The COVID-19 pandemic has not stopped the Department of Energy’s plans to dispose of surplus plutonium, nor arguments in a long-running $200 million lawsuit on the matter with the state of South Carolina.
The Department of Energy and South Carolina are actually close to settling the matter. However, the U.S. Court of Appeals for the Federal Circuit on Monday said oral arguments in the appeal scheduled for May 5 will proceed — coronavirus be damned — over the telephone.
In its 2017 lawsuit, the state is seeking $200 million in payments DOE racked up in 2016 and 2017 for failing to remove excess plutonium stored at the Savannah River Site in Aiken, S.C.. A 2002 federal law says DOE must make “economic assistance payments” totaling up to $100 million annually for every year after Jan. 1, 2016, that the agency doesn’t start moving plutonium out of South Carolina.
The appeal in the Federal Circuit is, for now, South Carolina’s only legal leverage regarding the unpaid fines. The Court of Federal Claims, where the state initially sued, in 2019 accepted the Energy Department’s argument that it did not have to make any payments unless Congress specifically appropriated money for that purpose. The state disagreed in an appeal filed last year, saying there is no legal reason DOE’s semiautomomous National Nuclear Security Administration cannot pay the fines from its Material Disposition account, within Defense Nuclear Nonproliferation.
That’s the argument South Carolina will make, if it has to, in the phone call scheduled for May 5.
The Energy Department originally planned to dispose of the surplus plutonium at Savannah River using the Mixed Oxide Fuel Fabrication Facility, which the agency formally axed in 2018. That facility is slated to become a factory to annually produce 50 plutonium pits by 2030. The plutonium it would have turned into commercial reactor fuel will be blended down, immobilized in a concrete-like mixture, and buried at DOE’s Waste Isolation Pilot Plant in New Mexico.
There is about 10 metric tons of surplus plutonium already at Savannah River Site awaiting disposal. The Energy Department has said it will dispose of 34 metric tons of surplus plutonium, in line with the terms of the now-moribund Plutonium Management and Disposition Agreement between the United States and Russia.
