The opinion
WALD, Circuit Judge,
dissenting on the denial of a pre-operational hearing on new safety information, with whom
MIKVA, Chief Judge and HARRY T. EDWARDS, Circuit Judge, join:
For all practical purposes this case is moot. The House of Representatives and the Senate have already approved legislation that would accomplish the “streamlined” nuclear licensing scheme that the Administration and the NRC have argued for in this appeal. 1 The President will likely sign the new amendments in the Fall and they will replace the sections of the old Atomic Energy Act construed in this case. And that, of course, is precisely the way the process should work. So radical a change in licensing policy as the majority opinion upholds today should come in a democratic society from the Congress, not from a frustrated agency which for nearly a decade has tried unsuccessfully to get the *181 statute changed, and finally, struck out on its own. In light of those realities, I dissent only to express bewilderment at the tortured construction of a 38-year-old statute the majority has accepted in order to sustain an administrative turnabout that is no longer necessary to achieve the result its proponents seek. 2
I.
That said, let me turn to my problems with the majority’s and the NRC’s new construction of the Act, denying any hearing at all to even those affected petitioners who can show that changed circumstances, apart from nonconformity with the permit, which have arisen since the original construction permit was issued, now render the plant operationally unsafe. For that in a nutshell is what the NRC has done in its Part 52 regulations.
First, let me reiterate what the statute actually says. In this respect, I believe that the original panel (Wald, Sentelle & Thomas, JJ.) had it right. Section 185 provides:
All applicants for licenses to construct ... facilities shall ... be initially granted a construction permit____ Upon the completion of the construction ..., upon the filing of any additional information needed to bring the original application up to date, and upon finding that the facility authorized has been constructed and will operate in conformity with the application as amended and in conformity with the provisions of this chapter and of the rules and regulations of the Commission, and in the absence of any good cause being shown to the Commission why the granting of a license would not be in accordance with the provisions of this chapter, the Commission shall thereupon issue a license to the applicant.
42 U.S.C. § 2235 . It says quite unmistakably that “[u]pon completion of the construction,” and before an operating license is granted, the Commission must make two basic findings: (1) that the facility has been constructed and will operate in accordance with the application approved at the preconstruction stage, and (2) that the facility will operate in conformity with the Act, in particular § 103 of the Act, which directs that “no license may be issued ... if ... the issuance of the license ... would be inimical to the common defense and security or to the health and safety of the public.” 42 U.S.C. § 2133 (d). Indeed, I read the majority opinion to acknowledge that the second finding about operating in conformity with the Act’s § 103 safety mandate is still required. Maj. op. at 172, 175. The difference now, of course, is that under the challenged NRC regulations, that finding of conformity with the Act can be made solely on the basis of the first finding that the plant has been built in conformity with the original license. Maj. op. at 172 (“At the end of this hearing [on conformity to the acceptance criteria], the Commission must, under § 52.103(c), find that ‘the acceptance criteria have been met and ... accordingly, the facility has been constructed and will operate in conformity with the Atomic Energy Act.’ ”) (emphasis deleted).
The original panel rejected the NRC’s attempt to base the required finding of conformity with the Act solely on conformity with the construction permit largely because of §. 189(a) of the Act. We found that section to be just as clear in its mandate that there be a hearing on request about conformity with the statute as § 185 is about the necessity for the finding of conformity itself. Section 189(a) says that after construction, but before the plant has been approved for operation, the Commission “shall grant a hearing ... upon ... *182 request....” 42 U.S.C. § 2239 (a)(1). We reasoned, again correctly I believe, that the requirement for a hearing prior to issuance of an operating license must logically encompass matters relevant to the findings that the Commission must make at the post-construction phase under § 185. That is, the hearing must accommodate material and credible challenges to the NRC’s proposed findings:
(1) “that the facility ... has been constructed and will operate in conformity with the application,” and
(2) “that the facility ... has been constructed and will operate in conformity with the provisions of [the Act] and of the rules and regulations of the Commission.”
