United States Nuclear Regulatory Commission v. Radiation Technology, Inc. (519 F. Supp. 1266, 1981)

OPINION

MEANOR, District Judge.

I. INTRODUCTION

On July 15, 1980, the United States Nuclear Regulatory Commission (hereinafter referred to as “NRC”, “Commission” or “AEC”), through the Attorney General, brought suit, pursuant to section 234(c) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2282(c), to collect penalties amounting to $4050 imposed upon Radiation Technology, Inc. (hereinafter referred to as “RTI”), for alleged violations of certain agency regulations and license conditions. The matter is presently before the court on both parties’ motions for summary judgment. Since this case presents several issues heretofore unresolved by any federal court, I reserved decision after oral argument on the motions so as to render a formal opinion on these issues of national importance. These issues concern the jurisdiction of the district court to entertain this action as well as the scope of judicial review to be employed if the action is properly before a district court. For the reasons set forth below, I hold that the district court does have jurisdiction over this action. I also hold that in a section 234(c) collection action the defendant is entitled to a trial de novo. However, since both parties have moved for summary judgment, a review of the administrative record and the affidavit submitted by plaintiff, persuades me that no trial is necessary in the instant matter. I will grant the NRC’s motion and enter an order directing the defendant to pay certain of the assessed penalties.

II. FACTS AND PROCEDURAL HISTORY

The Atomic Energy Act of 1954, as amended, (hereinafter referred to as the “Act") gave the AEC authority, inter alia, to regulate nuclear power. Included within this grant of authority was responsibility for licensing and regulating the possession and use of “byproduct material”, /. e., radioactive materials used in industrial applications, medical diagnosis and treatment and applied research and development. 42 U.S.C. §§ 2014(e), 2111. To effectuate the purposes of the Act, the AEC was authorized to promulgate “standards and instructions to govern the possession and use of ... byproduct materials.” 42 U.S.C. § 2201(b). The Commission exercised this authority and promulgated a variety of regulations.

The possession and use of byproduct material is authorized in most circumstances only under license from the Commission. 42 U.S.C. § 2111. Byproduct material licensees are subject to the provisions of the Act and the general rules, regulations and orders of the Commission, as well as any license-specific terms and conditions imposed on the licensee by the Commission. 42 U.S.C. § 2233; 10 C.F.R. § 30.34. The Commission attempts to monitor compliance by the licensees through a system of required tests, licensee reports, record-keeping requirements and on-site inspections by Commission representatives. 10 C.F.R. § 30.34(e)(4).

Once a transgression has occurred, the Commission is authorized to take certain actions against the licensee. Depending upon the severity of the transgression, the Commission may invoke any number of sanctions. These include: (1) the issuance of a Notice of Violation, 10 C.F.R. § 2.201; (2) the imposition of civil penalties, 10 C.F.R. § 30.63; (3) the issuance of an order modifying, suspending or revoking the license, 10 C.F.R. §§ 2.202, 2.204; and/or (4) the withholding or recalling of the byproduct material, 10 C.F.R. § 30.62. Where necessary or appropriate, the Commission may seek judicial assistance to collect a penalty, 42 U.S.C. § 2282(c), or obtain an injunction, 42 U.S.C. § 2280. Finally, where violations are willful the Commission may seek criminal sanctions of up to $5000, two years imprisonment, or both. 42 U.S.C. § 2273.

A. Imposition of Civil Penalties.

The Act provides that any person who violates an applicable statutory provision, regulatory requirement or license condition of any material byproduct license is subject to a civil penalty of up to $5000 for each violation. The Act also mandates certain procedures be utilized by the Commission for the valid exercise of this authority. Additionally, the Act empowers the Commission to institute a civil action to collect the penalty imposed. Specifically, section 234 of the Act states:

(a) Any person who (1) violates any licensing provision of section 2073, 2077, 2092, 2093, 2111, 2112, 2131, 2133, 2134, 2137, or 2139 of this title or any rule, regulation, or order issued thereunder, or any term, condition, or limitation of any license issued thereunder, or (2) commits any violation for which a license may be revoked under section 2236 of this title, shall be subject to a civil penalty, to be imposed by the Commission, of not to exceed $5,000 for each such violation: Provided, That in no event shall the total penalty payable by any person exceed $25,000 for all violations by such person occurring within any period of thirty consecutive days. If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purpose of computing the applicable civil penalty. The Commission shall have the power to compromise, mitigate, or remit such penalties.

(b) Whenever the Commission has reason to believe that a person has become subject to the imposition of a civil penalty under the provisions of this section, it shall notify such person in writing (1) setting forth the date, facts, and nature of each act or omission with which the person is charged, (2) specifically identifying the particular provision or provisions of the section, rule, regulation, order, or license involved in the violation, and (3) advising of each penalty which the Commission proposes to impose and its amount. Such written notice shall be sent by registered or certified mail by the Commission to the last known address of such person. The person so notified shall be granted an opportunity to show in writing, within such reasonable period as the Commission shall by regulation prescribe, why such penalty should not be imposed. The notice shall also advise such person that upon failure to pay the civil penalty subsequently determined by the Commission, if any, the penalty may be collected by civil action.

(c) On the request of the Commission, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this section. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to him for collection.

