Staff Reports
NS&D Monitor
12/18/2015
The state of South Carolina threatened to sue the federal government if the Department of Energy doesn’t pay $1 million a day to the state for missing a key deadline at the Savannah River Site’s Mixed Oxide Fuel Fabrication Facility (MFFF). The facility is a critical part of the nation’s MOX project, which the U.S. would use to meet its commitment in a deal with Russia to dispose of 34 metric tons of weapon-usable plutonium.
Under a 2003 agreement with the state, DOE promised by Jan. 1, 2016, to process either 1 metric ton of the plutonium through the MFFF or remove 1 ton from the state so that South Carolina is not left housing unwanted plutonium. However, the MOX facility is far from completion. Contractor CB&I AREVA MOX Services says the facility is about 70 percent complete based on pure construction, while DOE maintains it is only about 40 percent completed based on the projected cost to finish the building. Meanwhile, DOE has voiced no plans to remove a ton of the plutonium by Jan. 1.
The expected breach pushed Gov. Nikki Haley to send a Dec. 14 letter to Energy Secretary Ernest Moniz in which she announced her intent to impose the fines. DOE would need to pay $1 million a day with an annual cap of $100 million a year. "South Carolina cannot stand idly by while DOE violates federal laws and fails to fulfill its commitment to the State," Haley wrote. If DOE refuses to pay, Haley said South Carolina will "almost certainly" pursue litigation. The Department of Energy did not state whether it would pay. Spokeswoman Francie Israeli briefly said DOE is working to meet its commitment to South Carolina.
Stakeholders are unsure if DOE will pay up because the 2003 agreement includes stipulations that would protect the department. The agreement can only be met if Congress provides money for payment and if DOE sends funds to South Carolina. SRS Watch Director Tom Clements said it’s unlikely that either will happen despite the agreement and the state’s efforts to collect the money. "I do think that any lawsuit filed by South Carolina would have some political value in underscoring the disarray of the plutonium disposition program," Clements said.
Haley’s letter marks back-to-back years in which she has vocalized a standoff with the Department of Energy over the MOX project. Following President Barack Obama’s 2014 attempt to place the project in a cold standby for fiscal 2015, Haley and state Attorney General Alan Wilson filed suit against DOE on the grounds that the federal government was breaking an agreement with the state. Wilson wrote in the lawsuit that "the administration’s misuse of federal funds violates the fundamental tenet of separation of powers and it explicitly violates a federal statute prohibiting executive agencies from expending funds for purposes unauthorized by Congress." The state dropped the suit two months later after Moniz promised construction would continue through the remainder of the fiscal year.