Conflict could jeopardize nuke plans for Yucca

Tuesday, Jan. 11, 2000 | 11:17 a.m.

A former top lawyer for the Nuclear Regulatory Commission says that permission to build a high-level nuclear waste repository at Yucca Mountain could be jeopardized by a Department of Energy contractor's conflict of interest.

A congressional investigation is under way after a rival law firm filed a protest over the DOE contract to review the repository application that will go to the Nuclear Regulatory Commission.

The $16.5 million contract the DOE awarded to the Chicago law firm of Winston & Strawn is a clear conflict of interest because the firm also represents TRW Environmental Safety Services, Inc., the prime Yucca Mountain contractor, nuclear law expert Howard Shapar said in an affidavit obtained by the Sun.

Winston & Strawn cannot perform an independent review of the license application because of its association with TRW, Shapar said.

The competing law firm of LeBoeuf, Lamb, Greene & MacRae asked Shapar to review evidence, because he spent 32 years as a nuclear regulator for the NRC. LeBoeuf filed a complaint after losing the bid to Winston & Strawn. LeBoeuf scored as well as Winston on the contract bid.

LeBouef has also hired R. Tenney Johnson, a former DOE general counsel, as a witness, who said it was incomprehensible that the department would put itself in this position.

Under the contract awarded in September, Winston & Strawn will spend 38,900 hours reviewing the application to the Nuclear Regulatory Commission, which has the final approval.

Yucca Mountain, 90 miles northwest of Las Vegas, is the only site under study by the DOE to bury 77,000 tons of the most radioactive wastes from commercial power reactors and nuclear bomb building.

TRW dug the 5-mile-long exploratory tunnel for studying Yucca Mountain and is helping the DOE to prepare studies for the NRC application, Shapar said.

If the president and Congress approve the Energy Secretary's recommendation to approve Yucca Mountain, then DOE's contract attorneys must defend the license request "in what is likely to be the most contentious and technically complex adjudicatory hearing in NRC history," Shapar said.

To avoid the appearance of a conflict, DOE officials discussed leaving Winston & Strawn out of the final review of the Yucca application in a May 5 memo obtained by the Sun. Eight DOE officials signed the memo, including Nevada's Yucca Mountain Project managers Russ Dyer and Stephan Brocoum.

The DOE said it had to seek outside legal help because no one in the federal General Counsel's office had the expertise. About 50 attorneys nationwide have technical expertise in nuclear issues.

The DOE denies there is a conflict of interest, according to the agency's general counsel Mary Anne Sullivan. The DOE claims the independent review is a technial review, not a legal one.

But Shapar disagrees. Lawyers representing the DOE in the Yucca Mountain licensing process are required to participate and display knowledge of the accuracy of the information, he said.

"To suggest that a multi-volume license application of this importance will be submitted to NRC with no prior review by attorneys skilled in nuclear law is unprecedented and would substantially increase the odds of its failure," Shapar said.

"This position is ludicrous on its face and is inconsistent with common practice in NRC license proceedings," Shapar said in the affidavit.

The Nuclear Regulatory Commission could take as long as four years to review the DOE's application and challenge the scientific evidence presented by the DOE.

The General Accounting Office, the investigative arm of Congress, launched a probe into the matter in October at the request of Rep. Jim Gibbons, R-Nev. "A conflict of interest is an absolute understatement," Gibbons said at the time. "What's next? Allowing the nuclear waste lobbyists to set radiation standards? I don't think so."

The GAO is still investigating the issue.