42 U.S.C. § 2282 (amended in 1980).

The procedure actually adopted by the Commission for administrative imposition civil penalties goes beyond the requirements of the statute. The Commission provides an opportunity for a full adjudicatory consideration of all relevant facts prior to the imposition of any penalty. 10 C.F.R. § 2.205. The licensee is advised in writing of all the following elements of the alleged violation: (1) the dates, facts and nature of each alleged item of noncompliance; (2) the specific statutory provision, regulatory requirement or license condition alleged to have been violated; and (3) the amount of the proposed penalty. The licensee is also apprised of its right to respond in writing to the notice and provide any information it deems relevant. If the licensee avails itself of this opportunity, the Director of the Office of Inspection and Enforcement (Director) is to consider the response before imposing, mitigating, remitting or dismissing the penalty. If the licensee remains dissatisfied with the Director’s response, it may request a hearing before the Commission or the Commission’s designee. As a rule of practice, the hearing is before an administrative law judge (ALJ), 10 C.F.R. § 2.704(a), with the licensee afforded the full panoply of rights required under the Administrative Procedure Act, 5 U.S.C. § 554. 10 C.F.R. § 2.700 et seq. Appeals from the initial decision of the ALJ may be taken as of right to an Atomic Safety and Licensing Appeal Board (Appeal Board), the Commission’s designee in matters involving, inter alia, civil penalties. 10 C.F.R. § 2.785(a). Finally, if the decision of the Appeal Board is erroneous with respect to an important question of fact, law or policy, the Commission will review the matter on its own motion or upon a petition of a party. 10 C.F.R. § 2.786. Upon the exhaustion of these administrative procedures and upon the expiration of ten days from the date of service of notice of final Commission action, the Commission is authorized to refer the matter to the Attorney General for collection. 42 U.S.C. § 2282(c); 10 C.F.R. § 2.205(h).

B. Procedures Employed Against RTI.

At all relevant times, RTI was the holder of Byproduct Material License No. 29-13613-02. RTI operates a facility in Rockaway, New Jersey, described as a commercial irradiator which utilizes cobalt-60, a byproduct material within the meaning of 42 U.S.C. § 2014(e).

On December 12, 1974, Commission personnel conducted an inspection of RTI’s facility. As a result, a Notice of Violation was issued on January 23, 1975, alleging a failure to comply with License Condition 12 in that the licensee permitted byproduct material to be used by unauthorized persons in the facility absent the physical presence of a license-designated person. In its February 14, 1975, response to the Notice, the licensee did not contest the violation, but assured the Commission of its future compliance with License Condition 12.

On October 23, 1975, Commission personnel conducted a routine inspection of RTFs facility. A pool water sample taken by the inspector revealed an elevated level of cobalt activity in the irradiator (R & D) pool. RTI linked the activity to a “suspect pencil with a loosened endcap” which had been sealed in a pipe and stored at the bottom of the pool. A follow-up inspection was conducted on June 18, 1976. As a result, a second Notice of Violation was issued to RTI, alleging, inter alia, a failure to comply with the requirements of 10 C.F.R. § 20.207 in that the licensee failed to maintain constant surveillance and immediate control of licensed material stored in an unrestricted area. In its response of July 12, 1976, RTI did not contest the violation.

On October 27, 1976, at approximately 7:30 a. m., representatives of the Commission conducted an unannounced inspection of RTFs facility. One of RTFs employees accompanied the inspectors during the initial phases of the inspection. Interviews with employees, review of records and a survey of the facility revealed a series of apparent violations of Commission regulations and license conditions. On November 1, 1976, inspectors from the Commission returned to RTFs facility to make follow-up surveys and record inspections. These activities also revealed several additional apparent violations of the regulations and license conditions.

Based upon the reports resulting from the inspections of October 27 and November 1, 1976, the Director issued on January 5, 1977, a Notice of Violation, alleging nine items of noncompliance with both regulatory requirements and license conditions. A Notice of Proposed Imposition of Civil Penalty was included with the Notice of Violation.

On January 31, 1977, RTI responded in writing by denying that some of the items of noncompliance had occurred and arguing that extenuating circumstances warranted the withdrawal of the civil penalties. After the Director considered RTFs response, he issued an Order Imposing Civil Penalties on March 4, 1977. RTI requested and the Commission provided a hearing on the matter before an ALJ. Eight days of hearings were held in Morristown, New Jersey, concluding on June 1, 1978.

On November 24,1978, the ALJ issued his initial decision. He dismissed items 4 and 5 for failure of proof, found items 1 to 3 and 6 to 9 to be supported by substantial evidence and imposed penalties in the amount of $3,300. Both parties sought review by the Appeal Board. On October 16,1979, the Appeal Board issued its decision affirming the ALJ’s decision on all items of noncompliance with the exception of item 5. As to this item, the Appeal Board reversed the ALJ’s dismissal of the item for failure of proof, finding that the ALJ applied an improper legal standard. Accordingly, the Appeal Board assessed civil penalties in the amount of $4,050.

On November 2, 1979, RTI filed a Petition for Review with the Commission. The Commission failed to exercise its discretion to review the decision of the Appeal Board within the time provided by the regulations as extended. Therefore, the petition was deemed to have been denied. By letter dated January 15, 1980, the Director requested payment of the $4,050 penalty. The licensee’s response, dated January 24, 1980, did not enclose the payment as required. Accordingly, the instant suit was started.

In its complaint, the NRC alleges that this action is authorized under section 234 of the Atomic Energy Act of 1954, as amended. 42 U.S.C. § 2282. Jurisdiction of the court is asserted under 28 U.S.C. §§ 1337 and 1391. After stating the facts of the controversy, the NRC demands judgment. against RTI for the amount of the civil penalty, together with interest arid costs.

In its answer, RTI denied the material allegations of the complaint. In particular, RTI denied the validity of any of the determinations of noncompliance made by NRC. As an affirmative defense, RTI sought review of the order of the NRC which imposed civil penalties, denying that it violated any regulations. RTI also asserted that the inspection of its facilities “was in violation of the rules and regulations of- the Commission. Such inspection was illegal and void and the fruits thereof were inadmissible as evidence in the Commission’s proceedings.” Answer at 2.

III. LEGAL ANALYSIS

A. Jurisdiction of the District Court.

It is the position of the plaintiff that jurisdiction in this collection action rests with the district court under 28 U.S.C. §§ 1337, 1345, and 1355. The NRC does, however, note that one exception to the district court’s jurisdiction does exist, i. e., review of civil penalty orders imposed as a result of, during or in furtherance of any proceeding under 42 U.S.C. § 2239 to grant, suspend, revoke or amend a license. The NRC asserts that by virtue of 28 U.S.C. § 2342(4) jurisdiction is vested in the Circuit Court of Appeals in those license/penalty actions. The NRC contends that these civil penalty orders, as collateral or ancillary orders to the license review proceeding, fall within the jurisdictional parameters of 42 U.S.C. § 2239.

