ML19249D469
| ML19249D469 | |
| Person / Time | |
|---|---|
| Site: | Vallecitos File:GEH Hitachi icon.png |
| Issue date: | 07/13/1979 |
| From: | Swanson D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7909240708 | |
| Download: ML19249D469 (12) | |
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M July 13, 1979 N.
s UNITED STATES OF AMERICA
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'V NUCLEAR REGULATORY COMMISSION h'.-[<h
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-j BEFORE THE ATOMIC SAFETY AND LICENSING BOARD y r
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Docket No. 50-70 '3A(C ~"a#. '
GENERAL ELECTRIC COMPARY s'
(Show Cause)
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(Vallecitos Nuclear Center -
General Electric Test Reactor, Operating License No. TR-1)
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NRC STAFF RESPONSE TO BOARD ORDER On June 18, 1979, the Atomic Safety and Licensing Board (Board) issued an Order in which each of the parties in the referenced proceeding was requested to address three questions regarding participation of Congressman Dellums in this proceeding. The Staff's responses to the questions are set forth below.
1.
Does Intervenor Dellums have " standing" as that concept is employed in N.R.C. licensing proceedings, to partici-pate in this case by virtue of his status as a Congressman?
a.
If so, are there legal or regulatory impediments to his representation by Mr. Halterman or Ms. Snow?
What arc they?
a It has been and continues to be the Staff's position that Congressman Dellums does not possess standing within the meaning of 10 CFR 5 2.714 solely by virtue of his status as a Congressman. As counsel for the Staff represented at the prehearing conference for this proceeding held on March 5,1978, Congressman Dellums has satisfied the Commission's requirements for interven-tion on the basis of his personal interest as a resident within the geograph-
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ical zone of interest of the facility, and, since he also has an office in 19092 N OS h
.- the area, as an individual who engages in business within the geographical zone of interest.M Tr. 20-22. However, Staff counsel stated that the Staff did not support intervention by Congressman Dellums on the basis of his second asserted interest: that of a Congressman representing a district near the facility. Tr. 22. The Board, in admitting Congressman Dellums as a party to the proceeding, did not specify on what basis he was being admitted.
Tr. 22; see also, Order Following Conference dated March 28,1978 a t 1.
Congressman Dellums' representative at the prehearing conference, Mr. Halterman, claimed that the Congressman possessed the requisite legal interest to intervene on the basis of his status as a Congressman since the district that he represents is located 20-30 miles from GETR, and that the people he represents have the requisite interest themselves to appear in the pro-ceeding. Tr. 21. He further stated that one of the Congressman's duties is to represent these people in federal agencies and that he therefore has the requisite interest to represent his constituents in this proceeding.
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While no specific distance from a nuclear power plant has evolved from Commission decisions to define the outer boundary of the
" geographic zone of interest," the Appeal Board has found that a licensing board "cannot be tarred with the brush of irrationality" for presuming that someone who carries on everyday activities within 25 miles of the plant has an interest.
Gulf States Utilities Comoany (River Bend Station, Units 1 and 2), ALAB-183, 7 AEC 222, 226 (1974).
Further, the Appeal Board has indicated that 50 niles "is not so great as necessarily to have precluded a finding of staading based on residence."
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Tennessee Valley Authority (Watts Bar Nuclear Pla.it, Units 1 and 2),
ALAB-413, 5 NRC 1418, 1421 n.4 (1977).
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.. Mr. Halterman cited two NRC decisions in support of this' claim: Allied
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General Nuclear Services (3 NRC 277) and Nuclear Fuel Services (1 NRC 89).
Id 2_/ However, neither of the cited cases refer to special standing of Con-gre.ssmen, nor do they provide any support for the claim that a Congressman has standing to represent constituents' interests.
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It is a basic legal principl,e that one, party may not represent anot,her without express authority to do so. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-77-11, 5 NRC 481, 483 (1977).
Congress-man Dellums has provided no authorization from his constitutents to represent them in this proceeding, either as a private individual or in his capacity 2/
The Allied General Nuclear Services case involved, in part, the admis-sion of the State in which a proposed facility was to be located as an " interested state" in a licensing proceeding pursuant to 10 CFR 9 2.715(c). The Nuclear Fuel Services proceeding involved, in part, the finding of standing, pursuant to 10 CFR S 2.714, of a county located adjacent to the county in which a facility was proposed to be located, which had a creek within its boundaries which might be affected by the facility, which had citizens who worked at the facility and which had nuclear material routed through it.