42 U.S.C. § 2235 .
The original panel was not able to reconcile the statutory directives of §§ 185 and 189(a) with the Commission’s designation of a post-construction hearing as confined to issues of conformity with the construction permit alone and its regulation of any other issues dealing with safety to a sidebar proceeding in which the parties must file a petition under § 2.206, a mechanism traditionally preserved for license amendments, and under which the Commission has total discretion to “consider the petition and determine whether any immediate action is required.” 10 C.F.R. § 103 (b)(2)(ii) (1989). We reasoned that “although many issues of a plant’s eventual conformity with the Act could be heard at the [earlier] combined-license hearing, some issues cannot — by definition — be heard at that time,” 918 F.2d at 195, citing as examples “significant new experiences with the plant design or operation, significant new information about site seismology or meteorology, or significant changes in local population density or infrastructure.” Id. We concluded:
Congress, through §§ 185 and 189(a), required the Commission to make pre-operation findings that the plant would operate in conformity with the Act and to provide a hearing upon request to address material issues related to that finding. Although the Commission retains broad authority to define standards and thresholds for determining when new information raises a material issue of a plant’s conformity with the Act, if such information is presented, it must provide a hearing upon request. This is the express mandate of §§ 185 and 189(a).
Id.
That analysis remains sound, in my view. In Chevron jurisprudence, this qualifies as a “Chevron /” case, where Congress has spoken to the precise issue. See Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842-43 , 104 S.Ct. 2778, 2781-82 , 81 L.Ed.2d 694 (1984). The NRC apparently thought so as well until quite recently, since it continually sought congressional authorization to change the hearing requirement. 3 Today, however, the majority, along with the Commission, changes course and accepts a new construction that the hearing required by § 189(a) need only encompass nonconformity with the acceptance criteria of the original pre-construction permit. I find such an interpretation totally at odds with a natural reading of the Act; nothing in the text (or legislative history) of § 189(a) remotely suggests that the hearing required before issuance of a license can be confined by the agency to only one of the two findings it must make under § 185.
The majority and the NRC, however, argue that the post-construction hearing can be so confined because logically a finding *183 that the construction is in conformity with the criteria set down in the pre-construction permit assures that the operation will be safe; this is because at the first pre-construction hearing or, in the case of this new combined license, at even earlier stages when generic designs are approved and sites selected, all safety issues are adequately disposed of. In the majority’s view, the only “question” in the case is “whether the Commission must rehear issues already resolved at earlier stages in the licensing process.” Maj. op. at 173. And so the mere requirement of a “hearing” in § 189(a) “gives this Court no plain textual authority to reject the Part 52 hearing scheme.” Id.
Thus, the majority frames its own question in order to produce its own answer. In this respect, I believe it consistently misstates the petitioners’ and the panel’s position as one requiring a new hearing on request for any and all material safety issues, whether or not those issues were raised and resolved at the earlier hearing or at a prior rulemaking, and whether or not any material new information on these issues has surfaced since the first hearing. See Maj. op. at 173 (“the post-construction hearing opportunity must ... allow a full opportunity to revisit material design, siting, and other issues”) (emphasis supplied), 179 (the Commission must “address every material issue involved in the design, siting, and construction ... after construction is completed”), 177 (characterizing panel’s decision as “requiring the NRC to rehear all material issues regarding compliance with the Act after construction”). This has never been petitioners’ stance, nor was it any part of the earlier panel’s decision. Repeatedly at oral argument, petitioners’ counsel stressed that “if an issue could have been raised in a previous proceeding, then the Commission has every right in the world ... to say no, we are not going to have a hearing.” Transcript of Oral Argument (Nov. 20, 1991) (“Tr.”) at 35; see also colloquy at 16-17 (Question: “I hear you to be saying that only if there is some fresh new information ... would you be in line for a hearing____ [Y]ou would have to meet, clearly, a threshold of material information which was relevant to a material safety defect. Is that correct?” Answer: “That is absolutely right.”) (emphasis supplied). The panel opinion also emphasized that the “Commission retains broad authority to define standards and thresholds for determining when new information raises a material issue of a plant’s conformity with the Act.” 918 F.2d at 195 (emphasis supplied). The majority has thus constructed its own strawman in order to light the bonfire underneath him. But the majority’s version is not and never has been the real issue in this case, and indeed the Commission’s own proposed regulation recognized as much: it originally provided for a post-construction hearing “on the basis ... that significant new information shows that some modification to the site or the design is necessary to assure adequate protection of public health and safety or the common defense or security.” 43 Fed.Reg. at 32,077 (1988).