In contrast to these arguments, RTI contends that “what the Government has characterized as the ‘exception’ is the general rule, namely, that exclusive jurisdiction for review of any final order of the NRC for a civil penalty or otherwise, lies with the circuit court of appeals.” RTFs Brief at 7. Defendant’s argument is premised on Congress’ use of extremely broad language in 42 U.S.C. § 2239. RTI refers the court to several circuit cases which have interpreted 42 U.S.C. § 2239 in a broad manner somewhat analogous to the interpretation sought by RTI. Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm’n, 606 F.2d 1261 (D.C.Cir.1979); Virginia Electric & Power Co. v. Nuclear Regulatory Comm’n, 571 F.2d 1289 (4th Cir. 1978); Honicker v. Hendrie, 465 F.Supp. 414 (M.D.Tenn.), appeal dismissed, 605 F.2d 556 (6th Cir. 1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980).

In particular, RTI contends that the NRC investigation, administrative hearing and penalty imposed in the instant matter “were the ‘necessary first step’ in a proceeding for suspending or revoking the defendant’s license.” RTFs Brief at 11. In fact, defendant notes that it was repeatedly threatened with the possibility of license suspension or revocation during the hearing. RTI contends that the NRC procedure of basing licensing determinations on a cumulative point system where points are assessed against licensees who are charged with civil penalties illustrates that the civil penalty and licensing proceedings are “inextricably intertwined.” Furthermore, RTI argues that a determination that the district court could exercise jurisdiction in this proceeding would enable the NRC to circumvent the circuit court’s exclusive jurisdiction in licensing matters by simply instituting a series of civil penalty proceedings the cumulative effect of which would be an unassailable license suspension or revocation. Finally, RTI asserts that the silence of section 234 as to the circuit court’s jurisdiction was a product of Congress’ assumption that it was a “foregone conclusion” that jurisdiction over final orders of the NRC rested with the circuit court pursuant to 28 U.S.C. § 2342(4).

The court’s analysis of this issue must begin with the plaintiff’s asserted jurisdictional bases. Chapter 85 of Title 28 contains numerous statutory grants of jurisdiction to the district court which are applicable to the instant matter. 28 U.S.C. § 1337 states that “[t]he district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce. ...” This jurisdictional grant was recognized in Drake v. Detroit Edison Co., 443 F.Supp. 833 (W.D. Mich.1978), as the proper basis for the district court’s exercise of jurisdiction in certain actions commenced under the Atomic Energy Act. In Drake, the district court indicated “[i]t is well established ... that that statute, the Atomic Energy Act, was passed pursuant to Congress’ power to regulate commerce, see 1964 U.S.Code Cong. & Admin.News, p. 3111, thus making 28 U.S.C. § 1337 the applicable jurisdictional provision.” 443 F.Supp. at 836; see 13 C. Wright & A. Miller, Federal Practice and Procedure § 3574. Equally applicable is the jurisdictional grant contained in 28 U.S.C. § 1345. That section provides that “[e]xcept as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.” 28 U.S.C. § 1345; 14 C. Wright & A. Miller, supra, § 3651. It is undisputed that the NRC is an agency of the United States suing to vindicate a specific federal statutory right. It is also clear that the NRC is “expressly authorized to sue by Act of Congress.” That authorization is set forth in section 234 of the Atomic Energy Act, as amended. 42 U.S.C. § 2282. The only difficulty that arises is defendant’s contention, albeit by indirection, that 28 U.S.C. § 2342(4) is a specific jurisdictional grant to the Court of Appeals within the meaning of the first clause of 28 U.S.C. § 1345.

The Administrative Orders Review Act, in pertinent part, provides:

The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of—

(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42;

28 U.S.C. § 2342(4). Section 2239 of title 42 states:

(a) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licenses, and in any proceeding for the payment of compensation, an award or royalties under section 2183, 2187, 2236(c) or 2238 of this title, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, . ..

(b) Any final order entered in any proceeding of the kind specified in subsection (a) of this section shall be subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended, and to the provisions of section 10 of the Administrative Procedure Act, as amended.

42 U.S.C. § 2239. The present equivalent of the Act of December 29, 1950, as amended, is the Administrative Orders Review Act, 28 U.S.C. §§ 2341 to 2351. Fortunately, the Third Circuit has addressed the issue of its jurisdiction under this statute.

In Citizens for a Safe Environment v. Atomic Energy Comm’n, 489 F.2d 1018 (3d Cir. 1974), the petitioners sought review in the Circuit Court of an order of the AEC denying them financial assistance. The petitioners were intervenors in a proceeding before the AEC for the granting óf a facility operating license for a nuclear electric energy generating station filed by several utility companies. After a review of the Administrative Orders Review Act and 42 U.S.C. § 2239, the Third Circuit, through Judge Gibbons, explained:

Thus, if the order denying petitioners’ motion for $30,000 is a final order entered in a § 2239 licensing proceeding, it is reviewable here, and not elsewhere. If it is not such an order, it is not reviewable here in the first instance, but may be reviewable, pursuant to the Administrative Procedure Act and under some other jurisdictional statute, in a district court.

485 F.2d at 1020. The test articulated by the Court to resolve this issue “has two aspects: (1) is the order one entered in a proceeding of the kind specified in § 2239(a), and (2) assuming it is of that kind, is it final.” Id.

An application of the jurisdictional test utilized by the Third Circuit in Citizens to the present case clearly indicates that an action for the collection of civil penalties is properly brought before the district court, not the Court of Appeals. The first prong of the Citizens test simply cannot be satisfied. Proceedings under subsection (a) of 42 U.S.C. § 2239 are those that deal with the Commission’s exercise of licensing and rule-making authority. See Siegel v. Atomic Energy Comm’n, 400 F.2d 778, 785 (D.C.Cir.1968). Contrary to the assertion of the defendant, the Commission in this matter was not exercising either of these powers. Rather, it was exercising a third and distinct authority conferred upon it under section 234. No reference is made in 42 U.S.C. § 2239 to section 234.

