HARLINGTON WOOD, Jr., Circuit Judge.
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."
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:
This section requires the NRC to hold hearings only after a formal proceeding has already begun, and petitioner concedes as much.
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:
The director denied the request in accordance with 10 C.F.R. 2.206(b) which states:
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.
Id. at 573, 95 S.Ct. at 1860. Although detailed findings of fact were not necessary, the Court insisted that the Secretary provide a statement of reasons supporting his determination to serve as the basis for judicial review. Stating that the court of appeals impermissibly allowed an adversary trial to challenge the factual basis for the Secretary's decision, the Supreme Court reversed and remanded the case.
The Supreme Court in Gulf States Utilities Co. v. Federal Power Commission, 411 U.S. 747, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973), considered the discretionary authority of the Federal Power Commission (FPC or Commission) to refuse to hold a hearing. Gulf States Utilities Company (Gulf) applied to the FPC for authority to issue a security as required by Section 204 of the Federal Power Act, 16 U.S.C. § 824c. The Commission was thereby statutorily obligated to consider the issue's anticompetitive effect and compatibility with the public interest and was provided with the power to grant or modify such applications "after an opportunity for a hearing."
After the FPC filed notice of Gulf's application, two Louisiana cities alleging anti-competitive consequences requested a formal hearing and leave to intervene on the application. The Commission granted intervention, denied the hearing and granted the application. The Court held that although the Commission was obligated to consider the anticompetitive consequences of a security issue, the FPC need not conduct a hearing on objections in every case. The Supreme Court announced, "So strict a rule would unduly limit the discretion the Commission must have in order to mold its procedures to the exigencies of the particular case." 411 U.S. at 762, 93 S.Ct. at 1880.
In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978) the Court recently repeated a long established administrative law principle: "Even apart from the Administrative Procedure Act this Court has for more than four decades emphasized that the formulation of procedures was basically to be left within the discretion of the agencies to which Congress had confided the responsibility for substantive judgments."
In Vermont Yankee the court declared:
435 U.S. at 543, 98 S.Ct. at 1211. In the present case the record delineates neither a constitutional issue nor extremely compelling circumstances. The state has not carried its burden on the statutory claim.
In the alternative, Illinois claims that the Morris plant is a long term storage facility and that the Commission's refusal to institute a proceeding
The director responded to the same complaints in his letter with these comments: "[T]he Department of Energy has . . . announced a new spent fuel nuclear policy, stating that the Federal Government is proposing to accept and take title to used, or spent nuclear fuel."
The Second Circuit in Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 582 F.2d 166, 170 (2d Cir., 1978), discussed:
The court held that the Commission is required neither to conduct a rulemaking proceeding requested by a petitioner nor to determine that high-level radioactive wastes can be permanently disposed of safely prior to issuing nuclear power reactor operating licenses. Following an extensive review of legislative history, the court of appeals announced:
582 F.2d at 171. The court concluded that Congress by enacting the Energy Reorganization Act of 1974, 42 U.S.C. § 5801 et seq., "expressly recognized and impliedly approved" the Commission's regulatory scheme and practices governing the interim storage of high-level wastes. 582 F.2d at 174.
The Supreme Court in Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc. emphasized that the courts have a limited role in reviewing an agency's procedures and actions: "Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of an agency as to environmental consequences of its actions. . . Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1970)." 435 U.S. at 555, 98 S.Ct. at 1217.
In Vermont Yankee the Court answered an "arbitrary and capricious" argument in the negative stating: "Administrative decisions should be set aside . . . only for substantial procedural or substantive reasons as mandated by statute, Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)." 435 U.S. at 553, 98 S.Ct. at 1218. We have said we will determine:
American Meat Institute v. Environmental Protection Agency, 526 F.2d 442, 453 (7th Cir. 1975). In the case before us General Electric has not requested and the Commission has not issued a long-term license for spent fuel storage. In fact the existing short-term license for the Morris facility will expire August 31, 1979.
For the above reasons we affirm the Commission.
For relief, Illinois asked the Commission to institute a proceeding to modify, suspend, or revoke GE's special nuclear material license, grant Illinois and other interested parties a hearing, stay all spent fuel shipment to the Morris facility, prepare an environmental impact statement, and postpone consideration of the proposed expansion of the facility.