Conford, Foley and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
This is an appeal from an order of the State Commissioner of Health dated February 16, 1966, entered after hearing on a cease and desist order previously issued by the State Department of Health ("Department" hereinafter), by which order of February 16 appellant, operator of a cast iron foundry ("Shahmoon" hereinafter), was directed to (1) "cease discharging solid particles into the outdoor atmosphere from stacks or chimneys in violation of Chapter VII of the New Jersey Air Pollution Code on or before January 1, 1967"; (2) to "take interim measures to minimize solid particle discharges until full compliance is achieved," specifying four specific technical recourses for that purpose; and (3) to submit progress reports at three-month intervals concerning the progress of its air pollution program.
The first legislation attacking the air-pollution menace in this State on a comprehensive basis was the Air Pollution Control Act (1954) (L. 1954, c. 212), discussed at length in Moran, "The Air Pollution Control Act and its Administration," 9 Rutgers L. Rev. 640 (1955); see also Cowan, "Air Pollution Control in New Jersey," 9 Rutgers L. Rev. 609 (1955); New Jersey Dept. of Health v. Roselle, 34 N.J. 331, 347-349 (1961). Basically, rule-making under the act is by an Air Pollution Control Commission, while enforcement is vested in the State Department of Health. The act as originally adopted stressed conciliation and persuasion of offending industries and was not cast in terms of aggressive enforcement. See Moran, op. cit., passim. Tighter enforcement machinery was later provided by statutory amendment. L. 1962, c. 215.
Of particular interest, for present purposes, are the changes in procedure effected by the 1962 amendment for cases wherein,
after complaint and investigation by the Department, it found that the Code was being violated. Under the 1954 act the Department was thereupon directed to attempt to eliminate the violation "by conference, conciliation and persuasion" (§ 14). Only after failure of such efforts was provision made for service of charges upon the offending person and the conduct of a hearing thereon (§ 15). An order for compliance was issuable only after determination of guilt by the Department at such hearing (§ 18). Under the 1962 amendment, however, a desist order may be issued by the Department without advance hearing whenever, after departmental investigation, it is discovered that a violation is taking place. N.J.S.A. 26:2C-14. Preliminary conciliation efforts are not mandated. Any person "aggrieved" by an order is, upon application, "entitled to a hearing before the department." The Department is directed within 30 days after hearing to issue an order "modifying, approving or disapproving its prior order." N.J.S.A. 26:2C-14.1.
On January 6, 1965 personnel of the Department, including Herbert I. Wortreich, Supervising Public Health Engineer in the Air Sanitation Program of the Department, visited the Phillipsburg plant of Shahmoon and made an investigation and inspection of its facilities from an air pollution standpoint. This included receipt of technical information from Shahmoon representatives as to the foundry process, which, after study and calculation, led the Department to conclude that emission of solid particles from the cupola (metal melting furnace) stack of the foundry exceeded the quantities allowed by the Air Pollution Code, chapter VII, § 2.
On February 15, 1965 representatives of the Department met with Shahmoon personnel in Trenton and informed them of and discussed the conclusions as to violation. This meeting was reviewed in a letter from the Department to Shahmoon dated February 17, 1965, wherein it was stated that "Although there may exist a difference of opinion as to the degree, your representatives agree with us that the emissions are
excessive." Reference was also made to an agreement that Shahmoon would submit progress reports on a monthly basis as to steps to be taken to accomplish "adequate control" of the emissions.
On August 16, 1965 the State Commissioner of Health issued an order to appellant advising it that it was in violation of the Code and ordering it to cease discharging solid particles into the atmosphere in violation of the Code on or before February 16, 1966. Shahmoon requested a hearing on the order and same was conducted before an authorized hearing officer of the Department. A report of the hearing, findings and recommendations was filed by the officer on February 16, 1966, containing the conclusion that
"5. Evidence presented during the course of this hearing establishes the fact that on January 6, 1965, the applicant's plant discharged solid particles into the outdoor atmosphere from stacks or chimneys in excess of that allowed under the provisions of Chapter VII of the New Jersey Air Pollution Control Code."
The report also adverted to changes in production and production methods under consideration by Shahmoon and recommended extension of the compliance date to January 1, 1967. It was also recommended that Shahmoon be directed to take certain designated interim measures and to report in relation to progress thereon at three-month intervals. Thereupon the State Commissioner issued the order now under appeal, which embodied in toto the recommendations of the hearing officer.
The primary assault by appellant in this appeal is upon the substantiality of the State's evidence to support the determination of violation of the Code. There is no dispute concerning the fact that application of the rather complex formula set forth in the Code works out to the quantities of four pounds per hour for coarse particles (44 or more microns) and 66 pounds per hour for fine particles (less than 44 microns) as the maximum permissible effluent into the atmosphere for this plant. Wortreich's testimony at the hearing on
behalf of the Department was that the plant was emitting at the hourly rate of 19.5 pounds for coarse ...