Jersey Cent. Power & Light Co. v. Lacey Tp.

• Decision Date: 23 September 1985
• Docket Number: 84-5763,Nos. 84-5652,s. 84-5652
• Citation: 772 F.2d 1103
• Parties: , 15 Envtl. L. Rep. 20,940 JERSEY CENTRAL POWER & LIGHT COMPANY v. TOWNSHIP OF LACEY, an incorporated village located in Ocean County, State of New Jersey. Appeal of TOWNSHIP OF LACEY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1103

772 F.2d 1103

23 ERC 1574, 15 Envtl. L. Rep. 20,940

JERSEY CENTRAL POWER & LIGHT COMPANY v. TOWNSHIP OF LACEY, an incorporated village located in Ocean County, State of New Jersey Appeal of TOWNSHIP OF LACEY, Appellant.

Nos. 84-5652, 84-5763.

United States Court of Appeals Third Circuit.

Argued April 30, 1985.

Decided Sept. 6, 1985.

As Amended Sept. 23, 1985.

Martin S. Siegel (argued), Peter S. Kaufman, Edward K. Dehope, Susan K. Fischer, Riker, Danzig, Scherer & Hyland, Morristown, N.J., for appellee; Bishop, Liberman & Cook, New York City, of counsel.

Terry F. Brady (argued), Gilmore & Monahan, P.A., Toms River, N.J., for appellant.

Before GIBBONS and HIGGINBOTHAM, Circuit Judges, and NEWCOMER, District Judge. ^*

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

The transport and storage of "hazardous materials" has generated increasing concern over the unpredictable risks presented to the public, while at the same time, it is recognized that our modern society depends upon the transformation of atomic power into energy and the ready availability of these fissionable materials for industrial, commercial and consumer use. This mixed blessing of technological progress and enhanced public sensitivity to environmental issues has led to rigorous federal, state and local regulation in the nuclear energy field.

This appeal exemplifies the familiar clash between society's desire to reap the benefits of nuclear technology and society's understandable apprehension regarding the safety and environmental impact such usage entails. This appeal calls upon us to interpret the preemptive features of the Atomic Energy Act of 1954, 42 U.S.C. Secs. 2011-2282 (1982), and the Hazardous Materials Transportation Act, 49 U.S.C. Secs. 1801-1812 (1982), as they impact upon local regulation of the transportation and storage of radioactive nuclear materials.

In this case, the district court declared unconstitutional, and therefore void and unenforceable, a township ordinance which prohibits the importation of "spent nuclear fuel or other radioactive waste for the purpose of storage" within the locality, as inconsistent with the aforementioned federal statutes. The locality appeals from the issuance of a permanent injunction precluding governmental interference with a six-month campaign of shipping radioactive nuclear waste into the locality for storage as well as from a declaratory judgment declaring the township's prohibitory ordinance invalid.

We will affirm the district court's grant of summary judgment in favor of the nuclear generating station which engaged in the shipping campaign because we find this locality's outright ban on the importation and storage of radioactive materials to be in conflict with federal law.

I.

A. Background--The NYSERDA Case

Jersey Central Power and Light ("JCP&L") is a public utility incorporated under the laws of the State of New Jersey and is the owner of the Oyster Creek Nuclear Generating Station ("Oyster Creek"), located in Lacey Township, New Jersey. Oyster Creek is a nuclear power plant and a federally licensed "utilization facility" as defined by the Atomic Energy Act of 1954. ("AEA"), 42 U.S.C. Sec. 2014(cc). ¹ As such, it is authorized to generate nuclear energy and also to receive and store on-site "special nuclear material", a classification which encompasses spent nuclear fuel ("spent fuel"). 42 U.S.C. Sec. 2014(aa).

The fuel for nuclear electric power reactors--uranium enriched in the isotope 233 or 235--becomes depleted after a few years in the reactor and has to be replaced. Spent fuel is intensely radioactive and its radioactivity is very long-lived, therefore it constitutes "hazardous materials" as defined in the Hazardous Materials Transportation Act ("HMTA"), 49 U.S.C. Sec. 1802(2). ² The question of what to do with it is a troublesome one; nuclear waste must be quite carefully stored.

The general practice is now to store spent fuel in a water-filled pool at the reactor site. In the late 1960's and early 1970's, it was assumed by the nuclear industry that this spent fuel would be reprocessed so as to recover and recycle the remaining fissionable products. Accordingly, the storage pools at reactor sites were designed as short-term holding facilities. Thus, in 1975, Nuclear Fuel Services contracted to supply reprocessing services to JCP&L for spent fuel that was generated at Oyster Creek and to store that fuel at the Western New York Nuclear Service Center. This facility is owned by the New York State Energy Research and Development Authority ("NYSERDA"), and is located in West Valley, New York. Pursuant to this contractual arrangement, JCP&L transported 224 of its 980 spent fuel assemblies from its Oyster Creek nuclear plant to West Valley, New York. In September of 1976, however, Nuclear Fuel Services withdrew from the reprocessing business and the 224 spent fuel assemblies were never reprocessed. They simply remained in the West Valley storage pool.

