South Carolina wants a U.S. District Court judge to reconsider her recent opinion that she has no jurisdiction to rule on the $100 million the state is seeking in its lawsuit over disposition of DOE plutonium stored at the Savannah River Site near Aiken, S.C.
State Attorney General Alan Wilson sued the Energy Department, Energy Secretary Ernest Moniz, the National Nuclear Security Administration (NNSA), and NNSA Administrator Frank Klotz, on Feb. 9 – more than a month after the Jan. 1, 2016, deadline set under a 2003 federal-state agreement for removal or processing of 1 metric ton of plutonium from South Carolina.
The material was to have been processed at the Mixed Oxide Fuel Fabrication Facility (MFFF) at SRS, which remains under construction. The Obama administration has sought to cancel the project, saying a DOE alternative would save tens of billions of dollars and years of time.
The Department of Energy has estimated the life-cycle cost of the MOX project at up to $51 billion, including $17 billion for building the MFFF. The rest of the funds would be used to construct and operate necessary facilities to convert the material to nuclear fuel. About $5 billion has already been spent on construction, which the department says will not be completed until 2049, assuming annual funding of roughly $350 million. The project received $345 million for fiscal 2015 and $340 million for fiscal 2016. CB&I AREVA MOX Services, the project’s prime contractor, has argued against that assessment, stating last year that the entire project should only cost $19 billion.
The state, in its lawsuit, is seeking $100 million and removal of 1 metric ton of plutonium from SRS. During a June 30 hearing, Judge Michelle Childs heard arguments concerning South Carolina’s pursuit of the money and plutonium removal, and DOE’s reasoning against the state case. On Oct. 31, Childs said she was not prepared to rule in the lawsuit and would need additional briefings before moving forward. The order explained that Childs believes her court has jurisdiction to rule on the removal of plutonium but lacks jurisdiction to rule on the $100 million sought by the state. “The court believes it is in the interests of justice and judicial efficiency to receive further briefing on the next step in this litigation,” the order states.
Initially, both sides were supposed to file briefings by Nov. 30 addressing whether Childs should transfer the monetary claims sought by South Carolina to the Court of Federal Claims (CFC), or if she should dismiss the monetary claim altogether. But Childs agreed to the state’s request to extend the deadline to Dec. 5.
On Nov. 28, the state filed a motion asking Childs to reconsider her decision to withhold a ruling. “The Court erroneously concluded that it lacked jurisdiction over the relief sought,” Wilson, and fellow attorneys Randolph Lowell and William Davidson, wrote in the motion.
They added that it is illogical for the District Court to acknowledge jurisdiction over the plutonium removal but differ to the CFC for a monetary relief. Childs’ opinion puts the matter into the hands of two courts because, according to the state, the CFC cannot rule on the plutonium removal request. “The Order creates a situation in which neither this Court nor the CFC can award complete relief for the Federal Defendants’ unlawful agency action,” they wrote.