It is apparent that the absence of any reference to section 234 in 42 U.S.C. § 2239 was an intentional omission by Congress. Congress has established a different procedure which must be employed by the Commission when it seeks to collect a civil penalty rather than suspend or revoke a license. The legislative history of section 234 of the Atomic Energy Act, as amended, 42 U.S.C. § 2282, shows that the draftsmen intended the collection action be commenced in the district court. For a detailed discussion of the legislative history of section 234, see 1279-1283 infra. Furthermore, the absence of any reference to the jurisdiction of the Court of Appeals in section 234 collection actions militates against that court’s exercise of jurisdiction and favors the exercise of jurisdiction by this court. 16 C. Wright & A. Miller, supra, § 3943, at 323-24.

The cases cited by RTI for a contrary interpretation of 28 U.S.C. § 2342(4) are inapposite. In Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm’n, 606 F.2d 1261 (D.C.Cir.1979), the Circuit Court reviewed the district court’s determination that it had jurisdiction to review determinations of the NRC and Energy Research and Development Administration (ERDA) that the NRC need not license certain storage tanks under section 202(4) of the Energy Reorganization Act of 1974, 42 U.S.C. § 5842(4), and that the ERDA need not prepare an environmental impact statement for the tanks under section 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C). With respect to the district court’s jurisdiction to review the NRC determination, the Circuit Court considered the question “whether the order was ‘entered in a proceeding’ for ‘the granting ... of any license.’ ” 606 F.2d at 1265. In concluding that the NRC’s decision was such an order, the Circuit Court reasoned:

In the circumstances of this case, the absence of an application for a license is not dispositive. Since a licensing jurisdiction determination is a necessary first step in any proceeding for the granting of a license, we hold that NRC’s decision was “entered in a proceeding” for “the granting ... of any license.”

Furthermore, exclusive jurisdiction in the courts of appeals over such orders will eliminate unnecessary duplicative review and the delay and expense incidental thereto. As long as we have an administrative record on which to base our review, as we do here, there is no need for evidentiary hearings in the district court.. . .

For the foregoing reasons, we hold that exclusive jurisdiction to review NRC’s determination rests in the courts of appeals. The district court erred in reviewing NRC’s licensing decision on the merits.

Id. at 1265-66 (footnotes omitted). Clearly, the Court’s characterization of the NRC’s actions as “a licensing jurisdiction determination” and “licensing decision” distinguishes Natural Resources from the present matter, i. e., a civil penalty action. Defendant’s contention that the imposition of a civil penalty is a predicate to a license suspension or revocation does not convert the agency’s former action into the later. Defendant itself has the ability to remove this predicate by compliance with the agency’s regulations and its license conditions. The fact that it decides not to conform should not be and is not a factor which affects the jurisdiction of this court.

Likewise, the case of Virginia Electric & Power Co. v. Nuclear Regulatory Comm’n, 571 F.2d 1289 (4th Cir. 1978), does not support defendant’s position. In that case Virginia Electric & Power Co. (VEPCO) petitioned the Court of Appeals for review of an order of the NRC imposing civil penalties against VEPCO “for making false statements in connection with its application for a license to construct and operate a nuclear power plant.” Id. at 1290 (footnote omitted). VEPCO contended, inter alia, that the Commission had misconstrued section 186 of the Atomic Energy Act, 42 U.S.C. § 2236. Although the Fourth Circuit did not engage in an independent determination of its jurisdiction to consider the petition, the Court considered itself vested with such jurisdiction since it reviewed and affirmed the agency’s action. However, the Fourth Circuit was reviewing a civil penalty order which emanated from a licensing proceeding. Although such an order presumably was issued pursuant to the Commission’s authority under section 234(a), it is literally a “final order entered in any proceeding of the kind specified in subsection (a) of [section 2239]” and thus within the exclusive jurisdiction of the court of appeals. 42 U.S.C. § 2239(b). Again, I must emphasize that in the instant matter the civil penalty order was issued in a section 234(b) proceeding, not a licensing proceeding.

Finally, defendant’s reliance on Honicker v. Hendrie, 465 F.Supp. 414 (M.D.Tenn.), appeal dismissed, 605 F.2d 556 (6th Cir. 1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980), is of no avail. That case concerned a district court’s dismissal of an action by an individual against members of the NRC in which the plaintiff sought an injunction ordering the NRC to revoke the licenses of all nuclear fuel cycle facilities. The court held that the court of appeals had exclusive jurisdiction to enjoin orders of the NRC issued out of licensing or rule-making proceedings. Again, the distinction is evident. Honicker involved a licensing proceeding, whereas this case concerns a penalty action.

My holding that jurisdiction to entertain this section 234(c) collection action is vested in the district court is buttressed by the jurisdictional grant set forth in 28 U.S.C. § 1355. Section 1355 provides:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress.

28 U.S.C. § 1355; Lees v. United States, 150 U.S. 476, 478-479, 14 S.Ct. 163, 163-164, 37 L.Ed. 1150 (1893); United States v. General Motors Corp., 403 F.Supp. 1151, 1152 (D.Conn.1975). It is clear that the court has jurisdiction under this statutory grant, unless, as noted in Lees v. United States, supra, “it [jurisdiction] is in express terms placed exclusively elsewhere.” 150 U.S. at 479, 14 S.Ct. at 164. Although 42 U.S.C. § 2239(b) when read in conjunction with 28 U.S.C. § 2342(4) does vest the Court of Appeals with exclusive jurisdiction over numerous NRC determinations, review of section 234 penalty decisions is not one such determination. Accordingly, for the reasons set forth above, I hold that the district court, not the Court of Appeals, has jurisdiction over a section 234(c) collection action.

