Department of Health v. Owens-Corning Fiberglas Corp.

• Decision Date: 17 April 1968
• Docket Number: OWENS-CORNING,No. A--1400,A--1400
• Parties: DEPARTMENT OF HEALTH, State of New Jersey, Plaintiff-Respondent, v.FIBERGLAS CORPORATION, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 366

100 N.J.Super. 366

242 A.2d 21

DEPARTMENT OF HEALTH, State of New Jersey, Plaintiff-Respondent, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellant.

No. A--1400.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 29, 1968.

Decided April 17, 1968.

James Hunter, III, Camden, for appellant (Archer, Greiner, Hunter & Read, Camden, attorneys, W. Thomas Grimm, Camden, on the brief).

Richard J. Sauerwein, Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).

Before Judges GOLDMANN, KILKENNY and CARTON.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant Owens-Corning Fiberglas Corporation (Owens-Corning) appeals from an order and amended order of the State Department of Health (Department) directing that it cease violation of chapter VI, section 2.1 of the New Jersey Air Pollution Control Code (Code) and forthwith take certain specified interim measures to minimize air pollution caused by its plant operations.

I

The proceedings before the Department were instituted by a complaint, dated September 28, 1966, alleging that on ten specified dates during July and August of 1966 Owens-Corning

'did cause, suffer, allow or permit air pollution by emitting substances into the outdoor atmosphere from (its premises in Barrington, Camden County) in such quantities as to be injurious to human or plant life, or property, or to unreasonably interfere with the comfortable enjoyment of life and property in violation of Chapter VI, Section 2.1 of the New Jersey Air Pollution Control Code, a copy of which is annexed hereto and made a part hereof.'

Chapter VI, section 2.1 of the Code provides:

'No person shall cause, suffer, allow or permit to be emitted into the outdoor atmosphere substances in quantities which shall result in air pollution.'

'Air pollution,' as used in chapter VI, is defined in chapter I, section 1.10 of the Code in the same language as appears in the Air Pollution Control Act (1954), N.J.S.A. 26:2C--2:

"Air pollution' * * * shall mean the presence in the outdoor atmosphere of substances in quantities which are injurious to human, plant or animal life or to property or unreasonably interfere with the comfortable enjoyment of life and property throughout the State and in such territories of the State as shall be affected thereby and excludes all aspects of the employer-employee relationship as to health and safety hazards.' ¹

Accompanying the Department's complaint was a notice directed to Owens-Corning of a hearing on October 25, 1966. The hearing began as scheduled and continued over a series of dates until early 1967. The hearing officer throughout all phases of this matter was E. Powers Mincher of the Department. Since chapter VI of the Code does not provide measurable standards in the form of specific limits for emissions to the atmosphere, this first or preliminary hearing was a procedural prerequisite to the issuance of any order, by reason of N.J.S.A. 26:2C--14, third paragraph, which reads:

'In any case where no code, rule or regulation has been promulgated which sets specific limits for emissions to the atmosphere of the type discovered and alleged, no order to cease such emissions shall be issued until the holding of a preliminary hearing thereon which shall be held upon not less than 15 days' notice by the department (State Department of Health) to all interested persons.'

On March 9, 1967 State Commissioner of Health Kandle issued the first of the two orders under appeal. It recited that he had given due consideration to the transcript of the hearing, the findings and recommendations of the hearing officer, and the brief submitted by counsel for Owens-Corning. He found that the company had violated chapter VI, section 2.1 of the Code and directed that it cease such violation on or before January 1, 1968 and forthwith take interim measures (set out at length) to minimize the effects resulting from its plant operations. Upon receipt of that order, Owens-Corning, acting pursuant to N.J.S.A. 26:2C--14.1, applied for a hearing as an aggrieved party. It also requested a stay of the order.

N.J.S.A. 26:2C--14.1 provides that any person aggrieved by an order of the Department may, upon application made within 15 days after notice of such order, be entitled to a hearing before the Department. Within 30 days after the hearing the Department shall issue an appropriate order modifying, approving or disapproving its prior order. Pending such determination, and upon application for a stay, the Department may stay the operation of its order upon such terms and conditions as it deems proper.

