Wednesday, October 29, 2003
Copyright © Las Vegas Review-Journal

Nuclear repository hits new legal snag

Ruling forces Energy Department to take time, respond to law firm's contract challenge

WASHINGTON -- The Energy Department's bid to establish a nuclear waste repository in Nevada became further mired on Tuesday when a federal appeals court ruled in favor of a New York law firm passed over for a lucrative contract.

Attorneys said the ruling by the U.S. Court of Appeals for the District of Columbia Circuit could keep energy officials in court for six months or more while a judge sorts out issues raised in the case filed by LeBoeuf, Lamb, Greene and MacRae LLP.

Joe Egan, who has filed multiple lawsuits against the Yucca Mountain Project for the state of Nevada, said the ruling opens the project to further scrutiny and signals that courts may not look favorably on the Energy Department's handling of the program.

The ruling "is a very important decision for the state of Nevada because it establishes that the courts are not going to tolerate things that DOE just takes for granted," Egan said.

But Egan and other attorneys who follow the Yucca program said it was not clear what impact the ruling may have on the federal government's short-term goal of filing a repository license application by December 2004.

Mike Bauser, associate general counsel for the Nuclear Energy Institute, described the court's action as procedural. "It goes to simply whether or not the department dotted all the 'i's' and crossed all the 't's,'" in its contract process.

As to whether the ruling could lead to project delays, he said, "It certainly could, but I haven't set any odds."

Energy Department lawyers "are reviewing the court's decision. Our plan remains to submit a license application to the (Nuclear Regulatory Commission) by the end of 2004," spokesman Joe Davis said in an e-mail.

A three judge panel ruled unanimously the Energy Department "failed to conduct an adequate examination" before awarding a $16.5 million legal services contract in 1999 to Winston & Strawn LLP, a Chicago-based firm that had done earlier work on the Yucca program.

LeBoeuf, Lamb, Greene and MacRae, whose bid was $3.6 million higher, sued in 2000. It charged Winston's prior work amounted to a conflict of interest that should have been grounds for disqualification.

Later, it was reported that Winston & Strawn had registered with Congress to lobby for the Nuclear Energy Institute, the leading industry organization promoting the Yucca Mountain Project, while it was working for DOE.

Winston & Strawn left the Yucca program in 2001 in the midst of conflict allegations. DOE since then has been without a legal services contractor to help form its complex license application.

The case was remanded to U.S. District Judge Ricardo Urbina. He was told to determine whether the Energy Department complied with federal procurement law and department regulations when it awarded the contract.

Urbina also was directed to decide whether DOE should be directed to award a new legal contract to LeBoeuf, Lamb, Greene & MacRae.

The court decision renewed attention on Winston & Strawn, which had been the subject of an ethics complaint filed by Rep. Shelley Berkley, D-Nev., with the District of Columbia Bar Association. Berkley said Tuesday the appeals court ruling "adds even more evidence to allegations that there was a conflict of interest in (Winston & Strawn) work for DOE on Yucca Mountain."

A Winston & Strawn spokeswoman had no immediate comment.