NUCLEAR SECURITY
Federal appeals judge questions whether DOE can break an agreement with a state and not pay without a specific appropriation
ECA Staff | 5/7/2020
Federal Appeals Court Judge questions DOE: “South Carolina is still a repository for substantial amounts of radioactive materials…For the state to be told, ‘We don't owe you anything, go away,’ doesn't seem to fit with” the intent of original legislation.
On Tuesday, the U.S. Court of Appeals held a telephone hearing regarding the State of South Carolina’s lawsuit seeking $200 million in payments from the Department of Energy (DOE) for the agency’s failure to meet plutonium removal and processing milestones.
Congress established various deadlines for DOE to remove excess plutonium from the state by 2016 and 2017, two deadlines which DOE has missed. The law also established that the state would be eligible for $1 million per day for “economic and impact assistance” with a cap of $100 million per year if DOE did not meet the deadlines.
During the hearing on Tuesday, Federal Circuit Judge Pauline Newman raised concerns with DOE’s handling of the milestones, calling it “troubling” and noting, “South Carolina is still a repository for substantial amounts of radioactive materials after an extremely ambitious and extensive project to reprocess the materials has been abandoned…For the state to be told, ‘We don't owe you anything, go away,’ doesn't seem to fit with” the intent of original legislation.
Tara K. Hogan, a federal government lawyer, argued that while DOE has not met its obligations for processing and removal, Congress has not appropriated funds in a specific line item to make the assistance payments to South Carolina, and therefore Congress did not intend to provide DOE with funds to make such payments. One of the judges on the panel, Judge Evan Wallach, echoed the federal government’s claim that DOE may not be required to make the payments if there is not a specific
appropriations to do so. The state’s attorney claimed that not every payment or obligation from DOE has a specific line item in federal spending legislation.
Judge Wallach also asked Hogan whether DOE still plans to remove the plutonium, to which Hogan said she is not permitted to provide an answer.
The Court of Appeals is hearing this case after a U.S. Court of Federal Claims ruled against the state last year. The judge in the 2019 case found that there is no source of funds for DOE to use to pay the state, and that the state should make an appropriations request to Congress for the assistance payments.
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