ML19254D144
| ML19254D144 | |
| Person / Time | |
|---|---|
| Site: | Vallecitos, 07000754 File:GEH Hitachi icon.png |
| Issue date: | 10/09/1979 |
| From: | Grossman H Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUDOCS 7910220437 | |
| Download: ML19254D144 (12) | |
Text
N IC B N 'f EC O 4
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UNITED STATES OF AMERICA o
c NUCLEAR REGULATORY COMMISSION ff 4#' [4
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F" Herbert Grossman, Chairman 9"
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Dr. Harry Foreman, Member 4
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Gustave A. Linenberger, Jr., Member C
The Atomic Safety and Licensing Board ws g
In the Matter of
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GENERAL ELECTRIC COMPANY
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Docket Nos. 50-70 and 70-754 (General Electric Test Reactor
)
Vallecitos Nuclear Center)
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MEMOPANDUM A.'D ORDER The Board has been requested to determine whether Congressman Ronald V. Dellums may properly appear in this proceeding and, if so, whether a non-attorney me=ber of his staff may represent him.
Congressman Dellums had petitioned to intervene and was ad=itted to the proceeding as a party at the prehearing conference held on March 16, 1978.
(Tr. 22, 26).
Although the Congressman, through his repr,esentative, had asserted two interests in the proceedings, a personal interest in that Congressman Dellums resided and maintained his offices within 25 to 30 miles of the facility and an interest on the basis of his representation of constituents who resided in the area (Tr. 20-22), the Board made no deternination in admitting him as to whether his sta:us as a congressman representing affected consti-tuents gave him standing, since his personal residence within the stated area was sufficient.
On May 18, 1978, the Acting General Counsel for the NRC wrote the prior Board Chairman to indicate that Title 18 U.S.C.,
Sections 203 and 205, may prohibit congressmen or their representatives 2
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7910220 4-3 7
2-from participating in the proceeding unless such participation is part of a congressman's official governmental duties, and to suggest that the Board might "wish to take steps to clarify whether the 1/
Congressmen-- are participating in their official capacities".
On May 24, 1978, Congressman Dellums notified the Board that he had received the Acting General Counsel's memorandum and was soliciting the opinions of the Attorney General of the United States and the Select Cemmittee on Ethics of the House of Representa-tives, and would "be bound by their determination on the issue".
Congressman Dellums corresponded further with the Board on June 12, 1978, requesting that "the Panel undertake, determine that my staff is indeed capable of representing me in these proceedings".
Mr. Dellums posed, as the basic question, whether 10 CFR 52.713(a) proscribes a member of his staff frem repcesenting him in the proceedings.
He asserted that the decision to involve himself and his office was sparked by constituent requests; that nis involve-ment in the case is "directly analogous to that of a corporation or non-profit organization", and that, therefore, his staff should be capable of representing him.
In response to a further request of the Board dated 1/ Sy order of the Board, dated April 19, 1973, Congressmen Philip Eurton and John L. Burton were admitted as parties and their partici-pation consolidated with that of Congressman Dellums.
For simplicity, only Congressman Dellums will be referred to, although this Memorandum and Order affects all three Congressmen equally.
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. October 3, 1978, Congressman Dellums reported further to the Board on October 26, 1978 with regard to his cccmunications with the House Committee on Ethics and the Attorney General of the United States.
According to the Congressman, the House Committee chose not to respond to his inquiry because, in its opinion, the matter was not one over which it had jurisdiction.
He also enclosed a copy of an opinion given by the Criminal Division of the Department of Justice in response to the Congressman's request of the Attorney General which opined that there were no violations of 18 U.S.C.
- 5203, and no violations of 13 U.S.C. 5205 by the Congressman, but that, since the Congressman's appearance before the Board was allowed in part because of his status as a private citizen, his staff member's representation of him in that private capacity could present possible problems under Section 205.
The letter by the Department of Justice took pai'ns to emphasize that it was merely an informal expression of the Department's views.
As we see the matter before the Board, the question is whether Congressman Dellums and/or his representative are prohibited frco appearing in this proceeding by either 13 U.S.C. 5203 or 5205, or 10 C.F.R. 52.713(a).
