On Petition for Review from the Nuclear Regulatory Commission
Before Sprecher, Bauer and Wood, Circuit Judges.
On September 16, 1977, the Attorney General of Illinois filed with the Nuclear Regulatory Commission a "Request to Institute a Proceeding and Motion to Modify, Suspend or Revoke Special Nuclear Material License, No. SNM-1265."*fn1 Approximately three months later the Director of the NRC's Office of Nuclear Material Safety and Safeguards denied the request.*fn2 Illinois petitioned for review of the final order of the Commission and the two issues presented are (1) whether the Commission has the discretion to deny a request to institute a proceeding and hearing under the Atomic Energy Act of 1954 (Act), and (2) whether the Commission's denial of the request was arbitrary and capricious. We affirm the Commission.
According to the Act from which the Commission derives its authority, Illinois has no right to a hearing. Section 189(a) of the Act, 42 U.S.C. § 2239(a), provides in part:
In any proceeding under this Act, for the granting, suspending, revoking, or amending of any license . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.
This section requires the NRC to hold hearings only after a formal proceeding has already begun, and petitioner concedes as much.*fn3 As there was no proceeding in this case and as the Act contains no provision for a hearing when no proceeding has been commenced under this section, the state is clearly without a right to a hearing.
Contrary to petitioner's contention the Administrative Procedure Act does not require the NRC to hold a hearing. The provision of the APA requiring hearings applies only to agency action which, according to that agency's governing statute, must be preceded by a hearing. Robertson v. Federal Trade Commission, 415 F.2d 49 (4th Cir. 1969); LaRue v. Udall, 116 U.S.App.D.C. 396, 324 F.2d 428 (1963). See also Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973). The fact that the Atomic Energy Act does not require a hearing thus renders the hearing requirements of the APA inapplicable.
The Commission's own regulations, which set forth the procedures to be followed by the Commission in responding to enforcement requests such as this one by the state, are reasonable and consistent both with Section 189(a) of the Atomic Energy Act and Section 555(e) of the Administrative Procedure Act. Thus we regard the administrative interpretation as controlling. Northern Indiana Public Service Co. v. Porter County Chapter of the Izaak Walton League of America, 423 U.S. 12, 96 S. Ct. 172, 46 L. Ed. 2d 156 (1975). Illinois asked the Commission to institute a proceeding pursuant to 10 C.F.R. 2.206(a) which provides in pertinent part:
Any person may file a request for the . . . Director of Nuclear Material Safety and Safeguards . . . to institute a proceeding pursuant to § 2.206 to modify, suspend or revoke a license, or for such other action as may be proper.
The director denied the request in accordance with 10 C.F.R. 2.206(b) which states:
Within a reasonable time after a request pursuant to paragraph (a) of this section has been received, the . . . Director of Nuclear Material Safety and Safeguards . . . shall either institute the requested proceeding in accordance with this subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor.
Therefore the director complied with these provisions, as well as with Section 555(e) of the APA, by advising the state that no proceeding would be instituted and by presenting a complete statement of reasons supporting his decision to deny the request.
In Dunlop v. Bachowski, 421 U.S. 560, 95 S. Ct. 1851, 44 L. Ed. 2d 377 (1975), the losing candidate in a disputed union election filed a complaint with the Secretary of Labor alleging violations of Section 401 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 481. Pursuant to 29 U.S.C. § 482, the Secretary was compelled to investigate the complaint and decide whether to bring an action to set aside the challenged election.*fn4 ...