South Carolina and the National Nuclear Security Administration (NNSA) could be about to cut a deal in the state’s $200 million lawsuit over the federal government’s failure to remove plutonium from the Savannah River Site, court papers show.
In a joint motion filed Thursday, lawyers for the two sides said settlement negotiations are ongoing and asked the U.S. Court of Appeals for the Federal Circuit to stay the case until Aug. 31.
South Carolina says it is legally entitled to $200 million in economic assistance payments from the Department of Energy’s semiautonomous nuclear-weapon agency, which failed to meet a 2016 deadline set in federal law to start removing surplus weapon-usable plutonium from the state. The case is on appeal after the Court of Federal Claims supported the NNSA’s postion that it cannot pay the money without a specific appropriation from Congress, which it has not received.
The higher court had not approved the stay at deadline. However, it might not need long to rule on a joint motion for a short delay that, if granted, could allow for resolution of the dispute.
The case has been at this crossroads before, only to have settlement talks collapse amid complaints that the federal government low-balled the state with what Columbia painted as a single, unserious offer.
The ongoing Federal Circuit appeal is to date South Carolina’s only legal lever for setting a floor on the economic benefit the state will reap from federal plutonium activities within its borders. During oral arguments in May, a panel of circuit judges appeared divided about whether the trial court had made the right call. South Carolina says the National Nuclear Security Administration is still racking up fines, and that the agency by now owes twice what the state sued for in 2016.
There are about 10 tons of pre-blended, surplus plutonium stored at Savannah River now. Under a seemingly defunct agreement with Russia, on which the U.S. government nevertheless says it will make good, the NNSA plans to process a total of 34 metric tons of surplus weapon-usable plutonium for disposal via Savannah River.
The NNSA does not plan to begin removing most of the weapon-usable surplus plutonium from South Carolina until 2028 — six years after the existing deadline in federal law to remove all such plutonium from the state.
