South Carolina on Monday again urged a federal judge to reconsider her finding that the U.S. District Court has no jurisdiction over monetary claims levied against the Energy Department for failing to remove plutonium from the state earlier this year, according to court papers.
South Carolina sued DOE in February after the agency failed to remove 1 metric ton of plutonium from the state under the terms of the federal facilities agreement that governs nuclear waste cleanup at the Savannah River Site near the city of Aiken. Alan Wilson, South Carolina’s attorney general, demanded that DOE move the plutonium out of state and pay $100 million for blowing the deadline.
In an Oct. 31 order, Judge J. Michelle Childs found the U.S. District Court had no jurisdiction over the monetary claim, but does have jurisdiction over Columbia’s demand that DOE remove plutonium from the state. Childs asked parties to the lawsuit to file briefs explaining whether the monetary claims could be transferred to the U.S. Court of Federal Claims.
The state, in a supplemental brief filed Monday, argued against transferring the case, but conceded it would as a last resort pursue the monetary penalties against DOE in the Court of Federal Claims. Procedurally, that means Childs would have to dismiss the monetary claim without prejudice, rather than transfer the claim to the other court, according to the supplemental brief.
DOE, in its own supplemental brief filed Monday, agreed that Childs should dismiss the monetary claim without prejudice, “because that disposition will allow South Carolina, as the plaintiff, to determine both which remedies to pursue and the timing of that pursuit.”
The agency wanted the case thrown out of court entirely, but Childs, in her Oct. 31 order, declined to do that.
