South Carolina and the National Nuclear Security Administration (NNSA) could be about to cut a deal in the state’s $200 million lawsuit over the federal government’s failure to remove plutonium from the Savannah River Site, court papers show.
On Tuesday, the U.S. Court of Appeals for the Federal Circuit granted a joint motion to stay the case until Aug. 31.
South Carolina says it is legally entitled to $200 million in economic assistance payments from the Department of Energy’s semiautonomous nuclear-weapon agency, which failed to meet a 2016 deadline set in federal law to start removing surplus weapon-usable plutonium from the state. The case is on appeal after the Court of Federal Claims supported the NNSA’s position that it cannot pay the money without a specific appropriation from Congress, which it has not received.
The case has been at this crossroads before, only to have settlement talks collapse amid complaints that the federal government offered what South Carolina considered a single, unserious offer.
The ongoing Federal Circuit appeal is to date South Carolina’s only legal lever for setting a floor on the economic benefit the state will reap from federal plutonium activities within its borders. During oral arguments in May, a panel of circuit judges appeared divided about whether the trial court had made the right call.
South Carolina says the National Nuclear Security Administration is still racking up fines, and that the agency by now owes twice what the state sued for in 2016. Federal law entitles South Carolina $1 million a day in fines, up to $100 million a year, for every day past Jan. 1, 2016 that DOE doesn’t remove plutonium from the state.
There are about 10 tons of surplus plutonium stored at Savannah River now, all of which was brought there under a seemingly defunct agreement with Russia. Under that agreement on which the U.S. says it will still make good, the NNSA agreed to process a total of 34 metric tons of surplus weapon-usable plutonium for disposal.
The agency did remove 1 metric ton of that plutonium from Savannah River between 2018 and 2019, under order from a federal judge in a separate lawsuit filed by South Carolina. Half that plutonium went to the Nevada National Security Site, and the other half was supposed to go to Pantex, though the NNSA did not confirm t did.
However, the NNSA does not plan to begin removing the bulk of the weapon-usable surplus plutonium at Savannah River Site from South Carolina until 2028 — six years after the existing deadline in federal law to remove all such plutonium from the state.
