Feds seek dismissal of MOX lawsuit

The Department of Energy has asked for the MOX lawsuit filed against the agency to be dismissed. The Savannah River Site MOX facility is designed to convert plutonium into commerical nuclear fuel.

The U.S. Department of Energy says the MOX lawsuit South Carolina filed against the agency should be dismissed because the milestones that the agency failed to meet — outlined in a 2003 agreement — were only goals, not mandates.

The department also said the $100 million that the state is seeking is an issue that should be handled in Federal Claims Court instead of the U.S. District Court.

But Gov. Nikki Haley is insisting that the federal government owes the state.

“We won’t back down on what is an important economic development and quality of life issue for the people of our state,” said Chaney Adams, a spokesperson for Haley.

The Energy Department filed its response Monday to the Palmetto State’s lawsuit against the agency for nonpayment under their 2003 agreement. That agreement says that DOE was supposed to process a metric ton of weapons-grade plutonium through the Savannah River Site’s MOX facility or remove a ton of the plutonium from there by Jan. 1.

The plutonium is part of the nation’s MOX project, which is designed, under a separate agreement with Russia, to dispose of 34 tons of weapons-grade plutonium by converting it into nuclear fuel. The amount is enough to make 17,000 warheads.

The Energy Department’s failure to meet either goal was expected to result in the payment of $1 million a day, beginning Jan. 1, with a $100 million cap. After a month without any payment, the state sued on Feb. 9.

The Energy Department claims that South Carolina is using a different interpretation of the agreement to impose the fines and to have one metric ton of the plutonium removed by year’s end.

“The statutory goal of removing defense plutonium cannot be described as non-discretionary, as Congress left it to the agency to decide whether to remove defense plutonium or pay the financial penalty,” the Energy Department wrote in its motion to dismiss the lawsuit.

The agency added that South Carolina’s claim should be handled in Federal Claims Court because the Administrative Procedure Act “does not permit the relief that South Carolina seeks” in District Court.

In addition to Haley’s office, Sen. Lindsey Graham is also holding the Energy Department’s feet to the fire. The South Carolina Republican helped write the 2003 agreement during his time in the U.S. House.

“A deals a deal. We put the statute there for a purpose. If the MOX program does not get back on track, the statute helps ensure we protect the state,” Graham said on Tuesday.

It is unclear how long it will take for a ruling to be handed down.

The state sued the Energy Department in March 2014 when President Barack Obama’s budget proposal sought to freeze the MOX project while federal officials searched for cheaper options to dispose of the plutonium.

At that time, the department estimated that the project would cost $30 billion over its lifetime. Now, the department believes MOX will cost $51 billion over its lifetime, including the $5 billion already spent on the project.

The 2014 lawsuit was dropped after Energy Secretary Ernest Moniz promised to continue construction of the SRS facility.

The fiscal 2017 budget proposal seeks the termination of MOX in lieu of a downblending alternative that would dilute the plutonium and ship it to a New Mexico repository. The attempt to switch pathways without formally consulting Russia received criticism from Russia.

Reach Derrek Asberry at 843-937-5517. Follow him on Twitter @DerrekAsberry.