B. Judicial Review.

Since I have held that the district court has jurisdiction over this action, I must now address the court’s function in the collection process. Although the parties do not contest the propriety of judicial review, they are diametrically opposed with respect to the scope of review to be employed by the court. Initially, it was the NRC’s position that the court need not consider this issue. However, if the court were to address the point, the NRC asserts that “[i]n such cases, collection must be preceded [sic] by a trial de novo, ...; a fact recognized by the Commission in seeking civil penalty authority.” NRC’s Brief at 15 n.6. However, in a letter to both parties, I requested that the issue of this court’s scope of review be briefed. In response to the court’s inquiry, the NRC tempered its earlier position and now asserts that “[w]here, as here, the order is based on an adjudicatory hearing guaranteed by the applicable regulations, the proper scope of review is the ‘substantial evidence’ test” under the Administrative Procedure Act, 5 U.S.C. § 706(2)(E). NRC’s Supplemental Brief at 6 (footnote omitted).

In contrast to this assertion, RTI argues that the NRC’s initial position was correct, i. e., the court must engage in a trial de novo. RTI argues that as a matter of case law, citing United States v. J. B. Williams Co., 498 F.2d 414 (2d Cir. 1974), and construction of analogous statutory authority vested in the Federal Trade Commission, 15 U.S.C. § 45(1), the Federal Communications Commission, 47 U.S.C. §§ 503, 504, and the Federal Aviation Agency, 49 U.S.C. § 1471, review by the district court is by trial de novo. RTFs Brief at 17-23.

Essentially, the government urges the court to engage in a limited review of an agency’s determination, while the defendant asserts that it is entitled to a trial de novo similar to that provided in most other collection actions. For purposes of clarity, I will first pursue the avenue suggested by the government and then engage in a discussion of the defendant’s contention.

1. Propriety of Judicial Review.

Judicial review of agency actions is governed by the standards set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701 to 706 (hereinafter referred to as the “APA”). Two sections of the APA are particularly important and merit some detailed discussion. In pertinent part, section 701 states:

(a) This chapter [Judicial Review] applies, according to the provisions thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

5 U.S.C. § 701(a). The various standards of review to be employed by the court are set forth in 5 U.S.C. § 706. The relevant provisions in this section indicate:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

5 U.S.C. § 706(2). Thus, at this juncture, the issues to be addressed are: first, whether any judicial review is appropriate; and, second, assuming some type of judicial review is proper, what standard of review should be employed. The Supreme Court’s decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), establishes the court’s method of inquiry.

The first issue — existence of judicial review — is, of course, governed by the two-pronged test set forth in section 701 of the APA. With respect to the first prong, 5 U.S.C. § 701(a)(1), the Volpe Court explained that there must be a showing by clear and convincing evidence of legislative intent that “Congress sought to prohibit judicial review.” 401 U.S. at 410, 91 S.Ct. at 820, A. O. Smith Corp. v. Federal Trade Comm’n, 530 F.2d 515, 520 (3d Cir. 1976); Local 2855, AFGE v. United States, 602 F.2d 574 (3d Cir. 1979). In other words, “[t]he reviewing court must determine whether ‘Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.’ ” Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977) (quoting Barlow v. Collins, 397 U.S. 159, 165, 90 S.Ct. 832, 836, 25 L.Ed.2d 192 (1970)).

Since no provision in the Atomic Energy Act expressly precludes judicial review of the Commission’s decision under section 234, “it is necessary to determine ‘whether nonreviewability can fairly be inferred.’ ” Morris v. Gressette, 432 U.S. at 501, 97 S.Ct. 2418 (quoting Barlow v. Collins, 397 U.S. at 166, 90 S.Ct. at 837). This inquiry must address the role played by the commission within “the context of the entire legislative scheme.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967).

Resort to the legislative history of section 234 dispels any notion that Congress inferred nonreviewability. When the Joint Committee on Atomic Energy held its hearings on the proposed AEC Omnibus Legislation in 1969 it had before it several bills, one of which was proposed by the AEC. H.R. 9648, S. 1882, 91st Cong., 1st Sess. (1969). During his testimony on the bill, AEC’s General Counsel explained that under the provisions in the AEC’s proposal regarding collection of civil penalties “an alleged violator is guaranteed an opportunity for a full hearing on the merits in Federal district court before any civil penalty may be collected from him.” Hearings Before the Joint Comm, on Atomic Energy on AEC Omnibus Legislation — 1969, 91st Cong., 1st Sess. 29-30 (1969) (hereinafter cited as “Hearings on AEC Omnibus Legislation — 1969 ”) (statement of Joseph F. Hennessey). The AEC also provided written answers to certain inquiries made by the Joint Committee. In one answer, the AEC explained that “[ujnder this legislation an alleged violator’s guarantee of hearing is provided in Federal district courts.” Id. at 37-38. Thus, in light of comments before the Joint Committee and with due consideration given to the Supreme Court’s mandate that the APA’s “ ‘generous review provisions’ must be given a ‘hospitable’ interpretation,” Abbott Laboratories, 387 U.S. at 141, 87 S.Ct. at 1511, I conclude that Congress did not infer, by its silence on judicial review of section 234 collection actions, that such agency action was nonreviewable. 5 U.S.C. § 701(a)(1).

Nor does a review of the statutory scheme reveal that “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). This case is not one of “those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 410, 91 S.Ct. at 820 (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)).

[AJgency action may be determined to be “committed to agency discretion by . law” only when a fair appraisal of the entire legislative scheme, including a weighing of the practical and policy implications of reviewability, persuasively indicates that judicial review should be circumscribed. ...

A predicate to nonreviewability is that the agency have broad discretionary powers, not merely that its action involve some discretion.”

Local 2833, AFGE v. United States, 602 F.2d at 578 (footnote omitted) (emphasis in original). Although the AEC is vested with substantial discretion to impose civil penalties, it is clear that its discretion is not so broad as to foreclose review. The legislative history referred to above indicates that the AEC itself was not seeking nonreviewable authority. Furthermore, the procedural scheme established in section 234(b) as well as the judicial review provision of 42 U.S.C. § 2239(b), indicate that some review was intended and that there is “law to apply.” Accordingly, I hold that civil penalties imposed by the Commission pursuant to its section 234 authority are subject to judicial review. I reject the dictum contained in Drake v. Detroit Edison Co., 453 F.Supp. 1123 (W.D.Mich.1978), espousing a contrary position. In Drake, the court in its concluding remarks indicated that

[i]t is clear that the decision to impose penalties or institute proceedings is committed to agency discretion by law. Indeed, such decisions, whether made by administrative agencies or prosecuting attorneys, have historically been deemed to lie at the heart of the executive discretionary decision-making process and beyond the scope of judicial review.

