As expected, South Carolina appealed 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.
The state docketed its appeal with the U.S. Court of Appeals for the Federal Circuit Court on Thursday, but had not at deadline Friday filed a brief explaining its problem with a late August ruling by Judge Margaret Sweeney in the U.S. Court of Federal Claims.
In an order granting the federal government’s motion to dismiss the state’s monetary claim, Sweeney said Congress must specifically appropriate funding for DOE and its semiautonomous National Nuclear Security Administration (NNSA) to spend on the fines. The state 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 directed the NNSA to process or remove the plutonium also required the agency to pay South Carolina up to $100 million annually in fines for every year the federal government did not do something with the material.
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.
While South Carolina lost its case in the Claims Court, 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.
Federal law requires the NNSA to either process or remove all the remaining MFFF-bound plutonium at the Savannah River Site by 2022. There is about 10 metric tons of such material at the site today.
The NNSA it will not begin processing the material for removal from Savannah River until 2028: the date the agency believe its Surplus Plutonium Disposition Program will begin chemically weakening the plutonium and mixing it with concrete-like grout called stardust in preparation for burial deep underground at the Department of Energy’s Waste Isolation Pilot Plant near Carlsbad, N.M.
