ML20058J086

Order Holding Intervenor Business & Prof People for Public Interest Request for Award of Atty Fees & Expenses Under Equal Access to Justice Act Until Question of Availability of Funds Solved.Nrc Will Seek Comptroller General Opinion

ML20058J086
Person / Time
Site:	Bailly
Issue date:	08/06/1982
From:	Hoyle J NRC OFFICE OF THE SECRETARY (SECY)
To:	BUSINESS & PROFESSIONAL PEOPLE FOR THE PUBLIC INTERES
References
NUDOCS 8208090159
Download: ML20058J086 (6)

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UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION 'E2 ": -5 P3 Z0 COMMISSIONERS: ,

Nunzio J. Palladino, Chairman

'Y Victor Gilinsky John F. Ahearne Thomas M. Roberts James K. Asselstine SERVED AUG 61982

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In the Matter of ,

NORTHERN INDIANA PUBLIC SERVICE )

COMPANY ) Docket No. 50-367

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(Bailly Generating Station, )

Nuclear 1) )

)

ORDER Intervenor Business and Professional People for the Public Interest (BPPPI) has filed a request with the agency for an award of attorney fees and expenses under the Equal Access to Justice Act (EAJA), 5 U.S.C.

5 504, in connection with its participation in various matters concerning the Bailly Generating Station. Currently, the agency has no regulations in effect to implement the provisions of the EAJA, although a proposed rule has been published in the Federal Register (46 Fed. Reg. 53189), comments have been received on that proposal, and a proposed final rule is now before the Commission. However, the Commission has determined that prior to the issuance of any final rule an important outstanding issue should be resolved and that the BPPPI application for fees should be held in abeyance pending issuance of that rule.

The unresolved issue in question concerns the ability of intervenor parties, such as BPPPI, to obtain payment in the event they are 8208090159 820806 PDR ADOCK 05000367 to G PDR J

2 I successful in gaining an EAJA award. The EAJA provides that "[f]ees and other expenses awarded . . . may be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise, for such purpose." 5 U.S.C. S 504(d)(1).

In a May 15, 1981, letter to the Chairman of the Administrative Conference of the United States, the Acting Comptroller General of the United States indicated that under the terms of this provision, an agency's appropriated funds should be considered to be the initial source for the payment of any award, whether those funds were appropriated for EAJA awards or would be made available through reprogramming of funds or other means. However, with regard to NRC ,,

funds, the agency's current appropriations legislation provides that the NRC shall not use funds appropriated for fiscal year 1982 "to pay the expenses of, or otherwise compensate parties intervening in regulatory or adjudicatory proceed;ngs funded in this Act." Energy and Water Development Appropriation Act,1982, Pub. L. No. 97-88, % 502, 95 Stat.

1135(1981). The Commission is concerned that the broad language of this provision may preclude the disbursement of agency appropriated funds to intervenors for EAJA awards. Further, although the EAJA indicates that if an award is "not paid by any agency, the fees and other expenses shall be paid in the same manner as the payment of final judgments is made" from the permanent judgment appropriation established under 31 U.S.C. 5 724a to pay judgments against the United States, 5 U.S.C. 5 504(d)(1), the availability of that fund is also subject to question. The Acting Comptroller General indicated in his May 1981

3 letter that section 207 of the EAJA limits awards from that permanent appropriation fund to amounts specifically appropriated for EAJA awards.

No such appropriation has yet been made by Congress and, as such, that permanent appropriation fund does not appear to be available as an alternative source for the payment of cwards in the event the NRC's 1982 appropriations act precludes the use of NRC funds. The anilability of any funds to pay awards to intervenors in any NRC adversary adjudication thus is very much in doubt. l Until this substantial question about the availability of funds to make EAJA awards is resolved, the Conunission is unwilling to make final its rule implementing the EAJA since parties that appear to come within ,,

the terms of the proposed rule may have no remedy under the statute. In order to resolve the uncertainties that exist about award payments under the EAJA, the General Counsel will seek a determination from the Comptroller General of the United States about the agency's authority to use appropriated funds to pay EAJA awards and the availability of the permanent judgment appropriation as a source of funds.

While, even in the absence of final regulations, the Commission might proceed with the adjudication of intervenor BPPPI's EAJA application, the procedural uncertainty for both the parties and the Commission that would undoubtedly accompany such action weighs against going ahead in this instance. Moreover, to proceed might well entail an unnecessary expenditure of resources by all involved if the Comptroller General ultimately determines that intervenors have no remedy in NRC adjudications under the EAJA. We perceive no prejudice to the interests

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4 of BPPPI by delaying a determination on its application for the time necessary to resolve this issue that outweighs these considerations and, accordingly, the BPPPI application for fees will be held in abeyance. 6 When a response is received from the Comptroller General, the Comission will review the BPPPI fee request, as well as its pending proposed final rule, to determine what further action is appropriate.

Comissioner Gilinsky dissents from this Order. The additional views of Comissioner Ahearne and Comissioner Asselstine are attached to the Order.

It is so ORDERED.

- s For the Commission j ,,

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-k Acting s// John C. Hoyleecretary of the Comissio g

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Dated at Washington, DC, this (,7% day of August, 1982.

-*/ Comissioner Gilinsky was not present when this Order was affirmed, but had previcusly indicated his disapproval. Had Comissioner Gilinsky been present he would have affirmed his prior vote.

ADDITIONAL VIEWS OF COMMISSIONER AHEARNE I agree the payment issue (as well as a number of other issues) should be resolved before the Commission's EAJA regulations become final and before any award is made. However, I would have simply denied this request. Aside from threshold legal questions, it seems clear to me that the intervenor did not prevail -- the licensee withdrew.

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SEPARATE VIEWS OF COMMISSIONER ASSELSTINE

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Comissioner Asselstine would have approved an Order delegating authority to a licensing board to begin proceedings on the petition by Business and Professional People for Public Interest for attorney fees and expenses under the Equal Access to Justice Act.

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