Proposed Pilot Public Participation Program

A legal opinion was requested by the Environmental Protection Agency (EPA) on their proposed pilot public participation program. Specifically, GAO was asked whether the draft of the notice establishing the program conformed with decisions by GAO concerning the use of appropriated funds to assist participants in agency proceedings. After examining the EPA draft notice, GAO held that with two exceptions the draft conformed with previous decisions. Specifically, GAO held assistance should be extended only to those individuals and organizations which cannot afford to participate without assistance. Moreover, in deciding whether an intervenor in proceedings should receive financial assistance, the agency should examine the income, expenses, and net assets of the applicant to determine whether the applicant could afford to participate in the proceedings without assistance. But, the fact that an intervenor would be forced to choose among the various public activities and could not afford to participate in all of them does not make the intervenor unable to finance his own participation. Further, since the agency is authorized to provide assistance to needy intervenors, an agency may properly characterize this assistance as a grant. If so characterized, prohibition against advance funding contained in Federal regulations does not apply provided adequate fiscal controls are utilized and distinguished to protect the Government's interest.