The state of South Carolina has asked for summary judgment in its recent $100 million lawsuit against the Department of Energy over plutonium disposition at the Savannah River Site. The request was filed Oct. 6 – the same day the federal agency asked that the suit be thrown out.
South Carolina filed the complaint on Aug. 7 in the U.S. Court of Federal Claims (CFC). The suit represents half of the total amount the state is seeking for DOE’s failure to remove 1 ton of plutonium from the state by the start of 2016. The other $100 million is covered in a suit South Carolina filed early last year that remains in U.S. District Court.
Both lawsuits were based on a 2003 deal in which DOE agreed to remove the ton of plutonium by Jan. 1, 2016, or to process it at the Mixed Oxide Fuel Fabrication Facility that remains under construction at the Savannah River Site. A congressionally mandated stipulation directed the federal agency to pay $1 million per day, up to a maximum of $100 million annually, upon breaching the deadline.
In their request for an immediate ruling in favor of South Carolina, the state’s lawyers wrote that the case is cut and dried because “all material facts are undisputed.”
“This failure triggered the Secretary and DOE’s statutory obligation to provide economic and impact assistance payments to South Carolina of $1 million per day for the first 100 days of each year through 2021 until the MOX production objective is met, or one metric ton of defense plutonium or defense plutonium materials is removed from South Carolina in such year,” the state said.
In its request for dismissal filed on Oct. 6, the federal government countered that the Court of Federal Claims has no jurisdiction over the matter. Specifically, DOE said federal law does not allow South Carolina to pursue the money at this time because the parties are already involved in the District Court lawsuit filed last year.
That assertion is based on 28 U.S.C. § 1500, a section in CFC codes. “At the time that the State of South Carolina filed its complaint in this Court, it had a suit pending in the United States District Court for the District of South Carolina. That suit was based upon the same set of operative facts arising out of the same alleged government conduct,” according to the DOE filing. “Based on section 1500’s broad proscription of this Court’s jurisdiction in such a circumstance, the complaint must be dismissed.”
As the two sides battle it out in the Court of Federal Claims, their associated dispute in federal District Court remains open. The last action came in August when South Carolina and DOE gave statements as to why they could not agree on new plutonium removal deadlines in settlement talks. In short, the state wants at least 1 ton of plutonium removed within two years of settling the dispute. The department says that timeline is impossible to reach due to the security and safety requirements that go into handling the material.
