New Jersey Turnpike Authority v. Jersey Cent. Power and Light

• Citation: 772 F.2d 25
• Decision Date: 23 September 1985
• Docket Number: No. 85-5131,85-5131
• Parties: NEW JERSEY TURNPIKE AUTHORITY, a body corporate and politic of the State of New Jersey, Appellant, v. JERSEY CENTRAL POWER AND LIGHT and General Public Utilities Nuclear Corporation, Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 25

772 F.2d 25

23 ERC 1589

NEW JERSEY TURNPIKE AUTHORITY, a body corporate and politic of the State of New Jersey, Appellant, v. JERSEY CENTRAL POWER AND LIGHT and General Public Utilities Nuclear Corporation, Inc.

No. 85-5131.

United States Court of Appeals, Third Circuit.

Argued April 30, 1985.

Decided Sept. 6, 1985.

As Amended Sept. 23, 1985.

John J. Barry (argued), Daniel D. Caldwell, Andrew J. Miller, Wolff & Samson, P.A., Roseland, N.J., for appellant.

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

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

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge:

We, like any other court, may lose jurisdiction over a case because of the occurrence of facts outside the record which terminate the controversy. We have constitutional jurisdiction only over actual cases and controversies between adverse interests, with respect to which our judgment will be effective. We find that the equitable remedy sought in this appeal from the district court's February 26, 1985 denial of injunctive relief is no longer available because of mootness.

The New Jersey Turnpike Authority initiated this action to enjoin a succession of overweight shipments of radioactive nuclear waste on a 28-mile stretch of the New Jersey Turnpike unless and until the defendant public utility complied with the New Jersey Turnpike Authority's condition that it provide a particularized backup vehicle to ensure the safe removal of the overweight load in the event of emergency. The district court denied the injunctive relief requested and restrained the New Jersey Turnpike Authority from interfering with the shipments.

During the pendency of this appeal, the six-month shipping campaign concluded thereby rendering, in our view, the New Jersey Turnpike Authority's injunction proceeding meaningless since the acts sought to be enjoined have irretrievably occurred. Because we believe that the controversy has become academic by reason of these changed circumstances, we conclude that our jurisdiction has ceased and the case is moot. We will vacate the decision of the district court and remand with directions to dismiss the action.

I.

A. Background--The NYSERDA Case

Defendant-appellee 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. ¹

Pursuant to a 1975 contractual arrangement with Nuclear Fuel Services, JCP & L transported 224 spent fuel assemblies generated at Oyster Creek to the Western New York Nuclear Service Center for storage and reprocessing. The facility is owned by the New York State Energy Research and Development Authority ("NYSERDA"), and is located in 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 storage 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. 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, 561 F.Supp. 954 (W.D.N.Y.1983).

Subsequently, NYSERDA did make 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 October 14, 1983 order directing JCP & L to commence the removal of its 225 spent fuel assemblies from West Valley by October 1, 1984 and complete removal by May 31, 1985. ² The shipment of these 224 spent fuel assemblies from West Valley, New York to the Oyster Creek nuclear facility generated further proceedings in the United States District Court for the District of New Jersey, ³ including this appeal.

B. New Jersey Turnpike Authority v. Jersey Central Power & Light and General Public Utilities Nuclear, et al., No. 85-5131

("The NJTA Action")

To accomplish the shipment of its spent fuel within the agreed time frame set forth in the NYSERDA case, JCP & L calculated that it would have to make 32 shipments at the approximate rate of three shipments every two weeks. The spent fuel consisted of uranium dioxide pellets contained in long, sealed metal tubes, approximately fourteen feet in length and one-half of an inch in diameter. A bundle of these tubes, weighing about one-third of a ton, constitutes a "fuel assembly." To facilitate this shipping campaign, JCP & L contracted with Transnuclear, Inc. to provide specialized shipping casks and transportation services in order to ship the 224 spent fuel assemblies to Oyster Creek, and then return the empty casks to West Valley.

