The Department of Energy and South Carolina are discussing options for removing excess plutonium that was intended to be processed at the Mixed Oxide Fuel Fabrication Facility, and looking at options to settle the state’s claim that the agency owes hundreds of millions of dollars for missing deadlines to remove that plutonium from the Savannah River Site.
Representatives for the two sides met on Jan. 17 in Columbia, roughly 70 miles northeast of the 310-square-mile DOE facility near the city of Aiken, according to Robert Kittle, spokesman for South Carolina Attorney General Alan Wilson. A spokesperson with the Energy Department’s semiautonomous National Nuclear Security Administration (NNSA) also verified the meeting took place.
Both officials declined to discuss details of the session, including the specifics of the conversation, who attended, and how long it lasted. Kittle did say the meeting was not court-mandated, meaning the parties are voluntarily trying to resolve their differences.
“These were confidential discussions between the State and the Department of Energy,” Kittle said by email. “Discussions are in their infancy and it is unclear if these discussions will result in any compromise.” Kittle would not say if and when any future meetings are planned.
Kiff added that the Energy Department remains on the hook for millions of dollars that accrue daily while the plutonium remains in the state, even though the department last year removed 1 ton of the material. All of that is being considered as the parties negotiate outside of the courts.
The state and federal governments in 2003 inked a deal to use the Savannah River Site to convert 34 metric tons of plutonium into fuel for commercial nuclear power plants. The project would enable the U.S. government to meet the terms of the 2000 Plutonium Management and Disposition Agreement (PMDA) with Russia, under which each nation would eliminate 34 metric tons of the material.
The department expected to convert the material using the Mixed Oxide Fuel Fabrication Facility. But it ultimately determined it would be cheaper and faster to dilute the plutonium and ship it to the Waste Isolation Pilot Plant (WIPP) in New Mexico for disposal. Upon receiving authorization from Congress, DOE scrapped the MFFF in October 2018 after spending $8 billion over more than a decade of construction. That left tons of unwanted plutonium at Savannah River Site. The site houses about 10 metric tons of the material, but it is unclear how much of that was intended for MOX processing.
Under the 2003 deal, the Energy Department was supposed to begin paying South Carolina $1 million per day in January 2016 if it failed to remove at least 1 ton of plutonium from Savannah River, or process it through the MOX facility. The penalty is capped at $100 million each year.
South Carolina sued for the money and plutonium removal in February 2016 when payments did not begin, and kept adding $100 million each passing year. The state sued for $200 million owed for 2016 and 2017, and Kittle said another $200 million accrued for 2018 and 2019. The $1 million daily penalty is being assessed again for 2020.
In December 2017, a U.S. District Court judge in South Carolina ordered the Energy Department to remove at least 1 ton of plutonium from Savannah River by Jan. 1, 2020. The agency has acknowledged that half the plutonium was shipped to the Nevada National Security Site in 2018, which ignited a separate legal battle with the state of Nevada. The remaining material is believed to have been sent to the NNSA’s Pantex Plant in Texas.
Also in August 2019, a judge in the U.S. Court of Federal Claims dismissed the claim for $200 million, ruling that Congress failed to include language for funding the payments when it codified the 2003 agreement in that year’s National Defense Authorization Act (NDAA). That case is now being briefed in the Court of Appeals for the Federal Circuit. Meanwhile, both sides are meeting without any court prompting.
The 2003 agreement keeps DOE on the hook for plutonium removal beyond the initial metric ton, and for failure to meet MOX production plans. For example, all of the 34 metric tons of MOX-able plutonium was supposed to be processed by Jan. 1, 2019. Since that hasn’t happened, the daily penalty of $1 million remains intact, Kittle said. He added that the federal agency’s downblending method will take years to complete, keeping the penalties in place. A 2015 study from the Energy Department states the method would take until 2049 to complete.
It is unclear how South Carolina will attempt to levy the hundreds of millions it believes DOE owes, since the court freed DOE from having to pay the amount covered in the lawsuits, but Kittle said the state will hold DOE accountable.
“The deadlines for the economic impact and assistance payments are annual and statutory,” Kittle said. “The State anticipates that the United States and Department of Energy will continue to accrue the annual $100 million penalties for years to come, as the current plan of dilute and dispose will not remove the amount of plutonium required to stop the payments for many years.”
