South Carolina should withdraw one of its two plutonium removal lawsuits – each seeking $100 million from the federal government – in the U.S. Court of Federal Claims (CFC) and amend the other suit to seek the full $200 million, a judge recommended late last week.
Doing so would resolve the Energy Department’s complaint that the state is wrongfully seeking the same outcomes in multiple lawsuits, according to CFC Judge Margaret Sweeney.
The South Carolina Attorney General’s Office suggested Tuesday it would follow Sweeney’s advice. “Given the current state of litigation, the State sees the wisdom of the Court’s approach and will seek to effectively combine the two cases,” AG spokesman Robert Kittle said by email.
South Carolina currently has three open lawsuits against the Energy Department, all based on missed plutonium recycling deadlines at the Savannah River Site near Aiken, S.C. In a 2003 agreement with the state, DOE pledged by Jan. 1, 2016, to remove 1 metric ton of plutonium from Savannah River, or convert that amount to commercial nuclear reactor fuel at the Mixed Oxide Fuel Fabrication Facility (MFFF) being built there. Neither of those has happened, leading South Carolina in recent years to fine the federal government $1 million a day up to $100 million annually.
When federal payments did not begin, South Carolina sued the Energy Department in February 2016 in U.S. District Court for South Carolina. In the lawsuit, the state sought $100 million and the removal of plutonium. In 2017, District Judge J. Michelle Childs ruled the monetary claim should be moved to the Court of Federal Claims, prompting South Carolina to file suit in that venue for the 2017 dollars in August 2017 and for the 2016 money in January of this year.
In a Feb. 15 scheduling order, Sweeney said it would be in the state’s best interest to drop the first claim and revise the January lawsuit to seek the money for both 2016 and 2017. That would address DOE’s argument that federal law prohibits South Carolina from having multiple open suits that cover the same issue.
According to Sweeney, the District Court matter is basically over since Childs ruled on Dec. 27 that the Energy Department must remove 1 ton of plutonium from the state by Jan. 1, 2020. If South Carolina dismisses the claim for the 2017 funds, and updates the claim for the 2016 fines, it will only have one suit to worry about. “Because jurisdiction is determined when a suit is initiated, the new claim would not be barred (by the district court suit),” Sweeney wrote. “From the court’s perspective, proceeding in this manner would conserve the parties’ (and its own) resources.”
The Energy Department has until March 8 to file a supplemental brief, detailing any legal objections to the judge’s recommendation. South Carolina has until March 29 to do the same, and to also state if it is willing to take Sweeney’s advice.
The South Carolina Attorney General’s Office is again fining DOE this year over the missed deadline. It will address potential legal action on the matter after the first 100 days, Kittle said. The 101st day of the year is April 11.
The federal government is appealing Childs’ order for DOE to remove the ton of plutonium by 2020.
