ML19312E866
| ML19312E866 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/30/1980 |
| From: | Blask J, Cohen W PENNSYLVANIA, COMMONWEALTH OF |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML19312E865 | List: |
| References | |
| CLI-80-19, NUDOCS 8006180043 | |
| Download: ML19312E866 (9) | |
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UNITED STATES OF AMERICA NUCLEAR RDGUIATORY Ca%MISSICN 9
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FETROPOLITAN EDISON OCNPANY Docket No. 50-289 (Restart)
(Three Mile Island Nuclear Station, Unit No.1)
PETITION FOR RECONSIDEIMTION The Consumer Mvocate of Pennsylvania (Consumer Mvocate),
participating in the above-captioned proceeding as a representative of an interested governmental agency pursuant to 10 CFR S2.715(c), hereby petitions your I!onorable Ccnmission in accordance with 10 CFR S2.771 to reconsider your decision set forth at CLI-80-19 to deny the Consumer Mvocate's petition for financial assistance to intervenors who are participating in the TMI Unit 1 restart proceeding. In support of this petition the Consumer Mvocate states the following:
The Decision In CLI-80-19 Is Erroneous 1.
Absent a clear and detailed explanation, there is no basis for detennining why this Honorable Comission in its bbmorandum and Order at CLI-80-19 has failed to adopt a legal opinion by the Cmptroller General
.of the United States which was specifically requested by this Honorable Cmmission's General Counsel in an effort to resolve the intervenor funding controversy. Without such explanation, it appears that this Conmission has either misunderstood the Otznptroller's opinion or has i
indiscriminately chosen to ignore it. As a result, the decision in CLI-80-19 is erroneous.
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The Comptroller's opinion, Financial Assistance to Intervenors in Proceedings of Nuclear Regulatory Commission, B-92288, January 25, 1980, was issual in response to a letter dated Novanber 2,1980 fran the NRC's General Counsel which sought answers to two narrow questionc regarding intervenor funding:
(1) hhother it is legal to use appropriated funds to provide financial assistance to intervenors in adjudicatory and/or rulemaking proceedings when Congress has neither. expressly prohibited nor approved such funding.
(2) Whether there are, in fact, circumstances under which the Ccnmission may legally use public funds, as appropriated in fiscal year 1980, to provide financial assistance to intervenors.1/
The Comptroller General's response to these questions was uncquivocal:
(1) Nuclear Regulatory Canmission may use appropriated funds to provide financial assistance to its intervenors in its proceedings.
(2) Nuclear Regulatory Commission may use fiscal year 1980 funds to provide financial assistance to intervenors in its proceedings despite appropriation conmittee statement that no funds are being provided for that purpose.
Financial Assistance to Intervenors, supra at 1.
The Ocznptroller went on to state that its decision was limited to the legality of IEC 1/
A majority of the Conmissioners have already voted to request funds for a pilot intervenor funding program for fiscal year 1981.
In his inquiry to the Comptroller, the General Counsel asks whether Congressionally-appropriated funds for W 1980 can be used for a pilot intervenor fmding program where the W 1980 appropriations legislation neither authorizes nor forbids such spending. The Conmission was apparently concerned i
about the legal effect of language in the llouse Appropriation Cammittee reports for W 1979 and W 1980 that expressly prohibited intervenor funding by the Ca mission.
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funding of intervenors an1 that clould the NRC proceed with a " pilot intervenor's program," the Comptroller "would not be required to object."
The extent to which the Canptroller qualified his epinion is de minimis, By way of dictum, the Omptroller suggests that the NIO:
d be well advised to postpone further implementation ma of the pilot intervenor's program... in the light of the' 1980 IIouse Appropriations Ommittee report.
(Emphasis supplied.) Financial Assistance to Intervenors, supra at 6.
Quoted in CLI-80-19 at 5.
This gratuitous advice, 2/ which appears from the structure of the Comptroller's decision to have been added only as an afterthought, together with the Camtission's " clear reading of the legislative history associated with the fiscal year 1980 appropriations legislation" is offered as the only basis for the CLI-80-19 bbnorandum and Order denying intervenor funding. Absolutely no rationale or authority is cited by this lionorable Commission for its giving nore weight to the Cbmptroller's unsolicited dictum and its own assessannt of the legislative history of the appropriations legislation than to the substanti.c aspect of the Canptroller's opinion, i.e. that intervenor funding is legal 2/
It is korth reiterating that the letter frun the NBC General Counsel sought only the Cuupi2uller's opinion on two narrow legal questions.