Id. at 1131. I note that the issue addressed by the Drake court was not the scope of review to be employed by a court reviewing a civil penalty imposed under section 234. I also highlight the fact that the Drake court did not engage in the analysis required by the Supreme Court in Voipe. Thus, having decided that judicial review is required, I now address the issue of the scope of that review. As will be seen shortly, the determination of the scope of review involves the discussion of material also relevant to the resolution of this case in a manner consistent with defendant’s contentions.

2. Scope of Review.

Again, reference must be made to the Supreme Court’s decision in Citizens to Preserve Overton Park v. Volpe, supra. In Volpe, the Court explained:

In all cases agency action must be set aside if the action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or if the action failed to meet statutory, procedural, or constitutional requirements. 5 U.S.C. § 706(2)(A), (B), (C), (D).... In certain narrow, specifically limited situations, the agency action is to be set aside if the action was not supported by “substantial evidence.” And in other equally narrow circumstances the reviewing court is to engage in a de novo review of the action and set it side if it was “unwarranted by the facts.” 5 U.S.C. § 706(2)(E), (F) ...

Review under the substantial-evidence test is authorized only when the agency action is taken pursuant to a rulemaking provision of the Administrative Procedure Act itself, 5 U.S.C. § 553 ..., or when the agency action is based on a public adjudicatory hearing. See 5 U.S.C. §§ 556, 557....

... de novo review is authorized when the action is adjudicatory in nature and the agency factfinding procedures are inadequate. And, there may be independent judicial factfinding when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action. H.Rep.No.1980, 79th Cong., 2d Sess., reprinted in Senate Judiciary Committee, Legislative History of the Administrative Procedure Act 279.

401 U.S. at 413-415, 91 S.Ct. at 822-823. Thus, it is clear that the Commission’s imposition of civil penalties must pass muster under the standards set forth in paragraphs (A) through (D) of section 706(2). However, what must be determined is the applicability of either paragraph (E), the substantial evidence standard, or paragraph (F), the trial de novo standard.

In Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), the Supreme Court again commented on the nature of the review process under the APA. In Camp, the Court explained:

It is quite plain from our decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), that de novo review is appropriate only where there are inadequate factfinding procedures in an adjudicatory proceeding, or where judicial proceedings are brought to enforce certain administrative actions.

411 U.S. at 141-142, 93 S.Ct. at 1243-1244. It is clear that this proceeding is one brought to enforce a determination of the NRC. Therefore, application of the standards set forth in the APA, as interpreted by the courts, leads me to a determination that a trial de novo would be in order. Furthermore, the Second Circuit’s comments in United States v. J. B. Williams Co., 498 F.2d 414 (2d Cir. 1974), interpreting section 5(1) of the Federal Trade Commission Act, 15 U.S.C. § 45(7), a statute upon which section 234 was modeled, see infra, are instructive. In that case, the Court indicated:

There can be no doubt that in general “there is a right of jury trial when the United States sues ... to collect a penalty, even though the statute is silent on the right of jury trial,” 5 Moore, Federal Practice ¶ 38.-31[l], at 232-33 (1971 ed.). The leading case supporting this proposition is Hepner v. United States, supra, 213 U.S. [103] at 115, [29 S.Ct. 474, 53 L.Ed.2d 720] where the Court had no difficulty in concluding that in an action to collect a $1,000 penalty assessed for a violation of the Alien Immigration Act, “[t]he defendant was, of course, entitled to have a jury summoned.” ...

Many cases, arising under a broad range of other civil penalty and forfeiture provisions, have reached the same conclusion. In The Sarah, 8 Wheat. 391, 21 U.S. 391, 5 L.Ed. 644 (1823), the Court held that when goods were seized on land, a statutory libel of information entitled the defendant to a jury trial. The Court has consistently held since then that forfeitures occurring on land are civil actions at law, entitling the parties to a jury unless it was waived. United States v. Winchester, 99 U.S. 372, 374, 25 L.Ed. 479 (1878); 433 Cans of Frozen Egg Product v. United States, 226 U.S. 172, 183, [33 S.Ct. 50, 52] 57 L.Ed. 174 (1912); C. J. Hendry Co. v. Moore, 318 U.S. 133, 153, 63 S.Ct. 499, 87 L.Ed. 663 (1943). Similarly, actions for statutory penalties have been held to entail a right to jury trial, even though the statute is silent, both where the amount of the penalty was fixed and where it was subject to the discretion of the court, see, e. g., Atchison, Topeka & Santa Fe Ry. v. United States, 178 F. 12 (8 Cir. 1910) (28-hour law); Connolly v. United States, 149 F.2d 666 (9th Cir. 1945) (penalty under 25 U.S.C. § 179); United States v. Jepson, 90 F.Supp. 983, 984-986 (D.N.J.1950) (Emergency Price Control Act of 1942); United States v. Friedland, 94 F.Supp. 721 (D.Conn.1950) (Housing and Rent Act of 1947); United States ex rel. Rodriguez v. Weekly Publications, 9 F.R.D. 179 (S.D.N.Y.1949) qui tarn action to recover statutery penalty for making false claim against the Government).

498 F.2d at 422-23 (footnote omitted) (citation omitted).

This determination, however, does not need to rest on an application of such general principles. Resort to the statute itself is instructive. Yet, unlike many civil penalty statutes, section 234 of the Atomic Energy Act is silent on the applicable scope of review. Therefore, an examination must be made of both its legislative history and analogous common law authority.

