A federal judge has dismissed South Carolina’s claim seeking $100 million for the missed plutonium disposal deadline at the Savannah River Site’s Mixed Oxide Fuel Fabrication Facility (MFFF). U.S. District Judge J. Michelle Childs on Wednesday also sent another request against the Department of Energy – for the removal of 1 metric ton of nuclear weapon-usable plutonium from the state – to mediation.
State Attorney General Alan Wilson sued the Energy Department, then-Energy Secretary Ernest Moniz, the National Nuclear Security Administration (NNSA), and NNSA Administrator Frank Klotz on Feb. 9, 2016, arguing that the federal government breached a 2003 agreement with the state. The deal, according to Wilson, required the Energy Department to remove 1 ton of plutonium from the facility near Aiken, S.C., by Jan. 1, 2016, either by processing the material at the still-under-construction MFFF, or by moving it out of state.
Under the 2003 accord, South Carolina can fine DOE up to $100 million annually for every year it fails to remove the plutonium. The state hit the maximum amount last year in April. But when the calendar turned over to 2017 and DOE still had not dealt with the plutonium, South Carolina resumed fining the agency at a rate of $1 million a day. DOE, meanwhile, argued that the Court of Federal Claims was the correct venue for the monetary dispute.
On Wednesday, Childs ordered DOE and South Carolina to the negotiating table to attempt a settlement on the plutonium question, while also dismissing the monetary claim“without prejudice to the State’s ability to prosecute it an original action filed in the Court of Federal Claims (CFC).”
The parties must complete the mediation before July 7, Childs ordered.
Childs reached her decision after, per her order, both sides filed supplemental briefs to address whether she should transfer the monetary claims sought by South Carolina to CFC, or if she should dismiss the monetary claim altogether. “The parties agree that the court should dismiss the cause of action without prejudice to the State’s ability to prosecute it in an original action filed in the CFC rather than transfer it,” Childs wrote in the order.
Wilson’s office provided a short statement on the judge’s order: “The District Court determined that the United States Court of Federal Claims is the appropriate forum for the State to pursue the economic and impact and assistance payments owed to the State. We are committed to pursuing this case and every legal avenue possible to ensure the Federal Government follows the rule of law and complies with its obligations to the State.”
The Energy Department has declined to comment on the matter.
The two sides remain far from agreement over the agency’s conduct, according to the legal arguments the parties have advanced in court filings over the last year. DOE maintains the 2003 agreement required it to set goals for removing the plutonium by Jan. 1, 2016, not to actually remove the plutonium from South Carolina by that date.
The ton of plutonium in question is separate from the 34 metric tons of material the MFFF is being built to process under a 2000 U.S.-Russian nuclear nonproliferation deal. Russian President Vladimir Putin last fall suspended his nation’s participation in the Plutonium Management and Disposition Agreement.
