February 12, 2001 The Honorable John Ashcroft Dear Attorney General Ashcroft: I am writing to inquire about the Department of Justice’s position on a matter I raised at a February 10, 1999, hearing in the Subcommittee on Energy and Power about the Department of Energy’s (DOE) program to construct a high-level nuclear waste repository at Yucca Mountain, Nevada, and related litigation at which Mr. Stuart E. Schiffer, Deputy Assistant Attorney General, Commercial Litigation Branch, in the Department’s Civil Division, provided testimony. As you may know, many members of Congress have a keen interest in the progress of DOE’s repository program and in understanding the financial impact that any judgments or settlements might have on the viability of the repository program. In addition, if the 107th Congress takes up any nuclear waste legislation, it is essential that members know the Justice Department’s position on the question of whether or not any damages awarded in connection with DOE’s failure to begin accepting waste might be funded from the Nuclear Waste Fund. Finally, as I discussed with Mr. Schiffer at the February 10th hearing, it is important for Congress to avoid enacting legislation that arguably affects pre-existing government contracts, a concern which could be affected by the Justice Department’s legal opinion. At the hearing, I asked Mr. Schiffer to identify the source from which any damage claims would be funded. Mr. Schiffer indicated that the issue was being considered by the Office of Legal Counsel, saying damages "could come out of the appropriation for the payment of judgments or settlements" or "some other fund." In a follow-up letter I sent to Attorney General Janet Reno on February 17, 1999, I asked when the Office of Legal Counsel would complete its legal opinion. The Department declined to provide a timetable, but indicated that when completed the opinion would be provided to the DOE, and that Department was the appropriate agency to respond to my request. In order to assist members of Congress in understanding the impact which any damage awards could have on DOE’s repository program, I request that you respond as promptly as possible to the attached questions. I am confident that this will not require you to violate any obligation to DOE to protect the substance of any legal opinion from inappropriate disclosure. If you or your staff have any questions regarding these matters, please contact me or have your staff contact Sue Sheridan, Minority Counsel to the Committee, at 202-226-3400. Sincerely, John D. Dingell cc: The Honorable W.J. "Billy" Tauzin The Honorable Joe Barton The Honorable Rick Boucher, Ranking Member
QUESTIONS FOR ATTORNEY GENERAL ASHCROFT
1. Has the Office of Legal Counsel completed the legal opinion discussed in the Department of Justice’s response to my letter of February 17, 1999? 2. If the legal opinion has been finished, has it been provided to the Department of Energy? 3. If the legal opinion has not be finalized, please explain the reasons for the delay and when it will be completed.
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