That decision was reversed on other grounds.
At best, an argument can be made that these cases stand for the propo-sition that a governmental entity, such as a state or county, can establish standing based on its mandate to protect its citizens' health, safety and environment. However, these cases provide no support to the claim of a legislator, such as Congressman Dellums, that he can establish standing to intervene in a proceeding in his capacity as a legislator. Unlike a governmental municipal entity, a legislator has no mandate as to his constituents' health and safe ty. His only mandate is to represent his constituents in enacting laws and other related legislative functions.
.. ~ asCongressman.U The fact that Mr. Dellums is a Congressman entitles him
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to no special status nor does it warrant any departure from the Commission's standards relating to standing, which have consistently been interpreted as being governed by judicial concepts of standing.
Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
Federal courts have ruled th,at "there are no special standards for, deter-mining Congressional standing questions" and for a Congressman or any person to establish standing, he must meet the standards found in the opinions of the Supreme Court.
Harrington v. Bush, 553 F. 2d 190, 204-208 (DC Cir 1977); see also, Harrington v. Schlesinger, 528 F. 2d 455 (4th Cir.1975),
and Holtzman v. Schlesinger, 414 U.S.1321 (1973).
In Harrington v. Bush, a U.S. Congressman sued for a declaration that certain CIA activities were illegal, and sought an injunction to prevent their future occurrence.
The Court of Appeals affirmed the dismissal of the complaint, ruling that the plaintiff lacked standing to sue:
(i)t is not suf "icient for... any legislator merely to allege this status as a ground for standing.
Id at 197,198 n. 32.
The court further stated that a Congressman's specific rights, interests, and prerogatives as a Congressman lie in his power to make laws and to represent his consituents in Congress, and that this status alone does not
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The Staff notes that there have been numerous letters sent in to the Board and the Staff, both in support of and opposed to the stated position of Congressman Dellums that the GETR should remain shut down.
Accordingly, Congressman Dellums can hardly claim to represent the mandate of his constituents in this matter.
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.. confer standing to sue a federal agency. H. at 213.
Indeed, the court declared that:
... the most consistent theme expressed by the Supreme Court on the question of standing is that a party must allege ' a distinct, and palpable injury to himself.'" H. at 208, quoting from Warth v. Seldin, 422 U.S. 490, 501 (1975).
While it is true in this case 'that Congressman Dellums can claim th'at in his capacity as an individual residing and working in the vicinity of the plant he may suffer an injury, he suffers no injury in his capacity as a Congress-Unlike the situation in Kennedy v. Sampson,O there is no showing that man.
Congressman Dellums' participation in his official capacity is necessary to protect the effectiveness of a vote on a legislative matter, or is tied to some other matter within his congressional and constitutional charter. Cf.
Harrington v. Bush, supra, at 213-14.
Consequently, the Staff reaffirms its position that, while Congressman Dellums has alleged sufficient interest as an individual, he has failed to allege a proper basis for participating oua Congressman.
y Kennedy v. Sampson, 511 F. 2d 430 (D.C. Cir.,1974).
The court held that a United States Senator, who had voted in favor of a bill, had standing to bring an action for declaratory judgement that the bill became validly enacted despite a pocket veto by the President and for an order requiring the appropriate government officials to publish the bill as a validly enacted law. The Court found that the Senator's object in the lawsuit was to vindicate the effectiveness of his vote and that the purposes of the standing doctrine (a determination that the complaining party has suffered some injury in fact) were fully served in the litigation.
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.. Since the Staff does not agree that Congressman Dellums has standing as a Congressman, question 1.a. does not require a response.
2.
Assuming that Congressman Dellums has " standing" as a private citizen, and was admitted to the case on that basis, do the points raised by the Commission's General Counsel have relevance to the Congressman's continued participation in the same manner as heretofore? What relevance?
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Assuming that Congressman Dellums were admitted solely on the basis of his 4
interest as a private citizen, the points raised in the Acting General Counsel's May 18, 1978 letter have only indirect relevance to the Congress-man's continued participation in the same manner as heretofore.
