B-179158, FEB 12, 1974, 53 COMP GEN 580

B-179158, FEB 12, 1974, 53 COMP GEN 580

FEES - SERVICES TO PUBLIC - REFUND - FAILURE OF GOVERNMENT TO PERFORM SINCE APPLICATIONS FOR DISCHARGE PERMITS UNDER THE REFUSE ACT PERMIT PROGRAM, WHICH WERE FILED WITH THE CORPS OF ENGINEERS OR THE ENVIRONMENTAL PROTECTION AGENCY (EPA), WERE NOT PROCESSED BECAUSE THE AUTHORITY TO ISSUE PERMITS WAS GIVEN TO THE STATES PURSUANT TO SECTIONS 402 OF THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED BY THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 33 U.S.C. 1342, REFUND MAY BE MADE BY EPA OF THE APPLICATION FEES CHARGED, FOR ALTHOUGH THE FEES WERE PROPERLY RECEIVED, DEPOSIT OF THE FEES INTO THE TREASURY AS MISCELLANEOUS RECEIPTS WAS ERRONEOUS. THEREFORE, THE AMOUNTS THAT ARE PROPER FOR REFUND SHOULD BE TRANSFERRED FROM THE RECEIPT ACCOUNT TO THE "SUSPENSE FUND" FOR REFUND, AND IN THE FUTURE UNTIL PROPERLY FOR DEPOSIT INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, FEES SHOULD BE DEPOSITED INTO THE TREASURY AS TRUST FUNDS IN ACCORDANCE WITH 31 U.S.C. 725R.

TO THE ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, FEBRUARY 12, 1974:

REFERENCE IS MADE TO PREVIOUS CORRESPONDENCE WITH YOUR OFFICE AND PARTICULARLY TO A LETTER DATED OCTOBER 4, 1973, FROM YOUR ASSOCIATE GENERAL COUNSEL, GRANTS, CONTRACTS, AND GENERAL ADMINISTRATION DIVISION, CONCERNING AN INQUIRY WE HAD RECEIVED REGARDING AN APPLICATION FEE IN THE AMOUNT OF $100 PAID BY AIRFLITE, INC., TO THE CORPS OF ENGINEERS (FOR A DISCHARGE PERMIT) UNDER THE REFUSE ACT PERMIT PROGRAM, WHICH APPLICATION WAS NOT PROCESSED AND THUS A PERMIT WAS NEVER APPROVED OR DENIED. STATED IN THE LETTER OF OCTOBER 4, 1973, THE PROBLEM IS BY NO MEANS LIMITED TO AIRFLITE.

THE REFUSE ACT PERMIT PROGRAM, AS DIRECTED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 11574, DATED DECEMBER 23, 1970, WAS ADMINISTERED BY THE SECRETARY OF THE ARMY ACTING THROUGH THE CORPS OF ENGINEERS (CORPS). APPLICANTS FOR DISCHARGE PERMITS WERE REQUIRED TO INCLUDE WITH THEIR APPLICATIONS A FEE OF $100 FOR A SINGLE DISCHARGE OUTLET AND $50 FOR EACH ADDITIONAL DISCHARGE OUTLET.

SUBSEQUENTLY THE AUTHORITY TO ISSUE DISCHARGE PERMITS WAS PLACED IN THE ENVIRONMENTAL PROTECTION AGENCY (EPA) BY SECTION 402 OF THE FEDERAL WATER POLLUTION CONTROL ACT AS AMENDED BY THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, PUBLIC LAW 92-500, APPROVED OCTOBER 18, 1972, 86 STAT. 880, 33 U.S.C. 1342. TRANSFER TO EPA OF ALL DISCHARGE PERMIT APPLICATIONS FILED WITH THE CORPS WAS COMPLETED IN DECEMBER 1972. FUNDS NOT ALREADY DEPOSITED INTO THE MISCELLANEOUS RECEIPTS OF THE TREASURY WERE INCLUDED WITH THE TRANSFER.

SECTION 402 ALSO PROVIDES THAT THE ADMINISTRATOR OF EPA SHALL AUTHORIZE A STATE, WHICH HE DETERMINES HAS THE CAPABILITY OF ADMINISTERING A PERMIT PROGRAM WHICH WILL CARRY OUT THE OBJECTIVES OF THE ACT, TO ISSUE PERMITS FOR DISCHARGE INTO THE NAVIGABLE WATERS WITHIN THE JURISDICTION OF SUCH STATE. IN CALIFORNIA, THE CALIFORNIA WATER RESOURCES CONTROL BOARD HAS BEEN ASSIGNED THE NEW PERMIT PROGRAM. PURSUANT TO THE STATE PROGRAM, THE BOARD IS REQUIRING A FILING FEE FOR A DISCHARGE PERMIT. APPARENTLY THE FEE IS ALSO REQUIRED IN PROCESSING APPLICATIONS ORIGINALLY FILED WITH CORPS OR EPA EVEN THOUGH A FEE WAS PAID BY THE APPLICANT IN CONNECTION WITH THAT FILING. SECTION 402 DOES NOT INCLUDE A PROVISION WHICH WOULD AUTHORIZE THE TRANSFER OF FEES TO THE STATES ALONG WITH THE APPLICATIONS.

