South Carolina’s top prosecutor announced Tuesday his office has filed a lawsuit against the federal government to recover more than $100 million he says the Energy Department owes the state for nuclear material stored at the Savannah River Site.
Attorney General Alan Wilson said the amount sought is the highest in state history.
The lawsuit stems from an ongoing dispute between the state and the Energy Department over plutonium brought to the state for an experimental mixed-oxide (MOX) fuel fabrication facility. The project would convert the plutonium into nuclear fuel, but has been delayed by dramatic cost overruns. A 2003 agreement set a $1 million per-day fine if the center was not operational by 2016. The agreement caps the fine at $100 million per year until 2021 and allows the agency to transfer one ton of weapons-grade plutonium per year off-site to avoid the fine. However, Congress would have to approve any fine payments.
South Carolina sued the agency last year claiming a breach of contract when the MOX project’s construction stalled. A federal judge ordered the two sides to reach an agreement by July 31, but that deadline passed without agreement. District Judge Michelle Childs is still hearing that case and has ordered the Energy Department to file documents related to a path forward by August 11.
The lawsuit filed Tuesday seeks the remainder of the state’s share of the penalties for the 2017 calendar year. “We wanted action. And a consequence of inaction is the money,” he told South Carolina Radio Network. “Had they removed it, we wouldn’t be filing this lawsuit. Or had they worked with us, we wouldn’t be filing this lawsuit. But right now they’re leaving South Carolina with no other options.”
Energy Department officials have insisted they are abiding by the latter half of the 2003 agreement and plans to eventually transfer six tons of plutonium to another federal facility in New Mexico. It also says money claims can only be heard in the U.S. Court of Federal Claims.
The watchdog group SRS Watch, which opposes the plutonium’s presence in South Carolina, called the lawsuit “posturing,” but nevertheless hoped it would force the Energy Department’s hand in meeting the August 11 deadline.
“If it were possible, we wouldn’t mind that funds saved by shutting down the mismanaged MOX project, as will eventually happen, be given to the State of South Carolina for beneficial projects, such as funding public education in poorer parts of the state,” the group’s director Tom Clements said in an email.