Following the advice of a U.S. Court of Federal Claims (CFC) judge, the state of South Carolina this week dismissed one of its two $100 million lawsuits against the U.S. Department of Energy, and amended the other to reflect a $200 million total demand.
Both suits, and a third case in the U.S. District Court of South Carolina, are based on the state’s claim that the federal government has breached an agreed-upon deadline to remove 1 metric ton of plutonium from the Savannah River Site near Aiken, S.C.
By combining the two lawsuits, CFC Judge Margaret Sweeney believes South Carolina is addressing the Energy Department’s argument that it cannot face more than one open lawsuit at any given time from the state. While the District Court case remains unresolved, Sweeney said that lawsuit appears close enough to resolution to skirt DOE’s argument.
South Carolina Attorney General Alan Wilson agrees. “This makes sense for South Carolina because it doesn’t hurt the state’s case in any way but does make it a lot easier,” Wilson spokesman Robert Kittle said by email Tuesday. “Now, both $100 million claims are in one lawsuit in the Court of Federal Claims.”
All the cases are all based on a 2003 state-federal agreement that allowed DOE to build the still-unfinished SRS Mixed Oxide Fuel Fabrication Facility (MFFF) for conversion of 34 metric tons of weapon-usable plutonium into commercial nuclear fuel. Under the agreement, the federal agency was supposed to process 1 ton of the plutonium, or remove it from South Carolina, by Jan. 1, 2016, or pay the state $1 million a day, capping off at $100 million annually.
When payments did not begin, Wilson sued the department in February 2016 in U.S. District Court, seeking the $100 million for that year as well as the plutonium removal.
In February 2017, District Judge J. Michelle Childs directed the state to pursue the monetary claim in the CFC, saying past cases have shown the Court of Federal Claims provides an “adequate remedy” to such matters. Wilson’s office filed for the 2017 funds last August and filed for the 2016 funds on Jan. 8. The state has also started fining DOE again for 2018 — up to $65 million as of Tuesday.
After the Energy Department sought dismissal of the first CFC suit on Oct. 6, 2017, Sweeney suggested on Feb. 15 that South Carolina combine the two cases. The state did so Monday in a one-sentence voluntarily dismissal of the first lawsuit.
Sweeney officially terminated the suit Tuesday – the same day South Carolina updated the second CFC suit. The amended complaint basically reads the same as the original, but cites money owed for both 2016 and 2017: “This lawsuit seeks the recovery of the $200 million the United States currently owes South Carolina for the economic and impact assistance payments that DOE has failed and refused to pay for calendar years 2016 and 2017.”
The plutonium removal question remains in District Court. Childs ruled on Dec. 27 that the Energy Department must remove at least a ton of plutonium from the state by Jan. 1, 2020. The department is appealing that ruling, saying two years is not enough time to meet federal safety regulations that are required before removing the material.
