South Carolina and the federal government are in talks on a potential settlement for a lawsuit in which the state alleged the government breached an agreement by not processing plutonium through the Savannah River Site’s Mixed Oxide Fuel Fabrication Facility.
South Carolina Attorney General Alan Wilson in February 2016 sued the Energy Department, then-Energy Secretary Ernest Moniz, the National Nuclear Security Administration, and NNSA Administrator Frank Klotz, arguing that DOE needed to remove 1 ton of plutonium from the Department of Energy site by the previous month, either by processing it at the MOX plant or by taking it out of the state.
Because the DOE did not do either, the state imposed a daily fine of $1 million – with an annual cap of $100 million – which DOE had agreed to under a 2003 deal. It hit the maximum amount in April 2016, but initiated a new round of fines at the beginning of this year as the dispute lingered.
U.S. District Judge J. Michelle Childs on Tuesday dismissed part of the state’s lawsuit – specifically its assertion that the government’s failure to meet the terms of the 2003 agreement represented a violation of the U.S. Constitution. Childs, meanwhile, denied the government’s motion to dismiss the state’s request for an order requiring DOE to remove 1 ton of plutonium from South Carolina.
An amended scheduling order filed on March 9 in U.S. District Court for South Carolina directs the state and federal defendants to begin settlement discussions on the plutonium issue, which will end by July 31. Newly confirmed Energy Secretary Rick Perry is named as a defendant, along with Klotz, in the judge’s latest order.
The MOX facility is under construction at the Savannah River Site to dispose of 34 metric tons of nuclear weapon-usable plutonium under a nonproliferation agreement with Russia. The facility’s future remains in question, as the Obama administration’s DOE pushed to terminate the project in favor of an alternative plutonium dilution and disposal method, which lawmakers in Congress have so far resisted.
Last month, Childs dismissed a third part of the state’s case, in which it sought a requirement that the government pay it $100 million per year in fines. However, she noted the request for monetary compensation could be refiled in the Court of Federal Claims. Last month a spokesperson said Wilson was contemplating whether to file a new lawsuit, a move that new Gov. Henry McMaster encouraged at that time.
