossibility in civil contempt proceedings.”
However, the judge rejected South Carolina’s request that she require the federal government to pay the state $1 million per day if it failed to meet the 2020 deadline. The request did not include a $100 million cap. “It would be incongruous to define the type and amount of sanction at the outset by sanctioning a party before the party has a chance to be heard on the issue and an opportunity to comply,” Childs wrote. “Therefore, the court will not grant the State’s request to set forth potential civil contempt sanctions.”
Childs also dismissed South Carolina’s request for DOE to “reprogram, transfer, or request additional appropriated funds” to meet the deadline:“The court will not direct Defendants on how they must obtain funding for the removal. The court only mandates Defendants to adhere to the statutory requirements firmly laid out.”
Moving forward, Childs said her court will maintain jurisdiction in the case. By Jan. 31, 2018, DOE must provide South Carolina and Childs all of the reports it has submitted to Congress related to plutonium removal from the Savannah River Site. And by Jun. 15, 2018, the federal agency must provide progress reports every 180 days, detailing its work toward removing the plutonium.
The District Court case remains open, along with the lawsuit in the Court of Federal Claims. The last action in that case came on Nov. 28 when Judge Margaret Sweeney said she needed to decide if her court had jurisdiction in the matter. The Energy Department argued that the CFC cannot hear that case as long as there is a District Court case seeking similar outcomes. South Carolina disagrees with that notion. Sweeney did not offer a timeline for her decision.
