A U.S. Court of Federal Claims judge said Tuesday she needs to determine if her court can decide if South Carolina should receive $100 million from the Department of Energy over missed plutonium disposal deadlines at the Savannah River Site.
In the order, Judge Margaret Sweeney granted DOE’s request to defer a ruling on the state’s request for summary judgment in the case while she further reviews the issue. The South Carolina Attorney General’s Office wants a ruling in its favor without going to trial, while the Energy Department hopes Sweeney will permanently deny that request, and throw the suit out altogether.
“In this case, the court must first satisfy itself that it has subject matter jurisdiction over plaintiff’s complaint in light of the assertions made by defendant in its motion to dismiss,” Sweeney wrote. “To do otherwise would be to waste the court’s and the parties’ time and resources.”
Filed on Aug. 7, the state lawsuit seeks half of the total amount South Carolina believes it is owed for a breached 2003 agreement that states DOE must process 1 ton of nuclear weapon-grade plutonium at the Savannah River Site, or remove that amount from the facility, by Jan. 1, 2016. The material would be processed at the Mixed Oxide Fuel Fabrication Facility, being built to meet the U.S. commitment under an arms control deal with Russia to convert 34 tons of plutonium into commercial nuclear reactor fuel.
Per the agreement, DOE was supposed to begin paying the state $1 million a day, capped at $100 million annually, upon missing the deadline. That amount today is $200 million: $100 million sought in a CFC lawsuit, the rest sought (along with removal of the plutonium) in a lawsuit in the U.S. District Court of Columbia, S.C.
The Energy Department has requested that both cases be thrown out. Federal lawyers say the Court of Federal Claims would be the proper venue for the District Court lawsuit; Judge J. Michelle Childs agreed, and in February advised South Carolina to file for the money in CFC — which the AG’s Office attorney has indicated will happen. Childs is still overseeing the plutonium removal issue.
Now, the Energy Department is requesting that the CFC suit be dismissed, arguing federal law does not allow South Carolina to have two separate cases that cover the same issue. “The substantial overlap of operative facts between the monetary claim in this case and South Carolina’s pending removal claim in district court alone would justify dismissal,” lawyers for DOE told Sweeney.
Sweeney did not indicate how long she would need to issue a decision on the matter.
The sides, meanwhile, have not reached any settlement on a timeline for removal of the plutonium from South Carolina.
