A federal judge did not recognize the Department of Energy’s legal obligation to pay hundreds of millions of dollars in plutonium-related fines to South Carolina, or properly vet the state’s claim that the agency has the money to pay up, according to court papers filed this week.
In appealing the ruling in the 2016 lawsuit in the Court of Federal Claims, South Carolina stuck to its argument that DOE’s National Nuclear Security Administration (NNSA) can tap into the Materials Disposition account of the agency’s Office of Defense Nuclear Nonproliferation to pay $200 million worth of fines.
The fines — officially, economic and impact assistance payments — are essentially “the ‘rent’ for continued storage” of weapon-usable plutonium at the Savannah River Site beyond Jan. 1, 2016, attorneys for South Carolina wrote in an appellate brief with the U.S. Court of Appeals for the Federal Circuit. The Energy Department was supposed to start moving plutonium out of state in 2016.
Also in its appellate brief, South Carolina said the Court of Federal Claims’ Aug. 20 decision to deny summary judgment in its favor erroneously put the onus for finding money for the fines on the state.
“The Court of Federal Claims’ assertion that the State should have asked Congress for appropriations for the assistance payments is absurd,” according to the appeal. “It was DOE’s statutory responsibility to provide the assistance payments, not the State’s.”
As for why Congress never appropriated money for the fines, “DOE did not include in its annual budget requests submitted to Congress for fiscal years 2016 and 2017 any specific request for additional appropriations to make the economic and impact assistance payments,” South Carolina’s lawyers wrote in its brief.
DOE was supposed to start removing weapon-usable plutonium from South Carolina on the first day of 2016. After that date, South Carolina was allowed to claim up to $100 million a year in fines if the agency kept the material in state, under a federal law enacted in 2003 and amended since. The lawsuit now on appeal covers 2016 and 2017, but South Carolina has not ruled out filing additional lawsuits to collect for 2018 and beyond.
South Carolina docketed its appeal over the summer but did not file its brief until this week. The Energy Department had not filed a response to the appellate brief at deadline Friday for Nuclear Security & Deterrence Monitor.
The NNSA was supposed to dispose of 34 metric tons of weapon usable plutonium by converting it into commercial reactor fuel using the now-canceled Mixed Oxide Fuel Fabrication Facility at the Savannah River Site. The Energy Department wants to turn this partially built disposal facility into a factory to annually produce 50 fissile nuclear-weapon cores called plutonium pits by 2030. Congress still has to approve that plan.
As for the plutonium that would have been converted at the Mixed Oxide Fuel Fabrication Facility, the NNSA now plans to dispose of the material by diluting it at planned Savannah River Site facilities, then burying it deep underground at DOE’s Waste Isolation Pilot Plant in New Mexico. That plan is known officially as Surplus Plutonium Disposition, and informally as dilute-and-dispose.
Dilute-and-dispose would not start processing plutonium for shipment out of state until 2028, according to the NNSA’s current plans.