The basic concerns expressed in the Acting General Counsel's letter to the Chairman of this Licensing Board bear on the propriety of representation of the Congress--
man by Mr. Halteman. The view asserted in the letter was that, in the event that the Congressman's participation is based on his standing as a
- private citizen, Mr. Halteman's representation of him would appear to be in violation of 18 U.S.C. 203 and 205. As stated by the Acting General Counsel in his letter, 18 U.S.C. Section 203 prohibits federal employees from receiving compensation for services rendered in a federal administrative proceeding unless the service is rendered as part of his official goven mental duties.
Section 205 prohibits Federal employees from appearing in a Federal administrative proceeding as an agent or attorney unless it is part of his official governmental duties.
On October 26, 1978, Congressman Dellums sent a letter to the Board, with a
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copy of an informal opinion letter dated June 26, 1978 from the Department
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- of Justice attached (D0J 1etter).
In the D0J 1etter, th'e Deputy Assistant Attorney General for the Criminal Division of the Department of Justice rendered his informal opinion that Mr. Halteman's representation of the
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Congressman qua Congressman in this proceeding apparently did not violate 18 U.S.C. 203, but that the same conduct may be ir. violation of 18 U.S.C. 205 if Congressman Dellums were participating in this proceeding as a private
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individual.
If a court of law were to detennine that the representation of Congrersman Dellums in his privata capacity by his aide was in fact a criminal offense, that holding would not affect the Congressman's standing to participate as a party in this proceeding, but would affect the ability of the aide to repre-sent him. However, the Atomic Energy Act does not authorize this Board to conduct a criminal trial to determine whether any person is violating 18
, U.S.C. 203 or 205. The assumption that the Congressman's aides may be violating 18 U.S.C. 203 or 205 does pose an immediate indirect impediment to their further participation in this proceeding, however, in that the Board may not wish to assume the ethical consequences of condoning such activity in a proceeding over which it presides. However, as noted below, the Staff does not perceive that this Board must reach the question of the relevance of the Acting General Counsel's concerns to this proceeding since this Board may, and the Staff submits, should prevent the continued representation of Congressman Dellums in this proceeding by Mr. Halteman or Ms. Snow by virtue of regulatory authority which this Board clearly does possess.
. Although not raised by the Acting General Counsel in his ~1etter, the con-tinued representation of the Congressman by a non-attorney, whether he is an aide or not, is contrary to the Commission's Rules of Practice. Title 10 CFR-
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9 2.713(a) provides that "[a] person may appear in adjudication on his own behalf or by an attorney-at-law..." To the knowledge of the Staff, neither Mr. Haltennan nor Ms. Snow is an attorney-at-law, and therefore may not represent the Congressman in, this proceeding.
Virginia Electric and Power Co.
(North Anna Power Station, Units 1 and 2), Order (unpublished), October 8,
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1976.
Congressman Dellums has argued in his June 18, 1978 letter that his partici-pation in this proceeding is analogous to that of an organization or corpora-tion and that a member of that organization such as an aide, may represent h'm in this proceeding. Although not so stated by the Congres:, man, an organization or corporation is incapable of personally appearing and must, therefore, do so by some fonn of representative participation.
Duke Power (Catawba Nuclear Station, Units 1 and 2), LBP-73-28, 6 AEC 666, 678-680 (1973). However, if Congressman Dellums were admitted as a private individual as the Board's second question assumes, he is indeed capable of personally appearing. Accordingly, the decisional rule that a corporate entity may appear in NRC proceedings represented by an officer or member is not applic-able. Thus, as the Staff has previously observed,N o the extent that t
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Response to Petition for Leave to Intervene of Congressman Phillip Burton and John Burton, filed April 7,1978, at 3.
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_g-Congressman Dellums is pennitted to continue his participation,10 CFR. 5 2.713(a) requires, under t.he circumstances, that he participate either personally or by an attorney.
In sum, the Staff submits that the conctrns of the Acting General Counsel may have some relevance to this proceeding, but that the Board is without jurisdiction to detemine whether Congressman Dellums and/or his aide (s) are violating 18 U.S.C. 203 or 205. However, the Board does have the jurisdic-
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tion under 10 CFR 5 2.713(a) to rule that these non-attorney aides may not continue to represent the Congressman in his private capacity in this pro-ceeding, without having to consider the more complex matter of criminal culpability.
