Constitutionality of Nuclear Regulatory Commission's Imposition of Civil Penalties on the Air Force, 89-16
| Decision Date | 08 June 1989 |
| Docket Number | 89-16 |
| Citation | 13 Op. O.L.C. 131 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Constitutionality of Nuclear Regulatory Commission's Imposition of Civil Penalties on the Air Force |
WILLIAM P. BARR Assistant Attorney General-Office of Legal Counsel.
In the absence of Presidential intervention to review its decision the Nuclear Regulatory Commission may constitutionally issue an order imposing civil penalties on the Department of the Air Force under the Atomic Energy Act of 1954.
Although Congress may not deprive the President of an opportunity to review a decision made by an agency subject to his supervisory authority, the President is not constitutionally required to review all such decisions before they may be lawfully implemented.
Because the Atomic Energy Act gives the Attorney General exclusive authority and discretion to enforce civil penalties imposed under the Act, an interagency dispute regarding the collection of such penalties would properly be resolved within the executive branch rather than through interagency litigation.
MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF THE AIR FORCEThis memorandum responds to your request for an opinion of this Office on the constitutionality of the United States Nuclear Regulatory Commission's ("NRC") imposition of civil penalties on the Department of the Air Force under the Atomic Energy Act of 1954, as amended ("Act"), 42 U.S.C. §§ 2011-2296. In particular, you have asked whether the Constitution permits the NRC: 1) to issue an order imposing civil penalties against the Air Force without a prior opportunity for the Air Force to contest the fine within the executive branch; or 2) to collect civil penalties against the Air Force by litigation in court.
We believe, as a general matter, that the President has authority to review and revise decisions of his subordinates in the executive branch. Although the President cannot be deprived of the opportunity to review a decision subject to his supervisory authority, this does not mean that the President is constitutionally compelled to review every decision before it is implemented. After reviewing the questions you have posed, we conclude that, because the President has expressed no interest in reviewing either personally or through a delegate the NRC's issuance of orders, we need not reach whether, and to what extent, the President's supervisory authority extends to orders issued by the NRC.[1] On the other hand, we agree with you that there would be significant constitutional [ 132] problems had Congress directed the NRC to collect the penalties it orders by suing the Air Force in federal court. The Act, however, permits the Attorney General to determine whether, and to what extent, civil penalties should be collected. Thus, any issue regarding your liability for civil penalties may be resolved by an executive branch agency and without resort to interagency litigation.
The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, as amended by the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-5851, established the Nuclear Regulatory Commission ("NRC"). The agency is charged with broad licensing and regulatory authority over the development and utilization of atomic energy, the construction and maintenance of facilities, and the uses and storage of nuclear material. 42 U.S.C. §§ 2061-2064 (); 42 U.S.C. §§ 2071-2078, 2091-2099, and 2111-2114 (regulation of nuclear materials and byproducts); 42 U.S.C §§ 2131-2140 Gicensing); 42 U.S.C. §§ 2201-2213 (). The Act provides that Commissioners are appointed by the President, with the advice and consent of the Senate, and "may be removed by the President for inefficiency, neglect of duty, or malfeasance in office." 42 U.S.C. § 5841(a), (e).
The Act invests the NRC with broad authority to regulate uses of nuclear power, with certain exceptions for military purposes expressly provided for in the Act.[2] Specifically, the NRC has the authority to license nuclear facilities and material id. §§ 2133, 2073, including those of government agencies, id. § 2014(s); to issue rules and regulations, id. § 2201; and to inspect and investigate alleged violations of its rules, id.
In 1969, Congress passed amendments to the Atomic Energy Act authorizing the NRC to levy civil monetary penalties for violations of its regulations. The addition of monetary penalties was intended to give the NRC additional flexibility to deal with infractions of regulations that did not require the harsher sanctions of revocation or suspension of a license or [ 133] a cease and desist order. See S. Rep. No. 553, 91st Cong., 1st Sess. 9-12 (1969), reprinted in 1969 U.S.C.C.A.N. 1607, 1615-19.[3]Section 2282(a) provides:
Any person who (1) violates any licensing provision ... or any rule, regulation, or order issued thereunder, or any term, condition, or limitation of any license issued thereunder, or (2) commits any violation for which a license may be revoked under section 2236 of this title, shall be subject to a civil penalty, to be imposed by the Commission, of not to exceed $100, 000 for each such violation. If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purpose of computing the applicable civil penalty. The Commission shall have the power to compromise, mitigate or remit such penalties.
42 U.S.C. § 2282(a). The term "person" is defined specifically to include government agencies:
The term "person" means (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission ....
42 U.S.C. § 2014(s). "Government Agency" includes any executive department of the United States. 42 U.S.C. § 2014(1).
Whenever the Commission has reason to believe that a violation subject to a civil penalty has occurred, the Commission is required to notify the person, identify the alleged violation, advise the person of the proposed penalty, and provide an opportunity to demonstrate why the penalty should not be imposed. 42 U.S.C. § 2282(b). The Commission has formally adopted procedures for the imposition of civil penalties. See 10 C.F.R. § 2.205; 10 C.F.R. pt. 2, app. C. (1988). Under these provisions, the person charged with a civil penalty will receive a written notice of violation specifying the date and nature of the alleged violation, the particular provision, rule, or regulation allegedly violated, and the amount of the proposed penalty. 10 C.F.R. § 2.2.01(a). Payment of the penalty or a written answer either denying the violation or showing extenuating circumstances is required within twenty days. Id. § 2.201(a), (b). The NRC may, at this time, issue an order dismissing, mitigating or imposing a civil penalty. The person charged may then request a hearing at which the [ 134] merits of the alleged violation and the applicability of the rules and regulations can be contested. Id. § 2.205(c), (d). After the hearing, the Commission will issue an order dismissing, mitigating, or imposing the civil penalty. Id. § 2.205(f).[4]
The Commission, however, does not itself have authority directly to collect the amount of the penalty assessed if the violator fails to pay the fine upon issuance of a final order. Instead, the Act permits the NRC to refer the matter to the Attorney General for collection. Section 2282(c) provides:
On the request of the Commission, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this section. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to him for collection.
42 U.S.C. § 2282(c). The Senate Report accompanying the civil penalty provisions makes clear that the Attorney General is authorized, but not required, to institute a civil action to collect the penalty:
While the bill would confer on the Commission the power of compromise, mitigation, and remission of penalties, such power would reside exclusively with the Attorney General under the bill with respect to such civil penalties as are referred by the AEC to him for collection.
S. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969 U.S.C.C.AN. 1607, 1618. In 1980, the NRC requested authority to collect civil penalties directly, but Congress refused to change the law.[5] [ 135]
Under its section 2282 authority to impose civil penalties, the NRC sent the Air Force a Notice of Violation and Proposed Imposition of Civil Penalties of $102, 500 on June 17, 1988. The alleged violation arose from the accidental spill in 1986 of radioactive materials from a barrel stored on Wright-Patterson Air Force Base, Ohio. The penalty was proposed because of the alleged failure of the Air Force personnel to adequately report the spill to the NRC.
The Air Force replied to the alleged violation with a written response on July 15, 1988. Air Force officials had an extended meeting with the NRC at which they contested the underlying factual basis for the charges. The principal factual disagreement is whether and to what extent certain Air Force personnel were involved in a deliberate or willful failure to report the spill. The Air Force has not participated in internal administrative hearings before the NRC, but has instead raised constitutional defenses asserting both that the NRC cannot constitutionally issue a final order assessing a penalty without prior review by the President and that in any event the penalty cannot be enforced by the Attorney General through litigation. The NRC...
To continue reading
Request your trial