STATE OF SOUTH CAROLINA S PROPOSAL FOR INJUNCTIVE RELIEF

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1 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA AIKEN DIVISION STATE OF SOUTH CAROLINA, Plaintiff, v. Civil Action No. 1: JMC UNITED STATES; UNITED STATES DEPARTMENT OF ENERGY; RICK PERRY, in his official capacity as Secretary of Energy; NATIONAL NUCLEAR SECURITY ADMINISTRATION; and LT. GENERAL FRANK G. KLOTZ, in his official capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security; Defendants. STATE OF SOUTH CAROLINA S PROPOSAL FOR INJUNCTIVE RELIEF On March 20, 2017, this Court issued an order granting in part the State of South Carolina s Motion for Summary Judgment, holding that the Federal Defendants failure to remove one metric ton of defense plutonium from South Carolina by the January 1, 2016 deadline set forth in 50 U.S.C.A. 2566(c(1 constitutes unlawfully withheld agency action under the Administrative Procedures Act (APA. Mar. 20, 2017 Order & Opinion (ECF No. 86 (Order. This Court also held that it must enter an injunctive order compelling the Federal Defendants, consistent with the National Environmental Policy Act (NEPA and other applicable laws, to remove one metric ton of defense plutonium from South Carolina for storage or disposal elsewhere, and ordered the 1

2 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 2 of 17 parties to meet and confer and submit a joint statement setting forth proposed deadlines, schedules, or other items in detail sufficient to form the basis of an injunctive order by April 21, This Court also ordered the parties to address whether this Court should retain jurisdiction until compliance with the injunctive order has been accomplished. The parties conferred regarding the requested joint proposal as well as a possible settlement. The parties were unable to reach a mutually agreeable proposal. 2 Accordingly, as more fully described below, the State has developed a reasonable proposal and schedule that aligns with this Court s findings in its Order as well Section 2566 and its purposes, while also taking into account all other relevant and applicable laws, including NEPA. South Carolina therefore respectfully requests that this Court adopt the following proposal and proposed schedule in fashioning injunctive relief: State of South Carolina s Proposal 1. Removal of One Metric Ton of Defense Plutonium or Defense Plutonium Materials from the State Within Two Years. A. Not later than [date two years from the date of the injunctive order], the Federal Defendants shall, consistent with the National Environmental Policy Act, 42 U.S.C.A et seq., and other applicable laws, remove from the State of South Carolina, for storage or disposal elsewhere, not less than one metric ton of defense plutonium or defense plutonium materials. B. If necessary, the Federal Defendants will reprogram, transfer, or request additional appropriated funds to remove from the State of South Carolina, for storage or disposal 1 On April 20, 2017, the Federal Defendants submitted a Consent Motion for Extension of Time (ECF. No. 89 seeking to extend this deadline to July 31, 2017, which this Court granted by text order that same day. 2 The State believes DOJ counsel for the Federal Defendants have made a good faith effort to resolve the pending issues. Unfortunately, their clients appear to have no interest in working with the State to mutually resolve these issues, apparently because they believe they have no incentive to do so. Neither Congressional mandate nor even threat of enjoinment by this Court are enough to spur the Federal Defendants cooperation with the State or compliance with Section

