South Carolina and the federal government are continuing their disagreement over what constitutes a mandate and what should be considered a goal, as it pertains to the state lawsuit over a failed plutonium disposition milestone at the Savannah River Site’s Mixed Oxide Fuel Fabrication Facility (MFFF). In the latest document filed in federal court, on May 12, South Carolina asked that DOE’s request for a dismissal of the multimillion-dollar lawsuit not be granted. The MFFF, which is still under construction, would meet a U.S.-Russia agreement by converting 34 metric tons of weapon-usable plutonium into commercial nuclear fuel.
A 2003 agreement between South Carolina and the Department of Energy says the federal government must by Jan. 1, 2016, process 1 metric ton of the plutonium through the MFFF or remove a ton from the state. Since neither occurred, the department was supposed to begin paying $1 million a day to the state. That total capped off at $100 million on April 9. S.C. Attorney General Alan Wilson waited more than a month before suing on Feb. 9 for the money and the removal of the plutonium. In the lawsuit, Wilson is seeking both the removal of plutonium and the $100 million.
The Energy Department responded to the lawsuit last month. In asking for the case to be dismissed, the federal agency asserted that milestones outlined in the 2003 agreement are based on goals, not mandates. In addition, DOE believes South Carolina cannot ask for both the money and the removal of plutonium. “Congress left it to the agency to decide whether to remove defense plutonium or pay the financial penalty,” the federal agency said.
But in a May 12 response to the request for a dismissal, South Carolina wrote that the Energy Department’s is misinterpreting the 2003 agreement. The state responded that the two issues are separate statutory provisions with separate deadlines and separate purposes. “For this reason, South Carolina is seeking injunctive relief to compel them to obey the mandates,” the state wrote in the response.
