South Carolina’s attempt to wrench hundreds of millions of dollars in plutonium-related fines from the Department of Energy is headed to oral arguments before a panel of appeals judges May 5, according to a Friday court filing.
South Carolina 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 Appropriations Act, to recoup up to $100 million a year because the agency had not started removing plutonium 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 for 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 has to be out by 2022.
South Carolina successfully leveraged the 2002 law to get 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. Under a separate U.S. District Court lawsuit, the plutonium was shipped to NNSA facilities in Nevada and Texas.
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 about $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 agency and the state have discussed settling the Claims Court suit, but the talks ultimately went nowhere.
