South Carolina should withdraw one of its two plutonium removal lawsuits – each seeking $100 million from the federal government – in the U.S. Court of Federal Claims (CFC) and amend the other suit to seek the full $200 million, a judge recommended late last week.
Doing so would resolve the Energy Department’s complaint that the state is wrongfully seeking the same outcomes in multiple lawsuits, according to CFC Judge Margaret Sweeney.
The South Carolina Attorney General’s Office suggested Tuesday it would follow Sweeney’s advice. “Given the current state of litigation, the State sees the wisdom of the Court’s approach and will seek to effectively combine the two cases,” agency spokesman Robert Kittle said by email.
South Carolina currently has three open lawsuits against the Energy Department, all based on missed plutonium recycling deadlines at the Savannah River Site near Aiken, S.C. In a 2003 agreement with the state, DOE pledged by Jan. 1, 2016, to remove 1 metric ton of plutonium from Savannah River, or convert that amount to commercial nuclear reactor fuel at the Mixed Oxide Fuel Fabrication Facility (MFFF) being built there. Neither of those has happened, leading South Carolina in recent years to fine the federal government $1 million a day up to $100 million annually.
When federal payments did not begin, South Carolina sued the Energy Department in February 2016 in U.S. District Court for South Carolina. In the suit, the state sought $100 million and the removal of plutonium. In 2017, District Judge J. Michelle Childs ruled the monetary claim should be moved to the CFC, prompting South Carolina to file suit in that venue for the 2017 dollars in August 2017 and for the 2016 money in January of this year.
