ML19296C949

Responds to Requesting Explanation of Actions & Intentions Re Public Intervenor Funding.Commission Voted to Request Funds from Congress for Pilot Intervenor Funding. Forwards Comptroller General 800125 Funding Decision

ML19296C949
Person / Time
Issue date:	02/04/1980
From:	Ahearne J NRC COMMISSION (OCM)
To:	Myers J HOUSE OF REP.
Shared Package
ML19296C946	List: ML19296C945 ML19296C949 ML19296C950
References
NUDOCS 8002290108
Download: ML19296C949 (7)

Text

1. pn atouq#o, UNITED STATES NUCLEAR REGULATORY COMMISSION 4

E WASHINGTON, D. C. 20555 og*****/

February 4,1980 CHAIRMAN The Honorable John Myers

[

Congress of the United States i

House of Representatives Washington, D. C.

20515,

[, s DeagCongressmanMyers: +-

Thank you for the letter of November 30, 1979, signed by you and Congressman McCormack requesting an explanation of the Nuclear Regulatory Comission's actions and intentions with respect to intervenor funding.

I appreciate the opportunity to explain the Commission's position.

i As you correctly point out, the House and S. enate Appropriations Comittees' j

reports for fiscal year 1979 did contain restrictions upon the use of I

appropriated funds for intervenors, though only one of the reports i

contained the language quoted in your letter.

Furthennore, although the reference to the Department of Energy in the House Appropriations Comittee report for fiscal year 1980 would not apply to this Comission, there is other language in that report which states that the " budget request and the committee recommendation do not include funds for intervenors."

The House-Senate conference committee acceded to this language.

A majority of the Commission has voted to request funds from Congress for a pilot intervenor funding program during fiscal year 1981, a year i

to which none of the report language cited above applies.

In an effort I

to eliminate. potential uncertainty, the Commission asked the Comptroller General if "it is legal to use appropriated funds to provide financial assistance to intervenors in adjudicatory and/or rulemaking proceedings

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when Congress has 'neither expressly prohibited nor approved such funding."

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(emphasis added).

The Comptroller General's response is enclosed.

Let me assure you that the Commission has every intention of abiriing by the judgment of Congress on matters foreclosed from Commission discretion.

I hope that this letter has adequately responded to your concerns in this regard.

Sincerely, l

John F Ahearne

Enclosure:

As Stated i

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/DYi THE COMPTAOLLER GENERAL

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DECISION l

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.B-92288 DATE: January 25, 1980 f@,q,q@

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.a::=:w MATTER OF: Financial Assistance to Intervenors in Proceedings

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of Nuclear Regulatory Co=ission

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Nuclear Regulatory Co=:nission may use ap-Q:,$.Q ye.g w

propriated funds to provide financial as-gg!!z

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sistance to intervenors in its proceedings-5$

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if it determines that participation of' party

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can reasonably be expec ed to contribute 7Mj.d substantially to a full and fair determina-3; u ~g[

tion of the issues before it, and if inter-

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venor is indigent or otherwise unable to

."". ". Z...E finance its own participation.

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2.

Nuclear Regulatory Comission may use fiscal S

p-" g 1,g year 1980 funds to provide financial assist-ance to intervenors in its proceedings despite

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appropriation co=mittee statement that no J-/- n..

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funds are being provided f or this purpose.

IJmitations on spending contained in com-

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mittee reports are not binding on agency un-less expressly stated in appropriation act.

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The General Counsel of the Nuclear Regulatory Commission has

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requested our views on the Commission's authority to provide finan-

.M cial assistance to participants in its proceedings.

Specifically,

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the. General Counsel asks first whether the Commission may use ap-

....gL propriated funds to assist interveno.rs in certain of its proceedings Si when the Congress.has neither expressly approved nor prohibited such M5

"-Tjj assistance by law.

Second, he asks whether there are circumstances c

under which the Co= mission cay use fiscal year 1980 funds to assist

"- "..- f intervenors although the Comittee on Appropriations of the House t.

of Representatives has indicated in its report that the appropriation 2

act for.1980 does not contain funds for intervenors.

