The federal government this week doubled down on its request that the Court of Federal Claims dismiss South Carolina’s lawsuit over disposal of nuclear weapon-usable plutonium at the Department of Energy’s Savannah River Site.
The filing arrived just days after the prime contractor on the Department of Energy facility designed to convert that plutonium into commercial reactor fuel said government meddling on the project made it impossible for the company to fulfill its contractual obligations and earn its fees.
Both the state and contractor filed their latest lawsuits against the Department of Energy in August.
South Carolina Wants Plutonium Out, Or Money In
On Aug. 7, South Carolina sued the Energy Department in the Court of Federal Claims, seeking half of the $200 million the state says it is owed for the federal government’s continued failure to dispose of 1 ton of plutonium stored at the Savannah River Site. The other $100 million is covered in a 2016 lawsuit filed in U.S. District Court for South Carolina.
In a Tuesday court filing, lawyers representing DOE wrote that Judge Margaret Sweeney’s court has no jurisdiction over the matter, despite South Carolina’s claim that Sweeney has the right to hand down a verdict. The department has opposed South Carolina’s pursuit of $100 million in the Court of Federal Claims, arguing the state cannot pursue the money because it is already seeking $100 million in a lawsuit in U.S. District Court.
Lawyers for the state said in both suits DOE breached a 2003 agreement to remove the plutonium from South Carolina by Jan. 1, 2016, or to process it at the Mixed Oxide Fuel Fabrication Facility, which remains under construction at the Savannah River Site. The facility would be used to meet the terms of a 2000 U.S.-Russian agreement that requires each nation to dispose of 34 metric tons of nuclear weapon-usable plutonium.
Under the agreement, the federal agency was supposed to pay $1 million per day, up to a maximum of $100 million annually, upon breaching the deadline. In February 2016, South Carolina Attorney General Alan Wilson sued the Energy Department when payments did not begin. U.S. District Judge J. Michelle Childs ruled in February of this year that her court does not have jurisdiction over the $100 million claim, but suggested the state take the matter to the Court of Federal Claims.
Wilson took the advice and is seeking the 2017 bounty in CFC. He says he’ll do the same for the 2016 penalty once the rest of the suit wraps up in Childs’ court. The parties are collaborating on a new schedule for plutonium removal from SRS, but have yet to agree on dates.
Federal attorneys wrote in the document filed Tuesday that the Court of Federal Claims lawsuit should be thrown out because U.S. law does not allow South Carolina to pursue two suits against DOE that seek similar outcomes. Last month, the state wrote that the suits “do not share a single operative fact.”
Lawyers for the federal government responded: “This is incorrect. As demonstrated below, South Carolina’s entire district court complaint – including its monetary claim for economic and assistance payments – remains ‘pending.’ The operative facts of that claim and its claim for economic and assistance payments in this Court are substantially the same. South Carolina’s claim in this Court is, in effect, a continuation of its same claim in district court.”
The lawyer group buffered its point by adding that South Carolina filed “duplicative” monetary claims. And, even if the state hadn’t, “the substantial overlap of operative facts between the monetary claim in this case and South Carolina’s pending removal claim in district court alone would justify dismissal,” they said.
CB&I Says NNSA Passed Buck For Federal Failures
The Energy Department fired the latest volley in the state lawsuit shortly after CB&I AREVA MOX Services, prime contractor on the MOX plant at Savannah River, filed an amended complaint with the claims court demanding more than $200 million in damages.
CB&I AREVA says DOE’s semiautonomous National Nuclear Security Administration (NNSA) mismanaged the MOX contract, then blamed resulting delays and missed milestones on the contractor.
“Due to events and circumstances caused by NNSA or for which NNSA accepted the risk – including domestic and international political events that have directly impacted the project, uneven congressional support for the project evidenced by inadequate funding, and NNSA mismanagement – the work MOX Services must perform to fulfill the contract has increased substantially,” CB&I AREVA wrote in a 27-page amended complaint filed last week.
“Rather than properly acknowledge the effects of these events and circumstances as scope changes to the contract or risks assumed by NNSA, at nearly every turn NNSA has blamed MOX Services,” the company said.
The NNSA declined to comment this week, citing its policy against discussing pending litigation.
The Department of Energy since 1999 has spent $5 billion on the MOX project. The Barack Obama administration said the MOX process would cost too much and called for canceling the project and instead diluting the surplus plutonium, mixing the material into concrete pillars, and disposing of cylinders at the Waste Isolation Pilot Plant in New Mexico. The Trump administration has gone along with this plan, but the fate of the South Carolina facility remains uncertain.
Congress has so far refused to fund any effort to cancel the project. In fact, the 2018 unified National Defense Authorization Act produced this week by a bicameral conference committee authorizes the project to continue.
