October 29, 1984
THE PEOPLE OF THREE MILE ISLAND ACTING THROUGH THREE MILE ISLAND ALERT, INC., BRADFORD, LOUISE AND KLINE, MICHAEL, CLASS CO-REPRESENTATIVES, LEAH DEROISTE, DONAL DEROISTE, KATHY MCCAUGHIN, KATHERINE PICKERING, STEPHEN PATTON, HOLLY S. KECK, T. A. KECK III, ANNE MILLER, LAWRENCE MILLER, GAIL A. MELHORN, MATHEW MAGDA, SUZANNE MAGDA, CRAIG SIEWERT, JUANINE SPRAGUE, KEITH BENTZ, STEPHEN E. BAKER, KAREN E. ADAMS, JOHN S. ADAMS, PATRICIA ANN TOMKINSON, KAREN LEE MILLER, MICHELLE SIEWERT, TIMOTHY J. LYNG, GEORGIANNA NYCE, BARBARA J. ULRICH, MARY H. DOUGLAS, LAURA FREEDMAN, LYNN GOLDFARB, GERALD B. BURKHOLDER, PATRICIA BURKHOLDER, DORIS KESSLER, JACOB L. SUSSKIND, HELEN M. HOCKER, CHARLES L. HOCKER, KATHLEEN BEVEL, MARVIN LEWIS, JOHN E. ACRI, GENE ALBRIGHT, TERRI L. BARR, JOEL M. LERNER, BARBARA BELL, ALFRED G. BEVEL, VERA BORNE, PAUL BOWMAN, DONNA BOWMAN, AVA BRADY, CAROL BROOKS, EDITH F. BROWN, FRANCIS A. BROWN, PASCAL J. CANTONA, JR., SANDRA CHOMA, MARGE CLEMENT, ELLEN COOGAN, RICHARD COOGAN, JOYCE CORRADI, MARIO A. CORRADI, PAT CUMMINS, DIANA DAVIS, LOIS DEHART, W. SCOTT DEHART, CHERIE A. DILLOW, G. BENJAMIN DILLOW, FRANK E. ENTERLINE, MARY KAY ENTERLINE, GIL FREEDMAN, GRACE GRANZOW, ROBERT GRANZOW, PATRICIA GUFLER, M'LISS HALSEY, DAN HARTNETT, MARY HARTNETT, JANET L. HINTON, MARY ANN HOKE, ROBERT W. HOKE, JACQUELINE I. HUMPHRIES-BICKLEY, LAURIE K. KEIPER, R. STEPHEN KEIPER, MIKE KLINGER, RANDY K. KING, PAOLA KINNEY, THOMAS KINNEY, SANDRA L. LERNER, HARRY I. MACHITA, PAUL A. MAKURATH, JR., LEROY T. MILBOURN, AMELIA MILLER, GARY MITCHELL, SUSAN LANNAN MITCHELL, EVELYN MUGRIDGE, JEFF MUGRIDGE, CATHIE MUSSER, JAMES A. MUSSER, DORIS MCCORMICK, MICHAEL J. NEMSER, PAT NEMSER, PAULA NEMSER, ANNE NISSON, MARY OSBORNE, BILLIE J. PRESCOTT, STEPHEN M. PRESCOTT, MARY REYNOLDS, GEORGE RINEER, SAUNDRA L. RINEER, KAY E. RODGERS, WILLIAM P. RODGERS, SUSAN ROMAGNA, CHRISTOPHER SAYER, VICKI SCHOFIELD, PAT SGRIGNOLI, JOHN SGRIGNOLI, SARA R. SHENEFELT, SUSAN SHETROM, WILLIAM SHETROM, CHESTER G. SIVERLING, RITA M. SIVERLING, PATRICK M. SLICK, GARY SMITH, MICHELLE SMITH, TOM SMITHGALL, RUTH SOLOMON, JULIE A. SPONG, RICHARD SPONG, GEORGE TALEFF, JOHN EDWARD THOMAS, JOANN M. TOPOLSKI, E. ANTHONY TOPOLSKI, STEFAN A. TOPOLSKI, ANTONI N. TOPOLSKI, MAREK F. TOPOLSKI, MITCH TURNAUER, JANINE R. ULLOM, SHARON VERBOS, ROGER VERBOS, FRANCINE WOERTHWEIN, DR. ROBERT COLMAN AND OTHER PERSONS SIMILARLY SITUATED, APPELLANTS
NUCLEAR REGULATORY COMMISSIONERS JOSEPH M. HENDRI, RICHARD T. KENNEDY, JOHN AHEARNE, VICTOR GILINSKY, PETER A. BRADFORD, AND METROPOLITAN EDISON COMPANY, GENERAL PUBLIC UTILITIES, ROBERT ARNOLD, HERMAN DIECKAMP, AND JOHN HERBEIN
On Appeal from the United States District Court for the Middle District of Pennsylvania
Before: SEITZ and ADAMS, Circuit Judges, and STEWART, Associate Justice*fn*
Appellants, the People of Three Mile Island, seek review of the district court's ruling that their suit against the Commissioners of the Nuclear Regulatory Commission (NRC) was barred by the doctrine of qualified immunity. Suit was brought against the Commissioners, Metropolitan Edison Company, General Public Utilities Company and several officials of these companies. In it, appellants alleged that the Commissioners had authorized the release of harmful radioactive gas without holding a prior hearing as required by § 189(a) of the Atomic Energy Act of 1954 (AEA), 42 U.S.C. § 2239(a) (1976). The district court granted the federal defendants' motion for judgment on the pleadings and the present appeal followed.*fn1
This case arises in the aftermath of the widely publicized accident which occurred on March 28, 1979, at the Three Mile Island Nuclear Station, Unit 2 reactor (TMI-2). A partial meltdown of the reactor core caused the atmosphere in the TMI-2 reactor containment building to become contaminated with dangerous levels of various radioactive gases. On July 20, 1979, almost four months after the accident, the NRC issued an "Order for Modification of License" which suspended the operating license for TMI-2 and ordered Metropolitan Edison Company, the licensee,*fn2 "to maintain the facility in a shutdown condition." 44 Fed. Reg. 45,271 (1979). On November 21, 1979, the Commission issued a "Statement of Policy and Notice of Intent to Prepare a Programmatic Environmental Impact Statement." 44 Fed. Reg. 67,738 (1979). The NRC described this proposed statement as an "overall study of the decontamination and disposal process" and directed the Commission's staff to consider alternative methods for decontamination of TMI02.
