South Carolina on Monday sued the federal government again to claim $100 million it says it is owed for the Department of Energy’s failure to remove 1 metric ton of nuclear weapon-usable plutonium from the state.
The complaint filed in U.S. Court of Federal Claims, State of South Carolina vs. The United States of America, is the third in less than two years in the dispute from South Carolina Attorney General Alan Wilson. In total, the state has sued for $200 million from the federal government and has restarted a new round of penalties this year.
At issue is a 2003 agreement under which the Department of Energy pledged by Jan. 1, 2016, to remove the metric ton of plutonium from its Savannah River Site, or alternatively to convert that amount into commercial nuclear reactor fuel at the Mixed Oxide Fuel Fabrication Facility being built there. Neither of those has happened, and South Carolina says the agreement authorizes it then to fine the federal government $1 million per day up to $100 million annually.
The state initiated the penalty in January 2016, but the federal government then and now has rejected the monetary claims. South Carolina first filed suit in the Columbia, S.C., division of U.S. District Court in February 2016, seeking both the money and the plutonium removal.
In February 2017, U.S. District Judge J. Michelle Childs ruled her court was not the correct venue to pursue the monetary claim and recommended South Carolina take that issue to the CFC. Wilson followed that advice by filing suit in the Court of Federal Claims last August to demand the $100 million the state says it is due for 2017. At that time, the attorney said he would pursue the 2016 funds once the District Court matter was resolved.
On Dec. 20, Childs ordered the Energy Department to remove at least 1 ton of the material by Jan. 1, 2020. The parties have until Jan. 24 of this year to appeal that ruling, but it appears Wilson’s office nonetheless is now circling back to the 2016 money with its new case.
The new complaint alleges much of the same things as the other two suits: That South Carolina accepted transport of surplus defense plutonium to the Savannah River Site with DOE’s “explicit commitment and obligation” to in some fashion remove the material.by the 2016 deadline.
The complaint recaps various moments in the relationship between the two parties, including DOE’s 2002 approach to the state government about building the MOX facility to meet the U.S. commitment under a 2000 nonproliferation deal with Russia to eliminate 34 metric tons of surplus plutonium.Then-Gov. Jim Hodges initially hesitated, and only signed on after insisting “upon an ironclad agreement that is fully enforceable in a court of law,” according to the new suit.
The Mixed Oxide Fuel Fabrication Facility remains under construction, and has been targeted for cancellation by both the Obama and Trump administrations. The Energy Department says it has a faster, cheaper way to dispose of the plutonium, though Congress has yet to concur.
“Unfortunately, proving accurate the prior concerns expressed by the State, the Secretary and DOE have ignored their statutory mandates and commitments to the State,” South Carolina stated in its latest lawsuit. “This lawsuit seeks the recovery of the $100 million the United States currently owes South Carolina for the economic and impact assistance payments that DOE has failed and refused to pay for calendar year 2016.”
The state complaint also asks the court to award prejudgment and postjudgment interest; order reimbursement of costs and attorneys’ fees; and award “such other and further relief as this Court may deem necessary and proper.”
“We’re going to continue to fight to protect South Carolinians and make sure they get the compensation to which federal law says they’re entitled,” Wilson spokesman Robert Kittle said by email Thursday.
The Energy Department said Thursday it does not comment on active litigation.
In a separate filing Monday in the Court of Federal Claims, the Attorney General’s Office said its latest lawsuit and its August complaint should be heard by a single judge as they involve the same plaintiff and defendant and effectively the same claims.
The last action in the earlier CFC case came on Nov. 28, when Judge Margaret Sweeney said she needed to decide if her court had jurisdiction in the matter. The Energy Department argued that the Court of Federal Claims cannot hear that case as long as there is a District Court case seeking similar outcomes. South Carolina disagrees with that notion. Sweeney did not offer a timeline for her decision.
