S.C. governor sues DOE over plutonium shipments

Posted 5:49AM on Thursday 2nd May 2002 ( 23 years ago )

COLUMBIA, S.C. - A constitutional law professor says South Carolina Gov. Jim Hodges may have improved his chances of beating the federal government by suing the Department of Energy over plutonium shipments to the state. Usually, the actions of the federal government almost always take precedence over states, said Eldon Wedlock, a professor at the University of South Carolina. But Hodges' suit, which claims the Energy Department failed to file environmental impact statements, could even the playing field. The U.S. government has ``the upper hand, but this complaint throws the entire case into federal court,'' Wedlock said. ``Hodges needs that because he needs federal judicial power on his side to stave off federal executive power.'' Hodges ordered his lawyers to sue Energy Secretary Spencer Abraham and the agency Wednesday because he feared the plutonium could enter the state without any legally binding agreement on when it should leave. ``While some progress has been made, the clock is ticking,'' Hodges wrote to the state's congressional delegation. ``Unless we act now, plutonium could begin crossing our borders two weeks from today with no legal safeguards for our state.'' The weapons-grade plutonium is coming to the Savannah River Site near Aiken to be processed into fuel for nuclear power plants. Energy officials say the first shipments from the Rocky Flats facility in Colorado could start as soon as May 15. Hodges worries the conversion program will never be funded and the plutonium will stay in South Carolina indefinitely. He wants the shipments blocked until the federal government complies with the law. Conducting environmental impact studies could take six months to a year. ``If we're successful, there will be a significant delay,'' Hodges said. ``It will throw a significant roadblock in their way.'' Hodges said the lawsuit could be withdrawn if the state and Energy Department reach an agreement. He promised to keep negotiating with the agency while the suit made its way through the courts, but said if he had to, he would seek a restraining order keeping the plutonium out until the suit is finished. Graham said the lawsuit will make negotiations tougher. ``To believe that today's lawsuit doesn't chill negotiations with DOE is unrealistic,'' said Graham, R-S.C. ``I've always believed that a lawsuit against the federal government involving high-level national security issues will fail. For those reasons, I've been pursuing a legislative solution.'' DOE spokesman Joe Davis said the agency is disappointed with Hodges decision to take the talks to court. ``This action is totally inconsistent with a desire to work things out,'' Davis said in a written statement. Under Graham's plan, the federal government would be fined $1 million a day starting in 2011 if more than 1 ton of the plutonium has not been made into fuel for nuclear reactors. The government would have to move the plutonium or speed up the conversion to stop the fines. The fines would start again on Jan. 1, 2017, if all the plutonium is not converted. The penalties would continue at the same rate and with the same $100 million cap until all the nuclear material has left South Carolina. The fines would have to be paid and the material would have to be removed, Graham said. However, Hodges and Rep. John Spratt, D-S.C., said Graham's proposal never spells out when the plutonium would leave and more work needed to be done. ``The governor was concerned that if he waited any longer to take this step, he would risk the state's position in court,'' Spratt said.

http://accesswdun.com/article/2002/5/195198