The General Counsel did not ask for the Ocmptroller's views as to a preferred course of action for the NRC. Nevertheless, the Canptroller's advice was given, ostensibly to warn the NRC of the possibility of
" strained relations with the Congress" if the Camlission decided to fund intervenor's.
1)
...despite appropriation cmmittee statenent that no funds are being' provided for that purpose." Absent such an explanation, it nust be presumed that this lionorable Ommission has either misinterpreted the thrust of the Ocxnptroller's opinion or has unaccountably chosen to disregard his expert views on the issue. As a result, it is difficult to see bow this lionorable Ommission has:
chosen to address the [ Consumer Advocate's] petition on its merits in the exercise of [the Ommission's] inherent superviscry authority over agency adjudications.
CLI-80-19 at 2.
2.
The Memorandum and Order at CLI-80-19 is inconsistent on its face and is therefore erroneous. As discussed below, two inconsistencies can be found in the text of CLI-80-19. Petitioner respectfully subnits that these discrepancies require this IIonorable Ommission to provide further explanation and clarification of the Manorandum and Order or, as requested hare, to undertake its reconsideration.
CLI-80-19 is rmarkably forthright as to this 11onorable Canaission's position on intervenor funding:
The Cmmission notes in passing... that the current Camission does favor funding intervenors...
(Emphasis in original.)
CLI-80-19 at 3.
This u qualified statement of the Commission's views is inconsistent with the Cmmission's decision to deny the Consumer Advocate's petition requesting funding for other intervenor groups. bbre importantly, this statement further begs the question as to why the Cannission has chosen to disregard the substance of the legal opinion that the Omnission solicited fran the Couptroller General. The Ocuptroller's opinion unequivocally states that disbursing l
of funds appropriated for FY 1980 to intervenors.in NRC proceedings is within this Canmission's discretion and is legal. CLI-80-19 can therefore be reduced to the following non sequitur: the Ca mission enthusiastically
J declares its total support for intervenor funding;3] before proceeding to ftal intervenors, the Cbmnission seeks a legal determination to support such action; a favorable determination is made by the appropriate authority; and, in response, the Comnission declines to fund intervenors.
A second internal inconsistency in CLI-80-19 is revealed when the Comnission states:
The Comnission notes that Congress has precluded such funding, and therefore, the amnission will not fund intervenors.
(Duphasis supplied.)
CLI-80-19 at 3.
The Comnission's conclusion that Congress has precludcd intervenor funding contradicts subsequent recognition of, and citation from, the Comptroller's opinion at B-92288 that is found in CLI-80-19. Ibreover, this conclusion subverts well-established principles of statutory construction.
'Ihe above-cited staternent in CLI-80-19 presumably reflects this Comatission's view that prohibitory language in a House Appropriations Conmittee report to which a conference ocmnittee fails to object 3/
This enthusiasum is further demonstrated in the Ocunission's FY 81
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budget subnission and in testimony before Congress. CLI-80-19 at 3.
c.
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represents affirmative Congressional action and thus constitutes positive law. This view is expressly rejected by the Canptroller C cral as the bhnorandu:n and Order at CLI-80-19 clearly recognizes when it quotes from B-92288 as follows:
On January 25, 1980, the canptroller General issued his decision... in which he concluded, that the restriction
" indicated in the [ Congressional conmittee] report was not a legal limit on the agency's spending because it was not expressly stated in the appropriation act,"
CLI-80-19 at 4-5, citing B-92288 at 6.
The Ocmnission's statement that Congress has precluded intervenor funding (CLI-80-19 at 3) overtly contradicts the CuvLruller General's conclusion in B-92288 later referenced by the Cmmission's bbnorandum and Order at CLI-80-19, thus making the latter inconsistent on its face.