On February 11, 1980, the NRC issued a further order providing that
the facility's operating license should be modified so as to: . . . (3) Prohibit venting or purging or other treatment of the reactor building atmosphere . . . until each of these activities has been approved by the NRC, consistent with the Commission's Statement of Policy and Notice of Intent to Prepare a Programmatic Environmental Impact Statement.
45 Fed. Reg. 11,282 (1980) (footnote omitted). This order indicated that the licensee or any other person whose interest might be affected could request a hearing prior to March 21, 1980, on whether the proposed changes in the technical specifications were sufficient "to protect health and safety or to minimize danger to life and property." Id. at 11,283.
In late March of 1980, the NRC published a "Notice of the Availability of Environmental Assessment for Decontamination of the Three Mile Island Unit 2 Reactor Building Atmosphere." 45 Fed. Reg. 20,265 (1980). The notice stated that in the Assessment the NRC considered "five alternative methods for decontaminating the reactor building atmosphere and recommend[ed] that the building atmosphere be decontaminated by purging to the environment through the building's hydrogen control system." Id. The NRC concluded that venting the radioactive gas into the atmosphere would "not constitute a significant environmental impact and, accordingly, the staff does not propose to prepare a separate [environmental impact statement] on this action." Id. at 20,265-66. Public comments were permitted on the Assessment. In May of 1980, the Commission filed its "Final Environmental Assessment for Decontamination of [TMI-2] Reactor Building Atmosphere," NUREG-0662, Vol. 1 (1980).
On June 12, 1980, the NRC issued two final orders. These orders, executed without providing for a pre-implementation hearing, form the predicate of the present action. The first, the Commission's "Order for Temporary Modification of License" (OTML), modified Metropolitan Edison's operating license for TMI-2 to permit the release of radioactive gas from the reactor building at a rate faster than that permitted under the TMI-2 operating license in effect before the accident. 45 Fed. Reg. 41,251 (1980). Specifically, the Commission found that the increased rate involved "no significant hazards consideration" and stated that a request for a hearing would not stay the execution of the order.*fn3
The second order, entitled "Memorandum and Order" (Venting Order), authorized the licensee to release radioactive gas from the TMI-2 reactor building into the atmosphere and provided no opportunity for a hearing at all.2 Nuclear Reg. Rep. (CCH) P30,498.01 (1980). The Commission directed that the two orders be effective immediately and permitted venting to begin after June 21, 1980.
On June 16, 1980, Steven Sholly and others wrote to the NRC requesting that it reconsider making the two June 12 orders effective immediately; the NRC declined to do so. Sholly then filed a petition for emergency injunctive and declaratory relief in the District of Columbia Circuit (D.C. Circuit) on June 23, 1980. Three days later the court denied the request for emergency declaratory and injunctive relief. See Sholly v. United States Nuclear Regulatory Commission, 209 U.S. App. D.C. 59, 651 F.2d 780, 783 (D.C. Cir. 1980) (per curiam), reh'g denied, 209 U.S. App. D.C. 71, 651 F.2d 792 (D.C. Cir. 1981), vacated, 459 U.S. 1194, 75 L. Ed. 2d 423, 103 S. Ct. 1171, 103 S. Ct. 1171, vacated and remanded, 706 F.2d 1229 (D.C. Cir. 1983). One day before the venting was scheduled to commence, Sholly filed with the D.C. Circuit a request for a hearing on the two orders. The court referred the demand for a hearing to the Atomic Safety and Licensing Board. No hearing was held, however, and venting began on June 28.
Metropolitan Edison began venting the TMI-2 reactor building at a rate within the original license specifications for a normally operating reactor. On July 8, Metropolitan Edison accelerated the venting of radioactive gas to the increased rate permitted by the OTML. The licensee completed its venting of the reactor building atmosphere on July 11, 1980. As the NRC had anticipated, the off-site radiation levels did not exceed the limits set forth in the OTML.
Sholly continued to seek declaratory relief after the venting had been completed, and the D.C. Circuit ultimately ruled that the NRC had violated § 189(a) of the AEA by failing to hold a hearing prior to the venting. Sholly, 651 ...
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