Lawyers for the U.S. Department of Energy filed more arguments Wednesday for why a federal judge should delay a hearing on South Carolina’s lawsuit over delayed removal of nuclear materials.
Judge J. Michelle Childs scheduled a hearing for June 30 in Columbia, but the Energy Department’s lawyers say there’s too much to do before then. Besides, they want her to rule first on their motion to dismiss the case altogether.
South Carolina filed suit in February asking for the $100 million in penalties that a federal law assesses the agency for not removing 2 metric tons of plutonium from Savannah River Site. The law was to ensure construction remained on schedule for the mixed-oxide fuel plant on the site, but the builders are still late.
The Energy Department contends that the law requires only that removal goals be set rather than the actual removal.
“The position of the federal defendants is obviously to deny everything, including the effectiveness of the plainest statutory directives, while avoiding resolution of the merits for as long as possible through the use of preliminary motions and a stay request,” South Carolina’s legal team stated in its filing Tuesday.
Lawyers for the state told Childs that the hearing is urgent because the Obama administration is asking Congress to fund a halt to construction on the MOX facility and because more plutonium from international sources is planned for shipment to the site for processing.
“But both of its reasons for urgency ring hollow,” wrote Assistant U.S. Attorney Barbara Bowens in the latest Energy Department brief.
Construction on the MOX facility is behind schedule and about $8 billion over budget, by some critics’ estimates. The Obama administration says that’s why it wants to shut the program down and use a different method of disposing of 34 metric tons of plutonium.
Bowens argues that the elimination of the MOX program doesn’t affect any of the state’s claims to the money and that South Carolina’s original legal filings didn’t bring up the issue of importing more material.
South Carolina wants the judge to rule on what courts call summary judgment. Such a hearing doesn’t involve days of testimony because both sides generally agree on the facts, just not how the law applies.
Before agreeing on the circumstances, Bowens wrote, federal attorneys still must investigate more aspects of the case.