3 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 3 of 17 elsewhere, not less than one metric ton of defense plutonium or defense plutonium materials no later than [date two years from the date of the injunctive order]. C. If the Federal Defendants violate any part of the injunction, the State may seek, and this Court may grant, civil contempt sanctions against the Federal Defendants, including, but not limited to, the payment of at least One Million and No/100 Dollars ($1,000, for each day of noncompliance. 2. Compliance with NEPA and Other Applicable Laws. A. Not later than [date 60 days from the date of the injunctive order], the Federal Defendants shall, if necessary to remove not less than one metric ton of defense plutonium or defense plutonium materials from the State by the deadline set forth above, initiate in good faith a NEPA Review of the removal of one metric ton of defense plutonium or defense plutonium materials from the State for storage or disposal elsewhere by the deadline set forth above in accordance with the Department of Energy s NEPA Implementing Procedures, 10 C.F.R. Part B. The Federal Defendants shall expeditiously take any and all steps necessary to conduct and complete any NEPA Review deemed necessary to remove one metric ton of defense plutonium or defense plutonium materials from the State for storage or disposal elsewhere by the deadline set forth above. C. The Federal Defendants shall expeditiously take any and all steps necessary to comply with any other applicable laws in order to remove one metric ton of defense plutonium or defense plutonium materials from the State for storage or disposal elsewhere by the deadline set forth above. 3. Retention of Jurisdiction and Progress Reports. A. This Court shall retain jurisdiction to enforce the terms of the injunctive order and to make such further orders as may be necessary or appropriate. B. Not later than [date 30 days from the date of the injunctive order], the Federal Defendants shall submit to the State and this Court all reports submitted by the Federal Defendants to Congress pursuant to the requirements of Section 2566 or any other requirement of Congress related to the disposition of defense plutonium at SRS. The Federal Defendants shall supplement this submission with any additional reports they submit to Congress pursuant to the requirements of Section 2566 or any other requirement of Congress related to the disposition of defense plutonium at SRS after the date of the injunctive order. C. Beginning [date 90 days from the date of the injunctive order], the Federal Defendants shall submit progress reports to the State and this Court every 90 days setting forth in detail: i. The projected date for removal of not less than one metric ton of defense plutonium or defense plutonium materials from the State. 3

4 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 4 of 17 ii. iii. The status of any NEPA Review, including the stage of the review and projected timeline for completion of the NEPA process. Any impediments to the Federal Defendants compliance with the injunctive order or the removal of not less than one metric ton of defense plutonium or defense plutonium materials from the State by the deadline set forth above and the steps the Federal Defendants are taking to address these impediments. D. Upon removal of not less than one metric ton of defense plutonium or defense plutonium materials from the State, the Federal Defendants shall provide the State and this Court with a sworn attestation from the Secretary of Energy that removal in compliance with the Court s injunctive order has been achieved. 4. Good Faith and Diligent Efforts to Pursue Construction Project for Removal. A. Until removal of not less than one metric ton of defense plutonium or defense plutonium materials from the State, the Federal Defendants shall diligently and in good faith pursue construction of the MOX Facility or any other Congressionally approved and appropriated disposition pathway at SRS in accordance with Section 2566 and Congressional direction. Discussion I. Two-Year Timeframe is Reasonable and Consistent with Section South Carolina proposes a deadline for the removal of one metric ton of defense plutonium or defense plutonium materials that is two years from the date of this Court s injunctive order. 3 This is the same time period established by Congress in subsection (c(1 of Section 2566 for removal. See State of New York v. Gorsuch, 554 F.Supp. 1060, 1063 (S.D.N.Y (enjoining federal agency to comply with federal mandate in same time period set by Congress and stating, it is clear that Congress expressly considered and concluded that a specific timetable was necessary.... To ignore or modify the statutory timetable would be to flout the considered judgment of Congress. ; Sierra Club v. Thomas, 658 F.Supp. 165, (N.D. Cal This deadline would be over 3 ½ years past Congress original January 1, 2016 removal deadline, which provided for two years from January 1, Thus, the Federal Defendants will have been given over 5 ½ years to comply with a two-year deadline. That is more than enough. 4

5 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 5 of 17 (enjoining federal agency to comply with federal mandate in same time period set by Congress and stating, Congress s determination that the issuance of regulations should occur within a particular period of time thus limits the Court s discretion in fashioning an equitable remedy. ; see also Sierra Club v. Johnson, 444 F.Supp.2d 46, 57 (D.D.C ( The Court will not secondguess Congress s determination that it would be (or would have been possible to regulate these sources within the time frame set by the statute.. This also is the same time period the Department of Energy (DOE proposed for removal prior to the enactment of Section See Mar. 14, 2017 Order (ECF. No. 84 at ( [I]n the court s estimation, the Secretary s letter and proposed agreement are clear indicators that, in 2002, the Secretary understood the language eventually incorporated into subsection (c to impose a non-discretionary duty to remove defense plutonium that would be enforceable by the State.. Accordingly, both Congress and DOE already have concluded that, in the absence of an operational MOX facility, a two-year timeframe for removal of one metric ton of defense plutonium or defense plutonium materials is reasonable and achievable, and, importantly, can be achieved consistent with [NEPA] and other applicable laws. Id. 4 And, as this Court already has held, imposing a two-year timeframe for removal cannot be considered as requiring immediate removal. Id. at 44 ( For one thing, even assuming that Defendants were completely unaware until January 1, 2014, that the MOX production objective would not be achieved by that date, they would still have two years in which to secure another location outside of South Carolina for storing or disposing the one metric ton of defense plutonium.... [This] time period[] belie[s] Defendants complaints regarding abrupt or sudden shifts in policy that they could not anticipate.. 4 By its terms, the NEPA mandate to the agencies is essentially procedural. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, (

