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Jersey Cent. Power & Light Co. v. Lacey, Township of

ELR Citation: 15 ELR 20940
Nos. Nos. 84-5652, -5763, 772 F.2d 1103/23 ERC 1574/(3d Cir., 09/06/1985)

The court holds that a township's ban on the importation and storage of spent nuclear plant fuel and other radioactive waste is preempted by the Atomic Energy Act (AEA) and the Hazardous Materials Transportation Act (HMTA). The court first rules that the case is not moot, in spite of the fact that the particular transport against which the ordinance was directed has been completed, because judgment for plaintiff would entitle it to both legal and equitable relief. The waste in question is currently being stored in the township, and plaintiff would be entitled to a permanent injunction against such storage and monetary penalties for continued storage if the ordinance is valid. The court then concludes that there are no disputed issues of material fact, and that the only questions are the legal ones posed by the AEA and HMTA. Turning first to the AEA, the court rules that §274 of the Act preempts the township's ordinance. The legislative history and the regulations promulgated pursuant to this section indicate that Congress intended the federal regulatory scheme concerning nuclear plant safety to be complete and thereby preempt state regulation. The ordinance's purpose is to protect the public's health and safety, not its economic well-being; therefore it falls squarely within the AEA's preemptive scope. Lastly, the court holds the ordinance is preempted by the HMTA. Section 112(a) of the Act preempts "inconsistent" state and local regulations, and the ordinance is inconsistent within the meaning of the Act since it is more restrictive of hazardous materials transport than are the detailed regulations promulgated under the Act.

Counsel for Appellant
Terry F. Brady
Gilmore & Monahan
Nine Allen St., P.O. Box 1540, Toms River NJ 08754
(201) 240-6000

Counsel for Appellees
Martin S. Siegel
Riker, Danzig, Scherer & Hyland
Headquarters Plaza II, One Speedwell Ave., Morristown NJ 07960
(201) 538-0800

Before Gibbons and Newcomer,* JJ.