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Department of Health v. Owens-Corning Fiberglas Corp.

Decided: April 17, 1968.

DEPARTMENT OF HEALTH, STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLANT



Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

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.

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."*fn1

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 oven 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 predated the July and August 1966 complaint dates about which the Department's 11 witnesses testified, there is a definite correlation between the two evidential patterns. Samuel Thomas, Owens-Corning's Director of Environmental Control, admitted that the air pollution control equipment or devices at the plant were the same at the time he testified on January 9, 1967 as they had been for well over a year, except for a modification on the P-20 line in the fall of 1966. Moreover, there had been no substantial changes in the production process in that time except for some changes in chemicals or chemical processes in 1966. From this it may reasonably be said that conditions at the plant had not varied in any substantial degree as regards odor or smoke

emissions between the dates of Rzigalinski's inspections and the two surveys, and the dates set out in the complaint.

(It is appropriate to note at this point that the significance of the Turk and Bradley survey results and Rzigalinski's testimony lies in their having been adapted in the March 9, 1967 order.)

The record reveals that the Department had as early as May 1961, if not before, discussed with representatives of Owens-Corning the necessity of controlling emissions from its plant into the atmosphere. The company recognized the existence of the condition and was apparently trying to correct it. Numerous conferences and exchanges of correspondence followed over the next five years, all dealing with the air pollution problem. Although Owens-Corning repeatedly assured the Department that it was taking definite steps to eliminate the condition, it failed to comply with its own timetables as well as the Department's repeated requests that it control the emissions.

The Department's long and patient wait for Owens-Corning to solve the air pollution problem came to an end when it received a letter from company vice-president Briley on June 21, 1966. He wrote that the company was dissatisfied with the dehumidification tower on the U-1 line and accordingly did not intend to install similar equipment on the other three lines. Instead, Owens-Corning had directed its research center in Ohio to undertake a "crash" program at the Barrington plant. There would be a complete evaluation of these changes within the next six months, at which time the company would be in a position to know whether they were feasible. A timetable would then be developed to make the necessary process modifications as rapidly as possible. The Department filed its complaint soon after receipt of the Briley letter.

We take note of the reservation contained in Owens-Corning's brief that all that had taken place before between the company and the Department was not to be considered as any admission of violation on its part. This flies directly in

the face of the company's very clear knowledge that emissions from its plant had for years been polluting the air in Barrington and neighboring communities. This was made manifest in its conferences with Department representatives, in the letters it had written to the Department, and in its continued and protracted efforts to correct the situation.

Owens-Corning presented seven lay witnesses at the preliminary hearing. They denied they had ever experienced any of the complaints testified to by the 11 Department witnesses, or that the plant operations had ever interfered with their enjoyment of life and property. In evaluating the testimony of these witnesses it is to be observed that one lived next door to the company's purchasing agent Maguire; another admitted that her son dated his daughter; a third testified that the company had always been very cooperative in donating door prizes for local sports events of which he was chairman; a fourth lived around the corner from Maguire, and yet another witness was a friend of his.

Owens-Corning produced three expert witnesses, the testimony of only one of whom, Thomas, concerns us here. He said that environmental control in the type of plant defendant operates is an entirely new field. He gave a history of the various tests that had been made and the equipment that had been installed in order to alleviate ...


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