6 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 6 of 17 To date, the Federal Defendants have only offered evidence regarding the difficulty of removal and have made vague assertions as to timeframes for accomplishing some of the prerequisites for removal to be completed, Order at 33, primarily through the Gunter Declaration (ECF No However, as confirmed by the Gunter Declaration, the Federal Defendants have not conducted any type of NEPA review or any other formal analysis specifically evaluating the removal of not less than one metric ton of defense plutonium or defense plutonium materials from the State of South Carolina, for storage or disposal elsewhere, required by subsection (c(1 of Section Cf. Gunter Declaration (ECF No. 38-2, 19 ( A new [NEPA] analysis and associated decisions would have to be completed to allow transfer and storage at another location.. 5 Instead, the Federal Defendants simply want to continue down the path they unilaterally chose to take in contravention of Congressional direction and without any consideration of the requirements of Section 2566, and they are asking this Court to bless this course of action (and inaction and not hold them accountable for violating the law. But see Sierra 5 This is not to say, however, that the knowledge gained and analyses completed during prior NEPA reviews would not assist in expediting any NEPA review for the removal of defense plutonium required by subsection (c(1 of Section Moreover, the Federal Defendants NEPA review and assessment in 2015 evaluating the proposed action to transport [900 kilograms (1,984 pounds of] packaged plutonium by ship from foreign countries to a United States marine port of entry, transfer the packages to a specially designed DOE transporter, transport the materials to SRS, place the plutonium into an approved storage facility, and declad and stabilize some of the plutonium resulted in a Finding of No Significant Impact (FONSI. It is presently unclear if a NEPA review of the removal of one metric ton plutonium from South Carolina in accordance with subsection (c(1 of Section 2566 also would result in a FONSI because the Federal Defendants have never conducted such a review but if it did, the entire NEPA review process certainly could be completed in less than a year. The question, of course, is whether the Federal Defendants will act in good faith and fairly attempt to comply with the statute and any Court order an open question in light of their prior conduct and arrogant dismissal of their legal obligations and condescension towards the State. Asserting that the transport of plutonium out of South Carolina would require anything other than a FONSI, given their past representations and actions, in an attempt to escape the Court s order would, in the State s opinion, be tantamount to bad faith. 6

7 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 7 of 17 Club v. Johnson, 444 F.Supp.2d at 56 ( [Agency] deference is inappropriate where Congress has unambiguously expressed its intent that [action be taken] by a date certain and the agency manifestly has failed to fulfill this statutory obligation. (citing Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1303 (D.C. Cir ( [G]iven the clarity of Congress instruction that [the action be taken] no later than October 17, 1988, it would indeed be odd to conclude that Congress implicitly entrusted a laggard agency with the authority to devise a remedy for its own untimeliness. ; Gorsuch, 554 F.Supp. at 1064 ( If Congress wanted to leave the Administrator with the flexibility to implement regulation based upon her own judgment of the most desirable time schedule, it obviously knew how to do so. Clearly, however, it did not.. 6 Congress determined based largely on DOE s proposed agreement with the State prior to the enactment of Section 2566 that two years was the appropriate timeframe for the Federal Defendants to remove one metric ton of defense plutonium from South Carolina for storage or disposal elsewhere. Through subsection (c(1 of Section 2566, Congress mandated that the Federal Defendants take such action within this timeframe. However, the Federal Defendants unlawfully withheld this action and have yet to provide any evidence that they even attempted to comply with the specific mandate of subsection (c(1 of Section 2566 or that, after a good faith and diligent attempt, compliance was impossible. See discussion infra Section II.; see also Johnson, 444 F.Supp.2d at 53 ( An agency thus bears a heavy burden to demonstrate the existence of an impossibility... [and] [w]hen an agency has failed to meet a mandatory statutory deadline, it is insufficient for the agency to demonstrate only that it has proceeded in good faith; it also must 6 Indeed, instead of attempting to comply with the law and the Congressionally mandated disposition pathway (which also happens to be the pathway the United States agreed to in an international agreement with Russia, the Federal Defendants have actively sought to thwart Congressional direction and its commitment to the State by affirmatively managing the MOX Facility towards failure and termination. 7