In the final analysis, then, the majority and the NRC ask us to accept without more their assumption that in the present state of the art as to nuclear design and plant siting, a finding that a design and a site are safe and secure at one point in time is invulnerable to later challenge on the basis of any new information, be it Chernobyl, Three Mile Island-type accidents, earthquakes, floods or changes in the cooperative stance of local communities who must implement evacuation plans in case of nuclear accidents. I do not see how any newspaper reader in today’s world can swallow that elephantine assumption. If such a counterintuitive assumption is to form the basis for the giant step taken in this nuclear licensing “reform,” it should, as we concluded in the panel opinion, be at the behest of the Congress, which is politically accountable for its decisions. That Congress appears in fact to be in the last stages of doing just that argues even more forcefully for the court’s holding back under the original 1954 Act.
Ironically, the NRC regulation itself does not presume that the state of the art in nuclear plant design has “plateaued.” Although the NRC’s brief suggested that *184 “Part 52 rests on the premise that, given the current state of nuclear technology, the Commission can make definite safety judgments and establish, before construction, acceptance criteria that (if met) assure the public health and safety,” En Banc Brief for Respondents at 18 (emphasis deleted), the regulation itself refers to the generic designs as “evolutionary” and “advanced.” 54 Fed.Reg. 15,374 (1989). As such they carry within them the seeds of the following paradox raised during the congressional hearings:
In December 1991, an engineering company requests a “standard design certification for an essentially complete nuclear plant design” which has never previously been tried and which no utility has expressed an intention or even an interest in using as the basis for a power plant at any particular site. The NRC “certifies” the design in a generic rule-making proceeding;
In 2001, a utility decides to construct a nuclear plant near Reno, Nevada. In its application for a combined license, the utility “references” the design that was “certified” by the Commission in December 1991; this is the first time that any utility has proposed to construct a power plant at a specific site with this design;
Members of the public who are concerned about the construction of a nuclear plant in their community intervene in the licensing process and request a hearing on a number of issues, including the safety of the basic design of the proposed plant. They are told by the NRC, however, that it made a final decision on the design of the plant in a rulemaking proceeding over a decade ago. Obviously, none of the residents of the community participated in or had any reason to participate in the rulemaking proceeding which took place eleven years earlier and had no relationship to Nevada or any other specific location;
In 2002, therefore, the NRC issues a combined license without ever allowing the residents of Reno to have a hearing on the safety of the basic design of the plant — a design, it should be emphasized, that is “evolutionary” and has never previously been tested in any commercial nuclear reactor;
In 2006, five years into construction of the Reno plant, new scientific studies are published which raise serious, previously-unconsidered safety issues regarding the design of the plant. But when the residents of Reno request a hearing on these issues, prior to operation of the plant, they are told that they have no right to a hearing because they cannot demonstrate that the plant has not been built in accordance with the combined license;
Consequently, the plant goes into operation in the absence of input by members of the affected public on the safety of the plant’s underlying design in light of the most recent scientific data available.
