ML20215N524
| ML20215N524 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 07/15/1986 |
| From: | Briggs W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20215N513 | List: |
| References | |
| FOIA-86-683, TASK-AINC, TASK-SE SECY-86-203, SECY-86-203-01, SECY-86-203-1, NUDOCS 8611060186 | |
| Download: ML20215N524 (8) | |
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July 15, 1986 ADJUDIC kbRY ISSUE SECr-86-203 (Affirmation)
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For: The Commissioners From: William H. Briggs, Jr.
Solicitor
Subject:
AAMODT APPLICATION FOR REIMBURSEMENT FOR {
PARTICIPATION IN THE TMI-1 RESTART PROCEEDING _
Discussion: In SECY-86-155 (May 20, 1986), OGC informed the Commission that Marjorie and Norman Aamodt h'ad applied to the Commission for an award of attorney fees and costs under the Equal Access to Justice Act, 5 U.S.C. S 504 et; seq., ("EAJA") for their participation in the Three Mile Island, Unit l' restart proceeding.
Contact:
Carole F. Kagan, OGC x41493
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William H. Br gs r.
Solicitor Attachments: _ _
- 3. Slip Opinion Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Tuesday, July 29, 1986.
Commission Staff Office comments, if any, should be' submitted to the Commissioners NLT Tuesday, July 22, 1986, with an infor-mation 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 comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during th'e Week of July 28, 1986. Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time. -
DISTRIBUTION:
Commissioners OGC (H Street)
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Nottoe: This opinion is subject to formal revision before publication in the Federal Reporter or U.S. App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes 30 to press.
Litch States Gaurt of Appeals FoR THE DISTRICT OF COLUMBIA CIRCUIT No. 85-1441 BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, PETITIONER Y.
NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES OF AMERICA, RESPONDENTS
. Petition for Review of an Order of the Nuclear Regulatory Commission Argued April 24,1986 Decided June 27,1986 John R. Hammell, with whom Robert J. Vollen and AlexanderPolikof were on the brief for petitioner.
Carole F. Kagan, Attorney, Nuclear Regulatory Com-mission, with whom Richard K. Willard, Assistant Attor-ney General, Department of Justice and William H.
Bills of costs must be filed wf th!n I4 days after entry of judgment. The court looks with disfavor upon motions to Ale bills of costs out of time.
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2 Briggs, Jr.,- Solicitor, Nuclear Regulatory Commission.
were on the brief for respondents.
Before: BoRK and SCAkJA, Circuit Judges, and Grmt.,'
i District Judge. .
- Opinion for the Court Sled by Circuit Judge Bong.
BORK, Circuit Judge: Business and Professional Peo-pie for the Public Interest ("BPI"), a not-for-profit cor-poration, petitions for review of an order entered by the
- - Nuclear Regulatory Commission denying its application for fees and expenses under the Equal Access to Justice Act, 5 U.S.C. I 504 (1982) ("EAJA"). BPI had inter'-
vened in an NRC licensing proceeding relating to the Northern Indiana Public Service Company's attempted construction of the Bailly Generating Station. When the i
utility cancelled the facility in 1982, BPI sought fees and l expenses in the amount of $251,853.95.
For the Commission to award funds under the EAJA,
- there must Srst be funds appropriated it by Congress.
The Commission's 1982 appropriation act, however, stated that:
- None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceed-ings funded in this Act.
Energy and Water Development Appropriations Act, Pub.
L. No. 97-88, I 502, 95 Stat.1135,1148 (1981). The Bailly licensing proceeding in which BPI intervened lasted several years, and was funded in part by this ap- -
propriations act and in part by earlier appropriations '
- Of the United States District Court for the District of Columbia, sitting by designation pur'suant to 28 U.S.C.
I 292(a).
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. acts. The question that arose was whether the 1982 ap-propriations act barred funds appropriated by that act from being used to make awards to intervenors in pro-ceedings funded in part, but not entirely, under the 1982 Act. Although its application for fees and expenses sought reimbursement with respect to the entire proceed-ing, see Affidavit of Jane M. Whicher at 14, Joint Appen- ,
dix ("J.A.") at 21, 34, BPI maintains in its briefs be-fore this court that it only seeks funds for that portion of the proceeding funded under earlier appropriations acts. Reply Brief for Petitioner at 8.