8 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 8 of 17 demonstrate that it has exercised utmost diligence in its efforts to comply with the statute. ; Natural Resources Defense Council, Inc. v. E.P.A., 797 F.Supp. 194, 198 (E.D.N.Y ( Short of this showing [of impossibility], EPA s proper recourse is to persuade Congress to amend the statute, not to defy the statute and seek relief with this Court. ; Gorsuch, 554 F.Supp. at 1065 n. 4 ( If the administrator could possibly have complied with the statutory mandate, but did not because of competing concerns or other decisions on his part, then he is not acting in good faith.. Nevertheless, and although the State certainly believes that the Federal Defendants failure to comply with subsection (c(1 of Section 2566 and the lack of good faith on the part of the Federal Defendants with respect to these matters over the last 20 years warrant harsher consequences, the State s proposal is essentially that this Court give the Federal Defendants a fourth chance 7 to exercise their utmost diligence to comply with the specific mandate of subsection (c(1 of Section 2566 within the timeframe set by Congress. Accordingly, a deadline for removal of two years from the date of this Court s forthcoming injunctive order both aligns with Congressional intent and fulfills the requirement of the APA that this Court shall compel agency action unlawfully withheld, and is therefore appropriate and warranted. 5 U.S.C.A. 706; see Tennessee Valley Authority v. Hill, 437 U.S. 153, 194 (1978 ( Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought.. 7 Congress already moved the deadline for compliance twice before, affording second and third chances. 8

9 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 9 of 17 II. Injunction with Actual Deadlines is Necessary. As set forth in this Court s Order, Congress imposed a January 1, 2016 deadline for removal of one metric ton of defense plutonium from the State, and the Federal Defendants unlawfully failed to comply with this deadline. Order at This Court further held that it must enter an order compelling the Secretary to take the unlawfully withheld agency action and requested that the parties jointly submit a statement setting forth proposed deadlines, schedules, or other items in detail sufficient to form the basis of the injunctive order contemplated by the Order. Id. Nevertheless, the Federal Defendants eschew enforceable deadlines. As discussed above, the Federal Defendants simply wish to continue not be held accountable for their failure to comply with Congressional mandates and want this Court s permission to unilaterally decide if and when one metric ton of defense plutonium will ever be removed from the State, despite the requirement of subsection (c(1 of Section 2566 and this Court s Order. But see Center for Food Safety v. Hamburg, No. 4:12-cv PJH, Order Granting Injunctive Relief at 2 (N.D. Cal. June 21, 2013 ( [B]y setting deadlines... Congress indicated that the rule-making process should be closed-ended, rather than open-ended. Thus, the court finds defendant s target timeframes to be an inadequate response to the request that the parties submit a proposal regarding deadlines that can form the basis of an injunction. ; Am. Lung Ass n v. Browner, 884 F. Supp. 345, (D. Ariz (rejecting agency s proposed schedule where it wholly defeats the mandate by Congress that certain deadlines be met; Sierra Club v. Ruckelshaus, 602 F.Supp. 892, 899 (N.D. Cal ( To accept EPA s proposal for further, indefinite, and virtually open-ended extension of the time for compliance... would be to, in effect, repeal the Congressional mandate.. 9

