Columnist Benjamin Grove: Report may give hope to Yucca opponents

Benjamin Grove

Friday, Nov. 16, 2001 | 5:11 a.m.

Benjamin Grove covers Washington, D.C. for the Sun. He can be reached at 202-628-3100, Ext. 269, or by email at grove@lasvegassun.co

WASHINGTON -- Nevada senators believe the Department of Energy's Inspector General handed them powerful new ammunition this week in their battle to defeat the Yucca Mountain Project.

Time will tell if the document is a dud or a truly explosive report that could derail the process to determine whether Yucca is a safe place to construct the world's first burial ground for high-level nuclear waste.

The 26-page report, requested by Nevada lawmakers, described in some detail two relationships tended by Chicago-based law firm Winston & Strawn: one with the DOE, another with the Nuclear Energy Institute.

The report said the firm did not disclose a potential conflict of interest it had by doing Yucca Mountain legal work for the DOE and lobbying for NEI. By law DOE is to remain an independent Yucca manager and NEI is the most vocal pro-Yucca lobby group on Capitol Hill.

Within a few weeks the DOE's lawyers will decide if the firm broke the law -- or their contract -- and then DOE officials will decide whether to punish, fire or do nothing with the law firm.

Winston & Strawn laywers told DOE Inspector General Gregory Friedman they don't believe there has been any conflict of interest at all. DOE officials said they were pleased with the firm's work so far -- and that the DOE's study of Yucca has not been compromised.

The firm was a registered lobbyist for NEI for six years until it severed ties in July 2001, shortly after the Sun started asking the firm questions.

But Winston & Strawn told the inspector general that the firm's efforts on behalf of NEI were strictly related to defining legislative and parliamentary procedures -- not lobbying. NEI was a small-time client, firm lawyers seemed to suggest.

The firm recognized it might be facing a conflict of interest as early as June 1999, when it was still bidding to get the DOE contract, and sent out a memo to firm lawyers warning them to avoid conflicts of interest with the DOE. Yet they didn't disclose the relationship. And the firm remained a NEI lobbyist for two more years.

But firm lawyers said that since June 1998 they had completed only about 36 hours of "in-house analysis of the legislative process" for NEI. Plus they made two phone calls lasting less than 30 minutes to the Senate Parliamentarian's staff -- people familiar with congressional rules.

Lobbyists are required to register with Congress, and Winston & Strawn filed several lobby registrations that stated it was a lobbyist for NEI. But the firm did no work for NEI for filing periods ending August 2000 and February 2001, firm lawyers said. The firm may file an amended report to clear up the matter.

On the other hand, the firm said it poured 9,200 hours into the DOE job during 2000 and the first half of 2001. The DOE's contract included an organizational conflict of interest clause that required the firm to disclose any relationships that could impair the firm's objectivity. According to the report, when DOE investigators asked members of the firm why they didn't disclose their work for NEI, "Winston & Strawn stated that they 'didn't think of it -- the NEI work --.' " Fourteen firm members both represented NEI and worked on the DOE Yucca contract, the report said.

The DOE-Winston & Strawn relationship may now be strained. Some Department of Energy officials told investigators that Winston & Strawn's relationship with NEI was, "at a minimum, creating a potential conflict of interest."

It's not clear what will happen next. Reid may ask for a congressional inquiry. Nevada lawmakers say the Nuclear Regulatory Commission should carefully consider the report when it eventually reviews the Yucca proposal.

Meanwhile the DOE's lawyers will examine Friedman's findings to determine if Winston & Strawn did anything illegal or inappropriate -- although Winston & Strawn didn't answer all the inspector general's questions on the grounds of attorney-client privilege invoked by NEI. If it did, the DOE could have grounds to fire the firm. But that's unlikely. There's too much at stake.

Getting a new firm now could dramatically slow the DOE's plans to apply for the waste license. And the department likely won't do that just for appearances.

"I don't know if this could derail the whole project," Reid said last week. "We have just begun to fight. This is a real break we have had in going after these people."