A federal judge did not recognize the Department of Energy’s legal obligation to pay millions of dollars in plutonium-related fines to South Carolina, or properly vet the state’s claim that the agency has the money to pay up, according to newly filed court papers.
In appealing the ruling of the 2016 lawsuit in the Court of Federal Claims, South Carolina stuck to its argument that DOE’s National Nuclear Security Administration (NNSA) can tap into the Materials Disposition account of the agency’s Office of Defense Nuclear Nonproliferation to pay $200 million worth of fines.
The fines — officially, economic and impact assistance payments — are essentially “the ‘rent’ for continued storage” of weapon-usable plutonium at the Savannah River Site beyond Jan. 1, 2016, attorneys for South Carolina wrote in an appellate brief with the U.S. Court of Appeals for the Federal Circuit. South Carolina can claim up to $100 million a year in fines, under a federal law enacted in 2003 and amended since. In this suit, the state seeks payments for plutonium storage in 2016 and 2017.
In its appeal, South Carolina said the lower court’s Aug. 20 decision to deny the state a summary judgement in its favor erroneously put the onus for finding money for the fines on Columbia.
“The Court of Federal Claims’ assertion that the State should have asked Congress for appropriations for the assistance payments is absurd,” according to the appeal. “It was DOE’s statutory responsibility to provide the assistance payments, not the State’s.”
South Carolina docketed its appeal over the summer but did not file its brief until this week.
The NNSA was supposed to dispose of 34 metric tons of weapon usable plutonium by converting it into commercial reactor fuel using the now-canceled Mixed Oxide Fuel Fabrication Facility at the Savannah River Site. The agency now plans to dispose of that material by diluting it and burying it deep underground at DOE’s Waste Isolation Pilot Plant in New Mexico.
