MOX, plutonium dismissal

An aerial view of the canceled Mixed Oxide Fuel Fabrication Facility, which is located at the Savannah River Site.

After failed settlement negotiations and more than a year of legal back-and-forth, a judge has dismissed South Carolina's complaint against the federal government seeking millions of dollars tied to the storage of weapons-grade plutonium at the Savannah River Site.

U.S. Federal Claims Judge Margaret M. Sweeney on Tuesday ruled the courts were not the right place for South Carolina to pursue the plutonium fines. The state had argued it was owed $200 million for the U.S. government's failure to remove the plutonium stockpile, pointing to a federal law that established fines for long-term storage of the nuclear material.

The judge tossed the case, pointing to a major loophole in the law: The fines would only be paid out if Congress set aside money to pay them. When lawmakers created the fines nearly two decades ago, they didn't fund them.

The ruling mirrors an argument the federal government took last summer and one South Carolina's legal team has rejected and argued against.

S.C. Attorney General Alan Wilson's office on Tuesday said it would appeal the ruling, but it declined to comment on the judge's decision.

The $200 million South Carolina sought represents two years of fines levied against the U.S. Department of Energy for not removing plutonium stored at the Savannah River Site, a 310-square-mile nuclear reserve south of Aiken and northwest of Charleston.

Federal law mandated beginning in 2016 the Energy Department pay South Carolina $1 million for each day – up to 100 days per year – the department failed to process plutonium at the never-completed Mixed Oxide Fuel Fabrication Facility at SRS or get 1 metric ton of the material out of the state.

DOE's weapons and nonproliferation agency, the semiautonomous National Nuclear Security Administration, killed the contentious MOX project late last year after more than a decade of work and billions of dollars spent. MOX was designed to turn 34 metric tons of plutonium into fuel for commercial nuclear reactors.

"In 2016 and 2017, the DOE failed to achieve the MOX production objective, did not remove one ton of plutonium from South Carolina, and did not provide economic and impact assistance payments to plaintiff," Sweeney's opinion and order reads.

Roughly 11 metric tons of plutonium – powder and chunks of metal in thousands of steel drums – are still stored in South Carolina. They're held in a 65-year-old reactor facility that the government has said wasn't initially designed for long-term storage. Dozens more tons that were once destined for the Savannah River Site never arrived here.

The government has so far taken away 1 metric ton of plutonium that was brought here for the MOX plant. A different federal judge ordered it to do so in 2017.

South Carolina's legal team, led by Wilson, most recently argued the court should swiftly rule in its favor, granting the $200 million, because money for the payout has been readily available for it.

The Palmetto State team said it had found multiple sources for the payout, and Congress never expressly stopped the Energy Department from disbursing the money. Judge Sweeney did not agree, saying the DOE can't simply shift money around, robbing one program to pay for another, without Congress' approval.

The lawsuit at one point was paused as the two parties entered settlement negotiations. Those talks fell apart. Among other things, a single "lowball" counteroffer from the federal government was to blame, the state said in court documents.

The U.S. Department of Justice was absent from a Savannah River Site-focused meeting in 2018 between South Carolina officials, Energy Department leaders and President Donald Trump, according to the state.

Colin Demarest covers the Savannah River Site, the U.S. Department of Energy, the National Nuclear Security Administration and government in general. Follow him on Twitter: @demarest_colin