ELR Citation: ELR 20020
No(s). 83-3454 (3d Cir. Oct 29, 1984)

The court holds that the Commissioners of the Nuclear Regulatory Commission (NRC) are entitled to qualified immunity from a class action suit seeking money damages resulting from two NRC orders authorizing the release of radioactive gas from the Three Mile Island-2 reactor without a prior hearing pursuant to §189(a) of the Atomic Energy Act. Government officials performing discretionary functions are immune from civil liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The court holds that the Commissioners' issuance of the first venting order without opportunity for a prior hearing upon a finding of "no significant hazards consideration" did not violate clearly established law. Although this order, which authorized faster venting than permitted by the original license, constituted a license amendment and thus comes within §189(a), the court holds that when the order was issued, there was no clearly established law requiring a hearing if a no significant hazards determination had been made. Though the D.C. Circuit subsequently ruled a hearing should have been held, neither the language of the statute, its legislative history, or case law at the time of the order clearly required a prior hearing. Therefore, the Commissioners are entitled to qualified immunity for failing to hold a hearing on this order. The court then holds that the Commissioners' issuance of the second venting order without either a prior hearing or a no significant hazards finding also did not violate clearly established law. Although NRC would have been required to hold a hearing if this order constituted a license amendment under §189(a), NRC reasonably classified it as a rescission of a license suspension. At the time of the order, there was no precedent on the definition of a license amendment, so it could not be considered a well-developed legal principle. Further, a crippled nuclear reactor was a situation never before encountered by NRC, agency practice was not to classify suspension rescissions as license amendments, and §189(a) did not necessarily include such orders on its face. Thus, the law of what constitutes a license amendment under §189(a) was not clearly established and the Commissioners are entitled to qualified immunity for failing to hold a hearing on this order.

Counsel for Appellants
Robert Hager, Joanne Doroshow
Christie Institute, 1324 N. Capitol St., Washington DC 20002
(202) 797-8106

Counsel for Appellees
Barbara L. Herwig; Richard K. Willard, Acting Ass't Attorney General
Civil Division
Department of Justice, Washington DC 20530
(202) 633-5425

Adams, J., before Seitz and Stewart,^* JJ.