National Energy Security Act of 1991: Hearing Before the Senate Committee on Energy and Natural Resources, 102d Cong., 1st Sess. 123 (1991) (testimony of Eric R. Glitzenstein, on behalf of the Union of Concerned Scientists and Nuclear Information and Resource Service). I submit this “hypothetical” poses the real issue in this case and that the congressional supporters of §§ 185 and 189(a) clearly never approved or even envisioned such a scenario. When the rhetoric of the majority is stripped down to its core, it fails to overcome the straightforward thrust of the statute’s text in §§ 185 and 189(a). Why, indeed, would the Congress have required that a finding of conformity with the safety requirements of the Act (as well as conformity with the construction license) be made in the post-construction phase if the Commission could rely for that finding solely on evidence presented at the first pre-construction hearing, even when new and significant safety-related evidence was proffered at the later stage? The majority’s answer makes no sense at all. The only reasonable way to read the 1954 Act’s provisions is as creating a necessary nexus between the required post-construction findings and the scope of the hearings required at that same stage. To do otherwise, as the NRC and the majority urge, is to elevate word wizardry to its highest form. Thus, I dissent from the unnatural *185 reading given the straightforward requirement in the Act for a hearing on heretofore unexplored material safety issues prior to licensing operation of a nuclear plant.
II.
My colleagues spend a good bit of time elaborating on the notion that “where an agency’s enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration.” Heckler v. Campbell, 461 U.S. 458, 467 , 103 S.Ct. 1952, 1957 , 76 L.Ed.2d 66 (1983) (citing FPC v. Texaco Inc., 377 U.S. 33, 41-44 , 84 S.Ct. 1105, 1110-12 , 12 L.Ed.2d 112 (1964); United States v. Storer Broadcasting Co., 351 U.S. 192, 205 , 76 S.Ct. 763, 771-72 , 100 L.Ed. 1081 (1956)). See Maj. op. at 1175-77.
The Heckler v. Campbell rule is unassailable as a matter of law and, indeed, common sense. It does not, however, have any bearing on the issue before us today. That an agency may fulfill a single hearing requirement by using the results of a prior rulemaking to structure the issues in that hearing says nothing about whether an agency may fulfill a statutory requirement for two hearings to be held at different times by holding only one hearing and substituting the results of the first hearing for the second hearing. The majority’s insistence on using the Heckler v. Campbell principle as an excuse to abandon the § 189(a) post-construction hearing on statutory compliance completely undermines the statutory scheme enacted by Congress. Sections 185 and 189(a) on their face require “case-by-case consideration,” Heckler, 461 U.S. at 467 , 103 S.Ct. at 1957 , in the post-construction hearing. Indeed, the whole point of the second hearing is to take that last crucial look at the combination of design, site, construction, and industry experience to see if the facility in fact satisfies the safety criteria of the Act. The Court in Power Reactor said as much way back in 1961:
Even a glance at § 185 suffices to show that issuance of a construction permit does not make automatic the later issuance of a license to operate. For that section sets forth three conditions, in addition to the completion of the construction, which must be met before an operating license is granted: (1) filing of any additional information necessary to bring the application up to date — information which will necessarily in this case include detailed safety data concerning the final design of petitioner’s reactor; (2) a finding that the reactor will operate in accordance with the act and regulations— i.e., that the safety and health of the public will be adequately protected — and with the construction permit itself, which is expressly conditioned upon a full investigation and finding of safety before operation is permitted; and (3) the absence of any good cause why the granting of a license to operate would not be in accordance with the Act — e.g., a showing by respondent unions, who will have full rights to appear and contest the issuance of an operating license, that the reactor may not be reasonably safe.
Power Reactor Dev. Co. v. International Union of Elec., Radio and Machine Workers, 367 U.S. 396, 411 , 81 S.Ct. 1529, 1536-37 , 6 L.Ed.2d 924 (1961) (emphasis supplied).
Had Congress thought that conformity with the license necessarily equated with conformity with the Act, it would hardly have expressly mandated that second look and, if necessary, a second hearing. While the Heckler v. Campbell rule typically serves an important efficiency function of avoiding repetitive litigation, here it is being misused to abrogate a statutory right to meaningful participation in the licensing of nuclear facilities.