10 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 10 of 17 An actual and enforceable deadline 8 i.e., a firm parameter with meaningful consequences for failing to meet is the only way in which an injunctive order would comply with this Court s Order and effectuate Congressional intent in setting a firm date for removal of defense plutonium in subsection (c(1 of Section Including an actual deadline is essential to ensuring that removal is actually accomplished in a timeframe at least somewhat consistent with what Congress intended although it is now over 1 ½ years past the deadline Congress mandated for removal and is not left to the unfettered discretion of the Federal Defendants. Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, (D.C. Cir ( Requiring the courts to rely on mere exhortation to move with expedition toward compliance within a reasonable time would undercut their ability to spur reticent defendants to render the performance to which the plaintiff and public are entitled. The authority to set enforceable deadlines both of an ultimate and an intermediate nature is an appropriate procedure for exercise of the court s equity powers to vindicate the public interest.. This Court already has rejected the Federal Defendants contention that the January 1, 2016 removal deadline under subsection (c(1 of Section 2566 was only a goal. Mar. 14, 2017 Order (ECF No. 84 at Yet, any order that merely establishes an unenforceable projected date for removal would have the same effect as if this Court had accepted the Federal Defendants goal argument. Therefore, the Federal Defendants failure to proffer any reasonable, guaranteed removal within two years is inconsistent with this Court s prior rulings and subsection (c(1 of 8 Deadline is defined as a cutoff date for taking some action and a date or time before which something must be done. DEADLINE, Black s Law Dictionary (10th ed. 2014; Merriam- Webster Online Dictionary, (last visited July 31, Deadline originates from the use of the phrase dead line during the Civil War to refer to the line drawn within or around a war prison beyond which a prisoner of war could be shot on sight. Id. 10

11 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 11 of 17 Section 2566, and any injunctive order must include an actual and enforceable deadline for removal. 9 The fact that removal may be difficult or that future events or developments may affect the Federal Defendants ability to meet the deadline does not mean that a deadline should not be imposed, especially since Congress clearly intended to impose a deadline. Instead, the proper avenue for the Federal Defendants if such circumstances should arise in the future would be to demonstrate that, despite an earnest, good faith, and diligent attempt utilizing all efforts and exhausting all avenues, compliance with the deadline is absolutely impossible and to then seek an extension or modification of the deadline. See Robertson v. Jackson, 972 F.2d 529, 535 (4th Cir ( The potentiality that the Commissioner may, at some future time, be unable... to comply with federal requirements does not relieve him of his responsibility under federal law to attempt fully to ensure compliance. In the event that a contempt order should be issued against the Commissioner, the defense of impossibility of compliance would be available if he had done everything within his power to comply with the district court s order. ; see United States v. Rylander, 460 U.S. 752, 757 (1983 ( It is settled, however, that in raising [the impossibility] defense, the defendant has a burden of production. ; American Lung, 884 F.Supp. at 347 ( [T]he agency carries a heavy burden to show that compliance with statutory mandated deadlines is impossible or infeasible. ; Train, 510 F.2d at 713 ( An equity court can never exclude claims of inability to render absolute performance, but it must scrutinize such claims carefully since officials 9 As this Court already has held, the Federal Defendants view makes no accommodation for one of the express purposes of 2566: to prevent the accumulation of defense plutonium in South Carolina by ensuring that all defense plutonium... transferred to [SRS] either be processed or be removed expeditiously. Mar. 14, 2017 Order at 45 (emphasis in original (quoting Bob Stump National Defense Authorization Act for Fiscal Year 2003, 3181(6, 116 Stat. at