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For the reasons indicated below it is.our opinion that the Nu-

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clear Regulatory Commission may legally expend appropriated funds to assist intervenors in its proceedin5s if it wishes to do so and that it may legally use fiscal year 1980 funds for this purpos.e despite.

-%.. r Is the language. in the appropriations cc =ittec report.

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FUNDING INTERVENORS IN GENERAL

.gE=i-r-2--- q In response to an earlier request of the Comission, we issued

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our decision, Costs of intervention-Nuclear Reculatory Co=is s ion,

_.. _ l.%_Q.y B-90288, February 19, 1976.

We determined that the Cocmission could

~:-"..Q properly use its appropriated funds to assist intervenors if it de-EE...:"-~~.

termined that it could not make licensing determinations "unless it extends financial assistance to certain interested parties who require T

it, and whose participation is essential to dispose of the matters d

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b ef ore it * * *.

f; c = ;;;.:::5.i In reaching this conclusion we looked at section 189 of the fir;-d.'

Atomic Energy Act of 1954, as amended, 42 U.S.C. E2239, which au-i~~~~r r~f.

.E~55 thorizes the Co=nission to conduct hearings and to admit as a party

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to its proceedings anyone who may be affected by its proceedings.

We

],'::2 also considered that the Coc:sission generally receives a lump sum ap-r

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propriation for necessary expenses in carrying out the purposes of the E:

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Energy Reorganization Act of 1974. We then stated:

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"While 31 U.S.C. S628 (1970) prohibits agencies from using ap-

~~.'.~~_i:j propriated funds except for the purposes for which the appro-priation was made, we have 'long held that where an appropria-p :ZZ?.

tion is made for a particular object, purpose, or program, it it ~ ~r:.

is available for expenses which are reasonably necessary and

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[ __.]d proper or incidental to the execution of the object, purpose or program for which the appropriation was made, except as to

. ".3a expenditures in contravention of law or for sone purpose for

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which other approniations are made specifically available.

g 3=----i 6 Comp. Gen. 619 (1927); 17 id., r.36 (1938) ; 29,i_d,. 419 (1950) ;

g=gg 44 i_d,. 312 (1964) ; 50.i_d. 534' (1971) ; 53 1.d. 351 (1973)."

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=="~g ;:y; We finally decided that only the Coc: mission was able to determine wheth-

-"E er it was necessary to fund intervenors in order to carry out its stat-b =-N t

utory responsibilities, and if it so determined, we would not obj e ct

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to its use of appropriated funds for this purpose.

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In a subsequent decision, Costs of intervention-Food and Drue 'Ad-

{+E E3d ministration, 56 Comp. Gen. 111 (1976), we modified our Nuclear Regu-latory Commission decision. We stated:

... 2 "While our decision to NRC did refer to participation bein;;

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' essential,' we did not intend to imply that, participation

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must be absolutely indespensable. We.would agree with Con-

~3 E===it sumers Union that it would be sufficient if an acenev deter-

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mines that a particular expenditure for participation 'can

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.;;.;; 2 reasonably be expected to contribute substantially to a full E

y:M and f air determination of' the issue before it, even though

===-1 the expenditure may not be ' essential' in the sense that the

.12-issues cannot be decided at all without such participation."

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Subsequent to our most recent decision on this issue, the United

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States Court of Appeals for the Second Circuit issued a decision which Q

held that it was not error for the Federal Power Commission to deter-ggd

,mine that it lacked the statutory authority to reimburse intervenors

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,.m for their expenses.

Greene County Planning Board v. FPC, 559 F. 2d g""..;;;;;

1227 (1977) (Rehearing en banc), cert. denied, 434 U.S. 1086 (1978).

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In so ruling, the court indicated its disagreement with our determina-

--i tions described above.