Possible Violations of Title 18 of the U.S. Code We turn first to Title 18 of the U.S. Code $203 and 5205, which the Acting General Counsel suggests may prohibit the Congress-man and members of his staff frem appearing in this action unless the
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Congressman is participating in his official capacity as a Congressman.
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Section 203(a)--
imposes criminal penalties upon members of Congress and other Government officials for receiving or sol-iciting compensation for services rendered other than in the proper discharge of official duties in proceedings in which the United States is a party or has a substantici interest.
Section 203(b) imposes those penalties upon anyone who offers or pays the compen-sation to the Government official for the services.
2/
5203.
Compensation to Members of Congress, officers, and others in matters affecting the Ccvernment (a) Whoever, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receives or agrees to receive, or asks, demands, solicits, or seeks, any com-pensation for any services rendered or to be rendered either by himself or another --
(1) at a time when he is a Member of Congress, Member of Congress Elect, Delegate from the District of Columbia, Delegate Elect from the District of Columbia, Resident Coccissioner, or Resident Commissioner Elect; or (2) at a time when he is an officer or employee of the United States in the executive, legislative, or judicial branch of the Government, or in any agency or the United States, including the District of Columbia, In relation to any proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusa-tion, arrest, or other particular matter in which the United States is a party or has a direct and substantial interest, before any department, agency, court-martial, officer, or any civil, military, or naval commission, or (b) Whoever, knowingly, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly gives promises, or offers any compensation for any such services rendered or to be rendered at a time when the person to whom the compensation is given, premised, or offered, is or was such a Mem-ber, Delegate, Commissioner, officer, or employee --
Shall be fined not more than $10,000 or imprisoned for not more than two years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States.
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Section 205(aT imposes criminal penalties upon a Government official who acts as an agent or attorney, other than in the proper discharge of official duties, in a proceeding in which the United States is a party or has a substantial interest.
At first blush, we are tempted to avoid the issue since Title 18 is a criminal code, and we are not charged with its enforcement.
Nor, are we impressed with the suggestion (NRC General Counsel's letter of May IS, 1978) that we take steps to clarify whether the Congressmen are participating in their official capacities or as private citizens for the purpose, presumably, of
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15 U.S.C.
5205 provides, in pertinent part:
5205.
Activities of Officers and e=cloyees in claims against and other matters affecting the Government Whoever, being an officer or employee of the United States in the executive, legislative, or judicial branch of the Govern-ment or in any agency of the United States, including the District of Columbia,' otherwise than in the proper discharge of his official duties --
(1) acts as agent or attorney for prosecuting any claim against the United States, or receives any gratuity, or any share of or interest in any such claim in consideration of assistance in the prosecution of such claim, or (2) acts as agent or attorney for anyone before any department, agency, court, court-martial, officer, or any civil,
- military, or naval commission in connection with any proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter in which the United States is a party or has a direct or substantial interest --
Shall be fined not more than $10,000 or imprisoned for not more than two years, or both.
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... laying the groundwork for further proceedings with other authorities c
concerning possible criminal violations.
We would decline to take such action unless it had some importance to the Board's mandate.
It is only because the Board must determine the question for itself, that we specifically decide the issues raised by 18 U.S.C. 5203 and 5205 as a crima facie matter.
For, although the Board is not charged with determining violations of Title 18 U.S.C.,
it is the duty of the Board not to permit any violation in its presence nor to give sanction to it.
See, In re Winthroo, 31 Ct. C1. 35 (1895); Tyler's Case, 18 Ct C1. 25 (1883).
On the question of " standing", we have little trouble deciding that it was based upon the Congressman's personal interest and not his status as a congressman.
Under 10 C.F.R.
$2.714, only a " person whose interest may be affected 'oy a proceeding" has a right to intervene.
The Appeal Board has recently affirmed the Commission's position that under Section IS9a of the Atemic Energy Act, 42 U.S.C. 52239(a), and 52.714(a) of the Rules of Practice, a petitioner has a right to intervene only when it appears frcm the petition that he will be, or might be, injured in fact by one or more of the possible outcomes of the proceeding.
