December 17, 2001
Honorable James L. Ford, Jr.
Secretary, Department of Public Safety
P.O. Box 818
Dover, DE 19903
Re: Use of Interest Earned From the Account for Reporting Fees and the
Use of Penalty Funds Collected By the Department of Natural Resources and
Dear Secretary Ford:
You have asked whether the interest earned on reporting fees placed in an interest bearing account pursuant to 16 Del. C. § 6311(c) is exempt from the spending limitations on collected fees and can be used to support additional operational needs at the discretion of the State Emergency Response Commission (SERC). Also, you have asked whether penalty funds collected pursuant to 16 Del. C. § 6314(c) and (d) can be separated from the reporting fee account and be used in a much wider scope than reporting fees to support additional operational needs at the discretion of SERC. For the reasons stated below, we conclude that interest earned on the reporting fees account becomes part of the principal of that fund and must be spent within the limitations imposed on the expenditure of the principal funds. Also pursuant to 16 Del. C. § 6314(g), the expenditure of the penalty funds shall be expended for the "related emergency planning and community right-to-know activities."
The Department is authorized by 16 Del. C. § 6309 to collect reporting fees and required by 16 Del. C. § 6311(c) to place these fees in a "liquid, interest-bearing account to be selected by the Commission." The reporting fees are appropriated through the Department of Public Safety to SERC for "the purpose of funding the local emergency planning committees and data collection and management activities related thereto." 16 Del. C. § 6311(b). There is no statutory section indicating how the interest earned on the reporting fees is to be expended.
Your question concerning the expenditure of interest earned in an interest bearing account for reporting fees is similar to an earlier question to this Office regarding the disposition of interest earned on Grant-In-Aid funds held in an interest bearing account. At that time, we cited authority, stating:
With respect to the interest earned by checking account deposits of
the grant-in-aid funds, it is the general rule, absent a statute to the
contrary, that interest becomes a part of the principal of the fund by
whose investment it was earned. State ex rel. Board of County Commissioners
v. Montoya, N.M. Supr., 575 P.2d 605 (1978);
Bordy v. Smith,
Neb. Supr., 34 N.W.2d 331 (1948). Since there is no contrary statute in
this case, interest earned by grant-in-aid funds becomes a part of the
Attorney General's Opinion No. 81-FO 16. In this case, no statute provides for the disposition of interest earned on the account for reporting fees, and thus such interest becomes part of the principal in the reporting fees account. The use of these funds was discussed in Attorney General Opinion No. 01-IB16 concluding that reporting fees could be used for gathering information and providing this information to the local governments and the public. The interest earned on this reporting fees account is to be used consistently with the use that may be made of the principal.
Your second question concerns penalties collected by the Department of Natural Resources and Environmental Control pursuant to 16 Del. C. § 6314(c) and (d). Section 6314(f) requires that these funds "be placed in a liquid, interest bearing account to be selected by the Commission." Although, prior to amendment in 1997, § 6310(f) prohibited commingling of reporting fees and penalty funds, the statute as amended, § 6314(f), does not state that the funds cannot be commingled. The penalty funds and the reporting fees therefore, could be placed in the same interest-bearing account or in separate accounts.
The expenditure of penalty funds collected pursuant to § 6314(c) and (d) must conform to § 6314(g). This section states:
(g) Moneys collected under subsections (c) and (d) of this section shall
be appropriated to the State Emergency Response Commission for the purpose
of funding related emergency planning and community right-to-know activities
and shall not be subject to reversion.
The penalty funds are given to SERC to fund "related emergency planning and community right-to-know activities." This language differs from the language of § 6311(b) that states that reporting fees are given to SERC to fund "the local emergency planning committees and data collection and management activities related thereto." The language of § 6314(g), however, does not suggest that the purpose for expending penalty funds is any different or has a wider scope than the purpose of funding an activity with reporting fees.
Section 6314(g) is part of Chapter 63 and the intent of its language is to be considered within this context. 2A N. Singer, Statutes and Statutory Construction § 46.05 (6th ed. 2000). A view of § 6314(g) in the context of Chapter 63 shows that the language "emergency planning and community right-to-know" is found in both § 6314(g) and the Title for Chapter 63. The activities specified in § 6314(g), therefore, are reasonably viewed as activities consistent with the scope of Chapter 63 itself, i.e., emergency planning and community right to know.
The scope of permissible activities within the phrase "emergency planning and community right to know" is determined by a review of both the Federal statute that authorized the SERC and its activities, 42 U.S.C. § 11001 et seq., and the State statute enacted in compliance with the Federal statute,16 Del. C. § 6301 et. seq. The statutory provisions essentially require the same response by facilities and mandate that the same information be made available to the State or Federal agencies. These activities are best described as gathering information to assist in emergency planning, and therefore, any activity that facilitates the flow and utilization of information to generate emergency plans is within the scope of emergency planning.
The two statutes diverge on the amount of detail provided for the community right-to-know activity. The State statute provides only one sentence in § 6308 as follows:
In addition, the reports and information collected under this chapter
are to be made available to the public, including citizens of communities
surrounding covered facilities, consistent with subsection (f), (g) and
(h) of this section to promote public participation in identifying, preparing
for and managing chemical risks in the community.
The Federal statute in §§ 11042, 11043 and 11044 provides in greater detail the scope of the activities comprising community right-to-know. Section 11044 states:
Each emergency response plan, material safety data sheet, list described
in section 11021(a)(2) of this title, inventory, form, toxic chemical release
form, and follow up emergency notice shall be made available to the general
public consistent with section 11042 of this title, during normal working
hours at the location or locations designated by the Administrator, Governor,
State emergency response commission or local emergency planning committee,
The activities within the scope of community right-to-know, therefore, would concern the provision of the collected information noting the statutory exclusions at the designated locations. Penalty funds could be used to provide the community access to the collected information.
A review of the Federal and State statues shows that the purpose of both statutes is to gather information for emergency planning and to allow the community to review this information. In §6311(b), this purpose is expressed as data collection and management, and in § 6314(g), it is expressed as emergency planning and community right-to-know. Both express the same purpose, however, this does not limit SERC's activities to those specifically identified in the Federal statute. The SERC may sponsor additional activities with § 6314(g) funds that enhance the community's right-to-know by making available information relevant to "identifying, preparing for and managing chemical risks in the community."
Please contact us if we may be of further assistance or if you have questions regarding this opinion.
James J. Hanley
Deputy Attorney General
Lawrence W. Lewis
Deputy Attorney General
Malcolm S. Cobin
cc: Honorable M. Jane Brady
Keith R. Brady
Assistant State Solicitor
Opinion Coordinator BACK TO INDEX