12 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 12 of 17 may seize on a remedy made available for extreme illness and promote it into the daily bread of convenience.. 10 South Carolina s proposal provides for this type of procedure by including an actual and enforceable deadline for removal and by placing the burden on the responsible and currently non-compliant agency to later show (after two years of attempted compliance that compliance with the deadline is impossible. Of course, if the Federal Defendants do not meet the deadline and fail to carry this heavy burden, then they should be held in contempt. 11 See, e.g., Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 821 (4th Cir ( A court may impose sanctions for civil contempt to coerce obedience to a court order or to compensate the complainant for losses sustained as a result of the contumacy.. III. Court s Retention of Jurisdiction and Limited Progress Reports are Reasonable and Necessary. South Carolina requests that this Court retain jurisdiction and require progress reporting every 90 days until compliance with the deadline is achieved, as courts have done in similar cases. See Cobell v. Norton, 240 F.3d 1081, 1109 (D.C. Cir ( [F]ederal courts regularly retain jurisdiction until a federal agency has complied with its legal obligations, and have the authority to compel regular progress reports in the meantime. (citing, amongst other cases, Northern States 10 Unfortunately, the modus operandi for the Federal Defendants on this issue has been to avoid and evade any responsibility or accountability under the law. 11 While this Court has broad discretion to craft the appropriate civil contempt remedy if the Federal Defendants violate the injunction, the most reasonable and obvious remedy, and one which the State will seek, is the payment of $1 million per day to the State until removal is accomplished. This is the amount Congress already determined was appropriate in the event the Federal Defendants failed to timely process or remove the defense plutonium from South Carolina in accordance with the deadlines of Section 2566 and this amount also represents the cost savings achieved by the Federal Defendants by transferring the plutonium from the Rocky Flats facility to South Carolina. See Mem. in Supp. of Mot. for Summ. J. Ex. 8 (ECF 10-10, Aff. of Jessie Hill Roberson at 18, 1:02-cv CMC, dated May 24,

13 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 13 of 17 Power Co. v. U.S. Dep t of Energy, 128 F.3d 754, 760 (D.C. Cir (retaining jurisdiction pending DOE s compliance with court s mandate; Thomas, 658 F.Supp. at (enjoining federal agency to comply with statutory deadline, retaining jurisdiction, and requiring an interim progress report to ensure compliance with injunctive order; Public Citizen Health Research Group v. Brock, 823 F.2d 626, 629 (D.C. Cir (ordering federal agency to adhere to set schedule for agency action and requiring agency to submit to the court a concise progress report every 90 days from the order s date of issuance... ; Doe v. Heckler, 580 F.Supp (D. Md (ordering enjoined federal agency to provide plaintiffs counsel updated progress reports every 90 days and stating, [s]uch monitoring is not unusual in these types of cases (citing cases. The need for this Court to retain jurisdiction and require the submission of progress reports in order to ensure the Federal Defendants timely compliance with federal mandate significantly outweighs any slight inconvenience to the Federal Defendants in having to make such reports. The State is only seeking that the Federal Defendants provide a limited amount of information in the progress reports that the State cannot otherwise obtain, and neither the retention of jurisdiction nor the requirement for progress reports will affect how the Federal Defendants accomplish the task of removing the defense plutonium. 12 The Federal Defendants multiple failures to meet their Section 2566 obligations or cooperate with the State justify the retention of jurisdiction and progress reports. The Federal Defendants did not meet the January 1, 2016 deadline for removal imposed by subsection (c(1 of Section and have yet to offer any evidence that they even attempted to meet the specific 12 Similarly, requiring the Federal Defendants to provide any reports they have submitted or will submit to Congress pursuant to Section 2566 or as directed by Congress related to plutonium disposition would impose little to no burden on the Federal Defendants. 13 As this Court is well aware, the Federal Defendants also failed to meet the MOX production objective and have not made any of the economic and impact assistance payments 13

14 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 14 of 17 obligation of subsection (c(1 i.e., the removal for disposition or storage outside of South Carolina of not less than one metric ton of defense plutonium or defense plutonium materials by January 1, Indeed, the Federal Defendants litigation position in this case has been that no obligation to remove defense plutonium actually existed despite the plain and unequivocal language of the statute. Even after this Court held otherwise in the Order and instructed them to prepare a joint proposal with the State setting forth proposed deadlines, schedules, or other items in detail sufficient to form the basis of the injunctive order, the Federal Defendants still refuse to agree to anything that would require them to remove the defense plutonium in a time period consistent with subsection (c(1 of Section 2566 or impose an enforceable obligation upon them. It is clear that the Federal Defendants obligations to the State have not been, and still are not, a priority of the Federal Defendants, and thus, monitoring of the Federal Defendants progress in removing the requisite defense plutonium from the State is warranted. The retention of jurisdiction and the requirement for progress reports also would allow this Court to adequately consider any future request to modify the injunctive order from the Federal Defendants. The State understands that future events could impede the Federal Defendants compliance with the proposed two-year deadline. Regular progress reporting would ensure that the State and this Court have the necessary information regarding the efforts made by the Federal Defendants over time to comply with the injunctive order as well as the reasons, if any, that support the Federal Defendants contention that compliance with the deadline would be impossible. required by subsection (d of Section Nor did the Federal Defendants make any real attempt to cooperate or communicate with the State with respect to the Federal Defendants obligations under Section 2566 prior to the initiation of this lawsuit. The Federal Defendants attitude towards the State has consistently been one of arrogant disdain. 14

