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Dissel v. Jersey Central Power & Light Co.

Decided: July 22, 1977.

GERRIT J. VAN DISSEL, PLAINTIFF,
v.
JERSEY CENTRAL POWER & LIGHT COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT



Stein, J.c.c., Temporarily Assigned.

Stein

Defendant Jersey Central Power & Light Company (Jersey Central) moves to dismiss the complaint in this action for lack of jurisdiction over the subject matter. See R. 4:6-2(a). It contends that consideration of any and all aspects of plaintiff's suit, which concerns itself with the effects of the operation of Jersey Central's nuclear power plant at Oyster Creek in Lacey Township, Ocean County, is barred by the doctrine of federal preemption.

Construction and operation of this same power plant, and the legal ramifications thereof, have already been reviewed at length in State v. Jersey Central Power & Light Co. , 69 N.J. 102 (1976).

Two novel questions are presented by this motion:

1. Does the doctrine of federal preemption bar a private plaintiff from pressing tort claims for damages to his property allegedly arising from the governmentally-approved operation of defendant's nuclear power plant?

2. If such relief is not available to plaintiff, can he seek damages for any asserted diminution in the market value of his property under the theory of inverse condemnation?

Plaintiff brings this class action on his own behalf and on behalf of all riparian property owners 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 Jersey Central is a public utility of the State of New Jersey organized and existing pursuant to N.J.S.A. 48:1-1 et seq.

Upon timely motion by defendant, this court first considered the question of whether this action should properly be maintained as a class action; whether there were questions of law and fact common to the claimed class, as well

as whether the claimed class should be divided into subclasses for the purposes of this litigation. See, generally, R. 4:32-1 and R. 4:32-2(d). In addition to the moving and answering papers, the court has had the benefit of oral testimony from an expert witness produced by plaintiff who testified at considerable length on such matters as the operation of defendant's nuclear power reactor plant and the cause of certain conditions which, it is contended, caused damage to the property of plaintiff and those in his claimed class.

During the course of these hearings it became increasingly apparent that this court might not have subject matter jurisdiction over all or part of the claims made against this defendant by plaintiff. Accordingly, defendant moved to dismiss all of plaintiff's claims because of lack of jurisdiction over the subject matter, pursuant to R. 4:6-2(a). As stated above, defendant relies on the doctrine of federal preemption. See State v. Jersey Central Power & Light Co., supra.

The gravamen of plaintiff's multi-count complaint is that his property, more specifically his dock and other structures and appurtenances which abut or extend into one of the above listed waterways, have been injured by the operation of Jersey Central's nuclear power plant located between Oyster Creek and Forked River in Lacey Township. This damage allegedly arose from the infestation of "shipworms" into these various waterways. It is claimed that the "worms" burrow into wooden structures and eventually cause their destruction by eating away the wood. It is further asserted that this infestation of shipworms was and is caused by the operation of Jersey Central's nuclear power plant.

Plaintiff's complaint requests money damages and, additionally, seeks to enjoin defendant from further operation of its power plant "in a manner which will cause damage to plaintiff and other members" of his class. For reasons more fully set forth herein, it is obvious that if plaintiff is barred

from a money damage claim because of federal preemption, then injunctive relief will also be barred.*fn1

Shipworms, members of the phyllum mollusk, are a type of clam. Plaintiff alleges that defendant's nuclear plant has caused an infestation of shipworms indigenous to the area in which plaintiff and members of his claimed class own property, and this increased as well the area in which that type of shipworms live. Further, it is asserted that the breeding period of two species of the native genus of shipworms -- teredo navalis and bankia gouldi -- has been extended. Plaintiff also claims that two subtropical species of the genus of shipworms -- teredo pfurcifera and teredo bartschi -- are now found in large numbers in the area. These subtropical species are not indigenous to the Barnegat Bay area. Plaintiff asserts that the proliferation of the subtropical species of shipworms was also caused by the operation of defendant's nuclear plant.

Three elements are needed for the various types of shipworms to thrive: wood, sufficiently warm water temperature and a sufficient amount of water salinity.

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.

Since the various types of shipworms cannot survive in fresh water, it is alleged that the operation of defendant's plant has caused an increased area in which shipworms may

survive, thrive and proliferate. Additionally, discharge of saline water into Oyster Creek has changed that waterway from fresh to salt water. Further, it is alleged that the discharged water becomes hotter when it cools the condenser of the plant. Plaintiff claims that this discharge of heated water circulates and causes an increase in the water temperatures in the waterways on which he and his claimed class own property. This increased temperature permits indigenous shipworms to have a longer breeding period and to have a lower mortality rate during the winter months. The elevated temperature also permits the subtropical species, not indigenous to the area, to survive and proliferate. In brief, it is alleged that the operation of defendant's nuclear power plant causes, extends and creates an environment in which shipworms thrive.

This once-through cooling system of Jersey Central's nuclear plant also serves as part of the defendant's radioactive waste ("radwaste") discharge system. The radwaste discharge system collects, processes, stores and reclaims or disposes of all liquids that may contain certain radioactive material. The purpose of the radwaste system is to reduce the radioactive contents in liquid effluents and to reclaim higher purity water for reuse in the plant system. The radwaste discharge system is "piggybacked" onto the once-through cooling system. This once-through cooling system thereby functions to dilute the radwaste discharge.

Plaintiff alleges claims based upon various theories of liability, including negligence, nuisance, strict liability in tort, inverse condemnation and violations of various state and federal statutes. Relying on the recent decision of our Supreme Court in State v. Jersey Central Power & Light Co., supra , defendant asserts that this court lacks subject matter jurisdiction over any and all aspects of this case.

Because of the differing theories upon which plaintiff relies, there will first be considered the tort claims of plaintiff and then, as a separate matter, the claim of inverse condemnation.

The Tort Claims

In State v. Jersey Central Power & Light Co., supra , the State through the Department of Environmental Protection, brought suit against Jersey Central for penalties and damages arising from the deaths of a large number of menhaden fish. The State contended that these deaths resulted from the sudden flow of cold water into Oyster Creek after a temporary shutdown of the same nuclear power plant which is the subject matter of this litigation. While holding that the State had not proved the existence of proximate cause, the Supreme Court additionally held that "a finding of nonliability for Jersey Central is also dictated by federal preemption." 69 N.J. at 111. The court further noted:

The court then concluded that the State may not directly or indirectly interfere with this federally preempted area of regulation. Regulation by the State is restricted to "activities for purposes other than a protection against radiation hazards." 69 N.J. at 112; see 42 U.S.C.A. ยง 2021(k).*fn2

Plaintiff advances a two-pronged argument in an effort to distinguish Jersey Central. First, he claims that a suit seeking damages arising from a normal operation of the once-through cooling ...


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