Acting upon Owens-Corning's application, Commissioner Kandle fixed a hearing date, denied its request for a stay, and asked the company for particulars as to its claimed grievance. Owens-Corning replied by letter of April 25, 1967, alleging that the March 9 order was not supported by the record; it was improper since there existed no authority justifying the imposition of interim requirements; the order went beyond the terms of the statute and the Code; it failed to state the specific items found to be in violation; the order was unreasonable as to time and measures; it was vulnerable for vagueness and 'impossibility,' and was arbitrary, capricious and discriminatory.

The second (grievance) hearing was held on May 1, 1967. Owens-Corning objected to Mincher sitting as hearing officer, claiming that he was in effect sitting 'on an appeal from your own order.' The objection was overruled. Following the hearing, Commissioner Kandle issued an amended order on May 29, 1967, reciting that he had given due consideration to the transcript of the second hearing and the findings and recommendations of the hearing officer, as well as the brief submitted on behalf of Owens-Corning. He adopted the findings, conclusions and recommendations of the hearing officer, found that Owens-Corning had been aggrieved by the March 9 order, and that the order should be amended by extending the time within which the company was to comply with chapter VI of the Code from January 1 to April 1, 1968, and by deleting the paragraph of the prior order relating to stack heights. With the exception of these two amendments, the new order repeated the language of the March 9 order, including the specific interim measures the company was to take.

II

Owens-Corning owns and operates a plant in Barrington, Camden County, where it manufactures various fiberglas products. It uses four production lines, known as U--1, U--2, T and P--20, in its operations. The basic process on all four lines is this: Raw materials are conveyed from a storage area and fed into a glass melting furnace. The material is then passed through a spinning operation which converts the molten glass into fiberglas, at which time a phenol formaldehyde resin is injected for binding purposes. The material is then cooled and conveyed into a curing oven after passing through several conveyors which control the thickness of the material. From the curing over the material enters the fabricating stage where it is cut to size and packaged. The completed product is then sent to the warehousing area for shipment.

The issue to be determined at the first (preliminary) hearing was whether Owens-Corning had violated chapter VI, section 2.1 of the Code on the dates specified. The Department presented its case in two separate but related main phases. The first consisted of the testimony of 11 witnesses who lived close to or within a reasonable distance of the plant. They testified to the fumes, smoke and blue haze coming from the plant and to the effects they had suffered therefrom, demonstrating how, in various ways, their daily lives and property had been interfered with. Their complaints included a tearing and burning of the eyes, 'runny' noses, a dry and 'funny' taste in the mouth, nausea and coughing. The odor and smoke are unbearable. Almost all testified that they had to close their windows and stay indoors because of the conditions experienced.

The second phase of the Department's presentation involved technical evidence given by Joseph A. Rzigalinski, enforcement supervisor for the Department's air sanitation (pollution control) program. His qualifications as an air pollution expert were not challenged. He had visited the plant on a number of occasions and described the manufacturing process on the four production lines. Rzigalinski explained that two areas in particular generated gaseous emissions--the forming area and the curing area. He was present at the plant on February 17, 1966 at defendant's invitation, the purpose being to observe an odor tracer survey of the emissions from the dehumidification tower stack. Dr. Amos Turk conducted the survey on behalf of Owens-Corning, and this was done when only the U--1 line and its odor abatement equipment were in operation, all other production lines being shut down. Dr. Turk's test was solely for the detection of phenol odors. Despite all precautions taken by the plant, he found low level peaks of phenol odors during the test.

Rzigalinski visited the plant on May 19, 1966, again at defendant's invitation, to observe tests of phenol odor emissions from the dehumidification tower stack on the U--1 line. The test, conducted for defendant by William R. Bradley Associates, indicated that 0.22 parts of phenol per million parts of air were being emitted from the stack. According to Rzigalinski, 0.22 ppm. is below the so-called 'odor threshold level' for phenol of 0.29 ppm. None of the other production lines were tested for its emissions, nor was the test concerned with odors other than phenol. On this visit Rzigalinski detected strong formaldehyde odors from the binding room area, as well as odors coming from roof ventilators above the curing oven and from openings on the roof above the melting and spinning operations.

Although Rzigalinski's visits and the two surveys all...