Porter seeks more Yucca documents

Suzanne Struglinski

Tuesday, July 19, 2005 | 11:17 a.m.

WASHINGTON -- The Energy Department will be subpoenaed to submit Yucca Mountain project documents, including the draft license application, to a House subcommittee's investigation into potential falsified research at the site.

This marks the second subpoena issued by House Government Reform Committee Chairman Tom Davis, R-Va., at the request of Rep. Jon Porter.

Porter, R-Nev., is chairman of House Federal Workforce and Agency Organization subcommittee, which is conducting the investigation. Porter's subcommittee covers all federal workforce issues, so the alleged employee fraud and project mismanagement falls under his jurisdiction.

"It's unfortunate the congressman has chosen this route," said department spokesman Craig Stevens. "All the information he has requested has been available to any member of his subcommittee or staff for three weeks. We feel we have been fully cooperative to the committee."

Eric Fygi, the department's acting general counsel, wrote in a letter sent to Porter on Monday that he does not understand how the draft license application falls under Porter's committee's jurisdiction.

"This sort of draft document is quite unrelated to those that chronicle activities of federal employees," he wrote.

The department had until 4 p.m. Monday to submit the draft and numerous other documents. Porter has been requesting them since April, but the department would only allow him or his staff to go to the department's headquarters building to view certain documents.

This was unacceptable to Davis and Porter.

"Based upon their track record, there is no doubt in my mind there would have been another excuse," Porter said. "I will use every tool I have available to me. I assume they are hiding something."

Porter wants hard copies of the draft license application and other scientific documents to see how science that was potentially compromised by government employees may have worked its way into final research on the project.

The department announced in March that it had discovered e-mails written by several U.S. Geological Survey employees that suggest they falsified work on water flow research, a critical safety component to the proposed nuclear waste repository at Yucca, 90 miles northwest of Las Vegas.

Through the subpoena, Porter also wants employment records and organizational charts to know who to interview next, who was in charge during what time periods and figure what was going on that employees felt they had to "fudge" information, as one of the e-mails said.

"I am very concerned for the employees. Many have told us they were not aware of the investigation until they read about it in the newspaper," Porter said. He wants to make sure no one was coerced into doing anything or not told information.

Porter already subpoenaed Geological Survey scientist Joe Hevesi, one of the e-mail authors, to testify at the June 29 hearing. Hevesi said under oath that he did not falsify any documents.

The department agrees Porter can see some of the documents, but does not understand why he needs physical copies, as opposed to viewing them at headquarters, Fygi wrote.

Fygi wrote that the department has to balance its responsibilities under the Nuclear Waste Policy Act and its responsibility to the committee. The act, the law that guides the Yucca project, protects some documents while requiring others to be made public.

Fygi wants to avoid "impairment" of the future Yucca Mountain licensing proceedings by giving documents to a congressional subcommittee "totally outside the legal protections afforded parties before the NRC (Nuclear Regulatory Commission) under the Nuclear Waste Policy Act."

"It would be as though on the eve of complex civil litigation by the government, a congressional subcommittee demanded documents pertinent to the matter to be tried in court with a view to deciding by itself what documentary materials would be disclosed, instead of the decision being made by the court in accordance with traditional legal safeguards," Fygi wrote.

The department will eventually make many more documents public once it finalizes its document collection again, but Nuclear Regulatory Commission judges are still fine tuning what documents get what protection under the law.

Fights over Yucca documents have been ongoing since last year. The department said its document database required by law was complete, but Nevada attorneys challenged it and won. Now the department, Nevada and other parties are trying to get on the same page as to what documents need to go into the database and their format.

Nevada attorneys today were to appear again before a panel of the commission's Atomic Safety Licensing Board that specifically deals with Yucca issues before the department files its license application.

The panel is expected to issue criteria for the database soon, and the department want to finalize the collection by the end of the year at least.

Meanwhile, Nevada could get an answer soon in its own quest for the draft license application. Nuclear Regulatory Commission judges want additional and specific information from the department to support its arguments that it does not have to make the draft public.

Attorneys for the department and the state appeared before the board last week arguing over the draft. The judges sent a request Monday for specific timelines on who looked at the draft, how it was reviewed and other details.

Nevada wants the draft license application to see what final decision the department had prepared for the final version. Decisions on the repository's exact design, safety features and other issues would only be made in the application, so a draft would hold at least clues to where the department was going with the project.

If Porter gets the draft application, he said there are legal steps that would have to be satisfied before he could turn it over to the state.

"That would have to be determined at that time," Porter said.

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