Doherty, J.c.c., Temporarily Assigned.
[125 NJSuper Page 98] This is an action by the State of New Jersey as plaintiff, against defendant operator of an electric power generator plant in Lacey Township, in three counts, all arising out of the same incident. The first count seeks to enforce the penalty provisions of N.J.S.A. 23:5-28, which prohibits the discharge of harmful substances into tidal water. The second count was resolved on motion during the trial, and the
third count seeks to recover an award at common law, as parens patriae, for damages done to wild life, e.g., menhaden fish.
The first count encompasses a summary action to recover a penalty, while the third count is one in tort which would be governed by the rules of court concerning jury trial, discovery, etc. The parties have agreed to waive these rules and have the counts tried together. Defendant moved to dismiss the third count for failure to present a claim upon which relief could be granted. Decision was reserved on this motion at trial, but the same is hereby denied.
After a consideration and weighing of all of the testimony, the court finds that plaintiff has shown the following by a preponderance of the evidence:
On January 28, 1972 Jersey Central Power and Light Company operated an atomic power plant in Lacey Township, Ocean County, New Jersey, at a location a short distance west of the westerly shore of Barnegat Bay. In connection with this operation it had created a water intake canal from the south branch of Forked River, which branch lay to the north of its plant, running from Barnegat Bay in a westerly direction past the plant. The plant drew water from this canal into its system for the purposes of (1) cooling its condensers with water pumped through them by three of its four circulating pumps, and (2) diluting the previously circulated water by discharging additional water through one of its three diluting pumps into a discharge canal into which the circulated water was also being discharged. This discharge canal had also been created by Jersey Central Power and Light Company, to run into Oyster Creek, which creek ran along the generally southerly side of the plant into Barnegat Bay. Thus, the plant took water from the south branch of Forked River on its north and pumped it into Oyster Creek on its south, both the branch of the river and the creek being connected with Barnegat Bay a short distance downstream. All three bodies of water are tidelands.
On the date in question the temperature of the water in the intake canal from Forked River was under 40 degrees F, and the temperature of the water in the outlet canal to Oyster Creek and Oyster Creek was well over 50 degrees. This temperature difference resulted from the fact that the condensers had been heating the circulating water prior to its discharge into the outlet canal. Large numbers of menhaden fish were in the outlet canal and Oyster Creek. The plant elected to shut down its generators suddenly on this date, resulting in a cessation of the heat in its condensers, and further resulting in a precipitous drop in temperature of the water being discharged into the outlet canal by the circulating pump which still continued to operate. This lowering of the temperature to under 40 degrees caused a so called "fish kill", or the death of approximately 500,000 menhaden in and about the outlet canal and Oyster Creek into which it emptied. The value of these fish was $935. The continuous pumping of the colder water over the next few days has not been shown to have had any further effect in new or different "fish kills" during this period.
To sustain a cause of action in the first count under N.J.S.A. 23:5-28 the State must show that defendant placed in the fresh or tidal waters of the State any "hazardous, deleterious, destructive or poisonous substance * * *." The court lacks any case law or statutory definitions of these substances. A review of the legislative history of the statute appears appropriate in this regard. State, etc. v. Union County Park Comm'n, 89 N.J. Super. 202, 219, 220 (Law Div. 1956). In the course of a public hearing held on February 26, 1968 in connection with passage of this statute, there appears the following statement by Senator Apy in behalf of Senator Beadleston, the sponsor of the bill:
The intent is not to try to define, as the statutes presently do, that coal tar or sawdust or lime or any one of these things is going to cause the contamination. Rather, the object of the legislation is to
say that anyone who permits any injurious substances which have effects that are detrimental to the inhabitants of the waterways shall be responsible for doing it.
This statement, read in conjunction with the form of the bill as it appeared before and after adoption on April 29, 1968, leads the court to examine the effect and not the cause in determining if cold water is a pollutant in this instance. The court finds that the introduction of cold water into an environment artificially kept warm by the power plant killed the fish. The court holds that the putative polluter must take the environment as he finds it, and what may be hazardous in one instance may not be in another, and that the introduction of the cold water from Forked River in this case into the warm water environment of ...