ML20045E883

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Partially Deleted Commission Paper Re Petition for Reconsideration of Decision Denying Intervenor Funding in Plant Restart
ML20045E883
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Issue date: 07/01/1980
From: Bickwit L
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
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ML20038A409 List: ... further results
References
FOIA-92-436 SECY-A-80-092, SECY-A-80-92, NUDOCS 9307060177
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Text

UNITED STATES NUCLEAR REGULATORY COMMISSION -

SECY-A-80-92

.. July 1, 1980 WAsHINGTCN D.C.20056 J

CONSENT CALENDAR ITEM

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ADJUDICATORY"

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For The Commission From:

Leonard Bickwit, Jr.

Ceneral Counsel

Subject:

PETITION FOR RECONSIDERATION OF DECISION DENYING INTERVENOR FUNDING IN THREE-MILE ISLAND, UNIT 1 RESTART i

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Purpose:

Discussion:

On May 30, 1980 the Consumer Advocate of Pennsylvania (CAP) filed a petition for reconsideration ( Attachment A) of the Commission' decision in CLI-80-19 ( Attachment B) which denied CAP's prior petition for financial assistance to intervenors idio are participating proceeding.

The major complaint relates to in the ihree Mile Island Unit I restart

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two alleged inconsistencies in the decisions (1) that although the Commission has stated in the decision that it' 'does favor funding intervenors..." (emphasis in original), the Commission ruled to the contrary; and (2) that although the Comptroller General ruled. -

that there is no legal impediment to funding.

intervenors in fiscal year 1980, the Commission stated that " Congress has precluded such funding...'

On June 16, 1980, the NRC staff filed its response in opposition to the petition for reconsideration.

(Attachment C).

CONTACT:

Harvey J. Shulman, OGC 634-3288 16l0:.T. !ian in R:3 acaj yc-fgc3 in act:: dance w3h the r cctm of Inl0 m: lion Act, exemj2-4'34 tjen3 _

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Recommendation:

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A - Petition for Reconsideration Leonard Bickwit, Jr.

General Counsel B

Decision of Comptroller General C

Staff Response to Petition for Reconsideration 0 - Draf t Opinion Comissioners' coments or consent should be provided directly to the Office of the Secretary.

L by c.o.b. Thursday, July 17,-1980.

Comission Staff Office coments, if any, should be submitted to the Comissioners NLT July 1 1980, with an information copy to the Office of the Secretary.

If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the~ Secretariat should be apprised of when coments may be expected.

This paper is tentatively scheduled for affinnation at an Open Meeting during the Week of July 21, 1980.- Please refer to the appropriate Weekly Comission Schedule, when published, f a specific date and time.

DISTRIBUTION Comissioners Comission Staff Offices S;cretariat.

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DEPARTMENT OF JUSTICE G

OFFICE OF CONSUMER ADVOCATE WALTER W. COHEN Fourteenth Floor (717) 7tJ50u Consumer Advocate Strawberry Square O

Harrisburg, Pennsylvania 17120 g

thy 30,1980,

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Secretary

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U.S. Naclear Regulator / Ortnission k

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Attention: Chie_f, D:x:keting aM Sem Section Fe: In the Fhtter of FETROPOLTDW EDISCN CCt'PRW (Three Mile Islard Naclear Station, thit No. 1)

D:cket Ib. 50-289 (Restart)

  • Daar Sir:

Enclosed please find tM Oansurrer Mvtcate's Petition Por Reconsideration of the !belear Regulatory Orrission's decision in its

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ltroranden and Ceder at CLI-80-19, denying funds to intuvucer groups participating in the above-captioned pMing. tbuld you kindly acknculedge receipt of this Petition by so:hAhting-on-tin enclosed -.:r.: :_

duplicate of this letter ard returning to tM Cbasu:er Mvocate. A self-addressed, postage-paid envelope is provided.

Ycrar attention to this ratter is deeply appreciated.

Sincerely, M

Jertme K. Blask Assistant 03rtramer Ahte Enclosure cc: Ccmnissioners: John F. Ahearne, Chair:ran Victor Gilinsky Richard T. Fannedy Joseph M. Hendrie petar A. Bradford b

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NUCIZAR REX 7dIA70RY CONISSICN g

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cf In The Mattar Of hunOPOLITAN EDISCN COGANY Docket No. 50-289 (Bestart)

(7hree Mile Island Nuclear Station, Unit Ib.1)

PrunCN mR RECCNSIIEPATIQ4 The C' nsumer Mvocate of Pennsylvania (Consumer Mvocate),

b participating in the above-captioned prwing as a representative of an interested goverrraental agency pursuant to 10 CFR S2.715(c), hereby petitions your Honorable Ormission in accordance with 10 CFR 52.771 to

' r" reconsider ycur decision set forth at CLI-80-19 to deny the Consumer Mvocate's petition for financialiassistance.,to. intervenors who Are _.. _ __ __....

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participating in the UMI thit 1 restart prWing. In support of this petition the Consmer Mvccate states the following:

The Decision In CLI-80-19 Is Erronecus 1.

Absent a clear ard detailed explanation,- there is to basis for detennining Wy this Honorable Chunission in its Hencrarrhun and Ocder at CLI-80-19 has failed to adopt a legal opinion by the Cuykviler General of the United States w'lich as specifimlly requested by this Ecrorable Ccmnission's General Counsel in an effort to resolve the intervenor funding controversy. Without such explanation, it ama ws that this ccmnission has either misunderstood the CuvLul_ler's opinion or has (E-indiscriminately chosen to igrere it. As a result, the decision in CLI-

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80-19 is erronecris.