Furthermore, in absolutely barring a preoperational hearing on a facility’s conformity with the Act, the regulatory scheme sanctioned today goes considerably beyond those approved in Storer, Texaco, or Heckler . I do not now dispute, nor did the panel opinion earlier, that the Commission may as a general matter assume that a plant constructed according to an approved design will operate safely and in accordance *186 with the Act. The critical inquiry in this case is what must happen under a statute requiring an individualized pre-operational hearing when new information that is acknowledgably material to the safety of the plant and which could not have been factored into the original generic determination is offered at the pre-operational stage. My reading of the regulatory schemes approved in Storer, Texaco, and Heckler is that in all of them when a party demonstrates that the generic premise is inapplicable to its particular case it is entitled to a full hearing on its claim.
Thus, my colleagues are correct to note that the Supreme Court has approved agency reliance on generic findings in tandem with a mechanism by which a party can present evidence that the prior determination should be set aside. Maj. op. at 178-79. What they fail to mention, however, is that at least in Storer, Texaco, and Heckler , when a party has in fact presented such evidence, that party is entitled to a “full hearing” on its claim:
We read the Act and the Regulations as providing a “full hearing” for applicants who have reached the existing limit of stations, upon their presentation of applications ... that set out adequate reasons why the Rules should be waived or amended. The Act, considered as a whole, requires no more.
Storer, 351 U.S. at 205 , 76 S.Ct. at 771-72 . Similarly, the Court in Texaco, expressly relied on access to a hearing in approving the regulatory scheme at issue there:
In the present case, as in Storer, there is a procedure provided in the regulations whereby an applicant can ask for a waiver of the rule complained of. Facts might conceivably be alleged sufficient on their face to provide a basis for waiver of the price-clause rules and for a hearing on the matter.
377 U.S. at 40-41 , 84 S.Ct. at 1109-10 (emphasis supplied). Finally, the Heckler Court also found significant the fact that a disability applicant had the right, at the hearing on her claim, to present evidence calling into question the applicability of the generic rule to her particular case:
Both FPC v. Texaco, Inc. and United States v. Storer Broadcasting Co. were careful to note that the statutory scheme at issue allowed an individual applicant to show that the rule promulgated should not be applied to him. The regulations here provide a claimant with equal or greater protection since they state that an administrative law judge will not apply the rules contained in the guidelines when they fail to describe a claimant’s particular limitations.
461 U.S. at 467 n. 11, 103 S.Ct. at 1957 n. 11.
It seems a fortiori that if the Supreme Court found it crucial that an individual denied social security claims or a broadcaster a license on the basis of a generic rule be allowed the right to a hearing if he could pass a threshold test of why the generic rule should not apply to him, it would demand no less where the lives of millions of people for generations to come may be at stake. The regulatory schemes sanctioned in Storer, Texaco and Heckler , provided that where a party could demonstrate that circumstances warranted disregarding a prior, generic determination, the agency would set aside that determination and consider, at an individual hearing, that party’s claim. That is all petitioners ask, and all the original panel decision provided.
None of the precedents discussed by the majority — individually or cumulatively— stand for what the majority needs to sustain its aberrant holding. A generic finding that a particular design or site is safe made before construction is begun — in some cases, decades before construction is begun — cannot satisfy a specific statutory requirement for a finding and a hearing after construction is completed that the plant will operate safely when new or material information has arisen in the meantime that materially reflects upon the design, site, surrounding environment or other nonconstruction factor affecting operational safety.
III.
The final aspect of the majority opinion with which I take issue concerns the “safety valve” mechanism of Part 52, namely §§ 52.103(b)(l)(ii) and (2)(ii), in which an interested party may petition the Commis *187 sion at the pre-operational phase to modify the license and the Commission then determines whether “immediate action is required.” This mechanism is the only answer the majority supplies to the acknowledged risk arising from critical new safety information that comes into being after a design, site, or combined license has been approved at the pre-construction stage. Maj. op. at 177-78. No criteria for the Commission’s determination under (b)(2) are set out, and even if the Commission determines immediate action is required, it need not (though it may) grant the petitioners a hearing.
