A federal court on Tuesday declined to make the Department of Energy pay $200 million in fines for failing to remove weapon-usable plutonium from South Carolina, depriving the state of some leverage in its ongoing court press to rid itself of the surplus nuclear material.
“Under the circumstances of this case, plaintiff’s proper course to obtain economic and impact assistance is to request an appropriation from Congress,” Judge Margaret Sweeney wrote in an order that rejected South Carolina’s motion for summary judgment and dismissed the lawsuit filed in the U.S. Court of Federal Claims in 2018.
South Carolina sued DOE after the agency’s semiautonomous National Nuclear Security Administration (NNSA) blew a legal deadline to start removing the plutonium from the Palmetto State by Jan. 1, 2016. The same law that set the deadline also allowed South Carolina to collect up to $100 million in annual fines in every year the agency failed to start removal. The lawsuit covered the accrued penalties for 2016 and 2017.
A legal team led by state Attorney General Alan Wilson argued that the NNSA could legally use congressionally appropriated funding from its Material Disposition account to pay two years’ worth of these fines. But Sweeney sided with a federal attorney who argued on DOE’s behalf that the agency could only pay the fines if Congress appropriated money to do so — which has not happened.
Wilson’s office did not reply to a request for comment about whether the state would appeal its case to the U.S. Court of Appeals for the Federal Circuit in Washington.
The suit just dismissed is one of two South Carolina filed against DOE over the surplus plutonium. The other, in U.S. District Court, worked out better for the state. In 2017, Judge J. Michelle Childs ordered the NNSA to ship 1 metric ton of plutonium out of South Carolina by Jan. 1, 2020. In that decision, Childs cited the same federal law South Carolina leaned on in its failed Federal Claims Court case.
The NNSA announced in early August that it had finished shipping that 1 metric ton out of South Carolina, splitting the material between the Nevada National Security Site and likely the Pantex Plant in Amarillo, Texas.
There is about 10 metric tons of surplus, weapon-usable plutonium at the Savannah River Site that is covered by the federal law South Carolina has relied on in its lawsuits. Those 10 tons are themselves part of a 34-metric-ton tranche declared surplus to defense needs in the 1990s as part of a mutual, nuclear arms-control agreement struck with Russia after the end of the Cold War.
The Energy Department started trucking surplus plutonium into South Carolina in 2002 after Congress passed a law that the agency had to start either converting the material in the MFFF or removing it from the state starting in 2016. The fines were the main penalty prescribed by the law for DOE’s failure to remove the plutonium on time.