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7he Cu.et. toller's opinion, Financial Assistance to Interwncrs t'.c

'F in Proceedines of Nuclear Pegulatory (knmission, B-92288, January 25',

i 1980, was issued in re. w. to a letter dated Ibverbar 2,1980 frtm the IGC's General Counsel htlich sought answers to tse narrow gaestions i

regardm3 interverer funding:

s (1) whether it is legal to use appropriated funds to provide.

financial assistance to inte:venors in adjMintory 'and/or rulemaking pro Ws when Congress has neither expressly prohibited nor approved such funiing.

i (2) Whether there are, in fact, circumstarces urder which the Carission rray legally use pablic funds, as ayytvytiated in fiscal year 1980, to provide financial assistance to intervenors.1./

i "he Cu@Oller General's res;cnse to these gaestions was unegaivocal:

(1) 1.'acleAr Regulatory Otrrission ray use appropriated funfs i

to provide financial assistance to its inurvenors in its proceedings.

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(2)

Ibclear Regulatory Ctumission ray use fiscal year 1980 funds to provide financial assistance to intervenors in its prWings despite apetvetiation txmmittee statement-that~ - -

no funds are being provided for that purpose.

I Fire.ncial Assistance to Intervenors, scpra at 1.

'Ibe CwyLieller went en to state that its decision was limited to the legality of IEC 1

l If A rrajority of the Camissioners.have already voted to request funds for a pilot intervenor funding ytWia.a for fiscal year 1981.

In his ingairy to the Cw.eb.v11er, the General Coansel asks whether Congressionally-I appropriated funds for FY 1980 can be used for a pilot intervenor furyling program where the FY 1980 appropriations legislation neither authorizes nor forbids such spending. 'Ihe Ctmnission was apparently concerned about the legal effect of language in the Hcuse Appropriation Carittee reports for FY 1979 ard FY 1980 that expressly prohibited interverer funding try the Connission.

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funding of intervenors and that shculd the hTC proceed with a " pilot ts 9

intervenor's pt%tse," the CuyLeller "would not be required to object."

'Ihe extent to which the cuyLviler gnalified his opinion is de minimis. By way of dichrn, the.CwpLoller suggests that the IUC:

mga be well advised to postpane further inplementation of t E pilot intervenar's g 4 au...

In the light of the 1980 Bouse Aegusiations Cemnittee leevtl.

(mphasis supplied.) Finarial Assistance to Intervenors, supra at 6.

Quoted in CLI-80-19 at 5.

'Ihis gratuitous advice, 2/ which appem frcrn the sthm of the Cu.vLoller's decision to have been added only as an afterthaught, together with the Ctrmtission's " clear rmaing of the legislative history associated with the fiscal year 1980 appropriations legislation" is offered as the only basis for the CLI-80-19 Memorandtru and Order denying intervencr funding. Absolutely ro rationale or aut?crity is. cited by this Honorable Ctrreission for its givirs nore weight to the Curegoller's unsolicited dicttrn and its own assessment of the legislative history of the ays giations legislatiertthan.to;the-substantive aspect o

of the CuyLviler's opinion, i.e. that interverer fu% is legal 2/

It is worth reiterating that the letter frcrn tin !GC General Counsel Ecught only the CuueLviler's opinion on two narrow legal questions.

'Ihe General Counsel did rot ask for the C%Lviler's views as to a preferred course of action for the ImC. lkrverthaless, the CLpLc11er's advice was given, ostensibly to warn the IUC of the pmsih414ty of

" strained relations with the Ctmgress" if the Ctrrnission h4N to fund intervenors.

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...despite appropriation ecmnittee statement that no funds are beig g=

provided for that purpose," Absent such an explanation, it nust be f...

1 presumed that this Honorable Cemnission has either Irisinterpreted the

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i thrust of the CuqLollers opinion or has unamtably chosen to disregard his expert views on the issue. As a result, it is difficult to see how this Honorable Ccmnission has:

chosen to address the [ Consumer Ichocate's] petition on its merits in the exercise of [the Ccmrission's] inherent superisory authority over agency adjudications.

CLI-BD-19 at 2.

2.

The nrcrandtrn aM Order at CLI-80-19 is inconsistent on i.ts face and is therefore erroneous.

As discussed below, two inconsistencies can be fcund in the text of CLI-80-19. Petitiorer respectfully subnits that these discrepancies regaire this H.wrable Cmrcission to prcvide further explanation and clarificaticn of the MroraMtrn and Order or, as regaested here, to urdertake its reconsideration.

CLI-BD-19 is recarkably forthright as to this Ecnorable Ctmnissian's position on intervenor funding:

The Ctmnission notes in passing... that the current Ctrrission does favor funding intervenors...

(E phasis in original.)

CLI-80-19 at 3.

