As expected, South Carolina on Friday said it is appealing a federal judge’s refusal to force the Department of Energy to pay $200 million in fines for failing to remove weapon-usable plutonium from the state.
That is according to a notice of appeal filed with the U.S. Court of Federal Claims. The state had not filed the text of its appeal at deadline for Weapons Complex Morning Briefing.
Last week, Federal Claims Court Judge Margaret Sweeney said Congress must specifically appropriate federal funding for DOE and its semiautonomous National Nuclear Security Administration (NNSA) to spend on the fines sought by South Carolina. The state had argued the NNSA can pay the fines using money already provided by Congress to the agency’s Material Disposition account.
South Carolina sued the NNSA in 2016 after the agency missed a legal deadline to either start removing the plutonium from the state by Jan. 1 of that year, or convert the weapon-grade material into fuel for commercial nuclear reactors using the since-canceled Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site.
The same law that required the NNSA to process or remove the plutonium also required the agency to pay South Carolina up to $100 million a year in fines for every year the federal government did not do something with the plutonium.
South Carolina eventually split its case into two separate lawsuits: one in the Court of Federal Claims to pursue the fines, another in U.S. District Court to pursue removal of the plutonium.
South Carolina lost the case in the Claims Court last week, but the District Court in 2017 ordered the NNSA to remove 1 metric ton of plutonium from South Carolina. The agency announced in August that it had removed all of the material. The NNSA has said it last year sent half the material to the Nevada National Security Site. The other half was to go to the Pantex Plant in Amarillo, Texas, though the NNSA has not confirmed that this material is actually there.