On January 17, 1969, the AEC transmitted to the Congress proposed legislation (hereinafter referred to as the “AEC Bill”) seeking authorization to, inter alia, levy civil penalties against violators of the Commission’s regulations, orders and license conditions. On March 27,1969, the proposed bill was introduced by Chet Holifield, Chairman of the Joint Committee on Atomic Energy, by request, as H.R. 9648, 91st Cong., 1st Sess. (1969), and on April 18, 1969, by Vice Chairman John Pastore, by request, as S. 1882, 91st Cong., 1st Sess. (1969). Also, on April 18, 1969, Senator Pastore introduced S. 1878, 91st Cong., 1st Sess. (1969) (hereinafter referred to as the “Pastore Bill”), a bill identical to S. 3958, 90th Cong., 2d Sess. (1968), which he had introduced in the 90th Congress, but on which no final action was taken by the Joint Committee. The Pas-tore Bill also proposed adding a new section to the Atomic Energy Act conferring on the AEC authority to impose civil monetary penalties. I note, however, that the AEC Bill differed in some significant aspects from the Pastore Bill. See 1281 infra.

Beginning on September 12,1969, the full committee held hearings on the various measures before it. The principal executive branch witness was Joseph F. Hennessey, General Counsel for the AEC. Mr. Hennessey provided the Joint Committee with the views of the AEC on the various bills then pending. During the course of his testimony on the AEC Bill, Mr. Hennessey testified:

In order to assure that we can act flexibly and effectively against any safety violation, we consider it necessary to have a full range of remedial powers. There may be cases in which license suspension or revocation is not in the public interest, but in which the importance of full adherence to regulatory requirements should be emphasized by more than a notice of violation or a cease and desist order.

In such cases, a civil monetary penalty could be imposed without requiring the cessation of an activity which might be of material benefit to the public or without depriving the licensee or his employees of their means of livelihood.

All of the major regulatory agencies in the Federal Government have statutory authority to impose civil penalties in appropriate cases to assist them in carrying out their regulatory functions, although the statutory provisions for each differ somewhat.

The proposed legislation is modeled upon similar provisions in the Federal Communications Act (47 U.S.C. 503-504) and the Federal Aviation Act (49 U.S.C. 1471).

Hearing on AEC Omnibus Legislation— 1969, supra, at 28-29 (statement of Joseph F. Hennessey). Mr. Hennessey then engaged in a section-by-section analysis of the AEC Bill. He explained:

Section b. also provides that the notice would advise the alleged violator that upon failure to pay the civil penalty subsequently determined by the Commission, if any, the penalty may be collected by a civil action. Such civil action would be instituted by the Department of Justice in Federal district court where the right to a full hearing on the merits of the charges would exist.

Section c. deals with the responsibility of the Attorney General. If after the Commission determines that a penalty should be imposed, the licensee fails to pay, the matter is referred to the Attorney General. He will determine whether a civil action for collection in Federal district court should be instituted. He is given exclusive authority to compromise, mitigate, or remit the civil penalty after the matter has been referred by the AEC.

Under these provisions, an alleged violator is guaranteed an opportunity for a full hearing on the merits in Federal district court before any civil penalty may be collected from him.

The proposed amendments, in accordance with the basic authority provided in section 161 of the Atomic Energy Act and the Administrative Procedure Act, would also permit the Commission to provide a full administrative hearing to any person charged with violations or to handle the matter informally.

Let me assure you that the Commission will always provide a person with a full administrative hearing, if requested, prior to determining that a civil penalty should be imposed and before referring the matter to the Department of Justice.

Id. at 29-30. Finally, in response to an inquiry from Representative Price with respect to the other regulatory agencies vested with civil penalty authority, Mr. Hennessey indicated:

MR. HENNESSEY. ... all of the six major regulatory agencies have civil penalty authority now.

(Subsequently, the AEC furnished the following information:)

Examples of the authority of the principal regulatory agencies to impose civil penalties

Federal Power Commission, 16 U.S.C. 825(n).

Securities Exchange Commission, 15 U.S.C. 78ff(b).

Interstate Commerce Commission, 49 U.S.C. 20(7)(a).

Federal Trade Commission, 15 U.S.C. 45(7).

Federal Communications Commission, 47 U.S.C. 503, 504.

Federal Aviation Agency, 49 U.S.C. 1471.

Id. at 34.

Incorporated into the hearings record were numerous prepared answers by the AEC in response to formal submissions to the agency by the executive director of the Joint Committee.

Q.2. Neither of the civil penalty proposals appears to require an AEC hearing, or an opportunity for hearing, before such a penalty can be imposed; is that correct? Do you believe this comports with due process requirements?

A. We believe that the civil penalty legislation proposed in both H.R. 9648 and S. 1878 comports with due process with respect to the absence of hearing requirements. As previously stated, our proposed legislation was based upon the civil penalty provisions in the Federal Aviation Act and the Federal Communications Act. Other regulatory agencies have similar statutes. Under this legislation an alleged violator’s guarantee of hearing is provided in Federal district courts. As we stated in our testimony, however, the Commission would follow the procedures set forth in our “Rules of Practice” to provide any person charged with violations an opportunity to show that he did not commit the violations or that they were committed under mitigating circumstances. We would also offer him the opportunity to request a full administrative hearing before the Commission prior to a determination that a civil penalty should be imposed.

Q.3. Instead of court litigation as provided for under these bilis, why wouldn’t it be preferable to have AEC conduct the entire proceedings within the Commission on an administrative basis subject to the requirements of the Atomic Energy and Administrative Procedure Acts? Wouldn’t this be fairer to and less expensive for the alleged offender, who could still appeal an adverse decision to the courts?

A. We do not believe that conducting the entire matter before the AEC would necessarily be fairer or less expensive. We initially considered the approach of having the entire civil penalties proceedings take place before the AEC, including a full administrative hearing before the Commission and the right of the alleged offender to contest the Commission’s actions by appeal to a United States Court of Appeal[s]. As we understand it, no agency has been given this type of authority because this would tend to cut off a judicial trial de novo of a “penalty” action. A case involving formal regulatory action imposes approximately the same financial burden upon the alleged offender, quite aside from the penalty itself, if levied. While the offender may appear pro se in a formal hearing before the Commission and in Federal court, our experience has been that persons faced with such hearings before the Commission normally have been represented by counsel. Other expenses involve the loss of time, travel, and other expenses incident to litigation.