'Ihis twmlified state =ent of the ccanissico's views is inconsistent with the Ccre.ission's Minion to deny the Censmer Advocate's petition requesting funding for other intervenor groups. Mare izqxrtantly, this statecent further begs the question as to why the ccmnission has chosen to disregard the substance of the legal opinica that tre Ctmnission solicited frczn the CuyLoller General. The Cuybeller's opinion unegaivocally states 'that dinbursing l

of funds appropriated for FY 1980 to intervenors in NBC prcceedings is

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within this Ctmrission's Mic retion and is legal. CLI-80-19 can therefore be reduced to the following non sequitur: the Ctmnission enthasiastically

1 declares its total support for intervenor fuming';3/ before proceeding

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to fund intervenors, the Ctannission seeks a legal determination to i

sup; ort such action; a favorable detemination is nude by the appropriate authority; aM, in responsh, the Ctmnission declines to fund intervenors.

A seccM internal inconsistency in CLI-80-19 is revealed when the Ctxmtission states:

We Cemnission notes that Cbngress has precitried such funding, i

aM therefore, the Ctmnission will not fund intervenors.

(Emphasis supplied.)

CLI-80-19 at 3.

De Ctanission's conclusion that Congress hn precluded intervenor furd2ng contradicts subsequent recognition of, and citation frcxn, the Cuyu.celler's opinion at B-92288 that is found in CLI-80-19. Ibreover, this conclusion subverts well-esah W hed q

principles of statutory corstruction.

The above-cited state: rent in CLI-80-19 prestmbly reflects L.._

this Comission's view that prohibitory language in a House Awwglations j

Ctmnittee report to which a confere.Te ccmnittee fails to object' I

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This enthusiastra is further dernonstrated in the Ctmnission's IY 81 Sudget subnission and in testinony before congress. CLI-80-19 at 3.

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represents affir2rative Congressional action and thus constitutes, positive ig?

j law. Tnis view is expressly rejected by the Ctzrptroller General as the Mrorandum ard Order at CLI-80-19 clearly recognizes when it quotes frca B-92288 as follows:

Ch January 25, 1980, the CuyLvller General issued his s decision... in which he concluded, that the restricticn "irdicated in the [ congressional ocmnitteel report was not a legal limit on the agency's spending because it was not expressly stated in the appropriation act,"

l CLI-80-19 at 4-5, citing B-92288 at 6.

/Ibe Ctrarission's statanent that Cbngress has precltded intervenor fu% (CLI-80-19 at 3) overtly contradicts the CuyRoller General's conclusion in B-92288 later refereAM by the Ctrnission's Fmorardum and order at CLI-80-19, thus making the latter inconsistent on its face.

Petitioner weald also stdrit that the Ctr:nission's statenent in CLI-80-19 at 3, accepting as hwing the force of law a statement Er contained in the report of a Cbngressional ccmaittee, is contradictory

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to well-es+akliest principles 'of siatutory ciadstruction.' - Ctmuittee -

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regerts ard other secondary sources are used to construct a statute only when the text of t.ke statute can support tm or nere equally plausible but irreconcilable or inconsistent interpretations. Such ambiguity can hardly be miA to exist when Congress is silent on as topical an issue as interanor furding. As the Cuyhviler General stated:

if the Cbngress desires to. restrict that [ financial] flexibility

[of rederal depart =ents) with respect to a specific item, it tray do so by inserting a limitation in the text of the appropriation act or in sme other enactment.

In other instarceis in which the (bngress desired to prohibit furding of intervenors, it has specifically indicated this intent in the amvgiation act itself.

ri B-92288 at 5 ard 6.

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i In corrluding that Congress has precluded intervenor funiing, this ccmission, withxt explanation or justification, reverses settled rules of statutory construction and rejects the'well-reasoned analysis of a CuyL.clier General decision that this Ocanissica itself regoested.

As the qteted statement also contradicts later reliance in CLI-80-19 on the Cu+L.011er General decision, CLI-80-19 is internally inconsistent and therefore erroneous.

Grounds Of mis 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 52.715(c). We OCA was created by the Pennsylvania General Assembly in 1976 as an independent state agency authorized to represent the " interest of consu:mrs" before state and federal regulatory comnissions.

The Consumer Mvocate, by, statute, has broad discretion to define and E

interpret the sords " interest of consumers."4/ %e 0:nsumer Mvocate has determined, in the par +imlar instance of the recent events at tree Mile Island, that the interest of consmers as represented by the Constner Myocate extends to health and safety issues attenling the restart of IMI Unit 1 as well as the financial and managerial myh414ty of the licensee. Thus, the interests represented by the canstrner Mvocate will be affected by the outccrie of the instant restart proceeding. %e Q:nstrrer Mvocate believes that denial of interverer funiing will severely limit the record on which that outcone is based.

4.

W e intervenor groups, which have requested or may request funding for witness expenses, are censmers stese rights in the matter of funding are supported by the Consumer Mvocate.

Further, the Ctnsumer h

Mvocate believes that all Pennsylvania consur:ers dill benefit by NBC 4/

71 Pa. C.S.A. 5309-4.

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furding of intervenors' witnesses. As this Ormission has aheady E9 roted, its decision in CLI-80-19 affects both the Orsamer Mvocate as well as other parties and fomal participants in the pWing. In sulmitting this Petition Ibr Ibconsideration the 0:nsmer Mvocate is supporting the rights of his client ard, thereby, fulfilling his statutory s

duty.

5.

As discussed above, the cansume.r Mvocate believes this Ormission's decision in CLI-80-19 to be erroneous because:

(1) the decision rejects the conclusions of the legal opinion provided by the Orptroller Gemd at this Ccrmission's regudst and provides no explanation for this rejection, and (2) the decision is internally inconsistent. As a result, the consumr Mvocate believes that its Petition 'Ib Seek NRC Rniing For ConLT Interveners To Finance Witness Depenses was not addressed "on its rerits" in CLI-80-19, was enoneously rejected, and should be reconsidered by this Ommission.