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=m; Although the Greene County case cast some doubt on the validity h"

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of our previous decisions, it is our opinion that the court decision applied only to the former. Federal Power Commission (FPC), and does

..,_f not apply broadly to other Federal agencies or even to the agencies

... u_u u.=c which succeeded to the FPC's respensibilities.

In Greene County, F

2--i the Second Circuit relied on' three previous court decisions in reach-

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ing its result.

These were Alveska Pipeline Service Co. v. Wilderness

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Society, 421 U.S. 240 (1975); Turner v. FCC, 514 F. 2d 1354 (D.C. Cir.

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..;iE 1975); and Greene County Planning Board v. FPC, 455 F. 2d *12 (2d Cir.),

ge---daF5 cert. denied, 409 U.S. 849 (1972).

However, none of these previous

~4 decisions dealt directly with the authority of a Federal agency to ex-

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pend 'its own funds voluntarily to reimburse the expenses of interve-

.._.....y nors before it.

In Alvesks and Turner, suora, the issue was whether g.g f-"~j a court or administrative agency could order one party to its pro-

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ceedings to pay the expenses of another.

In each case the court ruled

.. - stj that this could not be done without specific statutory authority.

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the.first Greene County case the qc:stics. was whether a court could I- ".===

order either an opposing party or the agency to pay the intervenor's g;gdi expenses.

The court ruled that, in the absense of a statutory require,-

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that such expenses be paid, it could not orde_r that they be paid.

ment As we stated in distinguishing these three cases in our Nuclear i-~~~ ~7 Regulatory Commission decision, supra:

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"In the matter before us, we are not considering whether NRC has the authority to determine whether one participant in its ZM proceedings should pay the expenses of the other. nor are we

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is extended prevail. There is also no question of comoel-f[:].j-@'.

ling NRC to pay the expenses of any of the parties. We j = :=~

hold only that NRC has the statutory authority to facili-f tate public participation in its proceedings by using its 3-~ ~~ -

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own funds to reimburse intervenors when (1) it believes v

that such participation is required by statute or neces-

- sary to represent adequately opposing points of view on E!:

-- p a matter, and (2) when it finds that the intervenor is in-J~__ lil digent or otherwise unable to bear the financial costs of

..-.u participation in the proceedings."

(Emphasis in the orig-C.~_

inal. )

2sp We therefore do not believe that the second Greene Countv decision

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applies to the Nuclear Regulatory Commission or to any other Federal' 5'-

5 agency other than the former Federal Power Commission.

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7 The United States District Court for the District of Columbia, in

[-j'].E.'T Chamber of Commerce v. United States Department of Acriculture, 459 F.

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.c Supp. 216 (19 78), likewise determined that Greene County did not extend generally to all Federal agencies.

The Office of Legal Counsel of the

..Z Department of Justice has taken a similar position on the effect of

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Therefore, in response to the first question raised by the Commis-h "ZZ:

sion's General Counsel, we conclude that based on the authority given

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it by its organic legislation, the Co mission may use appropriated funds E::

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to assist an intervenor in its proceedings if it determines that the

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participation of that party can reasonably be expected to contribute se.u-._s substantially to a full and f air determination of the issue before it,

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12 and if the party is indigent or otherwise unable to finance its own par-

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..ii=s USE OF FISCAL YEAR 1980 FUNDS 5

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Concerning the General Counsel's second' question, the Energy and

' Water Development Appropriation Act, 19 80, Pub. L. No. 96-69, 93' Stat.,

437, 449, provides with respect to the Co=mic,sion!

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"For necessary expenses of the Commission in carrying out F

the purposes of the Energy Reorganization Act of 1974, as s

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amended * * * $363,340,000, to remain available until ex-4=T.-

pended 4 * *."

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I==n=L This appropriation is a lu=p-sum amount for necessary expenses of the Commission and contains no prohibition on the use of these funds to

[.:.ZEEE assist intervenors in the Co mission's proceedings.

1 However, in reporting the bill which later became the Energy and Water Development Appropriation.Act, the House Committee on Appropria-tions stated:

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• The Budget request and the Committee Recom-

"ff mendation do not include funds for intervenors."

