ML19340D101

Forwards Draft Memorandum Describing NRC Approach for Determining Eligibility of Intervenors for Funding,In Response to Request

ML19340D101
Person / Time
Issue date:	07/19/1978
From:	Stoiber C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Gilinsky V, Hendrie J, Kennedy R NRC COMMISSION (OCM)
Shared Package
ML19340D094	List: ML19340D093 ML19340D096 ML19340D098 ML19340D100 ML19340D101 ML19340D102 ML19340D104 ML19340D105
References
NUDOCS 8012290076
Download: ML19340D101 (4)

Text

l s

s n.Q l

.f July 19, 1978 i= ::

fib MEMORANDUM FOR:

Chairman Hendrie i.ft Co:::=issioner Gilinsky E-Commissioner Kennedy Commissioner Bradford

==

FROM:

Carlton R. Stoiber 9..

~=

Assistant General Counsel

SUBJECT:

DRAFT RESPONSE TO SENATOR DOMENICI'S QUESTION P2GARDING FUNDING FOR INTERVENOPS (S. 2775) p5 During the June 28, 1978 hearings of the Senate Subcommittee l '.~

b on Nuclear Regulation regarding the Nuclear Siting and Licensing bill, Senator Domenici asked that NRC submit for

=-

the record "what guidelines you are going to set up as to

. i determining which groups get reimbursed, what your initial guidelines will be and the like."

At OCA's request, we have prepared the attached draft memo-randum which describes a preliminary NRC approach for deter-mining eligibility of intervenor groups for funding.

May we i==

please have your connents as soon as possible?

Attachment:

D As stated

!-4 1:

cc:

Director, OPE r=

~

Director, OCA SECY s

CONTACT:

C. W. Reamer, OGC 9=-

634-1465 OFFIC E F

[Of p 3 /'9 commaus k m.mggrg-, pg *pc 4-r,4 k r,,,

r

,,,7.,/,1 Q /7 8 7 /1gf 7 A omva m

._i NRC FORM 318 (9 76) NECM 0240

e. e a mutat eninvins orr:Cas te73. end

\\

(..

PRELIMINARY NRC APPROACH FOR DETERMINING ELIGIBILITY h.~

~

FOR FUNDING UNDER PROPOSED SECTION 197 c

OF THE NUCLEAR SITING AND LICENSING BILL

~

(SECTION 301 0F S.

2775)

In the short time available, ne have given a preliminary review to some approaches the Commission might use to imple-ment section 197, providing for funding for intervenors.

This memorandum describes one such approach which we believe has merit.

However, more systematic consideration may disclose better alternatives. Therefore, before exercising our implementation responsib111 ties under section 197h, we would want more thoroughly to evaluate a broader range of opcions.

It should also be noted that implementation of any

=

proposal would involve rulemaking under the Administrative ir Procedure Act, and participation by affected groups and the

~

public.

An overriding aspect of implementing section 197 will be determining what criteria and guidelines will be adopted for assessing eligibility of individuals or groups for funding.

Froposed section 197b sets forth five matters which appropri-

~

ate eligibility criteria must address.

Several provisions of our existing rules of practice (10 CFR Part 2) contain l-principles which could be very useful in developing eligi-tility criteria.

The first criterion set out in section 197 would focus on "the intervenor's interest in the matter."

As a matter of eligibility, an intervenor would ordinarily establish this b..

requirement simply by satisfying the requirements.or inter-vention in an NRC license proceeding under 10 CFR 2.714.

Any petition or request for intervention must be accompanied by a supporting affidavit identifying the aspects of the proceeding on which intervention is sought and setting forth

- ma the facts pertaining to the petitioner's interest and the E

tasis for his contentions.

10 CFR 2.714 (a).

A second criterion would be whether "the intervenor **s reasonable access to alternative sources of funds."

An intervenor who requests funding will be asked by NRC to I

provide a full description of his financial status, includ.

ing assets and liabilities, sources of income, and current budgetary obligations.

In addition, we would also ask for 733 information about the intervenor's efforts to obtain addi-

== int tional funding for the proceeding.

A " reasonable" effort 95 must be made by the intervenor to secure funding from those who may share his interest. Organizational intervenors will u_

be asked about efforts they have made both inside and out-

=

side their organization.

In deciding what level of effort

=

is required, the key word is " reasonable."