Felief Soucht By Petitioner Ccnsumer Mvocate 6.

For the reasons set out above, Petitioner, the CI:nsumer Mvocate of Pennsylvania, respectfully requests that your Excrable Ormission-

a. reconsider its decision in CLI-80-19 to deny Censumer Myocate's Petition 'Ib Seek NBC Fundina Ibr Ortsumer Intervenors

'IO Finance Witness Bcpenses,

b. schedule oral argument on the issues raised by this Petition For Reconsideration, N *.~::.

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c. allow suhaissicn of briefs on the issues raised by this UE

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Petition For Beconsideration, if it so desires, and

d. revise its Memorandum ard Ceder at CLI-80-19 to provide for intervenor funding in NPC pr M Ngs.

Bespect. folly Suhnitted, W

h Jerome K. Blask Assistant Consumer Myocate WAL'IER W. CCIEN Consumer Mvocate Pennsylvania Department of Jus +dce Office of Camner Mvocate 1425 Strawterry Square Harrisb.irg, PA 17120 DC:D: May 30,1980 e-ae

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UCTED S'IMES T AMERICA NI2AR REGUIMORY COMISSIOi

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In 'Ihe Matter of 4

ME:DCPCLIR'i EDISOi CO5 PATI Docket No. 50-289 (Restart)'

('Ihree Mile Island Nuclear Station, thit No.1) u.Kr.u.LCATE T SERVICE I, Jeram K. -Blask, hereby certify that I have this 30th day of Fay,1980 sermd copies of the attached stawnent of the Pennsylvania Office of Ccrmrer ;dvocate Regarding Petition For Recensideraticn on each of the perscas named in the attached service list by causing the same to be deposited in envelopes addressed to said perscns, first class, postage IE:'

prepaid, and deposited with the United States Postal Servic.a at 813 Market Street, narrishirg',. Pennsy1Vinia'17105. ~~~

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Respectfully sutnitted,,

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Jertrne K. Blask Assistant Ocnsuner Advocate 8

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21980,

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In The Matter of MEMOPOLMN EISO4 CCMPANY Docket No. 50-289 (Bestatt)

(2.ree Mile Island Niclaar Staticn, Unit No.1) i Ivan W. Sr.ith. Esq.

Ms. Frieda Berryhill, Chairma Atanic Safety ( Licensing Board Coaliticn for Nuclear Power U.S. Nuclear.4 gulatory Ccnmission Plant PsLpcnemnt Washington, DC 10555 2610 Grendon Drive Wilmington, DE: 19808 Dr. Walter H. Jordan Atcmic Safety & Licensing Ibtn.d Mr. R::bert Q. Pollard '

881 W. Outer Drive Chanpa*a Ene.n;;y Alliance Oak Ridge, ni 37830 609 ftntpelier 5tmet Baltincre, MD 21218 Dr. Linda W. Little 5000 Hernitage Drive Karin W. Carter, Esq.

Baleigh, NC 27612 Assistant Attorney General b.-

505 Executive House Secretary

..P.O..p:nc 2357 Nuclear Begulatory Ctmnissicn

~ ~ ~ ~~Harrisburg, PA.17U0 Washingtcn, DC 20555 Ellyn P. We.iss, Esq. (UCS)

Gecrge F. Trowbridge, Esq.

Shelckn, Bantm, Boisian & Weiss Shaw, Pittran, Potts & Tro bridge 1725 I Street, NW, Suite 506 1800 M Street, N.W.

Waship, D:'

20006 Washingtcn, D.C.

Chauncey Fepford, Esq.

Counsel for NBC Staff Envimi. ental Coaliticn on Office of Executive Iegal Director Nielear Power U. S. Nuclear Regulatory Cacmissicn 433 Crlam'h Avenue Washingtcn, D.C. 20555 State College, PA 16801 Ms. Marjorie M. Amodt R:le.rt L. Knupp, Esq.

R.D. 15 Assistant Solicitor Coatesville, PA 19320 County of Dauphin P.O. Box P, 407 N. Frcnt Street Ms. Holly S. Feck, Iag. Chairmn Ha. %, PA 17108 Anti-Nuclear Group Representing York (ANGRY)

Mr. Fmvin I.* Iewis 245 W. Ph41

  • 1phia Stmet 605 Bradford Ierrace York, PA 17404 Phi 1 W 1phia, PA 19149 (7=..
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Jordan D. Cunningham, Esq.

Fox, Farr & Cunningham 2320 Nceth Second Street Harrisburg, PA 17110 Te.rin P. SM1%, Esq. (PAE)

Shelden, Barnen, Ibisman & Weiss 1725 I Street, W, suite 506 Washington, DC 20006 John A. levin, Esq.

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Assistant Ccunsel Pa. Public Utility Ctrmission Ibam G-28, North Office Building Harrisburg, PA 17120 Mr. Ste w n C. Sholly 304 South Pe.rket Street Mechanicsburg, PA 17055 Theo$cre Aller, Esq.