IN ITS LETTER OF OCTOBER 4, 1973, EPA REPORTS THAT IT NOW POSSESSES APPROXIMATELY $200,000 IN A "SUSPENSE FUND" AWAITING DEPOSIT INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, INCLUDING ABOUT $91,000 WHICH WAS TURNED OVER TO IT BY THE CORPS PURSUANT TO SECTION 402. THE LAST CITED LETTER INDICATES THAT IN ADDITION, APPROXIMATELY $4,000,000 HAS BEEN DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, AND THAT NO PERMITS HAVE BEEN ISSUED PURSUANT TO THESE APPLICATIONS. IT FURTHER APPEARS FROM THE SAME LETTER THAT THE APPLICATION FEES WERE FOR THE PROCESSING OF THE APPLICATIONS.

THE APPLICATIONS INVOLVED WERE NOT PROCESSED BY THE CORPS OR EPA AND NO PERMITS HAVE BEEN DENIED OR ISSUED PURSUANT TO THE APPLICATIONS REPRESENTED BY THE AMOUNTS WHICH WERE COLLECTED BY CORPS AND EPA PURSUANT TO 31 U.S.C. 483(A) WHICH PROVIDES IN PERTINENT PART:

IT IS THE SENSE OF THE CONGRESS THAT ANY *** PERMIT OR SIMILAR THING OF VALUE OR UTILITY *** GRANTED *** BY ANY FEDERAL AGENCY *** TO OR FOR ANY PERSON (INCLUDING GROUPS, ASSOCIATIONS, ORGANIZATIONS, PARTNERSHIPS, CORPORATIONS, OR BUSINESSES), *** SHALL BE SELF SUSTAINING TO THE FULL EXTENT POSSIBLE, AND THE HEAD OF EACH FEDERAL AGENCY IS AUTHORIZED BY REGULATION ***, TO PRESCRIBE THEREFOR SUCH FEE, CHARGE, OR PRICE IF ANY, AS HE SHALL DETERMINE *** TO BE FAIR AND EQUITABLE TAKING INTO CONSIDERATION DIRECT AND INDIRECT COST TO THE GOVERNMENT, VALUE TO THE RECIPIENT, PUBLIC POLICY OR INTEREST SERVED, *** AND ANY AMOUNT SO DETERMINED OR REDETERMINED SHALL BE COLLECTED AND PAID INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

WHILE THE ABOVE-QUOTED STATUTORY PROVISIONS REQUIRE THAT AMOUNTS COLLECTED BE PAID INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, THEY ALSO CONTEMPLATE THE FURNISHING OF A SERVICE BY THE FEDERAL AGENCY FOR THE CHARGE MADE. SINCE THE APPLICATIONS INVOLVED HERE WERE NEVER PROCESSED AND, HENCE, PERMITS NEVER ISSUED OR DENIED, WE BELIEVE THAT THE APPLICATION FEES CHARGED - ALTHOUGH PROPERLY RECEIVED - WERE ERRONEOUSLY DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. ACCORDINGLY THERE SHOULD BE FOLLOWED THE PROCEDURE ORIGINALLY PRESCRIBED IN PARAGRAPH 6(D) OF GENERAL REGULATIONS NO. 116 ON MARCH 17, 1952, 31 COMP. GEN. 765 AS FOLLOWS:

(D) ADJUSTMENTS MAY BE INITIATED BY AN AGENCY FOR MONEYS PROPERLY RECEIVED BUT ERRONEOUSLY DEPOSITED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, EVEN THOUGH A PART OR ALL OF SUCH AMOUNTS ARE FOR REFUND TO THE PERSON FROM WHOM COLLECTED. AFTER ADJUSTMENT OF THE ERROR BY TRANSFER FROM THE RECEIPT ACCOUNT TO THE APPROPRIATE DEPOSIT FUND OR OTHER EXPENDITURE ACCOUNT SUCH AMOUNTS AS ARE PROPER FOR REFUND WILL BE PAID FROM THE EXPENDITURE ACCOUNT UNDER REGULAR DISBURSEMENT PROCEDURES.

IN APPLYING THAT PROCEDURE IN THE PRESENT SITUATION, AND SINCE WE UNDERSTAND THAT YOUR OFFICE NOW HAS IN ITS POSSESSION ALL RECORDS TO SHOW AMOUNTS COLLECTED AND TO WHOM REFUND WOULD BE DUE, SUCH AMOUNTS AS ARE PROPER FOR REFUND SHOULD BE TRANSFERRED FROM THE RECEIPT ACCOUNT TO THE "SUSPENSE FUND" FOR REFUND BY EPA TO THE APPLICANTS FOR PERMITS OF THE AMOUNTS COLLECTED FROM THEM BY EITHER THE CORPS OR EPA FOR APPLICATIONS WHICH WERE NOT PROCESSED. CF. 2 COMP. GEN. 599 (1923) AND 3 ID. 762 (1924).

IN THE FUTURE, UNTIL PROPERLY FOR DEPOSITING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, SUCH FEES SHOULD BE DEPOSITED INTO THE TREASURY AS TRUST FUNDS IN ACCORDANCE WITH 31 U.S.C. 725R.