The Commission sought guidance from the Comptroller General of the United States. In a decision issued on September 29,1983, the Comptroller General determined.
that " funds restricted by section 502 may not be used to -
satisfy an award in an adversary adjudication regard-less of the fact that part of the proceeding was conducted in an earlier ' unrestricted' fiscal year." In re Avail-ability of Funds for Payment of Intervenor Attorney Fees-Nuclear Regulatory Commissicn, File #B-208637 at 6 (Comp. Gen.), J.A.- at 66. In reliance on that de-cision, the Commission issued an order denying BPI's application. In re Northern Indiana Public Service Co.
(Bailly Generating Station, Nuclear 1), Docket No. 50-367 (May 23,1985), J.A. at 79.
We affirm the Commission's decision. First, the lan-guage of the statute supports that interpretation. It does not bar funds to intervenors only with respect to those portions of proceedings funded in the Act, or only in proceedings funded entirely by the Act It prohibits awards to intervenors in proceedings funded in the Act.
The Bailly licensing proceeding was funded in the Act.
The truth of that statement is not diminished by the fact that the proceeding was also funded Jn other acts. I Second, the legislative history, while scant, also sup- j ports the Commission's interpretation. The 1981 appro- t priations act was the first one in widch this language '
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4 appeared, and one of the accompanying committee re-ports stated flatly that "[n]o funds are recommended for a Commission intervenor program. Section 502 of the bill prohibits the use of appropriations for an intervenor funding program." H.R. Rep. No. 1093, 96th Cong., 2d Sess.148 (1980).
This intent would rarely, if ever, be effectuated under BPI's interpretation of the statute. NRC proceedings are -
- . generally too long to be wholly contained within a single appropriations year. If BPI were correct, the 1982 ap-propriations bill would make funding available for inter-venom in any multi-year proceeding that terminated in the 1982 appropriations year. Moreover, even if Congress reenacts the same language in all future appropriations bills, intervenors would be able to recover fees and ex-
. penses for proceedings that are begun, conducted, and terminated during years in which that bar was in ef-feet. For example, if a proceeding were initiated in 1982 and terminated in~ 1986, and the appropriations acts for the years 1982 through 1986 all prohibited funds from their respective appropriations from being provided to intervenors in proceedings funded in those appropriations,
! intervenors would nevertheless be able to apply in 1986 i for compensation for that portion of the proceeding that 1 was conducted in 1982 through 1985. The funds appro-
- priated in 1986 would not be barred with respect to por-tions of the proceeding held earlier, and the prohibitions in those earlier acts would not apply to funds made avail-i able by the 1986 appropriations act. In fact, BPI's peti-tion presenta us with that situation, because by eliminat-
, ing only that portion of the proceeding funded in the i i
1982 Act, see Reply Brief for Petitioner at 3, BPI would .
recover fees and expenses for that portion of the proceed- !
- Ing funded by the 1981 Act, which also contained the i
prohibition embodied in section 502. .
' e BPI argues that the Commission's interpretation ef-fectively reads out of the statute the words " funded in [
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cause it fails to give~ effect to every wo'rd in the statute.
We do not agree, however, that under the Commission's interpretation those words have no meaning. If funds had been obligated in an earlier appropriations year-l because the proceeding in question had terminated in that
! , year-but had not yet been paid to the intervenors, sec-l' tion 502 would not prohibit the awarding of 1982 appro-priated funds in satisfaction of that obligation. Congress might therefore have wished to preclude all future such obligations without denying funds already pmmised by 4
the Commission. BPI asserts that it is aware of no statu-tory authority prior to enactment of the EAJA under which such awards could have been obligated, but the Comptroller General ruled in 1980 (in response to an inquiry from the Commission) that the Commission pos-sessed that authority under section 189 of the Atomic Energy Act, 42 U.S.C. I 2239 (1982). In re Financial i
Assistance to Intervenors in Proceedings of Nuclear Reg-statory Commission, 59 Comp. Gen. 228 (1980). The i
words " funded in this Act" thus ensure that the denial of funds to intervenors is to have only prospective ap-plication, i.e., only to those intervenors whose proceedings had continued into 1982 and who thus had not yet re.
i ceived approval from the Commiaton of an application for fees or expenses.
We 8nd therefore that the Comptroller General and the Commission have given the Act what we believe to be i
its most plausible interpretation. If further reason for
! affirmance were necessary, we would note that their in-I terpretation need not be the most plausible but only a reasonable one to withstand challenge on appeal. Cherron g U. S. A. Inc. v. Natural Resources Defense Council, Inc., ,
467 U.S. 837 (1984). -
Accordingly, the petition is i
Denied.
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