- Attorney for 'Ihree Mile Island Alert, Inc. ('IMIA)

P.O. Bax 1547 E

Harrisburg, PA 17105 i

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512 E-3, Main Capitol-Building --

Iturisburg,. PA 17120 Mr. Thcrras Centsky Bureau of Padiaticn Protection Department of EnvLm,tal Rescmces P.O. Ik:x 2063 Earrisburg, PA 17120 J. G. *

  • M, Vice President Metropolitan Ediscn Ccrpy P.O. Box 542 Beading, PA 19603 4

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Lo p TH G U NITG D OTATCO DECISION,

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FILE:

B-92288 O ATE: Ja.nuary 25, 1980 MATTER OF: Financial Assistance to Intervenors in Proceedings f

of Nuclear Regulatory Cocnission

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1.

Nuclear Regulatory Coc: mission may use ap-propriated funds to provide financial as-sistance to intervenors in its proceedings if it determines that participation of party can reasonably be expected to contribute substantially to a full and fair determina-tion of the issues before it, and if inter-i i

venor is indigent or otherwise unable to finance its own participation.

2.

Nuclear Regulatory Cocnission may use fiscal year 1980 funds to provide financial assist-b ance to intervenors in its proceedings despite I

appropriation ce==ittee statement that no funds are being provided f or this purpose.

1. imitations on spending contained in com-cheereportsarenotbindingonagencyun-lesh expressly stated in appropriation act.'

The General Counsel of. the Nuclear' Regulatory Commiss. ion has requested our views on.the Commission's authority. to provide finan-i cial assistance to participants in its proceedings. Specifically, the General Counsel asks first whether the Coc: mission may use ap-propriated funds to assist intervenors in certain of its proceedings when the Congress has neither expressly approved nor prohibited such assistance by law.

Second, he asks whether there are circumstances under which the Co= mission may use fiscal year 1980 funds to assist intervenors although the Coccittee on Appropriations of the House of Representatives has indicated in its report that the appropriation act for 1980 does not contain funds for intervenors.

For the reasons indicated below it is our opinion that the Nu-clear Regulatory Coc: mission may legally expnnd appropriated funds to assist,intervenors in its proceedings if it wishes to do so and that it may legally use fiscal year 1980 funds for this purpose despite the language in the appropriations coc:=ittee report.

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B-92288

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FUNDING INTERVENORS IN GENERAL

'. i In response to an earlier request of the Commission, we issued r

our decision, Costs of intervention-I;uelear Regulatory Co==1ssion, B-9 2288, February 19, 1976. We determined that the Commission could properly use its appropriated funds to assist intervenors if it de-termined that it could not make licensing determinations "unless it extends financial assistance to certain interested parties who require

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it, and whose participation is essential to dispose of the matters b ef ore it * * *.

In reaching this conclusion we looked at section 189 of the Atomic Energy Act of 1954, as amended, 42 U.S.C.12239, which au-thorizes the Commission to conduct hearings and to admit as a partyWe to its proceedings anyone who may be affected by its proceedings.

e also considered that the Comnission generally receives a lump sum ap-propriation for necessary expenses in carrying out the purposes of the Energy Reorganization Act of 1974. We then stated:

While 31 U.S.C. 5628 (1970) prohibits agencies from using ap-s-

propriated funds except for the purposes for which the appro-priation was made, we have long held that where an appropria-tion is made for a particular object, purpose, or program, it is available f or expenses which are reasonably necessary and proper or incidental to the execution of the object, purpose or program for which the appropriation was made, except as to expenditures in contravention of law or for some purpose for which other appropriations are,made specifically available..

6 Comp. Gen. 619 (1927);._17.id.,_636;(1938); 29 id. 419 {195Q)1,

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44 id. 312 (1964); 50 id.'534 (1971);'53 1d. 351 (1973).'?

s We finally decided that only the Com=ission was able to determine wheth-er it was necessary to fund intervenors in order to carry out its stat-utory responsibilities, and if it so determined, we would not object to its use of appropriated funds for this purpose.

In a subsequent decision, Costs of intervention-yood and Drug Ad-ministration, 56 Comp. Gen. 111 (1976), ve modified our Nuclear Regu-1 story Co= mission decision. Ve stated:

"While our decision to NRC did refer to participation being

' essential,' we did not intend to imply that participation must be absolutely indespensable. We would agree with Con-sumers Union that it vould be sufficient if an agency deter-,

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1 B-92288 1

A mines that a particular expenditure for participation 'can reasonably be expected to contribute substantially to a full and f air determination of' the issue before it, even though the expenditure may not be ' essential' in the sense that the

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issues cannot be decided at all without such participation."

(Id. at 113. )

h Subsequent to our most recent decision on this issue, the United States Court of Appeals f or the Second Circuit issued a decision which held that it was not error for the Federal Power Commission to deter-mine that it lacked the statutory authority to reimburse intervenors f or their expenses.

Greene County Plannine Board v. FPC, 559 F. 2d 1227 (1977) (Rehearing en banc), cert. denied, 434 U.S. 1086 (1978).

In so ruling, the court indicated its disagreement with our determina-tions described above.

Although the Greene County case cast some doubt on the validity of our previous decisions, it is our opinion that the court decision applied only to the f ormer Federal Power Commission (FPC), and does not apply broadly to other Tederal agencies or even to the agencies which succeeded to the FPC's responsibilities.

In Greene County, the Second Circuit relied on three previous court decisions in reach-ing its result. These were Alveska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975); Turner v. FCC, 514 F. 2d 1354 (D.C. Cir.

1975); and Greene County Planning Board v. FPC, 455 T. 2d 412 (2d Cir.),

cert. denied, 409 U.S. 849 (1972).

