The state of South Carolina filed papers on Monday reasserting its request for summary judgment in its multi-million-dollar plutonium disposal lawsuit against the Department of Energy. Also this week, U.S. District Judge J. Michelle Childs rejected DOE’s request to delay a decision on summary judgment until after ruling on the federal agency’s motion to dismiss the case altogether.
The department is building the Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site to meet the terms of a deal requiring the United States and Russia to each dispose of 34 metric tons of weapon-usable plutonium. The U.S. material would be converted into commercial nuclear fuel.
Under a separate 2003 deal with the state, the federal government was required, by Jan.1, 2016, to process 1 metric ton of the plutonium through the MFFF or remove a ton from the state. Since neither occurred, the department was supposed to begin paying $1 million a day to the state, which capped off at $100 million on April 9. State Attorney General Alan Wilson waited more than a month after the deadline before suing on Feb. 9 for the $100 million and removal of the plutonium. He followed that by filing a motion on April 6 asking for summary judgment – a court ruling in the case without taking it to a jury.
On April 26, the Energy Department filed a motion to dismiss the lawsuit. On May 25, DOE requested the court postpone the hearing and decision on the request for summary judgment until after a ruling on dismissal of the lawsuit. The department said in the motion that South Carolina “has never asserted any urgency as to its two actual claims: for removal and for money.” But in Monday’s filing, South Carolina accused the federal agency of telling a “fictional version” of the agreement and of “twisting words” to avoid having to pay the penalties. The defendants in the case are the Department of Energy, Energy Secretary Ernest Moniz, the National Nuclear Security Administration (NNSA), and NNSA Administrator Frank Klotz.
“The Federal Defendants’ response has been a sneering denial that it will comply with these statutory mandates and duties,” the state said. “Instead, the Federal Defendants have effectively told this Court and South Carolina that ‘we won’t, and you can’t make us.’ The disdain displayed by the Federal Defendants towards the State and the clear statutory duties in (the agreement) demonstrates why this Court needs to order compliance.”
South Carolina highlighted other issues, including the Energy Department’s assertion that it could not grant the state the $100 million it is seeking. In its request to dismiss the case, the federal agency said the case must be handled in Federal Claims Court. But in Monday’s filing, South Carolina says that the U.S. District Court “has the power and authority” to make a ruling.
South Carolina also criticized the federal government’s attempt to abandon the MOX project. President Barack Obama’s fiscal 2017 budget proposal calls for terminating the project in lieu of a downblending alternative that would dilute the plutonium using SRS facilities and send the material to the Waste Isolation Pilot Plant (WIPP) near Carlsbad, N.M. South Carolina argued that downblending may work, but that the defendants “have not yet proved that it is a practical or viable alternative to the MOX program.”
In her Tuesday ruling, Childs stuck to her schedule for a June 30 hearing on the Energy Department’s motion to dismiss the case and South Carolina’s motion for summary judgment. Delaying a ruling on the state’s request “would not serve the interests of judicial economy and could cause prejudice” to South Carolina, she said. Childs also acknowledged the request to dismiss the case, but said the best option is to allow both parties to make their arguments during next week’s hearing, “even if the court has to allow for discovery and additional briefing subsequent to the hearing.”
The Energy Department and the South Carolina Attorney General’s Office declined to comment on the latest developments, with both stating they don’t publicly discuss ongoing litigation.