One thing should be clear from the start. This procedure is not a hearing, nor has the majority treated it as such. Maj. op. at 180. Originally the Commission would not even acknowledge that denial of such a petition was judicially reviewable; at the en banc rehearing it conceded reviewability, and the majority assumes it as well. Maj. op. at 177-78. The standards for such review, however, are murky as extended colloquies at oral argument demonstrated all too well. Tr. at 45-51. And if a hearing is denied by the Commission there will, of course, be no record for us to review. Nonetheless, the majority finds this opportunity to petition for exercise of the Commission’s discretion to reopen the design or site decision to be an adequate substitute for the statutory right to a hearing. I cannot. Several years ago, a panel of this court (Wilkey, Wald & Bork, JJ.) also disagreed: “the mere fact that a party can seek reopening is not a sufficient substitute for the hearing rights guaranteed by section 189(a).” San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1312 (D.C.Cir.1984) (emphasis in original), reh’g en banc, 789 F.2d 26 , cert. denied, 479 U.S. 923 , 107 S.Ct. 330 , 93 L.Ed.2d 302 (1986); see also id. at 1316 (“we cannot conclude that the opportunity to seek reopening was an adequate substitute for the hearing guaranteed petitioners as a matter of right under section 189(a)”) (emphasis in original). The direction of Congress was as clear to the San Luis Obispo court then as it is opaque to the en banc court now: Congress mandated the NRC to provide a hearing opportunity; a discretionary petition combined with a possibility for judicial review without a record or any “law to apply” is not an adequate substitute.
Conclusion
Congress is on the verge of amending the Atomic Energy Act to permit the kind of expedited licensing the NRC sought to impose on its own in Part 52. That kind of radical departure from past licensing procedures requires congressional action; not even the most strained of rationales can successfully accommodate Part 52 with §§ 185 and 189(a) of the old Act which require post-construction findings and the opportunity for a hearing on the plant’s conformity with both the construction license and the Atomic Energy Act. The majority’s gargantuan effort in the end is not worth the candle; Chevron is turned on its head and precedents distorted to accomplish an end already gained in a more appropriate forum. I dissent.
. Clifford Krauss, Energy Bill Given Approval in House, N.Y. Times, May 28, 1992, at Al.
. As to the majority’s suggestion that delaying judicial en banc resolution of a hotly contested legal issue which Congress is on the verge of deciding is somehow inconsistent with the judicial function, Majority opinion (“Maj. op.”) at 170 n. 1, see Escobar v. INS, No. 89-5037, Order (D.C.Cir. Oct. 16, 1990) (granting motion to delay en banc briefing where both Houses of Congress had passed mooting legislation, but before House-Senate conference, final vote in either chamber, or presentation to the President); id. (D.C.Cir. Nov. 8, 1990) (subsequent order granting motion to suspend briefing where confer *182 ence report had been passed by Congress but not yet presented for President's signature).
. See, e.g., Nuclear Licensing Reform: Hearing Before the House Subcommittee on Energy and Commerce, 100th Cong., 2d Sess. (1988); Nuclear Facility Standardization Act of 1986: Hearing Before the Senate Committee on Energy and Natural Resources, 99th Cong., 2d Sess. (1986); Nuclear Regulatory Reform: Hearings Before the Senate Subcommittee on Nuclear Regulation of the Committee on Environment and Public Works, 99th Cong., 1st Sess. (1985); NRC Licensing Reform: Hearing Before the House Subcommittee on Energy Conservation and Power of the Committee on Energy and Commerce, 98th Cong., 1st Sess. (1983); Nuclear Regulatory Commission Operating License Process: Oversight Hearing Before the House Subcommittee on Energy and the Environment of the Committee on Interior and Insular Affairs, 97th Cong., 1st Sess. (1981).