In what could be the final brief before an appeals panel rules on the case, South Carolina hammered home its argument that federal law does not prohibit the Department of Energy from paying $200 million in fines after blowing a legal deadline to remove plutonium from the state.
South Carolina is appealing the case after the U.S. Court of Federal Claims, which handles lawsuits against the federal government, agreed with the Energy Department that Congress must specifically appropriate funding for the agency to pay the fines South Carolina claims it is owed.
“At its base, the Government’s position is that in the absence of a line-item appropriation specifically for the contingent assistance payments, Congress must not have intended for the Department of Energy to meet its statutory obligation,” the state wrote in a Jan. 10 reply brief in U.S. Court of Appeals for the Federal Circuit.
While Congress has not appropriated funds for DOE to pay fines required by the 2003 National Defense Authorization Act — up to $100 million annually in each year beginning with 2016 that the agency does not remove plutonium from the state — the state claims the agency is allowed to take money from the National Nuclear Security Administration’s (NNSA) Defense Nuclear Nonproliferation Account.
The plutonium at issue was supposed to be turned into reactor fuel in the now-canceled, partially built Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site in Aiken S.C. The Energy Department now plans to dilute it ahead of disposal at the Waste Isolation Pilot Plant in New Mexico.
South Carolina responded to the missed deadline with lawsuits in the Court of Federal Claims, which covered two years’ worth of fines under the 2003 law, and U.S. District Court for South Carolina, which sought the removal of 1 metric ton of plutonium from the state. The state won the District Court lawsuit but lost the Claims Court case, which is now on appeal in the Federal Circuit.
The Federal Circuit could next schedule oral arguments before a panel of judges, or decide the case based on briefs already filed by the state and the agency. The court had not scheduled arguments or notified the parties of an imminent decision at deadline Tuesday for Weapons Complex Morning Briefing.
