South Carolina says the U.S. Department of Energy owes another $100 million for failing to meet its commitment for disposal of plutonium from the Savannah River Site, and will owe more in 2020 even if the agency meets its federal court-mandated deadline to remove 1 metric ton of plutonium from the state by the end of the year.
That is because, under a 2003 state-federal agreement, the Energy Department had to remove 1 metric ton of plutonium annually for six years, from 2016 to 2021, according to South Carolina’s interpretation of the deal.
The agreement states that DOE was supposed to, by Jan. 1, 2016, remove the metric ton of plutonium from the state, or convert the same amount into nuclear reactor fuel at the Mixed Oxide Fuel Fabrication Facility (MFFF) project terminated last October. From there, a metric ton was to be removed from the state each year until 2021. For each year a ton is not removed, South Carolina is to be paid $1 million per day, capping at $100 million annually, for six years.
April 10 capped off a fourth consecutive year of South Carolina imposing $100 million in fines against the Energy Department. The state in February 2016 sued in U.S. District Court to demand the money and removal of at least 1 metric ton. State Attorney General Alan Wilson in January 2018 moved the monetary claim to the U.S. Court of Federal Claims (CFC), while keeping the plutonium removal portion in District Court.
District Judge J. Michelle Childs suggested that move in December 2017, while also ordering DOE to remove 1 metric ton of plutonium by January 2020. The Energy Department has been making good on that mandate, confirming in January it had already transported a half-ton to the Nevada National Security Site. The remainder is headed to the Pantex Plant near Amarillo, Texas, but the Energy Department has not said if material has already been shipped. Eventually, the full metric ton will be sent to the Los Alamos National Laboratory in New Mexico for use in production of fissile nuclear-warhead cores.
Even when that happens, the Energy Department could still have hundreds of millions of dollars to pay, on top of the $400 million accrued from 2016 to 2019. “DOE would need to remove additional tonnage to halt the penalties. Even with the 1-ton removal they will still accrue penalties,” said Robert Kittle, a spokesperson for the South Carolina attorney general, by email.
Kittle was referring to the language in the 2003 agreement. The state’s understanding is that 1 metric ton of plutonium must be removed from the Savannah River Site and South Carolina each year, from 2016 to 2021. That means the ton being currently removed represents 2016, and that DOE is still on the hook for 5 more: 3 more tons to date, and 2 more through 2021.
Per standard policy, the Energy Department this week declined to discuss the litigation.
Beyond 2021, South Carolina could impose other penalties against the Energy Department. The agreement states that, if at least 3 metric tons of plutonium have not been processed by the MFFF by Jan.1, 2022, then the federal agency must remove all of the plutonium sent to Savannah River between April 15, 2002 and Jan.1, 2022.
If DOE fails to remove all of the plutonium, penalties of $1 million per day with annual caps of $100 million would continue. The 2003 agreement is enshrined by the National Defense Authorization Act (NDAA) from that year.
Kittle said South Carolina is seeking $400 million in the Court of Federal Claims suit, though only half of that is mentioned in the current version of the case. “The appropriations language (in the lawsuit) is the same, so as a practical matter, this lawsuit will cover the entire $400 million now owed,” he wrote in an email.
The two parties are currently in settlement discussions, which are expected to wrap up by the end of May.