(H. R.

Rept. No.96-243, 96th Cong.,1st Sess. 139 (1979).)

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Although there was no similar language in the Senate Appropriation g,;. ~- :l:

Co=mittee Report, the report of the Cocf erence Committee incorporated

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by reference the House Co=mittee language.

See H. R. Rept. No.96-388,

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96th Cong.,1st Sess. 1 (1978).

We might note that there is no statu-p.- z.

tory requirement that the Co= mission specifically request funds to assi.,t

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intervenors.

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This Office has frequently expressed the view that expressions of Ef:"---

intent as to spending, contained either in an agency's budget submission or in appropriation committee reports, are not legally binding upon the n.

agency unless they are specifi,ed in the text of the appropriation act f::-" :ZZ itself or in some other legislation.

E.g. B-ll4833, July 21, 1978; New-r port News Shio Building and Drv Dock Company, 55 Comp. Gen. 813, 820

[ "11 (1976); LTV Aerospace Corporation, 55 Comp. Gen. 307, 319 (1975).

Our-position is based on the recognition that a certain amount of flexibility

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is necessary in the financial operations of Federal departments and agen-2Z" cies, and that if the Congress desires to restrict that flexibility with respect to a specific item, it may do so by inserting a limitation in a- ~ ~.

the text of the appropriation act or in some other enactment.

As we stat-7;[2" ed in LTV Aerospace Corp., suora:

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• it is our view that when Congress merely appro-sap priates lump-sum amounts without statutorily. restricting m

what can be done with those funds, a clear inference arises

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that it does not intend to impose legally binding restric-tions, and indicia in committee reports and other legisla-tive history as to how the funds should or are expected to

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be spent do not establish any legal requirements on Federal zu

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agencies."~ (55 Comp. Gen. at 319.)

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m :: =:r "i=i'.'12 i In Soil Conservation Seuice's Standard Level User Charce Payment's, Ih B-177610, September 3,1976, the reports of the appropriation committees -

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in both Houses indicated that they desired to reduce the appropriation l;;-.;_fs requested by the agency for a specific line item purpose.

The appropri-

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ation act, however, contained a lump-sus amount without any limitations.

. _... =3 We determined that the reduction indicated in the reports was not.a legal

• ==== iz limit on the agency's spending because it was not expressly stated in the is appropriation act.

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Similarly,. in the present case, although the appropriation co=mittee

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indicated that it was not including any funds for intervenors, the appro-t=-s=.-i priation act itself contains no such provision.

In other instances in

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which the Congress desired to prohibit funding of intervenors, it has

[.... 3.Q specifically indicated this intent in the appropriation act itself.

See E====g Department of Interior and Related Agencies Appropriation Act, 19 80, P.L.

i.{ ~' ZlJ 96-126, 93 Stat.

954, 972 (Appropriation for Economic Regulatory Admin ~

h.5-- ;[7 istration, Department of Energy).

Therefore, in the absence of an ex-press statutory prohibition on spending appropriated funds for assisting

_; -.. g intervenors, the Commission may legally use fiscal year 1980 funds for

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_,j) that purpose if it makes the determinations we have indicated above.

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We wish to make it clear that we are not directing or in any way b

lj-suggesting that the Commission should fund intervenors solely because it E.--._. A is possible to make these determinations.

As we said in LTV Aerospace E'

Zr Corp., supra:

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• This does not mean agencies are free to ignore clearly expressed legislative history applicable to. the use U~~-~~

of appropriated funds.

They ignore such expressions of in-

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...:~. ".T::;.E The Commission may be well advised to postpone further implementation of

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,-C the pilot intervenor's program mentioned in its submission in the light g..q of the 1980 House Appropriations Committee report.

This decision addresses M4 only the question of whether its fiscal year 1980 funds are legally avail-

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able to fund intervenors should it choose to do so.

We hold that if tihe Commission does decide to initiate the pilot intervenor's program, in ac-

.;. _...E cordance with our criteria, we would no e required to o ect.

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Comptroller. General

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