A federal judge on Monday would not dismiss a South Carolina lawsuit seeking redress for the Energy Department’s failure to remove plutonium from the state, but she did ask the sides whether the dispute should be moved to a different court.
In declining to rule on DOE’s claim that South Carolina has no standing to sue the agency for the federal government’s failure to meet the terms of a bilateral agreement to either process 1 metric ton of plutonium or remove it from the state by Jan. 1, 2016, Judge Michelle Childs of the U.S. District Court for the Aiken district of South Carolina left the door open for moving the lawsuit to the U.S. Court of Federal Claims — the court that handles monetary claims against the federal government.
In her order, Childs told DOE and South Carolina to file briefs by Nov. 30 that address whether the District Court should transfer the case to the Court of Federal Claims, or whether the court should dismiss the state’s suit “without prejudice to the State’s ability to refile the claim” in the Court of Federal Claims.
DOE, which was seeking dismissal of the suit entirely, has previously argued that the Court of Federal Claims is the proper venue for this case, which South Carolina Attorney General Alan Wilson brought in February.
South Carolina sued DOE for $100 million in damages, and removal of the plutonium from the Savannah River Site.
DOE was supposed to process the plutonium in the Mixed Oxide Fuel Fabrication Facility (MFFF) under construction at the Savannah River Site. The Obama administration wants to cancel MFFF — which is over budget and behind schedule — in favor of diluting the plutonium at another SRS facility and mixing it with a concrete-like substance that would make it safe for permanent disposal underground at the Waste Isolation Pilot Plant, or some future facility like it.
NNSA spokeswoman Francie Israeli said the Energy Department does not comment on active litigation.