On September 26, 1984, JCP & L was notified that its proposed route for the return of the spent nuclear fuel to Oyster Creek was judged by the Nuclear Regulatory Commission ("NRC") to meet the regulatory requirements set forth in 10 C.F.R. Sec. 73.37(b)(7). The NRC approved route included a 28-mile stretch on the New Jersey Turnpike ("the Turnpike"), Interstate 95, which is part of the Interstate Highway System, between Exits 10 and 7A. ⁴

Each shipment (and each of the 32 return trips) was to be shipped in a special 80,000 pound TN-9 cask on a seven-axle vehicle--a four-axle tractor, three-axle trailer combination--weighing approximately 115,000 pounds, which is nearly 50 percent greater than the 80,000 pound maximum permitted by federal law for the Interstate Highway System. ⁵ The power and responsibility to enforce this 80,000 pound limit has been delegated by the Federal Aid-Highway Act to the New Jersey Turnpike Authority ("NJTA"). ⁶ The NJTA adopted the federal weight limitation by its own regulations, N.J.A.C. Sec. 19:9-1.9(a)(12)(iv), pursuant to which it, as a matter of course, bars vehicles in excess of 80,000 pounds entirely.

The NJTA refused to issue a permit and/or other necessary approvals for shipment of the spent fuel along the portion of the Turnpike approved by the NRC unless certain conditions were met. As one condition for the issuance of a special permit, the NJTA required JCP & L to utilize a four-axle tractor for the shipments, which JCP & L agreed to do. ⁷ The NJTA also required that, prior to shipping the spent fuel on the Turnpike, JCP & L provide a backup four-axle tractor within sufficient proximity to permit safe removal of the overweight load from the Turnpike within two hours of any breakdown. Removal within two hours is specifically required by NJTA traffic control safety regulations, N.J.A.C. 19.9-1.6(f), but four-axle tractors are not readily available. ⁸ JCP & L apparently advised the NJTA that it would not or could not comply with the backup tractor condition.

On January 3, 1985, when the first shipment left West Valley, New York, the NJTA filed a verified complaint seeking to enjoin JCP & L from transporting the spent fuel unless and until it complied with the backup tractor condition. However, Judge Bissel concluded that the NJTA's backup tractor requirement was preempted by the Hazardous Material Transportation Act ("HMTA"), 49 U.S.C. Secs. 1801-1812 (1982), because the requirement was not intended to enforce the federal weight restriction under the Federal Aid-Highway Act, 23 U.S.C. Secs. 107-157 (1982), but instead imposed an additional equipment requirement due to the nuclear nature of the cargo, contrary to HMTA regulations. The district court denied the NJTA's motion for a stay pending appeal. When this Court declined to stay the district court's order pending appeal, the NJTA voluntarily dismissed its appeal.

The first shipment to Oyster Creek was accomplished without incident. However, hearings were later conducted on January 11, 1985 on the NJTA's refusal to permit the return shipments of the empty casks from Oyster Creek to West Valley. The district court determined that the return shipments were part of the entire shipping campaign and thus governed by the HMTA. On January 14, 1985, the district court ruled that the NJTA was similarly precluded from interfering with the return shipments. Judge Bissell's final judgment dismissing the NJTA's complaint and permanently enjoining the NJTA from interfering with the shipments was entered on February 26, 1985. He also denied the NJTA's motion for stay pending appeal and on March 1, 1985, the NJTA noticed this appeal.

II.

This Court has been advised that this highly controversial shipping campaign concluded on July 9, 1985 and that the 224 spent fuel assemblies are presently being stored at the Oyster Creek nuclear facility. ⁹ Because the challenged activity has ceased, we must ask if there exists a "subject matter upon which the judgment of the court can operate" to make a substantive determination on the merits. Ex Parte Baez, 177 U.S. 378, 390, 20 S.Ct. 673, 677, 44 L.Ed. 813 (1900). ¹⁰ If one or more of the issues involved in an action become moot pending appeal or pending the decision of an appellate court, the adjudication of the moot issue or issues should be refused. Only where the remaining, non-mooted issues are sufficient so that the action retains its justiciability, may we then properly proceed to adjudication. See United Public Workers v. Mitchell, 330...