Matthews, Fritz and Botter. The opinion of the court was delivered by Matthews, P.J.A.D.
Defendant was charged by plaintiff Department of Environmental Protection (DEP) with violations of N.J.S.A. 23:5-28 and 58:10-23.6 in the operation of its nuclear generating plant located at Oyster Creek in Lacey and Ocean Townships, Ocean County. The first two counts of the complaint charged the statutory violations and sought penalties, and the third count sought compensatory damages for the harm done to public resources. At the conclusion of a six-day nonjury trial, the trial judge dismissed the second count charging a violation of N.J.S.A. 58:10-23.6, and thereafter, in a reported opinion, found that defendant violated N.J.S.A. 23:5-28 and imposed a penalty of $6,000. He also awarded $935 to the State as damages for fish killed. State v. Jersey Central Power & Light Co., 125 N.J. Super. 97 (Law Div. 1973).
Defendant's atomic power generating plant is situated on a tract of land bounded by the south branch of the Forked River on the north, Oyster Creek on the south and U.S. Highway Route 9 on the east. During construction of the plant an artificial canal was dug which connected the river and the creek which previously had not been connected. A dike was constructed across the canal which divided it into an intake portion and a discharge portion. The dike prevents the flow of water between the river and creek unless it is pumped. Seven pumps are located in the nuclear generating station, four circulating pumps each with a capacity of 115,000 gallons a minute and three dilution pumps each having 260,000 gallons a minute capacity.
When the plant is in operation, cooling water is pumped by the four circulating pumps from Forked River into an intake canal, through the condensers under the generators where it is heated about 48 degrees in the process of condensing steam and is then discharged into the discharge canal and thence into Oyster Creek. The water discharged into the creek is approximately 25 degrees Fahrenheit warmer than the water in the river. The warm water discharge raised the temperature of the creek waters which had the effect of attracting fish. In addition, the three dilution pumps pump water directly from the intake canal into the discharge canal. The discharge of the combined operation of the pumps serves to satisfy the minimum requirements established by the Atomic Energy Commission for the dilution of such radioactive liquid effluents which may be discharged in operation of the generator.
Defendant has been issued a provisional operating license by the Atomic Energy Commission under which it currently operates the Oyster Creek facility. That license incorporates various technical specifications which govern the method of operation. Among those is the requirement to shut down the nuclear reactor when unidentified leakage of reactor coolant into the primary containment reaches a rate of five gallons per minute.
On January 28, 1972 it was determined that unidentified leakage of reactor water inside the primary containment was approaching the allowable maximum under the specifications. Consequently the plant was shut down on that date. On the shutdown date and for three days thereafter three circulating pumps and one dilution pump continued in operation. Since the plant was no longer operating, the discharge of heated water stopped and only the colder river water was pumped into the creek. As a result the temperature of the creek fell rapidly -- approximately 13 degrees in 24 hours.
Thereafter, upwards of 500,000 menhaden, a species of fish important for commercial uses, were found dead in the creek. Examination of the water in the creek and samples of the dead fish by state inspectors disclosed no matter harmful or injurious. Death of the menhaden was therefore attributed to the thermal shock caused by the sudden drop in water temperature.
The first issue raised is whether N.J.S.A. 23:5-28 applies to the discharge of uncontaminated, unheated water into tidal waters of the State. It is conceded that Oyster Creek is subject to tidal flow.*fn1 The statute, in pertinent part, reads:
No person shall put or place into, turn into, drain into, or place where it can run, flow, wash or be emptied into, or where it can find its way into any of the fresh or tidal waters within the jurisdiction of this State any petroleum products, debris, hazardous, deleterious, destructive or poisonous substances of any kind; * * *. In case of pollution of said waters by any substances injurious to fish, birds or mammals, it shall not be necessary to show that the substances have actually caused the death of any of these organisms. * * *
It also includes a penalty not to exceed $6,000 for its violation.
Defendant argues that if the Legislature intended this statute to prohibit the discharge of heated or cold water into the State's waters, it would have provided by "apt legislative language" that thermal pollution constituted a violation of the statute. It also contends that since the Legislature
referred to thermal pollution in N.J.S.A. 13:1D-9, the absence of such a reference in the statute here under consideration unquestionably indicates that the Legislature did not intend to include thermal pollution within the prohibitions of N.J.S.A. 23:5-28.
We are unimpressed with this argument. First, we are satisfied that the plain meaning of the statute embraces the conduct which was prosecuted here. The Legislature clearly intended to prohibit the discharge of any substance into the waters of this State which would be hazardous, deleterious, destructive or poisonous to any form of life. The facts adduced at the trial below disclose that the introduction of the cold water into the artificially heated environment of Oyster Creek in which the menhaden were living caused their destruction. Obviously, the introduction of the cold water was deleterious to the health of the menhaden -- they died. Things cannot be more deleterious than that. Second, this clear import of the statute is supported by its legislative history. As the trial judge noted in his opinion, one of the senators speaking on behalf of the sponsor of the legislation while it was pending in the Senate noted that the intent in enacting the bill was not to try to define, as the law then did, any of the specific substances that would cause 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." See 125 N.J. Super. at 100-101.
Defendants argument would have us ignore the words employed by the Legislature in the statute. The words "hazardous", "deleterious," "destructive" and "poisonous" all have different shadings of meaning. Water, for example is not hazardous, deleterious, destructive or poisonous to fish. Water which unduly raises or lowers the temperature of water then constituting the environment of fish can be hazardous, and may become deleterious and destructive to the fish, although
never poisonous to them. What the Legislature has sought to do in employing the general language that it has, is to prohibit the discharge of any substance, the effect of which will endanger or ...