A South Carolina claim to a $100 million penalty in a lawsuit against the U.S. Department of Energy was dismissed from federal circuit court last week, leaving the state without answers after a series of missed deadlines and broken agreements at Savannah River Site's unfinished Mixed Oxide Fuel fabrication facility.
The lawsuit alleged the Department of Energy broke federal law when it failed to meet a series of obligations connected to the MOX project. According to the law, the facility was to be completed by January 2014. Since that deadline was missed, the DOE was required by the law to remove at least one metric ton of defense plutonium from the Palmetto State by Jan. 1, 2016.
That deadline wasn't met, which started a $1 million daily ticker that reached its annual maximum of $100 million last April. Last February, the state attorney general and Gov. Nikki Haley filed suit to enforce the requirements.
MOX is designed to take weapons-usable plutonium and convert it into fuel that can be used in commercial nuclear power plants, such as Plant Vogtle. It was born from an American-Russian agreement signed in 2000 that committed each nation to demilitarization of 34 metric tons of plutonium. MOX was the agreed vehicle to substantiate that agreement.
The MOX facility has a current price tag of about $5 billion but is far from finished. CB&I Areva MOX Services, the facility contractor, claims the construction is nearly 70 percent complete. The National Nuclear Security Administration, the DOE office overseeing MOX, disagrees, saying the construction is 30 percent complete. Each entity uses different means to measure progress.
The Obama administration tried to mothball the MOX project in favor of an alternative disposal method for defense plutonium. That and other "unfriendly" actions led the Russians to suspend the agreement in October, according to Russian state-run media.
The decision by Judge J. Michelle Childs comes after arguments from the Energy Department counsel that monetary claims are under the jurisdiction of the Court of Federal Claims. Childs agreed and granted the Energy Department motion to dismiss that claim.
Two other claims are still under Childs' jurisdiction in the suit, including enforcement of the Energy Department's commitment to remove at least 1 metric ton of plutonium from the state for each year it remains on the wrong side of the deadlines. Those claims are now in the mediation process.
The other claim asks the judge to enforce a clause preventing the Energy Department from bringing defense plutonium to SRS. Hearings will get underway later this year, and a ruling is expected by the end of 2017.
The $1 million daily counter started over on Jan. 1, just weeks before Nikki Haley left to become U.N. ambassador and Lt. Gov. Henry McMaster took the helm.
According to McMaster's press secretary, Brian Symmes, "Gov. McMaster looks forward to the results of mediation but will not accept anything short of the Department of Energy agreeing to follow the law and fulfill its responsibility to South Carolina. Our state will not stand by and become a dumping ground for nuclear waste."
According to a spokeswoman from the state attorney general's office, "We are committed to pursuing this case and every legal avenue possible to ensure the Federal Government follows the rule of law and complies with its obligations to the State."
Through the National Defense Authorization Act for fiscal year 2017, Congress has authorized $340 million for MOX construction. However, sources close to the project call that a baseline amount and said that level of funding extends the completion date.
Tom Clements, the director of the nuclear watchdog organization SRS Watch, has repeatedly called for the government to shut down the project, calling it well over budget and a "boondoggle."
"The ruling is certainly no surprise," he said. "If it was paid it would further damage plutonium disposition funding and mean the plutonium would stay here longer."
He said, "I think this lawsuit underscores the fact that MOX has failed. And I think it was important to bring the lawsuit because it shows that South Carolina recognized that they were duped into bringing in the defense plutonium with no real pathway out."
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