COLUMBIA — It’s now up to a federal judge to decide whether South Carolina’s lawsuit against the federal government over an unfinished plutonium processing project at Savannah River Site should be dismissed, or whether the state’s pursuit of millions of dollars in fees should move forward.
During a hearing in federal court in Columbia, attorney Randy Lowell said Thursday that the law is clear that the government owes South Carolina millions of dollars in fees and also must remove plutonium from the state because the processing plant wasn’t operational on time.
“All of this is a problem of their own creation,” Lowell, representing the state, said during a 90-minute hearing.
In February, South Carolina sued the U.S. Department of Energy over the mixed-oxide fuel project at SRS. The multibillion-dollar project was intended to help the U.S. fulfill an agreement with Russia to dispose of at least 34 metric tons apiece of weapons-grade plutonium, an amount that’s enough for about 17,000 nuclear warheads.
The plant is years behind schedule and billions over budget. Because the facility wasn’t operational by a Jan. 1, 2016, deadline, the federal government was supposed to remove 1 metric ton of plutonium from South Carolina or pay fines of $1 million a day – up to $100 million yearly – until either the facility meets production goals or the plutonium is taken elsewhere for storage or disposal.
Lowell argued that the government has given South Carolina repeated assurances that no plutonium would enter the state without a pathway out – such as the production of mixed-oxide fuel, which would be sold to commercial power producers – thus keeping the state from being a permanent home for the materials.
But that hasn’t happened, Lowell said. He asserted that the government is in breach of the law governing the project.
“The whole purpose of the statute is to ensure that we are not the dumping ground,” he said.
Attorneys for the federal government argue that, while the MOX facility isn’t up and running, the Energy Department is already pursuing an alternate way to process the plutonium and send it out of state for permanent storage.
“The agency has spent years testing out different ways of dispositioning the plutonium at SRS,” government attorney Spencer Amdur argued. “The agency is already doing it.”
Given that alternate plan, Amdur argued that the lawsuit should be dismissed because the fees must legally be dealt with not in the U.S. District Court but in the U.S. Court of Federal Claims.
“The Court of Claims is perfectly capable of awarding South Carolina the $100 million that it wants,” he said.
Attorney General Alan Wilson and several lawyers from his office attended Thursday’s hearing.
Also in the courtroom were half a dozen people who oppose the plutonium project and, before the hearing held “Stop Plutonium” signs. One of them, Gary Dexter, said that the mixed-oxide fuel debate is similar to many other Energy Department projects, which can often take decades to complete.
“What they want to do is kick it on down the road,” said Dexter, 62, who for several years trained maintenance employees for work at SRS. “Don’t bring anything else into this state. Please.”