Finally it is not our purpose to seek novel statutory authority, which would tend to create court tests as to its validity. We seek only the same authority as that provided to other Federal regulatory agencies.

Id. at 38 (letter from Joseph F. Hennessey) (footnotes omitted).

Later on September 12, 1969, the Joint Committee met in executive session to consider the various aspects of the proposed legislation. On November 18, 1969, the Joint Committee convened again in executive session and voted to incorporate the pending bills, with certain amendments, into “clean bills.” These clean bills were introduced on November 20, 1969, by Chairman Holifield for himself, Representative Price and Representative Hosmer as H.R. 14925, 91st Cong., 1st Sess. (1969). On November 21, 1969, Vice Chairman Pastore introduced the clean bills as S. 3169, 91st Cong., 1st Sess. (1969). On November 24, 1969, the Joint Committee voted to approve the reporting of the clean bills favorably and without amendment. The Committee Reports accompanying both bills are somewhat revealing. The Joint Committee made numerous comments on proposed section 234 of the Atomic Energy Act. As the “rationale” for this section, the Joint Committee indicated that:

Section 4 of the bill reported herewith would amend the Atomic Energy Act by adding new section 234 authorizing the Atomic Energy Commission to levy civil monetary penalties on persons who violate the licensing provisions of the act or any rule, regulation, order, or license issued thereunder. Substantially the same remedial authority has been conferred by statute upon other regulatory agencies, such as the Federal Communications Commission, the Federal Aviation Agency, and the Federal Trade Commission, to assist them in carrying out their regulatory functions.

During its consideration of this legislation the committee had before it two somewhat different legislative proposals on civil monetary penalties — that submitted by the AEC (H.R. 9648, S. 1882) and that introduced by Senator Pastore (S. 1878). The committee has drawn from what it considered to be the best features of both of these proposals in formulating the proposed new section 234 entitled “Civil Monetary Penalties for Violations of Licensing Requirements” reflected in section 4 of the bill reported favorably by the committee.

... Procedural safeguards, including requirements that written notice be given by the AEC to the alleged violator of each act or omission with which he is charged and that an opportunity be provided for such person to show in writing why the proposed penalty should not be imposed, are specifically spelled out in the proposed legislation. In addition, basic authority provided in section 161 of the Atomic Energy Act and in the Administrative Procedure Act would permit the Commission to provide a full administrative hearing to any person charged with violation if such person so requested. The Commission assured the committee during the public testimony that it would always provide such a full administrative hearing, if requested, prior to determining that a civil penalty should be imposed.

Should the Commission, following the completion of such procedures, determine that a penalty should be imposed, and should the violator fail to pay the amount assessed, the matter would be referred to the Attorney General. The Attorney General would be authorized, but not required, to institute a civil action in a court of competent jurisdiction to collect the penalty. While the bill would confer on the Commission the power of compromise, mitigation, and remission of penalties, such power would reside exclusively with the Attorney General under the bill with respect to such civil penalties as are referred by the AEC to him for collection. S.Rep.No.91-553, 91st Cong., 1st Sess. 9,11, reprinted in [1969] U.S.Code Cong. & Ad. News 1607, 1615-16, 1617-18; H.R.Rep.No. 91-691, 91st Cong., 1st Sess. 9, 11 (1969). During its section-by-section analysis the Joint Committee explained:

The effect of adding section 234 to the act is to authorize the Commission to impose monetary civil penalties in addition to or in lieu of taking administrative action presently authorized. It is intended that the penalties prescribed under section 234 shall be available in addition to any other specific or general sanctions provided by law.

The new section 234 further provides that whenever the Commission has reason to believe that a person has become subject to imposition of a civil penalty, it shall notify the person in writing of the details of each asserted violation, the provisions deemed to have been violated, its intention to impose a civil penalty, and the proposed amount thereof. Such written notice shall be sent by the Commission by registered or certified mail to the last known address of such person. Reasonable opportunity shall then be afforded the person notified to show in writing why the proposed penalty should not be imposed. On request of the Commission, the Attorney General is authorized to institute civil action to collect any penalty imposed pursuant to section 234. The 5-year statute of limitations provided under Title 28, United States Code, section 2462 would be applicable to violations covered by section 234. Both the AEC and the Attorney General would be empowered by the bill to compromise, mitigate, or remit such penalties, but this power shall be exclusively that of the Attorney General with respect to such civil penalties as are referred to him for collection.

S.Rep.No.91-553, supra, at 15-16, [1969] U.S.Code Cong. & Ad.News at 1621-22; H.R.Rep.No.91-691, supra, at 15-16.

In December of 1969, the clean bills went before the Senate and House for consideration and passage on December 1, 1969, and December 15, 1969, respectively. The Senate bill was passed in lieu of the House bill.

This examination of the legislative history of section 234 aids the court in numerous ways in its determination of the proper scope of judicial review. Initially, I note that both the Senate and House Reports on the clean bills are silent on the scope of judicial review to be employed by a district court in a collection action. This silence by the Joint Committee is in direct contrast to the commentary of the AEC as to its interpretation of the scope of review to be employed by a court under its proposed bill. The Joint Committee had before it two different bills on civil penalties. The Committee specifically indicated that it drew elements from both the AEC Bill and the Pastore Bill in formulating its clean bills. The Joint Committee was, of course, not bound by the proposals before it nor was it bound by the interpretation of those proposals by the agency submitting them. In fact, the inference is unavoidable that the Joint Committee was not in total accord with the recommendations of the AEC as to the manner by which the civil penalty authority should be implemented. Accordingly, it is uncertain whether the AEC’s interpretation of its bill as requiring a trial de novo in collection actions can be considered indicative of the intention of Congress in passing the Joint Committee’s clean bills. Therefore, although the AEC’s statements on its bill are instructive, they are not binding on the court in this matter. Second, and more importantly, it is evident that the common theme throughout the entire legislative process was to provide the AEC with civil penalty authority similar to that authority previously granted to other regulatory agencies. In particular both the Senate and House Reports make reference to the authority vested in the Federal Communications Commission, the Federal Aviation Agency and the Federal Trade Commis