ELR Citation: ELR 20013
No(s). 83-1017 (3d Cir. Sep 28, 1984)

The court holds that a suit by the owners and operators of the Three Mile Island (TMI) nuclear facility against the Nuclear Regulatory Commission (NRC) alleging that the agency failed to properly warn them of safety hazards and design defects is barred by the discretionary function exception of the Federal Tort Claims Act. The court rejects the argument that NRC should be liable for violating the Energy Reorganization Act (ERA) by not adequately investigating an equipment failure at another nuclear facility similar to that later causing the TMI accident, and by not forwarding information on this incident to plaintiffs. The court notes that the discretionary function exemption applies even to cases where the discretion is clearly abused. Although the ERA requires NRC to investigate and report "abnormal occurrences," the agency is left the task of interpreting this term based on its judgment of public safety and health concerns. Therefore, the court holds that the NRC's choice to not characterize the prior incident as an abnormal occurrence was an exercise of discretion. NRC's choice not to characterize the prior incident as a "generic problem" under the ERA was similarly an exercise of the agency's discretion. The court next rejects the argument that NRC should be liable for negligently approving the TMI license application after failing to require the manufacturer to analyze the potential equipment failure that later caused the TMI accident. The court observes that the Atomic Energy Act allows NRC to decide what amount of information is needed to adequately review a license application. The court holds that NRC's decision on the amount of information needed to fulfill its function of assessing applications based on public health and safety concerns is the essence of a discretional function.

Counsel for Appellant
Jeffrey Axelrad, James P. Klapps, K. Roxanne McKee
Civil Division
Department of Justice, Washington DC 20530
(202) 724-6810

E. Leo Slaggie, Solicitor General; Michael B. Blume, Juan L. Rodriguez
Nuclear Regulatory Commission, Washington DC 20555
(202) 634-3224

Counsel for Appellees
David Klingsberg, Milton Handler, Myron Kirschbaum, Aaron Stiefel
Kaye, Scholer, Fierman, Hays & Handler
425 Park Ave., New York NY 10022
(212) 407-8000

James B. Liberman
Debevoise & Liberman
26 Broadway, New York NY 10004
(212) 248-6900

Weis, J., before Higginbotham and Sloviter, JJ.