Porter’s committee still waiting for some Yucca documents

Suzanne Struglinski

Friday, July 29, 2005 | 9:37 a.m.

WASHINGTON -- Rep. Jon Porter's subcommittee is still waiting for some of the Yucca Mountain nuclear dump documents it requested through a subpoena earlier this month, despite Energy Department assurances that it would comply with the subpoena.

The department delivered 1,652 pages requested by the subpoena for the subcommittee's investigation into possible falsified information at Yucca but did not send over the draft of the license application for the nuclear dump and some other items, according to Porter's office.

Energy Secretary Samuel Bodman would not comment on when the department would send the draft after a press conference on the energy bill this week.

He said that his department is "going to comply with the terms of the subpoena."

But Porter, R.-Nev., said the department already is not in compliance. The subpoena specified that certain documents, including the draft of the license application, needed to be delivered by 4 p.m. last Friday.

Porter's staff of investigators this week have been reviewing the documents that were delivered, trying to piece together what led U.S. Geological Survey employees to send e-mails to each other complaining about budget problems and how they would "fudge" some work.

The department announced in March that it had discovered the e-mails, which may have compromised research on the proposed nuclear waste repository at Yucca, 90 miles northwest of Las Vegas. Porter heads the House Federal Workforce and Agency Organization subcommittee, which is investigating the matter.

Porter said he has been working with the committee counsel on the legal options. He can pursue a resolution citing Bodman for contempt of Congress for not delivering all the documents in time. He has not chosen to do so yet, but his spokesman T.J. Crawford said the option is definitely there.

According to a 2003 Congressional Research Service report on congressional subpoena and contempt power, "individuals who refuse to testify or produce papers are subject to criminal contempt, leading to fines and imprisonment."

The House Government Reform Committee would have to vote on resolution because Chairman Tom Davis, R-Va., issued the subpoena. If approved, the whole House would have to vote on it as well.

If approved by the House, a U.S. Attorney may call in a grand jury to decide whether or not to indict and prosecute.

Holding a person in contempt of Congress is not common, but has been done before.

Former Environmental Protection Agency Anne Gorsuch is the highest ranking offical to be held in contempt, based on the report.

In 1982, the House voted to hold her in contempt for refusing to turn over 64 documents dealing with what was then a new Superfund clean-up program. Gorsuch was acting under instructions from President Reagan's Justice Department to withhold the documents. Reagan said the documents contained strategy and legal information.

He feared, similar to some of the Energy Department's concerns over Porter's documents, that what is shared with Congress might be made public, so they should not be shared at all, according to the Congressional Research Service report.

The Justice Department refused to prosecute and the District Court dimissed the case, according to the Congressional Research Service. Gorsuch later resigned as a result of the controversy.

That same Congressional investigation into the Superfund put another EPA official, Rita Lavelle, in prison. The House Energy and Commerce Committee, voted unanimously to hold her in contempt for refusing to comply with subpoena. The House voted 413 to zero to hold her in contempt, according to the Congressional Research Service. She was sentenced to 6 months in prison, 5 years' probation and a $10,000 fine in 1984.

The Energy Department is also no stranger to contempt charges. In 1980, a House Government Operations subcommittee wanted certain department documents on President Carter's fee on imported oil and gasoline.

After issuing a subpoena, Energy Secretary Charles W. Duncan sent 28 documents to the subcommittee but did not produce some because they involved "deliberative materials underlying a major Presidential decision," according to the report.

The subcommittee then subpoenaed Duncan but he told members he declined to turn over the documents and did not bring them with him to the hearing. Duncan said the committee chairman and the ranking minority member could view the documents but the ranking member objected saying the department should trust the whole committee, not just two members.

The subcommittee held him in contempt for not complying with the subpoena, but less than a month later the subcommittee received all the documents it had requested. A day before the documents arrived, a federal court struck down Carter's fee.