However, none of these previous decisions dealt directly with the ' authority of a Federal agency to ex-

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pend its own f undsloluntarily so reimburie"thei1xpenses 'of-interve-w - -- -

~

nors before it.

In Alveska and Turner, supra, the issue was whether a court or administrative agency could order one party to its pro-ceedings to pay the expenses of another. In each case the court ruled that this could not be done without specific statutory authority.

In j

the first Greene County case the question was whether a court could

~

order either an opposing party or the agency to pay the intervenor's expens es.

The court ruled that, in the absense of a statutory require-that such expenses be paid, it could not order that they be paid.'

ment i

As we stated in distinguishing these three cases in our Nuclear Regulatory Commission decision, supra:

"In the catter before us, we are not considering whether NRC has the authority to determine whether one participant in its proceedings should pay the expenses of the other, nor are ve concerned with whether the persons to whom financial assistance i

u B-92288 1

'I is extended prevail. There is also no question of compel-

[.'

ling NRC to pay the expenses of any of the parties. We hold only that NRC has the statutory authority to f acili-tate public participation in its proceedings by using its i

own funds to reimburse intervenors when (1) it believes

=

dhat such participation is required by statute or neces-sary to represent adequately opposing points of view on a matter, and (2) when it finds that the intervenor is in-digent or otherwise unable to bear the financial costs of participation in the proceedings." (Emphasis in the orig-inal. )

We therefore do not believe that the second Greene County decision applies to the Nuclear Regulatory Co==ission or to any other Federal agency other than the former Federal Power Commission.

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

Chamber of Co=merce v. United States Department of Agriculture, 459 F.

Supp. 216 (1978), likewise determined that Greene County did not extend generally to all Federal agencies. The Of fice of Legal Counsel of the Department of Justice has taken a similar position on the effect of g

Greene County.

Therefore, in response to the first question raised by the Co= mis-sion's General Counsel, we conclude that based on the authority given it by its organic legislation, the Com=ission may use appropriated funds to assist an intervenor in its proceedings if it determines that the participation of that party can reasonably be expected.to contribute,

t.

substantially 't'o a full 'and-f airidetermination-of. the-issue before it,.

~

and if the par'ty-is indigent or' othe~ vise unable to finance its own par-

~ r r

ticipation.

i USE OF FISCAL YEAR 1980 FUNDS Concerning the General Counsel's second question, the Energy and l

Water Development Appropriation Act, 19 60, Pub. L. No. 96-69, 93 S tat'.

j-437, 449, provides with respect to the Cazzission:

"For necessary expenses of the Ccamission in carrying out the purposes of the Energy Reorganization Act of 1974, as amended * * * $363,340,000, to remain available until ex-pended * * *."

4

'l 4

l

1 3-92388

. [

-h '

This appropriation is a lump-sum amount f or necessary expenses of the.

}i Commission and contains no prohibition on the use of these funds to assist intervenors in the Commission's proceedings.

ai E

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

'"1 tions stated:

"* *

  • The Budget request and the Committee Recom-4 mendation do not include funds for intervenors." -(H. R.

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

Although there was no similar language in the Senate Appropriation r

Committee Report, the report of the Conference Committee incorporated

{...

by reference the House Committee language.

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

[

96th Cong., 1st Sess 1 (1978). We might note that there is no statu-j.

tory requirement that the Co= mission specifically request funds to assist int ervenors.

i* :

This Office has frequently expressed the view that expressions of

,yy intent as to spending, contained either in an agency's budget submission

.E ;

T or in appropriation committee reports, are not legally binding upon the hi agency unless they are specified in the text of the appropriation act.

itself or in some other legislation.

E.g. B-114833, July 21,1978; ' New-port News Ship Building and Drv Dock Company, 55 Comp. Gen. 813, 820.

(1976); LTV Aerospace Corporation, 55 Comp. Gen. 307, 319 (1975). Our r:

position is based on the recognition that a certain amount of flexibility I3 is necessary in the financial.opersQons of Federal departments..and agen-cies, and that if the Congressidecires to..xestrict that; flexibility with ---

[i m

respect to a specific item, it'may do so 'by inserting a limitation in the text of the appropriation act or in some other enactment.

As we stat-ed in LTV Aerospace Corp., supra:

"* *

  • it is our view that when Congress merely appro-priates lump-sum amounts without statutorily restricting-what can be done with those funds, a clear inference arises i-that it does not intend to impose legally binding restrie-tions, and indicia in committee reports and other legisla-tive history as to how the funds should or are expected to

~

be spent do not establish any legal requirements on Federal agencies."

(55 Comp. Gen. at 319.)

'.[I

~5-

,I 1

?

i i

j

o

{

B-93288 i

B-177610, Septe=ber 3,1976, the reports of the appropriation comittees

~ f In Soil Censervation Service's Standard Level User Charge Pav=ents, in both Houses indicated that they desired to reduce the appropriation

. - l requested by the agency for a specific line item purpose. The appropri-ation act, however, contained a lump-sum amount without any limitations.

l We determined that the reduction indicated in the reports was not a legal limit on the agency's spending because it was not expressly stated in the cl appropriation act.

1

,l Similarly, in the present case, although the appropriation committee inilicated that it was not including any f unds for intervenors, the appro-priation act itself contains no such provision.

In other instances in which tue Congress desired to prohibit funding of intervenors, it has specifically indicated this intent in the appropriation act itself. See Department of laterior and Related Agencies Appropriation Act, 1980, P.L.

j 96-126, 93 Stat.

