After four months of deliberations, the state of South Carolina and the Department of Energy could not agree on how best to remove plutonium from DOE’s Savannah River Site, or whether the department will pay $200 million in fines that have piled up while the dispute lingered.
In a joint statement Monday to Judge J. Michelle Childs, of U.S. District Court in Columbia, S.C., the sides acknowledged they had failed to resolve their differences: “the Parties have not been able to reach agreement as to a proposed order, and do not believe that further discussions would be constructive.”
Childs is the presiding judge in a lawsuit filed in February 2016 by the South Carolina Attorney General’s Office, which claimed the federal government breached a 2003 deal to either remove 1 ton of nuclear weapon-usable plutonium from SRS, or convert it into nuclear reactor fuel through the still-unfinished Mixed Oxide Fuel Fabrication Facility (MFFF).
Per the agreement, DOE would be on the hook for a daily fine of $1 million – capping off at $100 million annually – if it failed to move the plutonium out of state by Jan. 1, 2016. Today, that total sits at $200 million. When DOE failed to begin payments early last year, state Attorney General Alan Wilson filed suit against the Energy Department and its semiautonomous National Nuclear Security Administration (NNSA), which oversees the MOX project.
The lawsuit has now stretched on for nearly 18 months. In March, Childs ordered the parties to the bargaining table, asking them to resolve the plutonium removal dispute with new timetables and deadlines. The two sides were ordered to release a joint statement and also agreed to issue separate statements detailing their own ideas of how to proceed. South Carolina officials confirmed during deliberations that the monetary claim was also being considered.
Beyond acknowledging the apparent futility of further talks, the state and federal governments in this week’s joint statement offered no other details about the deliberations. The Attorney General’s Office and the Energy Department would not comment since the lawsuit remains open.
In its individual statement also filed Monday, South Carolina requested that Childs grant a number of requests. For example, the state wants DOE to remove at least 1 ton of plutonium from SRS within two years of an order from the judge. If the department fails to do so, South Carolina wants to be paid $1 million a day for each day of noncompliance — on top of the current $200 million the state is already seeking.
In addition, the state wants DOE to provide progress reports every 90 days, detailing where the department stands on removing the plutonium and how close it is to reaching that milestone. “The need for this Court to retain jurisdiction and require the submission of progress reports in order to ensure the Federal Defendants’ timely compliance with federal mandate significantly outweighs any slight inconvenience to the Federal Defendants in having to make such reports,” South Carolina wrote in its statement.
The Energy Department had asked to be given until Sept. 15 to file its individual statement, writing in the joint statement that two of its lawyers working the case are out of office for extended amounts of time this month. On Tuesday, Childs ordered DOE to file its statement by Aug. 11, adding that the defendant has taken a “lackadaisical approach” by asking for additional time. “The court finds that ten days is a sufficient amount of time in which to file a separate statement,” Childs wrote in her order. “As the State points out, Defendants have already been accorded more than four months to develop a proposed injunctive order.”
All told, SRS houses about 13 metric tons of plutonium. Roughly 7 tons is intended to be converted into MOX fuel, and the other six will be diluted at SRS and disposed of at an off-site repository.
The Savannah River Site is also home to several other nuclear materials, including uranium stockpiles and roughly 3,000 bundles of spent nuclear fuel. These materials will be processed at SRS and temporarily stored on site until they are ready for disposal elsewhere, or sent to other DOE facilities to be reused as an energy source.
