A federal judge on Monday ordered that 1 metric ton of plutonium be removed from South Carolina, but did not set a schedule for that to happen because she wants the Energy Department and the state – the two sides in a year-old lawsuit – to make that determination together over the next month.
The state sued the Department of Energy and its semiautonomous National Nuclear Security Administration last year, claiming they had breached a 2003 agreement to by Jan. 1, 2016, process 1 metric ton of plutonium at the still-under-construction Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site or remove an equal amount of material from the DOE facility. Neither happened, prompting state Attorney General Alan Wilson to sue in February 2016.
In a 37-page order on Wilson’s motion for summary judgment, U.S. District Judge J. Michelle Childs wrote that she is partially granting South Carolina’s request to have the Energy Department remove 1 metric ton of the plutonium from the state. Specifically, Childs said she agrees the material should go because DOE did pledge in 2003 to remove the plutonium; however, her order does not dictate immediate extraction.
“Defendants have asserted that the [Energy] Secretary could not, consistent with [the National Environmental Policy Act] and other applicable laws, immediately remove the one metric ton of defense plutonium, and they have supported this assertion with a great deal of evidence,” Childs wrote.
The Energy Department has argued that NEPA prevents the agency from immediately moving the plutonium because it currently does not have another suitable location for storage. The judge’s order says, “The State has conceded this point. … Because there is no dispute that the Secretary could not immediately remove from South Carolina the one metric ton of defense plutonium in a manner consistent with NEPA and other applicable laws, the court cannot order immediate removal.”
Furthermore, Childs said she would retain jurisdiction over the case “until the forthcoming injunctive relief is entered.” She wrote that the two sides still must work out other aspects of the lawsuit, and produce a joint statement by April 21 that should cover proposed deadlines and schedules for plutonium removal.
“Neither Defendants nor the State have provided sufficient evidence or argument upon which the court might properly craft an injunctive order,” she wrote. “Accordingly, the court will not enter the order until after it has obtained further submissions from the parties.”
The judge noted that she had previously dismissed two other motions from the state: a requirement that the federal government pay the state $100 million per year in fines while it remained in violation of the agreement, and the assertion that DOE’s failure to meet the terms of the 2003 deal violated the U.S. Constitution. On the former, South Carolina has the option to file a new complaint in the Court of Federal Claims (CFC). Hayley Thrift, a spokeswoman for Wilson, said a new complaint has not yet been filed.
The Energy Department and the state both declined to comment on Childs’ latest order.
