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New Jersey Turnpike Authority v. Jersey Central Power and Light and General Public Utilities Nuclear Corp.

September 6, 1985

NEW JERSEY TURNPIKE AUTHORITY, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, APPELLANT
v.
JERSEY CENTRAL POWER AND LIGHT AND GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION, INC.



On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 85-0105)

Author: Higginbotham

BEFORE: GIBBONS and HIGGINBOTHAM, Circuit Judges, and NEWCOMER, District Judge*fn* (Filed: September 6, 1985)

Opinion OF THE COURT

A. LEON HIGGINBOTHAM. JR., Circuit Judge:

We, like any other court, may lose jurisdiction over a case because of the occurrence of facts outside the record which terminate the controversy. We have constitutional jurisdiction only over actual cases and controversies between adverse interests, with respect to which our judgment will be effective. We find that the equitable remedy sought in this appeal from the district court's February 26, 1985 denial of injunctive relief is no longer available because of mootness.

The New Jersey Turnpike Authority initiated this action to enjoin a succession of overweight shipments of radioactive nuclear waste on a 28-miles stretch of the New Jersey Turnpike unless and until the defendant public utility complied with the New Jersey Turnpike Authority's condition that it provide a particularized backup vehicle to ensure the safe removal of the overweight load in the event of emergency. The district court denied the injunctive relief requested and restrained the New Jersey Turnpike Authority from interfering with the shipments.

During the pendency of this appeal, the six-month shipping campaign concluded thereby rendering, in our view, the New Jersey Turnpike Authority's injunction proceeding meaningless since the acts sought to be enjoined have irretrievably occurred. Because we believe that the controversy has become academic by reason of these changed circumstances, we conclude that our jurisdiction has ceased and the case is moot. We will vacate the decision of the district court and remand with directions to dismiss the action.

I. . Background - The NYSERDA Case

Defendant-appellee Jersey Central Power and Light ("JCP&L") is a public utility incorporated under the laws of the state of New Jersey and is the owner of the Oyster Creek Nuclear Generating Station ("Oyster Creek") located in Lacey Township. New Jersey.*fn1

Pursuant to a 1975 contractual arrangement with Nuclear Fuel Services, JCP&L transported 224 spent fuel assemblies generated at Oyster Creek to the Western New York Nuclear Center for storage and reprocessing. The facility is owned by the New York State Energy Research and Development Authority ("NYSERDA"), and is located in West Valley, new York. In September of 1976, however, Nuclear Fuel Services withdrew from the reprocessing business and the 224 spent fuel assemblies were never reprocessed. They simply remained in storage in the West Valley storage pool.

Due to a dispute between NYSERDA and JCP&L and certain other public utilities storing fuel at the West Valley facility, NYSERDA commenced an action in the United States District Court for the Western District of New York entitled New York State Energy Research and Development Authority v. Nuclear Fuel Services, Inc., Civ. No. 82-426 (W.D.N.Y.) ("the NYSERDA case"). NYSERDA alleged liability for removal of the spent fuel stored at the disposal and reprocessing center. The district court ruled that JCP&L would be a trespasser if NYSERDA's unequivocal demand for removal was made and ignored. New York State Energy Research and Development Authority v. Nuclear Fuel Services, 561 F. Supp. 954 (W.D.N.Y. 1983).

Subsequently, NYSERDA did make an unequivocal demand for removal of JCP&L spent fuel. On September 30, 1983 NYSERDA and JCP&L entered into a partial settlement agreement which was later incorporated into the October 14, 1983 order directing JCP&L to commence the removal of its 225 spent fuel assemblies from West Valley by October 1, 1984 and complete removal by May 31, 1985.*fn2 The shipment of these 224 spent fuel assemblies from West Valley, New York to Oyster Creek nuclear facility generated further proceedings in the United States District Court for the District of New Jersey,*fn3 including this appeal.

B. New Jersey Turnpike Authority v. Jersey Central Power & Light and General Public Utilities Nuclear, et al., 772 F.2d 25

To accomplish the shipment of its spent fuel within the agreed time frame set forth in the NYSERDA case, JCP&L calculated that it would have to make 32 shipments at the approximate rate of three shipments every two weeks. The spent fuel consisted of uranium dioxide pellets contained in long, sealed metal tubes, approximately fourteen feet in length and one-half of an inch in diameter. A bundle of these tubes, weighting about one-third of a ton, constitutes a "fuel assembly." To facilitate this shipping campaign. JCP&L contracted with Transnuclear, Inc. to provide specialized shipping casks and transportation services in order to ship the 224 spent fuel assemblies to Oyster Creek, and then return the empty casks to West Valley.

On September 26, 1984, JCP&L was notified that its proposed route for the return of the spent nuclear fuel to Oyster Creek was judged by the Nuclear Regulatory Commission ("NRC") to meet the regulatory requirements set forth in 10 C.F.R. ยง 73.37 (b)(7). The NRC approved route included a 28-mile stretch on the New Jersey Turnpike ("the Turnpike"), ...


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