Petitioner would also subnit that the Ocmnission's statanent in CLI-80-19 at 3, accepting as having the force of law a statement contained in the report of a Congressional conmittee, is contradictory to well-established principles of statutory construction. Cmmittee reports and other secondary sources are used to construct a statute only wnen the text of the statute can support two or more equally plausible but irreconcilanle or inconsistent interpretations. Such ambiguity can hardly be said to exist when Congress is silent on as topical an issue as intervenor funding. As the Comptroller General stated:
if the Congress desires to restrict that [ financial] flexibility
[of Federal departments] with respect to a specific item, it may do so by inserting a limitation in the text of the appropriation act or in scxne other enactment.
In other instances in which the Congress desired to prohibit funding of intervenors, it has specifically indicated this intent in the appropriation act itself.
B-92288 at 5 and 6.
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J In concluding that Congress has precluded intervenor funding, this Ccmnission, without explanation or justification, reverses settled rules of statutory construction and rejects the well-reasoned analysis of a Cmptroller General decision that this Ccmnission itself requested.
As the quoted statement also contradicts later reliace in CLI-80-19 on the Comptroller General decision, CLI-80-19 is' internally inconsistent and therefore erroneous.
Grounds Of This Petition For Reconsideration 3.
The Office of Consumer Mvocate (OCA) is an agency of the State of Pennsylvania and is participating in the above-captioned action under 10 CFR S2.715(c). The OCA was created by the Pennsylvania General Asscmbly in 1976 as an independent state agency authorized to represent the " interest of consumers" before state and federal regulatory conmissions.
The Consumer Mvocate, by statute, has broad discretion to define and interpret the words " interest of consumers."4] The Cr7sumer Mvocate has determined, in the particular instance of the recent events at Three Mile Island, that the interest of consumers as represented by the Consumer Mvocate extends to health and safety issues attending the restart of 91I Unit 1 as wll as the financial and managerial capability of the licensee. Thus, the interests represented by the Consumer Myocate will be affected by the outccme of the instant restart proceeding.
The Cbnsumer Mvocate believes that denial of intervenor funding will severely limit the record on which that outcme is based.
4.
The intervenor groups, which have requested or may request funding for witness expenses, are consumers whose rights in the matter of funding are supported by the Consumer Mvocate. Further, the Consuner Mvocate believes that all Pennsylvania consuners will benefit by hPC 4f 71 Pa. C.S.A. S309-4.
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funding of intervenors' witnesses. As this Ocmnission has already noted, its decision in CLI-80-19 affects both the Consuner Myocate as well as other parties and formal participants in the proceeding. In sulmitting this Petition For Ibconsideration the Consumer Myocate is supporting the rights of his client and, thereby, fulfilling his statutory duty.
5.
As discussed above, the Constrner Mvocate believes this Ccmnission's decision in CLI-80-19 to be erroneous because:
(1) the decision rejects the conclusions of the legal opinion provided by the Ccmptroller General at this Conmission's request and provides no explanation for this rejection, and (2) the decision is internally inconsistent. As a result, the Cbnsumer Myocate believes that its Petition To Seek NRC Funding For Consumer Intervenors 'Ib Finance Witness Expenses was not addressed "on its merits" in CLI-80-19, was erroneously rejected, and should be reconsidered by this Commission.
Relief Sought By Petitioner Consumer Mvocate 6.
For the reasons set out above, Petitioner, the Consumer Mvocate of Pennsylvania, respectfully requests that your Honorable Ccmnission:
- a. reconsider its decision in CLI-80-19 to deny Consumer Mvocate's Petition 'Ib Seek NBC Funding For Consumer Intervenors
'Ib Finance Witness Expenses,
- b. schedule oral argument on the issues raised by this Petition Ebr Reconsideration, S
.4 1110w subnission of briefs on the issues raiscd by this c.
Petition For Reconsideration, if it so desires, and
- d. revise its bbnorandum and Order at CLI-80-19 to provide for intervenor funding in NRC proceedings.
Respectfully Suhnitted,
..s Jercme K. Blask Assistant Consumer Mvocate HALTER W. 00 HEN Consumer Mvocate Pennsylvania Department of Justice Office of Consumer Mvocate 1425 Strawberry Square Harrisburg, PA 17120 DATED: buy 30, 1980 4
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