Due to a dispute between NYSERDA and JCP&L and certain other public utilities storing fuel at the West Valley facility, NYSERDA commenced an action in the United States District Court for the Western District of New York entitled New York State Energy Research and Development Authority v. Nuclear Fuel Services, Inc., Civ.No. 82-426 (W.D.N.Y.) ("the NYSERDA case"). NYSERDA alleged liability for removal of the spent fuel stored at the disposal and reprocessing center and for pecuniary compensation upon theories of trespass, breach of contract and unjust enrichment. The district court ruled that JCP&L would be a trespasser if NYSERDA's unequivocal demand for removal was made and ignored. New York State Energy Research and Development Authority v. Nuclear Fuel Services, Inc., 561 F.Supp. 954 (W.D.N.Y.1983).

Subsequently, NYSERDA made an unequivocal demand for removal of JCP&L's spent fuel. On September 30, 1983 NYSERDA and JCP&L entered into a partial settlement agreement which was later incorporated into the district court's October 14, 1983 order directing JCP&L to commence the removal of its 224 spent fuel assemblies from West Valley by October 1, 1984 and complete removal by May 31, 1985. ³ The transportation of these 224 spent fuel assemblies from West Valley, New York to the Oyster Creek facility spawned additional proceedings in the United States District Court for the District of New Jersey. ⁴ Its storage, understandably, underlies this appeal. ⁵

B. Jersey Central Power and Light Co. v. Township of Lacey, Nos. 84-5652 and 84-5763 ("The Township of Lacey Action")

On August 25, 1983, during the pendency of the New York federal action, the Township of Lacey, an unincorporated village located in Ocean County, New Jersey, enacted into law the "Spent Fuel Ordinance" in question here. ⁶ This ordinance prohibits the importation of any spent nuclear fuel or other radioactive waste for the purpose of storing the same within the Township of Lacey.

JCP&L wanted to return the 224 spent fuel assemblies stored at the West Valley facility to Oyster Creek's storage facility since, according to JCP&L, the Oyster Creek facility was the only viable alternative storage facility. Because it was prevented from doing so by the Spent Fuel Ordinance, JCP&L filed a complaint against the Township of Lacey seeking a declaration that the ordinance was invalid and unenforceable because it violated the Constitution and statutes of the United States. In addition, JCP&L sought an order enjoining enforcement of the ordinance as well as other relief, including damages.

Subsequent to the Township of Lacey's Answer, JCP&L moved for summary judgment pursuant to Fed.R.Civ.P. 56 on its claims that the ordinance was unconstitutional and invalid because it was preempted by the AEA, the HMTA and violated the Commerce Clause, U.S. Const. art. I, Sec. 8. The motion did not encompass the damages issues but sought only declaratory and injunctive relief.

After hearing argument on the motion, Judge Bissell issued a ruling from the bench on September 24, 1984, granting JCP&L's motion for summary judgment. He ruled that there was no dispute as to any issue of material fact and that the Spent Fuel Ordinance was, as a matter of law, unconstitutional under both the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the Commerce Clause. The district court declared the ordinance unconstitutional and therefore void and unenforceable and permanently enjoined the Township from its enforcement. The district court also denied the Township's motion for a stay pending appeal. On September 27, 1984, the Township noticed appeal.

The Lacey Township Committee then amended the August 25, 1983 ordinance on October 24, 1984 to impose criminal penalties on any person or entity returning spent fuel to Lacey Township. ⁷ On October 26, 1984, JCP&L filed a Notice of Motion for Enforcement of Judgment and Other Relief in which it sought to have declared invalid the amendatory Penalty Ordinance. Judge Bissell granted the motion, declared the Penalty Ordinance unconstitutional and further enjoined the Township of Lacey from enforcing the August 25, 1983 Spent Fuel Ordinance as amended. The Township again noticed appeal and its two appeals were consolidated by order of this Court on November 29, 1984.

II.

Initially, we must address the question whether this case is now moot, inasmuch as the controversial shipping campaign of spent nuclear fuel concluded on July 9, 1985 and the 224 spent fuel assemblies are presently being stored at the Oyster Creek nuclear facility. ⁸ We must consider whether the cessation of the challenged activity by the plaintiff JCP&L renders this case moot or any of the individual claims raised herein.

A case becomes moot if (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the...