The U.S. Court of Federal Claims (CFC) should require the Department of Energy to pay South Carolina $200 million in their dispute over plutonium disposal at the federal Savannah River Site, rather than allowing the lawsuit to go to trial, the state said in a March 30 motion.
Specifically, the South Carolina Attorney General’s Office said in its request for summary judgment that the case is cut-and-dry and “presents a pure question of statutory interpretation appropriate for summary disposition.”
South Carolina has two open lawsuits against DOE, recently reduced from three, demanding the department remove 1 ton of plutonium from the state and pay an ever-growing penalty for missing the original deadline to do so.
In 2003, South Carolina agreed to let the Energy Department build at SRS the Mixed Oxide Fuel Fabrication Facility (MFFF), which is intended to convert 34 metric tons of nuclear weapon-usable plutonium into commercial nuclear fuel. Per the agreement, DOE was supposed to remove at least 1 ton of the material from South Carolina by Jan. 1, 2016, or process the same amount through the MFFF.
The federal agency would owe $1 million per day, capped at $100 million annually, for missing the deadline. With the MFFF still unfinished, and the plutonium not relocated, that total through Tuesday is $292 million.
South Carolina Attorney General Alan Wilson is seeking the first $200 million in a lawsuit in the Court of Federal Claims. The case started as two separate lawsuits, each seeking $100 million and one first filed in U.S. District Court, before Wilson’s office merged them in February at the suggestion of CFC Judge Margaret Sweeney so the entire matter could advance more smoothly.
The state’s March 30 motion says, by definition, a judge should order summary judgment in a lawsuit — rule on the merits of the case without sending it to trial — when “there is no genuine issue as to any material fact.” In that instance, “the movant is entitled to judgment as a matter of law,” according to Wilson, as the 2003 agreement clearly requires the department to pay for missing the deadline.
Wilson’s team cited the Tucker Act, which says money can be recouped, despite the federal government’s standard sovereign immunity to lawsuits, if the government fails to meet requirements under a “money-mandating statute.” Wilson believes the 2003 agreement falls into that category.
The Energy Department will be given an opportunity to respond to the motion, but it is unclear when that will happen.
The state is still seeking the plutonium removal through a lawsuit that remains in District Court. Judge J. Michelle Childs ruled in December the Energy Department must remove at least 1 ton of the plutonium from South Carolina by Jan. 1, 2020. The agency is appealing that decision.