By enforcing the provisions of 5 2.713(a), the Board would incidentally be ensuring that there would be no possibility of future viola-tions of 18 U.S.C. 203 or 205 by the continued activities of Mr. Halterman or Ms. Snow.
l 3.
Should the Licensing Board attempt to detennine the matter itself, or is the case an appropriate one for referral to the Department of Justice for investigation as involving a possible violation of federal criminal law?
a.
If such referral is believed ';o be appropriate, should the referral be made by the Licensing Board, the Office of the General Counsel. or by some other body within the,N.R.C.?
As prevously noted, the Board lacks jurisdictioh to consider whether Congress-man Dellums and/or his aides have violated 18 U.S.C. 203 or 205. That would be within the province of the Department of Justice and, as indicated by the 00J letter, the Department of Justice has already been made aware of the
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. s i tua tion. One key factor which has not been provided to the Department of Justice is whether the Congressman has been participating in this proceeding
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as a private individual or as a Congressman. The Staff submits that the
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Board's resolution of the issue should be forwarded to the Department of s
Justice by the Office of the General Counsel, which functions as counsel
,to the Commission.
M!n respect to the matter of a non-attorney representing hn individual in this proceeding in violation of 10 CFR % 2.713(a), however, this Board is clearly the proper body to resolve the issue.
In the Staff's view, the regulations require the Board to find that Mr. Halterman and Ms. Snow should not be permitted to continue representing Congressman Dellums in this pro-c';eding as long as they are not attorneys.
Respectfully submitted, ll h& 5
-Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 13th day of July,1979 O
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UNITED STATES OF AMERI'.A NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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GENERAL ELECTRIC COMPANY Docket No. 50-70 i
(Show Cause)
(Vallecitos Nuclear Center -
General Electric Test Reactor, Operating License No. TR-1) l'
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CERTIFICATE OF SERVICE -
l' I hereby certify that copies of "NRC STAFF RESPONSE TO BOARD ORDER" in the
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above-captioned proceeding have been served on the following by deposit in as indicated by an asterisk, throug the United States mail, first cla m '.o:,sion's internal mail system, this 13t r
deposit in the Nuclear Regulatory Co I day of July, 1979:
l Edward Luton, Esq., Chairman
- Andrew Baldwin, Esq.
Atomic SaTety and Licensing Board Friends of the Earth U.S. Nuclear Regulatory Commission 124 Spear Street l
Washington, D. C.
2004 San Francisco, California 94105 e
i Mr. Gustave A. Linenberger*
George Edgar, Esq.
Atomic Safety and Licersing Board Morgan, Lewis & Bockius i
U.S. Nuclear Regult?qry Commission 1800 M Street, N. W.
l Washington, D. C.
20555 Washington, D. C.
20036
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Dr. Harry Foreman Jed Somit, Esq.
Box 395, Mayo 100 Bush Street - Suite 304 University of Minnesota San Francisco, California 94104 Minneapolis, Minnesota 55455 Mr. Ken Wade The Honorable Ronald V. Dellums 1735 New York Avenue, N,.
W.
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ATTN: Nancy Snow Room 503 General Delivery, Civic Center Washington, D. C.
20006
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Station Oakland, California 94604 Mr. Edward A. Firestone l
General Electric Company l
Ms. Barbara Shockley Nuclear Energy Group 1890 Bockman Road 175 Curtner Avenue I
San Lorenzo, California 94580 San Jose, California 95125
,j (Mail Code 822) 9 q@ 9 t
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The Honorable Phillip Burton Atomic Safety and Licensing Appeal Attention: Mary Panel (5)*
2454 Rayburn House Office Building U.S. Nuclear Regulatory Comission
- Washington, D.C.
20515 Washington, D.C.
20555
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The Honorable John L. Burton Docketing and Service Section (4)*
1714 Longworth House Office Office of the Secretary Building U.S. Nuclear Regulatory Comission Washington, D.C.
20515 Washington, D.C.
20555 Atomic Safety and Licensing Board Panel
- U.S. Nuclear Regulatory Comission Washington, D.C.
20555 hU S h-+::~
Daniel T. Swanson Counsel for NRC Staff I
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