A federal judge has dismissed South Carolina’s claim seeking $100 million for the missed plutonium disposal deadline at the Savannah River Site’s Mixed Oxide Fuel Fabrication Facility (MFFF). U.S. District Judge J. Michelle Childs on Wednesday also sent another request against the Department of Energy – for the removal of 1 metric of weapons-usable plutonium from the state – to mediation.
South Carolina sued DOE in federal court in February 2016, arguing the agency breached a 2003 agreement that required it to remove 1 ton of plutonium from the facility near Aiken, S.C., by Jan. 1, 2016, either by processing the material at the still-under-construction MFFF, or by moving it out of state.
Under the 2003 accord, South Carolina can fine DOE up to $100 million annually for every year it fails to remove the plutonium. The state hit the maximum amount last year in April. But when the calendar turned over to 2017 and DOE still had not dealt with the plutonium, South Carolina resumed fining the agency at a rate of $1 million a day. DOE, meanwhile, argued that the Court of Federal Claims was the correct forum for the monetary dispute.
On Wednesday, Childs ordered DOE and South Carolina to the negotiating table to attempt a settlement on the plutonium question, while also dismissing the monetary claim, “without prejudice to the State’s ability to prosecute it an original action filed in the Court of Federal Claims.”
The two sides remain far from agreement over the agency’s conduct, according to the legal arguments the parties have advanced in court papers over the last year. DOE maintains the 2003 agreement required the agency to set goals for removing the plutonium by Jan. 1, 2016, not to actually remove the plutonium from South Carolina by that date.
The parties must complete the mediation before July 7, Childs ordered.
