Van Dissel v. Jersey Central Power & Light Co.

• Decision Date: 05 November 1981
• Citation: 438 A.2d 563,181 N.J.Super. 516
• Parties: Gerrit J. VAN DISSEL et al., Plaintiffs-Appellants, v. JERSEY CENTRAL POWER & LIGHT COMPANY, a corporation of New Jersey,Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 516

181 N.J.Super. 516

438 A.2d 563

Gerrit J. VAN DISSEL et al., Plaintiffs-Appellants, v. JERSEY CENTRAL POWER & LIGHT COMPANY, a corporation of New Jersey,Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 5, 1981.

Decided Nov. 5, 1981.

Edward J. Dauber, Newark, and Alan R. Hoffman, Boston, Mass., for plaintiffs-appellants (Greenberg & Dauber, attorneys; Edward J. Dauber, Newark, and Alan R. Hoffman, Boston, Mass., on the brief; Eugene M. Friedman, Dover, of counsel).

Clarence P. Reberkenny, Cherry Hill, for defendant-respondent (Davis & Reberkenny, Cherry Hill, attorneys).

Before Judges BISCHOFF, KING and POLOW.

The opinion of the court was delivered by

BISCHOFF, P. J. A. D.

This lawsuit, instituted as a class action, was brought on behalf of all riparian property owners who claimed to have an interest in property located on Forked River, Oyster Creek, Barnegat Bay and various lagoons, canals and inlets which are tributaries of those waterways. Defendant is Jersey Central Power & Light Co. (JCP&L), a public utility of the State of New Jersey which constructed a nuclear power reactor plant near plaintiffs' properties. Plaintiffs contend that certain processes employed at the plant have caused damage to their properties by the creation of a warm water environment allowing for the proliferation of shipworms which have, in turn, destroyed wooden docks, appurtenances and other structures which extend into the waterways.

The complaint was filed on November 19, 1975, seeking money damages and a restraint against further operation of the plant in such a manner as to cause damage to plaintiffs and other members of subclasses. Eight theories of liability were set forth in the complaint:

1. Negligence.

2. Nuisance.

3. Trespass.

4. Strict Liability.

5. Violation of N.J. Water Pollution Control Statutes (N.J.S.A. 23:5-28, N.J.S.A. 58:10-23.1).

6. Violation of Refuse Act of 1899, 33 U.S.C. 407.

7. Violation of the Federal Water Pollution Prevention & Control Act, 33 U.S.C. 1251 et seq. and,

8. The unlawful taking of private property without just compensation or inverse condemnation.

A demand for jury trial of all issues was made. Defendant made a motion to dismiss the complaint for lack of jurisdiction over the subject matter, contending federal law had preempted the field. The trial judge, in an opinion reported at 152 N.J.Super. 391, 377 A.2d 1244 (Law Div.1977), relying in part upon State v. Jersey Central Power and Light Co., 69 N.J. 102 , 351 A.2d 337 (1976), ruled that "Plaintiffs' attempts to seek money damages through the vehicle of tort claims constitutes at least an indirect interference with defendant's Radwaste Discharge System. Such state interference is impermissible. This court lacks subject matter jurisdiction over all of plaintiffs' claims based upon tort liability and statutory violations." 152 N.J.Super. at 403, 377 A.2d 1244. He entered an order dismissing the first seven counts of the complaint. Defendant's motion was denied with respect to plaintiffs' inverse condemnation claim. Additional pretrial motions resulted in the entry of relevant orders:

1. Dividing plaintiffs into nine subclasses related to geographic areas delineated on a subclass map;

2. Bifurcating the action as to liability and damages and

3. Directing that the issues of liability on the inverse condemnation claim be tried before a judge without a jury.

At the conclusion of the nine-day trial on liability the judge ruled, in essence, that as to subclass one defendant had caused the shipworm invasion in the area of the subclass, but that plaintiffs had not carried the burden of proving that the claimed damage had been caused by shipworm infestation. As to the other subclasses the judge ruled plaintiffs had failed to demonstrate that defendant's nuclear generating station had proximately caused the complained of damage. The complaint was dismissed. On this appeal plaintiffs challenge three rulings of the trial court. They contend it was error for the trial judge to

I. Rule that federal law had preempted the field;

II. Deny them a jury trial on the liability phase of the claim for damages based on inverse condemnation;

III. Hold that plaintiffs' had failed to demonstrate that their damages were proximately caused by defendant's operation of the Oyster Creek nuclear generating station (OCNGS).