Nuclear Engineering Company, Inc. (Sheffield Low-Level Radioactive Waste Disposal Site),
ALA3-473, 7 NRC 737, 740 (1978).
The only exception to the rule that intervention is granted as a matter of right only to a person who can show an injury in fact is found in 10 C.F.R. 52.715(c), which 2
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. requires that representatives of the State or municipality be afforded a reasonable opportunity to participate in a proceeding.
That rule does not extend to congressmen.
Here, Congressman Dellums has not alleged any injury in fact to him as a congressman and was admitted only because of his residence and employment within the affected area.
We were not asked to, nor did we, grant the Congressman intervention as a matter of discretion, as permitted in Portland General Electric Co. (Pebble Springs Nuclear Plant),
CLI-76-27, 4 NRC 610 (1976), on his claimed interest as a congress-man.
On the basis of the factors listed by the Commission in that proceeding (4 NRC, p. 616), in order to permit intervention as an exercise of the Board's discretion, we would have to find, in gen-eral, that the Congressman's participation would significantly add to the development of a sound record or to the protection of his interest beyond what is already provided by the intervention of Friends of the Earth.
Be that as it may, we do not find that the basis of the Congressman's standing is determinative of the issue of violation of the criminal prohibitions of Sections 203 and 205 of Title 18 U.S.C.,
since both sections include in the prohibited activities only acts that are other than in the " proper discharge of official duties".
In our opinion, the Congressman's compliance with that requirement is not affected by the basis of his standing in the case, but only by the scope of his congre sional duties.
In this respect, we have no reason to dispute the Congressman's contention 2
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8-that his decision to intervene was " sparked by constituent requests" (letter of June 12, 1978) and that one of his responsibilities is to represent the interest of residents of his district before the Federal Government and its agencies [Prehearing Conference (Tr. 21);
Response of Intervenors Dellums and Friends of the Earth to Licen-sing Board's questions of June 18, 1979, dated July 13, 1979, p. 1].
We are not persuaded by the suggestion of the Staff (NRC Staff response to Board Order, July 13, 1979, pp. 2-3) and the Licensee (General Electric's Response to the Licensing Board's Order dated July 13, 1979, p. 4, fn. 2) that the Congressman cannot represent the interests of his constituents because they did not authorize his by majority vote to represent them.
We note that the obj ection of the Staff and Licensee to considering the Congressman as repre-senting his constituents in this proceeding was directed towards the question of standing, not towards defining the scope of his activities as a congressman, which is the focus of the criminal statutes.
It is not for us to conform a congressman's activities to a consensus of his constituency or to otherwise intrude upon a legislator's prerogative to decide what is in the public interest in performing his official duties.
We think it sufficient that the Congressman believe in good faith that he is representing the best interests of his constituents in a =atter of public interest, which we accept as the case here, for us to determine that he is acting within the secpe of his official duties, although that determination
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alene would not give him standing to intervene as a matter of right absent an allegation of injury in fact to him.
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-um edmi ee e ee-n e w -
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. In su= mary, the provisions of Title 18 U.S.C. are independent of the Co= mission's rules of standing.
Under 18 U.S.C.
5203 e.nd 5205, we find no prima facie case for excluding the Congress-man or his staff member from appearing before the Board on the asserted grounds that such appearance is otherwise than in the pro-per discharge of the official duties of the Congressman or his staff.
Having made the preliminary detemnination that we are not sanctioning any violation of these statutes by allowing the Congress-
=an or a staff member to appear before us, we resolve that matter to our satisfaction at this time.
If, in the future, some agency or tribunal which, unlike the Board, is charged with prosecuting or determining a violation of Title 18, takes some official action in this matter, we may reconsider our determination.
Reoresentation bv a Non-Attorney Under 10~ C.F.R.
5~2. 713 (a)
Having decided that the participation of Congressman Dellums or a duly authorized representative does not violate the criminal provisions of 18 U.S.C., we now proceed to the question of whether the Congressman can be represented by a non-actorney.
