Judge denies Nevada’s request to join with firm that sued DOE

Friday, May 18, 2001 | 10:47 a.m.

Nevada's request to became a formal ally of a law firm that has sued the Department of Energy was denied Thursday by a federal judge but the state will be allowed, however, to write legal briefs that will be considered at trial.

The issue involves Yucca Mountain, 90 miles northwest of Las Vegas, which is under study as the nation's sole repository for nuclear waste.

The Washington, D.C., law firm that Nevada wished to join as a formal partner, LeBoeuf, Lamb, Greene & MacRae, sued the DOE in 1999. The suit claimed that when the DOE needed an independent legal review of the licensing application for Yucca Mountain, it hired Winston & Strawn, a Chicago law firm with which the department had a longstanding relationship.

LeBoeuf claimed that any work by Winston would be biased in favor of building the repository at Yucca Mountain, which Nevada has been fighting since 1987.

U.S. District Judge Ricardo Urbina issued his 16-page decision Thursday. While he stopped short of allowing Nevada to actually join the law firm's suit, as it had requested, he did acknowledge that the state has a legitimate concern about safety.

The repository would have a capacity for holding 77,000 tons of high-level nuclear waste.

The judge allowed the state to participate in the suit as a "friend of the court," which means the state will be able to submit briefs that will be considered in any decision.

He recognized the state's major role as host to nuclear weapons experiments at the Nevada Test Site from 1951 until 1992.

"Now, more than 50 years after the detonation of the first bomb, the United States is poised to recreate a nuclear landscape in Nevada," Urbina wrote.

The judge made it clear the legal dispute does not deal with whether Yucca Mountain is suitable to bury the wastes.

"The good news is that he recognized the state's interest in public health and safety," Nevada Deputy Attorney General Marta Adams said.

The judge's ruling will allow the state to review Department of Energy records that must be filed in court by May 30, Adams said. Urbina, in a separate ruling Wednesday, denied the Department of Energy's request to extend the filing deadline.

The state may also seek from the court full participation, including making arguments and filing briefs, according to the judge's order.

DOE attorneys had not seen the decision late Thursday and could not comment on whether the case could delay progress on recommending Yucca Mountain as a repository site, a department spokesman said.

The General Accounting Office investigated the alleged conflict of the Winston law firm at the request of Rep. Jim Gibbons, R-Nev., but said it lacked jurisdiction over legal and ethical questions. That led to the lawsuit.

In February, Rep. Shelley Berkley, D-Nev., asked the DOE's Inspector General's Office to investigate the contract conflict, but IG Gregory Friedman denied her request, citing the lawsuit in progress.

LeBoeuf called the award of the $16.5 million review contract to Winston a conflict of interest because Winston worked for DOE's former main contractor at Yucca Mountain, TRW Environmental Safety Systems Inc. Federal rules prohibit such a conflict and require the DOE to hire an independent reviewer, LeBoeuf said.

Both Winston & Strawn and LeBoeuf scored a perfect 1,000 on the DOE's contract review. The Energy Department said Winston offered a lower price.

LeBoeuf's suit claimed that the DOE had explicitly told TRW when it was awarded the original $1 billion management contract in 1992 that it was not eligible to bid on the final review contract.

The DOE claimed it had to seek legal help outside the federal general counsel's office because there was not expertise on what may be the largest federal project ever built. About 50 attorneys nationwide have technical expertise in nuclear issues.