I Federal Preemption

The history of the licensing, construction and operation of defendant's plant is reviewed in detail in the opinion of the Supreme Court in State v. Jersey Central Power & Light Co., 69 N.J. 102, 105-106, 351 A.2d 337 (1976).

Defendant commenced operation of the nuclear generating station in December 1969. Plaintiffs allege that certain procedures established for its continued operation has resulted in a significantly altered marine environment in the south branch of the Forked River-Oyster Creek waters in the area in which plaintiffs' properties are located. They contend that the operation of the plant, in particular the cooling system, has resulted in higher salinity levels, increased water flow and increased water temperatures. These changes, they allege, have permitted the proliferation of shipworms which have attacked and destroyed wooden docks, bulkheads and appurtenances belonging to plaintiffs.

Starting in 1966 Oyster Creek and Forked River were extensively altered in preparation for the nuclear generating station. Both were deepened, straightened and widened to allow for the construction of intake and discharge canals to service the generating station. Salinity levels in portions of the creek which had been brackish to freshwater were changed to higher salinities more characteristic of the bay.

The south branch of the Forked River serves as the intake canal and the flow of water is toward the generating station whenever the station is in operation and is no longer dependent upon the tidal flow.

Plaintiffs argue that the cooling system used by the generating station caused or contributed to the shipworm infestation by increasing water flow and releasing a fan-shaped area of warm water at the discharge canal outlet called a thermal plume. The evidence presented to the trial court of the effect of marine environment upon the proliferation of the various species of shipworms is extensively reviewed in the opinion of the trial court in 152 N.J.Super. at 396-398, 377 A.2d 1244.

It is generally agreed that shipworm growth, survival and reproduction is dependent upon the presence of an untreated wood supply, water with constant salinities within certain ranges and water temperature within certain ranges.

At the center of this issue of preemption is the cooling system used by defendant. It was described by the trial judge as follows.

Defendant's nuclear power plant utilizes a once-through cooling system to cool the steam produced by the defendant's condenser. Water used for this system is brought from the south branch of Forked River and is discharged into Oyster Creek. When water is drawn from the south branch of Forked River, this causes a partial reversal of the normal flow of the river. Through a suction-type operation, saline water is drawn from Barnegat Bay to Forked River, thereby making part of the river saline instead of its natural fresh water state.

The issue of federal preemption as it applies to this nuclear generating station and its cooling system was considered by the Supreme Court in State v. Jersey Central Power & Light Co. supra. After noting that a nuclear power plant cannot operate without a license from the Atomic Energy Commission and that it must "function in accordance with the license terms, including all technical specifications set forth in or attached to the license," id. at 112, 351 A.2d 337, the court held "Interference by the State, whether by statutory penalty, injunction or monetary damages, with these facets of nuclear power generation, regulation of which has been vested exclusively with the AEC, is not permissible." ¹ Id. at 115, 351 A.2d 337.

Plaintiffs concede that this is so but argue here, as they did in the trial court, that the exclusive authority granted to the AEC to license and regulate relates solely to facility construction and operation with respect to radiological hazards, leaving the State free to regulate activities relating to the power plant for purposes other than protection against radiation hazards. Plaintiffs argue further that the exclusive federal regulatory jurisdiction over radiological hazards "in no way deprives a private citizen who has suffered personal or property damage from non-radiological impacts from pursuing his state tort claims against a licensee."

Plaintiffs contend the first seven counts of the complaint seek recovery for damages arising from the construction and operation of the nuclear generating station-claims based solely upon injuries resulting from the plants nonradiological hazards caused by thermal pollution and environmental changes having no bearing upon the future operation of the plant's system for discharge of radioactive waste. To the contrary, the trial judge found that the alteration of water temperature is directly related to the cooling system which was authorized, approved and licensed by the AEC. Defendant is licensed to operate as it does; it cannot operate in any other manner. He found that the radioactive waste disposal system is an integral part of the cooling system. 152 N.J.Super. at 398, 377 A.2d 1244. That factual finding has ample support in credible evidence present in the record as a whole and we will not disturb it. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 323 A.2d 495 (1974).

The conclusions of the trial judge that plaintiffs' assertion of tort and statutory claims for damages constitute at least an indirect interference with defendant's radioactive waste discharge system is affirmed, substantially for the reasons expressed...