The Department of Energy this week requested dismissal of a lawsuit filed by the state of South Carolina over the federal agency’s failure to meet the term of an agreement on disposition of plutonium stored at the Savannah River Site.
The lawsuit stems from missed deadlines at the Savannah River Site’s Mixed Oxide Fuel Fabrication Facility (MFFF). A 2003 agreement between South Carolina and the Department of Energy required the federal government to by Jan. 1, 2016, 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 the state. That total capped off at $100 million on April 9. Attorney General Alan Wilson waited more than a month before suing on Feb. 9 for the money and the removal of the plutonium.
The Energy Department responded to the lawsuit on Monday, stating that “none of South Carolina’s claims can be advanced” in U.S. District Court. For example, the lawsuit states that DOE violated the Constitution; but the department said in the response that the violation of a statute is not automatically a violation of the Constitution and that South Carolina failed to specify which statutory violations actually breach the Constitution.
DOE also wrote that South Carolina’s attempt to have plutonium removed from the state and collect the $100 million represents a misreading of the agreement. “(The agreement) gives the Department the option of either removing certain defense plutonium or paying the assistance payment, subject to the availability of appropriations,” DOE wrote in the response.
The department added that South Carolina should be seeking the $100 million in the Court of Federal Claims – not U.S. District Court. Other arguments for dismissal include the lawsuit’s pursuit of a promise that no more defense plutonium will enter the state until the issues outlined by the state are resolved. The department wrote that it has already suspended further shipments, making that point in the lawsuit a nonissue.
