A long-running dispute and a related lawsuit South Carolina levied against the U.S. Department of Energy as a means to collect $200 million owed to the state because of plutonium inaction at the Savannah River Site could, once again, be settled soon.
South Carolina and the Energy Department, which stewards the nuclear-waste-and-weapons hub south of Aiken, have reached an agreement "in principle," and settlement discussions are ongoing, S.C. Attorney General Alan Wilson told the Aiken Standard on Thursday morning. The Justice Department is looped in, as well.
"We're just trying to get the numbers to work with the federal government and what they owe the state of South Carolina," Wilson said. "I am guardedly optimistic that we are going to get this thing settled, but I want to be extra guarded in managing expectations."
The Republican attorney general did not delve into the specifics of the potential settlement. No timeline was given, either. Wilson did say, though, he discussed the matter with Energy Secretary Dan Brouillette this week, one of many exchanges and meetings the two have shared.
"He's a great guy, and honestly the secretary recognizes that – as do I – this can be a win-win for the state of South Carolina and this community as well as the federal government," Wilson said. "And so that is why they have come to the table."
In response to an inquiry Thursday, the Energy Department said it does not comment on pending litigation.
South Carolina first sued the federal government, namely the Energy Department, in January 2018, seeking $100 million. In March 2018, the state's legal team, spearheaded by Wilson, amended its complaint and began pursuing $200 million. Brouillette was the deputy secretary of energy at the time.
The sum sought in court by the Palmetto State comprises two years – 2016 and 2017 – of fines charged to the Energy Department for failing to remove plutonium from the sprawling Savannah River Site. Metric tons of the dangerous metal are kept at the site's K-Area, a retrofitted reactor complex.
Federal law mandated beginning in 2016 that the DOE pay South Carolina $1 million for each day, up to 100 days per year, the department did not process plutonium at the Mixed Oxide Fuel Fabrication Facility or, generally, get 1 metric ton of the material out of the state.
The National Nuclear Security Administration, the Energy Department's weapons-and-nonproliferation arm, axed the floundering, multibillion-dollar MOX project in October 2018, ahead of its forecasted completion date and after a separate legal battle with South Carolina that, at one point, reached the U.S. Supreme Court.
A federal judge last summer tossed South Carolina's $200 million case, ruling that the courts were not the right place to pursue the plutonium payout and that the fines could only be paid if lawmakers specifically set aside money for them.
"Congress could have appropriated money for economic and impact assistance, or it could have broadened the DOE's discretion to reprogram funds," Federal Claims Judge Margaret M. Sweeney wrote. "But it did neither."
The state disagreed with the verdict. A few days after the dismissal, South Carolina's legal team appealed. Oral arguments were heard remotely May 5 by a panel of judges from the U.S. Court of Appeals for the Federal Circuit. No filings have been made since, public court records show.
South Carolina and the federal government previously tried to settle the case; common ground, it seems, could not be found. The state's legal team at the time suggested talks broke down because the Energy and Justice departments failed to engage.
This time may be different.
"We've had some of the most productive conversations with the federal government in the last six weeks than I've had in the last six years," Wilson said Thursday, adding, "And so I feel very comfortable saying that we are moving toward a resolution."