In this regard, 10 C.F.R. 5 2. 713 (a) states, in pertinent part, as follows:
(a) Representation.
A person may appear in an adjudi-cation on his own behalf or by an attorney-at-law in good standing adnitted to practice before any court of the United States, the District of Columbia, or the highest court of any State, territory, or possession of the United States.
No attemp t is made here to suggest that the Congressman's representative qualifies as an acecrney-at-law.
Rather, the 2
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Congressman relies (letter of June 12, 1978) upon his involvement's being "no different than that of an organization or corporation,"
which he submits would be entitled to being represented by a member of its staff who is not en attorney.
In their response to the Licensing Board's questions of June 18, 1979, Congressman Dellums and Friends of the Earth cite Duke Power (Catawba Nuclear Station, Units 1 and 2), L3P-73-28, 6 AEC 666 (1973), which held that a non-profit corporation was properly represented by a non-attorney member of the organization, as supporting their position that a congress-man can be represented by a non-attorney.
According to them, the Congressman's inability to appear personally because his primary duties as a congressman require him to attend legislative matters in Washington is similar to the corporation's not being able to appear personally in Catawba.
We do not read Catawba LBP-73-28, or any of the subsequent proceedings before this Commission which permitted organizations to be represented by non-attorney members, as permitting such an appear-ance in a representative capacity.
We see those non-attorney members as having appeared as the " person *** on his own behalf", and not as a representative of that person.
Because the " person" admitted was a group, any properly authorized member of that group could appear as that person.
No case has been cited to us in which an individual who was not a member of a group was perattted to appear where he was a non-attorney.
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. In the instant case, we are not dealing with a group admitted as a person.
Neither Congress, no Congressman Dellums' staff, sought to be admitted in this action.
Congressman Dellums was admitted as an individual and must appear on his own behalf or by the only type of representative, an attorney-at-law, that the rules permit to appear in a representative capacity.
Nor are we persuaded that we should permit the Congressman to be represented by a non-attorney staff member in an exercise of the Board's discretion in order to facilitate his pro-secution of the intervention in view of the Congressman's other obligations as a legislator in Washington.
(Response of Intervenors Dellums and Friends of the Earth, dated July 13, 1979, pp. 1-2).
Under the Rules, Congressman Dellums' choice is not between appearing on his own behalf and having a non-attorney staff member represent him,' but between appearing on his own behalf and e= ploying a quali-fied attorne'y-at-law to represent him.
The Cocmission's Rules assume that Board proceedings would be enhanced by requiring that a person acting in a representative capacity be schooled in the pre-sentation of matters to a court of law.
In view of the multi-party actions usually conducted by the Board, we do not find those rules unreasonable even if other agencies, where the parties may be less numerous, do not impose such strict requirements.
To the extent that the Congressman may wish to retain experts in technical areas to assist him in preparing his case, we would only encourage that practice, considering the highly technical nature of the matters 2
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before the Board.
In this regard, we would also point out, without suggesting that the Congress =an's representative fits the qualifi-cations, that 10 C.F.R. 52.733 permits the use of qualified experts to participate in the examination of witnesses.
On the other hand, if the Congressman views the scope of his congressional obligations as encompassing his participation in administrative hearings, he should retain staff who satisfy the administrative requirements.
IT IS ORDERED that Congressmen Dellums, Phillip Burton and John L. Burton be permitted to continue their intervention in this proceeding.
Hereafter, all pleadings and communications to the Board shall be signed by Congressman Dellums or a properly authorized attorney-at-law, and appearances shall be made in a similar fashion.
A prehearing conference will be scheduled approximately three weeks after receipt of the final staff report in order to determine the course of further proceedings.
Board members Dr. Harry Foreman and Gustave A. Linenberger concur in this Memorandum and Order.
3Y ORDER OF THE BOARD FOR THE ATOMIC SAFETY AND LICENSING 30ARD hCMw 3,
Herbert Grossman, Chairman Dated at Bethesda, Maryland this 9thdayofOctober,1979 jtI
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