A federal judge on Thursday heard arguments for motions in South Carolina’s multimillion-dollar lawsuit against the Department of Energy over plutonium processing at the Savannah River Site, but gave no indication how or when she might rule on the requests.
The federal government is seeking immediate dismissal of the state lawsuit demanding $100 million and prompt removal of 1 ton of plutonium from the DOE’s Savannah River Site. Meanwhile, South Carolina wants U.S. District Judge J. Michelle Childs to find in its favor without sending the case to a jury trial.
Both sides made their pitch during a hearing in Columbia, but it remains to be seen when Childs will give the thumbs up or down to the motions.
The department is building the Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site to convert 34 metric tons of weapon-usable plutonium into commercial nuclear fuel. The material must be eliminated under an agreement finalized in 2010 with Russia.
Under a separate deal with the state, the federal government was required by Jan. 1, 2016, to process 1 metric ton of the plutonium through the MFFF or remove a ton from the state. Since neither occurred, the department was supposed to begin paying $1 million a day to South Carolina, which capped off at $100 million on April 9. State Attorney General Alan Wilson waited more than a month after the deadline before suing on Feb. 9 for the $100 million and the removal of the plutonium.
On Thursday, Randy Lowell, one of the attorneys representing South Carolina, said the state is entitled to the both the money and the plutonium extraction. Both actions are mentioned in the 2003 agreement, and Lowell said the document should be interpreted in a way that makes DOE complete them.
But attorney Spencer Amdur, representing DOE, argued that there are already plans in place to remove 6 metric tons of plutonium from SRS, though none of that plutonium is intended for MOX. SRS currently stores 13 metric tons of plutonium, with some intended for MOX processing. The majority of the 34 metric tons is at the Pantex Plant near Amarillo, Texas.
Amdur also said South Carolina’s pursuit of the $100 million should be handled in Federal Claims Court instead of U.S. District Court. The federal government’s plan to remove the plutonium, and its position that another court should handle the money, is reason enough to dismiss the lawsuit, Amdur argued.
Lowell countered that the federal government has known for years it wouldn’t meet its plutonium processing deadline, and that plans should have already started to remove plutonium from the site. The Energy Department didn’t start voicing its intent to do so until after Wilson and South Carolina Gov. Nikki Haley started threatening to sue late last year, Lowell said. He added that the department should have also initiated discussions with Congress to pay the penalty money. The 2003 agreement only allows for payment if funds are made available. “This is really a problem of their own creation,” Lowell said of the Energy Department.
The two parties also debated the practicality of shutting down MOX and moving forward with a different method to dispose of the plutonium. The Energy Department’s fiscal 2017 budget request calls for terminating work on the facility and instead using downblending, a method that would dilute the plutonium and ship it to federal repository. The request came after forecasts that the MOX project would ultimately cost $51 billion over its lifetime – three times the initial estimate. About $5 billion has been spent so far.
South Carolina argued in earlier court documents that the Energy Department’s attempt to switch to downblending is proof that it cannot keep promises outlined in the 2003 agreement. Lowell added on Thursday that downblending is “conceptual,” and that there’s no reason to believe the Energy Department will be successful. But Amdur said the method has been used at SRS before and can be used again to remove the plutonium from the state. “We understand there are major delays in MOX; but that has no bearing on the feasibility of downblending,” he said.
