On remand from the Supreme Court of the United States.
Bischoff, King and Petrella. The opinion of the Court was delivered by Bischoff, P.J.A.D.
This appeal is before this Court pursuant to an order entered by the United States Supreme Court on January 23, 1984 reading as follows:
"The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the Superior Court of New Jersey, Appellate Division, for further consideration in light of Silkwood v. Kerr-McGee Corporation, 464 U.S. [104 S. Ct. 615, 78 L. Ed. 2d 443] (1984)."
464 U.S. , 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984).*fn1
The procedural history and factual background of this case is set forth in full in a prior opinion of this Court reported at 181 N.J. Super. 516 (App.Div.1981) and in the opinion of the trial court reported at 152 N.J. Super. 391 (Law Div.1977). The facts are restated here in brief in order to place our "further consideration" in proper perspective.
This action was instituted as a class action by Gerrit Van Dissel 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 these waterways." The suit named as defendant the Jersey Central Power & Light Co., a public utility of the State of New Jersey which constructed and operates a nuclear power reactor plant near plaintiff's property.
The complaint sought money damages and a restraint against further operations of the plant in such a manner as to cause
damage to plaintiff and the other members of the class. The complaint set forth eight different causes of action: negligence, nuisance, trespass, strict liability, violation of the New Jersey Water Pollution Control Statute (N.J.S.A. 23:5-28; N.J.S.A. 58:10-23.1 et seq.), violation of the Refuse Act of 1899 (33 U.S.C. 407), violation of the Federal Water Pollution Prevention and Control Act (33 U.S.C. 1251), and inverse condemnation. Van Dissel, 181 N.J. Super. at 519.
Defendant's plant commenced operation in 1969. Plaintiffs allege that the design, construction and continued operation of the plant had resulted in a significantly altered marine environment in the water adjacent to plaintiffs' properties resulting in higher salinity levels, increased water flow and increased water temperatures. These changes, it is alleged, have permitted the proliferation of shipworms which have attacked and destroyed wooden docks, bulkheads and appurtenances belonging to plaintiffs.
The increase in salinity, temperature and water flow it is conceded results from the design and operation of the cooling system and the Radwaste Discharge System. The design and method of operation of these two systems is described in detail in three reported opinions: State v. Jersey Central Power & Light Co., 69 N.J. 102, 106-108 (1976); Van Dissel v. New Jersey Central Power & Light, 181 N.J. Super. at 521-522 and 152 N.J. Super. at 397-398. We need not repeat that description here.
Defendant moved to dismiss the complaint contending the trial court lacked subject matter jurisdiction because federal law had preempted the field. The trial court, at 152 N.J. Super. 391 (Law Div.1977), granted the motion as to the first seven counts of the complaint and denied the motion as to the demand for damages based on the claim of unlawful taking of property without just compensation. That inverse condemnation claim was tried before a judge without a jury and resulted in a determination by the trial judge that as to one subclass of
plaintiffs they had established that defendant had caused a "shipworm invasion in the area of the subclass, but that plaintiffs had not carried the burden of proving the claimed damages had been caused by shipworm infestation." As to other subclasses of plaintiffs the judge ruled that they "had failed to demonstrate that defendant's nuclear generating station had proximately caused the complaint of damage. The complaint was dismissed." Van Dissel, 181 N.J. Super. at 520.
On appeal to this Court we affirmed the trial court's dismissal of the complaint. Van Dissel, 181 N.J. Super. 516. Plaintiffs' petition for certification to the New Jersey Supreme Court was denied, 89 N.J. 409 (1982), and plaintiffs' appeals to that Court were dismissed. (Order dismissing appeal No. 19,201 dated February 8, 1982, filed February 17, 1982, September Term 1983).
Plaintiff then filed in the United States Supreme Court a writ of certiorari to the N.J. Supreme Court stating the single "question presented" as follows:
Are common law tort claims brought in state court by local property owners against the owner and operator of a nuclear power plant for damage to their property due to the plant's thermal pollution of local coastal waters federally preempted by the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 et seq?
As we indicated above, the writ was granted, the judgment vacated and the case remanded to us for further consideration in light of Silkwood v. Kerr-McGee Corp. 464 U.S. , 104 S. Ct. 615, 78 L. Ed. 2d 443 (1984). Plaintiff's motion for direct certification by the New Jersey Supreme Court was denied. Order No. 22,207 entered March 13, 1984, filed March 15, 1984, M-655 September Term 1983.
Our reconsideration of the federal preemption claim commences with an examination of the case of Pacific Gas & Elec. v. Energy Res. Comm'n., 461 U.S. 190, 103 S. Ct. 1713, 75 L. Ed. 2d 752 (1983). The precise issue presented by that case was "whether the 1954 Atomic Energy Act, 68 Stat. 921, as
amended 42 U.S.C. § 2011 et seq., preempted California's authority to condition the construction of a nuclear facility in California on the State's finding that adequate means of disposal were available for the plant's nuclear waste." Silkwood, 464 U.S. at , 104 S. Ct. at 627, 78 L. Ed. 2d at 459 (noted in the dissenting opinion of Justice Blackmun). The Court concluded that ". . . federal preemption of nuclear safety regulations was full and complete. . . ." Id. at , 104 S. Ct. at 627, 78 L. Ed. at 460. It held that:
Congress, in passing the 1954 Act and in subsequently amending it, intended that the federal government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost and other related state concerns. [ Pacific Gas, 461 U.S. 190, , 103 S. Ct. 1713, 1723, 75 L. Ed. 2d 752, 765 (1983)].
In emphasizing the nature and extent of this preemption, the court said:
Despite this statement of a broad federal preemption for nuclear safety concerns and the court's recognition that the California statute had an effect on safety of nuclear plant operations, the ...