2..m - -

-- v

========:==~

==

.. -. ~

~

~

=

i

4 7:.7.

2

~

C

=

With this information, NRC would then decide whether an

(;;

alternative source of funding is available.

To satisfy this

.s.

requirement, it is not necessary that the information show

'-s5=

the intervenor to be destitute.

An organizational intervenor

?1.:

may well have substantial assets and income.

Normally, it

..mi..f wculd be enough for the intervenor to show that available

qsi@

sources of inecme have been prudently budgeted elsewhere.

p.

The third criterion of section 197b would assess whether "the P. _..

intervention would not occur or its effectiveness would be SM:;

significantly limited in the absence of funding."

If, under is" criterion (2) above, an intervenor does not have access to E

funding other than by the Commission, then ordinarily the third criterion would also be met.

Of course, the Commission would request information to

==

assure itself that there is close scrutiny of an intervenor's statement about the limits which the absence of Commission funding would impose on the effectiveness of the intervention.

Ecwever, this scrutiny would not include an extensive review

' m;;

of the intervention to determine, for example, whether it would be equally as effective if presented in another manner.

The presiding officer of an NRC proceeding has ample authority under existing NRC rules (10 CFR 2.714(e)) to condition or limit intervention in a manner consistent with the objectives of the proceeding.

c The zfourth criterion-would examine whether "the intervenor's Ti participation is likely to lead to presentation of substantive

=,

arguments and/cr views that would not otherwise have been EE presented." In addition to the information reouired under 10 ff CFR 2 714, we would anticinate asking an intervenor who

. T::.

seeks funding to describe the distinctive contribution the I" -

intervenor hopes to make, and to identify the substantive i. --

arguments or views likely to be elicited by his presence in

'~

the proceeding.

No attempt would be made to evaluate the worth or merit of an intervenor's views beyond that necessary to a presiding officer's ruling on petitions for leave to

_==

intervene under 10 CFR 2.714 In proceedings where there is

~~

similarity between the positions and interests of more than one intervenor, the likelihood that arguments or views may overlap would not be viewed as affecting eligibility, but rather would be considered under section 197f providing for consolidation and joint compensation.

s:

'****M w

p--

1r w T

• T

=

m

)

3 i-We recognize the responsibility of our staff to seek to p

present all relevant pointa of view on an issue.

Thus, it O

will be important fer an intervenor requesting funding to 7

set forth with specificity the distinctiveness of his likely contribution.

As a general matter, we believe that the eligi-

~

bility criteria should be broadly construed, with doubt

~

resolved in favor of eligibility.

If it subsequently develops that an intervenor's substantive arguments and views essen-tially duplicate the staff's, then the presiding officer of the proceeding has the power to take appropriate action to restrict repetitive evidence or argument, and prevent delay.

10 CFR 2 718, 2.714(e).

The fifth and last criterion for eligibility would be to deter-mine whether "the presentation of views can reasonably be

~

expected to centribute to a fair determination in the proceed-ing."

A decision in a proceeding is likely to be no better than the record upon which it is based.

If the presentation of a certain view can reasonably be expected to contribute Substantially to the development of the record for the l

proceeding, then the criterion would normally be satisfied.

F It would not be necessary for the presiding officer to find that the presentatien of the view is absolutely required to develop an adequate record.

It is enough that the information supplied in the request for funding would permit (but not compel) the conclusion that presentation of the view could result in an identifiable contribution to the record.

Under section 197, the amount of reimbursement depends on

~

~

yg.;

several~ factors in addition to eligibility.

One factor deserving specific mention is the provision that "the amount paid shall be determined based upon the intervenor's contribution to the proceeding...."

The Ccmmission would not apply this provision to make funding of an otherwise eligible intervenor dependent on the Commissien's evaluation of the quality or quantity of an intervenor's case.

Section 197d sufficiently addresses the situation in which payment of an intervenor would not serve the statutory purposes for which funding was intended.

As a final matter, we have addressed the question of fu'nding guidelines in the context of NEC license proceedings.

Commis-7 sien rulemaking proceedings, which may also be included in U n=

the pilot program, may require a somewhat different approach.

Although we have not specifically analyzed the rulemaking EF9F area, we would expect many principles adopted for funding in the 9 FEE licensing context to be applicable to the agency's developnent i

cf generally applicable rules.

i rn-7"*'

.=

..m

_.