15 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 15 of 17 As discussed above, in cases involving unlawfully withheld agency action, courts frequently retain jurisdiction and require progress reporting. There is no compelling reason why this Court should not do the same, especially considering that increased communication from the Federal Defendants regarding defense plutonium disposition and removal activities at SRS can only improve what can charitably be described as a strained relationship with the State (and also happens to be consistent with the existing reporting requirements of Section IV. Requiring Good Faith Efforts by the Federal Defendants to Continue Construction of the MOX Facility in Accordance with Congressional Direction is Appropriate. As this Court held in its Order, the Federal Defendants have violated, and are still in violation of, the law because of their failure to remove defense plutonium from the State in compliance with subsection (c(1 of Section This legal wrong arose from their failure to timely construct the MOX Facility and process plutonium (i.e., meet the MOX production objective, which triggered the removal requirement of subsection (c(1 of Section Requiring the Federal Defendants to continue to pursue construction of MOX Facility to meet the MOX production objective is both fair and consistent with the broad latitude available to this Court to fashion[ ] equitable relief when necessary to remedy an established wrong. Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, (9th Cir (Also holding that [t]he authority to enforce an existing [statutory] requirement entails more than the authority to declare that the requirement exists and repeat that it must be followed. So long as the district court s equitable measures are reasonably calculated to remedy the established wrong, they are not an abuse of discretion. (internal quotation marks and citations omitted; see Bell v. Hood, 327 U.S. 678, 684 (1946 ( [I]t is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.. 15

16 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 16 of 17 Currently, the MOX program is the only viable and Congressionally approved disposition pathway for the defense plutonium stored in South Carolina. Until they remove the defense plutonium from the State in accordance with subsection (c(1 of Section 2566 and this Court s forthcoming injunctive order, or until Congress directs them to discontinue construction, the Federal Defendants should be required to continue to fully pursue construction of the MOX facility. While an order compelling the Federal Defendants to remove the defense plutonium within two years provides some remedy for the Federal Defendants violation of the law, it does not provide a complete remedy because the State has been harmed by the fact that the one metric ton of defense plutonium already has been unlawfully in the State past the deadline for removal and will continue to be harmed while the defense plutonium remains in the State unlawfully for the next two years. Bell, 327 U.S. at 684 ( [W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.. Conclusion This Court held that the Federal Defendants unlawfully failed to remove one metric ton of defense plutonium from South Carolina by the January 1, 2016 deadline. This Court ordered the parties to submit proposed deadlines and other items to inform this Court s forthcoming order establishing an injunctive remedy for the Federal Defendants violation of law. The State has done that, and respectfully requests that this Court adopt its proposal, which is consistent with Section 2566, Congressional intent, and case law. [Signature Page Follows] 16

17 1:16-cv JMC Date Filed 07/31/17 Entry Number 97 Page 17 of 17 Respectfully submitted, Alan Wilson, Fed. Bar No Robert D. Cook, Fed. Bar No. 285 T. Parkin Hunter, Fed. Bar No ATTORNEY GENERAL FOR THE STATE OF SOUTH CAROLINA Post Office Box Columbia, South Carolina ( s/randolph R. Lowell Randolph R. Lowell, Fed. Bar No Benjamin P. Mustian, Fed. Bar No John W. Roberts, Fed. Bar No WILLOUGHBY & HOEFER, P.A. Post Office Box 8416 Columbia, South Carolina ( William H. Davidson, II, Fed. Bar No. 425 Kenneth P. Woodington, Fed. Bar No DAVIDSON & LINDEMANN, P.A Devonshire Drive, 2 nd Floor Post Office Box 8568 Columbia, South Carolina wdavidson@dml-law.com kwoodington@dml-law.com ( Attorneys for the State of South Carolina July 31, 2017 Columbia, South Carolina 17