South Carolina’s attempt to wrench hundreds of millions of dollars in fines over Department of Energy management of plutonium in the state is headed to oral arguments before a panel of appeals judges May 5, according to a recent court filing.
The South Carolina state government has been trying to extract the money from DOE and its National Nuclear Security Administration (NNSA) since 2016. That was the first year the state was eligible, under a provision of the 2002 National Defense Authorization Act, to recoup up to $100 million per year because the agency had not started removing plutonium from its Savannah River Site.
South Carolina is appealing a 2019 ruling from the U.S. Court of Federal Claims that the NNSA does not have to pay fines until, and unless, Congress specifically appropriates funds for that purpose. The state maintains the agency can tap into its Material Disposition account to make the “economic assistance payments.” Congress did not forbid the agency from using the account for that purpose, the state looks set to argue in the Court of Appeals for the Federal Circuit.
South Carolina’s lawsuit covers $200 million worth of payments due from 2016 and 2017, but the state says $200 million more accrued in 2018 and 2019. South Carolina Attorney General Alan Wilson has said DOE is also racking up fines in 2020. Under federal law, the state can charge $1 million daily for the first 100 days of any year in which the NNSA does not remove some plutonium from the state. Under existing law, it all must be out by 2022.
South Carolina successfully leveraged the 2002 law to have 1 metric ton of surplus plutonium transported out of the state over the past two years, but no luck at all wielding the law to wring money from the NNSA. To comply with a separate U.S. District Court decision in 2017, the NNSA shipped the ton of plutonium out of the state prior to Jan. 1, 2020. Half went to the Nevada National Security Site, and half was supposed to go to the Pantex Plant in Texas, though the agency has not confirmed that it did.
In the early 2000s, the NNSA said it would move 34 metric tons of plutonium to South Carolina and then convert it into fuel for commercial nuclear reactors using the now-canceled Mixed Oxide Fuel Fabrication Facility (MFFF). The MFFF’s construction costs eventually ballooned to the point at which the NNSA in 2018 formally terminated the project in favor of the “dilute-and-dispose” approach.
Only about 10 metric tons of plutonium intended for MFFF ever made it to Savannah River.
The NNSA now says dilute-and-dispose will not begin until 2028 — six years after the 2022 legal deadline for the agency to remove all the plutonium it shipped to South Carolina for the MFFF project. The new disposal method is expected to cost roughly $20 billion over its lifetime — 2019 through 2050 — compared with about $50 billion for the MFFF, according to a 2018 report from the NNSA’s Cost Estimating and Program Evaluation Office.
The NNSA says dilute-and-dispose, officially called Surplus Plutonium Disposition, is the fastest way to get plutonium out of Savannah River. The method involves chemically weakening the plutonium, mixing it with a classified, concrete-like binder called stardust, and burying the resulting mixture deep underground at DOE’s Waste Isolation Pilot Plant near Carlsbad, N.M.
The MFFF, meanwhile, is to be converted into a plutonium pit production plant, which the NNSA hopes will switch online in 2030 to produce at least 50 fissile cores for W87-1 style warheads: the tip of the planned Ground-Based Strategic Deterrent intercontinental ballistic missiles that will replace the Minuteman III fleet beginning in the next decade. The pits would not be made from the surplus plutonium tranche at Savannah River.
The agency and the state have discussed settling the Claims Court suit, but the talks ultimately went nowhere.