954, 972 (Apprcpriation for Econceic Regulatory Admin-1stration, Depart =ent of Energy).

Therefore, in the absence of an ex-press statutory prohibition on spending appropriated funds f or assisting intervenors, the Commission may legally use fiscal year 1980 funds for that purpose if it makes the determinations we have indicated above.

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

-l suggesting that the Commission should fund intervenors solely because it j

is possible to make these determinations.

As we said in LTV Aerospace

!. l i

Corp., supra:

J l

"* *

  • This does not mean agencies are f ree to ignore e

gl clearly expressed legislative history applicable to the use of appropriated funds.

They ignore such expressions.of in-r at the peril of strained relations with the Congress."

tent The Com=ission may be well advised to postpone f urther implementation ~of i

the pilot intervenor's progra= mentioned in its submission in the light of the 1980 Bouse Appropriations Committee report.

This decision addresses only the question of whether its fiscal year 1980 f unds are legally avail-able to fund intervenors should it choose to do so.

Ve hold that if the Ccamission does decide to initiate the pilot intervenor's program, in ac-cordance with our criteria, we would n e required to o ect.

  • 04.44 Co=ptroller General of the United States.- -

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06/16/B0 G.o

,. s UNITED STATES OF AMERfCA 4.D NUCLEAR REGULATORY COMMISSION

/"

Oc 3ETED i-2::; :

BEFORE THE COMMISS10'4 JUN 3 5 g, g

,U In the Matter of

)

)

~ ~ ~ '

METROPOLITAN EDISON COMPANY, ET_ _A_L.

)

Docket No. 50-289

)

(Three Mile Island Nuclear Station,

)

Unit 1)

)

NRC STAFF RESPONSE TO CONSUMER ADVOCATE PETITION FOR RECONSIDERATION I.

INTRODUCTION In the present proceeding the Consumer Advocate of Pennsylvania (Consumer Advocate or Petitioner) filed with the Comission a " Petition to Seek NRC Funding for Consumer Intervenors to Finance Witness Expenses" (undated).

In its submittal, the Petitioner requested financial assistance on behalf of itself and those intervenors who have either requested or who may at some later date request h-$ancial asslstance from the Comission for th'e~

~

purpose of retaining experts who will submit studies and/or testify before the Licensing Board on any issues raised in the proceeding.

In its " Memorandum and Order" dated May 16, 1980 (Menorandum),

the Comission denied the Consumer Advocate's request in light of the advice received from the Comptroller General - that the Comission may be well advised to postpone further implementation of the pilot intervenor's program in light of the 1980 House Appropriations Comittee Report - and the legislative history associated with the fiscal year 1980 appropriations

1 -

legislation. Memorandum, slip op, at 5.

Petitioner has now filed a " Petition for Reconsideration" dated May 30,1980 (Petition), in which it requests the Comission to reconsider its decision to deny funding to intervenors in this proceeding.

In support of its Petition, the Consumer Advocate argues that the Comission's decision in its Memorandum is erroneous because: "(1) the decision rejects the conclusions of the legal ooinion provided by the Comptroller General at this Comission's request and provides no explanation for this rejection, and (2) the decision is internally inconsistent." Petition L

at 8.

As a result, the Petitioner requests that the Comission:

(1) recon-sider its decision set forth in the Memorandum, (2) schedule oral argument on the issues raised in the Petition, (3) allow the submission of briefs on the issues, and (4) revise the Memorandum to provide for intervenor funding in NRC proceedings.

Petition at 8, 9.

For the reasons set forth below, the Staff opposes the reauest upon the ground that the Comission properly exercised its authority to resolve the policy question of intervenor funding in this proceeding.

II.

DISCUSSION 1.

The Comission has the authority to reconsider its final decisions.10 C.F.R.

J 52.771. However, such reconsideration has traditionally been limited to circum-stances where relevant new facts or law are presented that were not previously available.1/ In the present Petition for Reconsideration, the Petitioner has

?

1/ See e.g., Duke Power Company (Catawba Nuclear Station, Units 1 and 2),

ALAB-359, 4 NRC 619 (1976).

asserted no new significant law or facts which would, in the Staff's view; j

affect the Commission's decision expressed in the Memorandum.

Instead, the i

Petitioner refers only to the discussion contained in the Memorandum and argues that a different result should have been reached by the Commission l

regarding intervenor funding. Absent a greater showing, the Petition is l

legally insufficient to merit reconsidtretion, and should be denied.

2.

Moreover, in the present motion the Petitioner does not claim that the Comission erred in exercising its inherent authority to supervise agency adjudicatior,s, nor that the Comission is legally obligated to fund intervenors in this proceeding.

Instead, the Petitioner argues that the Comission improperly considered the funding question and misapplied the opinion of the l

Comptroller General. Petition at 1.

We cannot agree.

i l

In its Memorandum, the Comission did not expressly reject.or otherwise ;rmach _

a position on the representations made by the Petitioner that there are com-pelling reasons for agreeing to fund intervenors in this case (Memorandum at 5). Rather, the Commission explained that its decision was the result, in part, of its reliance upon the advice of the Comptroller General. Memorandum 1

at 5.

