For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Schreiber, J. Sullivan, J., concurring in the result.
The Department of Environment Protection (DEP) initiated this action for penalties and damages against Jersey Central Power & Light Company (Jersey Central), a public utility engaged in the generation and distribution of electricity within the State, because of the deaths of a large number of menhaden fish. The deaths were allegedly caused by the sudden flow of cold water into a stream in connection with Jersey Central's operation of a nuclear power plant.
The complaint charged violations of N.J.S.A. 23:5-28, which prohibits the introduction of any hazardous, deleterious or destructive substances of any kind into any fresh or tidal waters, and N.J.S.A. 58:10-23.6, which requires that DEP be notified immediately after the discharge of hazardous substances into the waters of this State. Compensatory damages were sought for injury to public resources -- the destroyed fish. The trial court dismissed the count which charged a violation of N.J.S.A. 58:10-23.6, concluded that Jersey Central had violated N.J.S.A. 23:5-28 for which it imposed a penalty of $6,000, and awarded the State $935 as compensatory damages. 125 N.J. Super. 97 (Law Div. 1973). Jersey Central appealed, and the State, complaining of inadequacy of the penalty and damages, cross appealed. The Appellate Division affirmed, 133 N.J. Super.
375 (1975), and we granted the defendant's petition for certification, 68 N.J. 161 (1975).
Both the trial court and the Appellate Division concluded that the introduction of the cold water into the stream constituted a violation of N.J.S.A. 23:5-28. They decided that the State was not limited to injunctive relief with respect to its cause of action which had been predicated upon damages to the public resources. As to this claim for damages, the trial court on defendant's motion for a new trial found "[t]here was no negligence proven," but held defendant was strictly liable because this was "an ultra-hazardous situation." The Appellate Division rejected this rationale because "the pumping of the cold water * * * cannot be considered an ultra-hazardous activity." It concluded that the defendant was negligent because it should have known that a "sharp reduction in water temperature would have damaged aquatic life." Jersey Central, having been licensed by the Atomic Energy Commission (AEC) because of its professed expertise "in this area", was to be held to the standards of "the reasonably prudent plant operator."*fn1 133 N.J. Super. at 389.
Jersey Central's defense of federal preemption, namely, that Congress had vested the AEC with exclusive jurisdiction over the operation of the nuclear plant and disposal of radioactive wastes, was not discussed by the trial court. The Appellate Division rejected this defense as frivolous because the defendant "utterly failed to carry its burden of proof on the issue of [the] necessity" to operate the pumps to dilute atomic wastes. Id. at 391.
We find and conclude that the DEP has not established that the defendant's pumping of water from one stream into another constituted the introduction of a hazardous, deleterious or destructive substance into tidal waters in violation of N.J.S.A. 23:5-28, that defendant's pumping was not a cause in fact of the fish kill, and that Jersey Central's operation of the pumps was prescribed by the AEC to protect "against radiation hazards" and therefore was not subject to state regulation. See 42 U.S.C.A. § 2021(k).
On December 4, 1964 the AEC, after public hearings, issued a provisional construction permit to Jersey Central to build a boiling water nuclear fueled reactor at Oyster Creek in Lacey Township, Ocean County, New Jersey. It was contemplated that the plant's operation would alleviate some of the future energy requirements of its customers and those of its affiliated companies including New Jersey Power & Light Company.
In February 1965 the Board of Public Utility Commissioners, on its own motion, instituted proceedings with respect to the proposed construction and operation of the plant. Re. Jersey Central Power & Light Co., 61 PUR. 3d 395 (1965). The Department of Conservation and Economic Development (subsequently designated as the Department of Environmental Protection, N.J.S.A. 13:1D-3, and hereinafter referred to as DEP) and the New Jersey Commission on Radiation Protection participated in those hearings.
A problem associated with the proposed plant concerned the necessity of cooling the condensers. Because of its location it was proposed that water be used for cooling. The plant site lies between Oyster Creek and the South Branch of Forked River, and between the Garden State Parkway and State Highway Route 9. The Creek and River extend from that location about a mile and a half eastward into Barnegat Bay. A canal was to be built to join Oyster Creek and the River. Water would be pumped from Forked River, run through the plant where it would be heated, and be discharged into Oyster Creek. The water would then flow from Oyster Creek into
Barnegat Bay. There was concern about the environmental impact of the heated water on fish life in Barnegat Bay.
The Board found that the record as a whole disclosed no significant radiation hazard associated with the proposal. It recognized that its authority may have been sharply limited due to federal preemption by the Atomic Energy Act, but in the absence of an adjudication to the contrary decided to act, since it was charged with the responsibility of enforcing the company's duty to render safe, adequate and proper service. N.J.S.A. 48:2-23. The Board noted that the parties had differences of opinion with respect to non-radiation hazards and directed the parties to confer among themselves.
As a result, an agreement was reached between Jersey Central and DEP under which the proposed cooling water canal system was to be constructed, contingent upon their making a joint study of the environmental effects on those areas of Barnegat Bay affected by the plant's discharge waters. The Board ordered that construction of the cooling water canal be deferred pending completion of the study. Re Jersey Central Power & Light Co., 64 PUR 3d 152 (1966).
In its Third Interim Order, dater July 9, 1966, the Board approved construction of the water canal after the company and DEP had entered into a stipulation that "construction of the cooling water canals may be undertaken by the Company" upon certain conditions, none of which are relevant here. Thereafter the plant, including the cooling system, was constructed, and it has been operating under a license granted by the AEC.
Four circulating pumps force the water which has entered the canal from Forked River through the plant. This water is used to cool the steam in the condensers beneath the turbine generator. As planned, the water then flows into the discharge side of the canal and thence into Oyster Creek. There are three dilution pumps which propel other water directly through the canal without going into the plant. These are used mainly in the summer months to cool the water that comes from the circulating water pumps. When
the plant is in operation the temperature of the water in Oyster Creek at the canal is increased about 20 degree F.
Menhaden, which are caught in large quantities, are used for fertilizer, a protein supplement in livestock food, oil in paints, and bait. The fish are not comestible. In 1968 over 58,000,000 menhaden were caught in New Jersey, Delaware, Maryland, and parts of Long Island. In 1971 they were priced at less than 1-3/4 cents per pound. Generally, menhaden migrate to warmer waters in the winter because when the ...