Copyright 1999 The New York Times Company
The New
York Times
October 6, 1999, Wednesday, Late Edition -
Final
SECTION: Section A; Page 18; Column
2; National Desk
LENGTH: 673 words
HEADLINE: Legal Dispute Could Further Delay Nuclear
Waste Plan
BYLINE: By MATTHEW L. WALD
DATELINE: WASHINGTON, Oct. 5
BODY:
The Energy Department's plan to bury
thousands of tons of high-level nuclear waste at Yucca Mountain
in Nevada faces a new complication, a charge that the law firm it has chosen to
shepherd the project through regulatory approval has a conflict of interest.
Last month the department awarded a $16 million contract for an
estimated 38,900 hours of legal work, gigantic by legal standards, to the
Washington office of Winston & Strawn. The job may prove far larger because
opposition to the project, in the desert 100 miles from Las Vegas, is strong and
well-financed. The legal work includes reviewing the license application that
the Energy Department will submit to the Nuclear Regulatory Commission, the
agency selected by Congress to rule on the site's suitability, and then
representing the Energy Department through the hearings that are certain to
follow.
But in a complaint filed on Monday, a competitor for the
contract argued that Winston & Strawn could not perform an independent
review of the application because the firm had helped prepare it.
The
application was prepared for the Energy Department by an engineering contractor,
TRW Environmental Safety Services Inc., which dug the exploratory tunnel at the
site and has performed analytical work. But TRW hired Winston & Strawn to
make sure the application addressed all the legal points required by the Nuclear
Regulatory Commission.
"Under both Department of Energy and Nuclear
Regulatory Commission quality assurance requirements, the Energy Department
needs to conduct an independent review of a contractor's work before it can
apply for a license, and that would include the legal work," said Michael F.
McBride, a lawyer with LeBoeuf, Lamb, Green & MacRae, the firm that bid
unsuccessfully for the work. "Winston & Strawn can't review their own draft
application, or any advice they've given TRW about what work should or should
not be performed or how it should be performed," Mr. McBride said.
An
affidavit filed on behalf of the LeBoeuf firm by R. Tenney Johnson, a former
general counsel of the Energy Department, complained that "a situation has been
created in which an entity will pass in judgment on its own work."
"Even
assuming Winston & Strawn assigns different attorneys to review the
Yucca Mountain license application for D.O.E., they would not
possess the requisite independence to critique the firm's prior professional
work for TRW," Mr. Johnson wrote.
When the application is submitted,
scheduled for March 2002, it will total thousands of pages.
The dispute
might delay the proceedings, although other problems that have already set it
back years could cause further delay. But Winston & Strawn's role could
complicate the review if it adds the issue of whether the Energy Department
followed the proper procedure.
The Nuclear Regulatory Commission will
eventually decide whether the Yucca Mountain project meets its
requirements and those of the Environmental Protection Agency. Congress ordered
the commission to decide the issue within three years of the time the Energy
Department applies for the license, although some experts think it will take
longer to hear and weigh all the arguments.
The waste, mostly spent fuel
from civilian power plants, is collecting at those reactors and is the subject
of a separate dispute between the Energy Department and the utilities, because
the department was supposed to take delivery of the fuel beginning in January
1998.
At Winston & Strawn's Chicago headquarters, a spokeswoman
referred all questions to the Energy Department. The Energy Department, in a
written response to questions, said it had not reviewed the protest, but would
respond by Nov. 4. Asked what work Winston & Strawn had done on the
application, the department said that TRW "has been utilizing the legal services
of Winston & Strawn, through a subcontract arrangement," but did not say
what the firm actually did. A spokesman for TRW promised to answer that question
today but had not by the end of the day. http://www.nytimes.com
LOAD-DATE: October 6, 1999 