The Comission indicated that the Comptroller General had concluded in his decision, Financial Assistance to Intervenors in Proceedinos of Nuclear Reculatorv Comission, B-92283, January 25, 1980, that although the Comission had authority in its organic legislation to use appropriated funds to assist an intervenor, it may well be advised to postpone further implementation of the l oilot intervenor program. Memorandum at 4, 5.

The Comission further i

i l

4 indicated that it had relied on its own clear reading of the legislative history associated with the fiscal year 1980 appropriations legislation. Memorandum at 5.

The 1980 House Appropriations Comittee Report states that the NRC budget request and the Committee recommendation for 1980 do not include funds for intervenors.

See, H.R. Rep. No.96-243, 96th Cong.,1st Sess,136 (Juna 7,1979).

The Comission's reliance on the advice of the Comptroller General was not unrea sonabl e.

Nor did the Comission improperly characterize the legislative history of its 1980 appropriations legislation. Thus, the Comission has set '

forth a clear basis for its decision, and under the existing circumstances, its actions cannot be characterized as being arbitrary, capricious, or an abuse of its discretion.

III.

CONCLU5 ION Accordingly, the Staff submits that notwithstanding the issue of whether Petitioner's argument for funding.had merit, the Commission properly exercised its discretion on the issue of whether to fund intervenors and set forth an adequate basis for its conclusion not to fund then, and the present Petition for Reconsideration should be denied.

Respectfully submitted.

02 ? d Daniel T. Swanson Counsel for NRC Staff Dated at Bethesda, Maryland this 16thi day of June,1980

UNfTED STATES OF AMERfCA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of

)

)

METROPOLITAN EDISON COMPANY, ET AL.

)

Docket No. 50-289 (Three Mile Island Nuclear Station, Unit 1)

)

CERTIFICATE OF $ERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO CONSUMER ADVOCATE PETITION FOR RECONSIDERATION" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 16th day of June, 1980:

Ivan V. Smith, Esq.

  • Mr. Steven C. Sholly Atomic Safety and Licensing board 304 South Market Street U.S. Nuclear Regulatory Commission Mechanicsburg, PA 17055 Washington, DC 20555 Dr. Walter H. Jordan Bureau of Radiation Protection j

881 W. Outer Drive De.srtment of Environmental

)

Oak Ridge, TN 37830 Resources a,a-P.O. Box 2063 Dr. Linda V. Little Harrisburg, PA 17120 y _

5000 Hernitage Drive Raleigh, NC 27612 Mr. Marvin 1. Lewis 6504 Bradford Terrace George F. Trowbridge, Esq.

Philadelphia, PA 19149 Shaw Pittman, Potts & Trowbridge 1800 M Street,.N.V.

Metropolitan Edison Company Washington, DC 20006 ATTN:

J.G. Herbein, Vice President Karin W. Carter, Esq.

P.O. Box 542 505 Executive House Reading, PA 19603 P.O. Box 2357 Harrisburg, PA 17120 Ms. Jane Lee R.D. #3, Box 3521 Honorable Mark Cohen Etters, PA 17319 512 E-3 Main Capital Building Harrisburg,:PA 17120 Senator Allen R. Carter, Chairman Joint Legislative Committee on

?.

Walter W. Cohen, Consumer Advocate Energy

~

Department of Justice Post Office Box 142 Strawberry Square, 14th Floor Suite 513 Senate Gressette Building Harrisburg, PA 17127-Columbia, SC 29202 x,

Holly S. K2ck John Levin, Esq.

Anti-Nuclear Group Representing PA Public Utilities Cor: mist, ion York Box 3265 245 W. Philadelphia Street Harrisburg, PA 17120 York, PA 17404 Jordan D. Cunningham, Esq.

John E. Minnich, Chairman Fox, Parr anti Cunningham Dauphin Co. Board of Commissioners 2320 North 2nd Street Dauphin County Courthouse Harrisburg, PA 17110 Front and Market Streets Harrisburg, PA 17101 Theodore A. Adler, Esq.

Widoff, Reager, Selkovitz & Adler Robert Q. Pollard P. O. box 1547 609 Montpelier Street Harrisburg, PA 17105 Baltimore, MD 21218 Ms. Ellyn R. Weiss Chauncey Kepford Sheldon, Harmon & Weiss Judith H. Johnsrud 3.725 1 Street, N.W.

Environ = ental Coalition on Suite 506 Nuclear Power Washington, DC 20006 4 3.? Orlando Avenue State College, PA 16801 Atomic Safety and Licensing Board Panel

  • Ms. Frieda Berryhill, Chaircan U.S. Nuclear Regulatory Commission Coalition for Nuclear Power Plant Washington, DC 20555 Postponement 2610 Grendon Drive Atomic Safety and Licensing Appeal Wilmington, DE 19808 Panel (5)*

U.S. Nuclear Regulatory Commission Ms. Karen Sheldon Washington.,DC. 20555.__,. __,_ _.._ _

Sheldon, Harmon & Weiss

~

~

""~^

1725 1 Street, N.W.

~"NDockstin~g#and'SerhiceS'eItlon~(7)*

~

Suite 506 Office of the Secretary Washingten, DC 20006 U.S. Nuclear Regulatory Commission Washington, DC 20555 Ms. Marjorie M. Aamodt R.D. #5 Coatesville, PA 19320 Samuel J. Chilk*

Secretary of the Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Leonard Bickwit, General Counsel

/

~

.:,.,,, vt.. n.

A,. <L

Lucinda L. Swartz

--r Counsel for NRC Staff

/

H i

.y>.

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