On complaint in lieu of prerogative writ.
Goldmann, Kilkenny and Carton. The opinion of the court was delivered by Goldmann, S.j.a.d.
Petitioners instituted this declaratory judgment proceeding under R.R. 4:88-10 and N.J.S.A. 26:2C-20 seeking judicial review of the validity of chapter X-A of the New Jersey Air Pollution Control Code (Code) promulgated by the State Commissioner of Health (Commissioner) on March 4, 1968 pursuant to the authority conferred on the State Department of Health (Department) by the Legislature under N.J.S.A. 26:2C-8.
On August 9, 1967 the Commissioner gave a notice of a public hearing on proposed chapter X of the Code, entitled "Control and Prohibition of Air Pollution From Sulphur Dioxide Caused by the Combustion of Fuel." (Section 3, dealing with coal, later became chapter X-A.) Accompanying the notice was the text of the proposed regulations, together with a foreword, an outline describing the effect of the regulations, an explanation of the basis for their promulgation, a data appendix and a bibliography.
Four days of hearings in the fall of 1967 produced the extensive record now before this court for review. Testimony was received from representatives of citizens interested in clean air, the fuel industry, collateral enterprises and groups likely to be affected by the Code (e.g., railroads, labor, users
of fuel such as utility companies), as well as experts in air pollution and fuels generally. Chapter X-A, as promulgated, was substantially as had been proposed in the notice of hearing and dealt with the control and prohibition of air pollution from sulphur dioxide caused by the combustion of coal. Scheduled to become effective May 6, 1968, we stayed enforcement of the chapter pending final determination of the present proceeding.
Petitioners are concerned with bituminous coal, defined in section 1.3 of the regulations as coal "containing 70-85 percent carbon having usually more than seven percent volatile matter." Section 2-2 prohibits the sale or use of bituminous coal after May 6, 1968 containing sulphur in excess of 1% by weight. However, the limitation imposed by that section is subject to exceptions. Thus, section 2.3(a) makes section 2.2 inapplicable in any case where, by use of an approved stack gas-cleaning process, it is demonstrated to the Department that sulphur dioxide emissions into the atmosphere from any stack or chimney can be controlled to levels that do not exceed at any time 1.5 pounds of sulphur dioxide per 1,000,000 BTU gross heat input. And section 2.3(b) provides that the Department may authorize a less restrictive percentage than 1% of sulphur by weight in the case of specific steam or electric power generating facilities, but in no case more than 1.5%. (The record shows that large consumers of coal for power purposes, such as electric utilities, consume approximately 87% of the bituminous coal used in New Jersey.)
Chapter X-A further provides, under section 2.4, that on and after October 1, 1971 bituminous coal containing sulphur in excess of 0.2% by weight shall not be sold for use or used in New Jersey. Here, again, the Department may authorize a less restrictive standard in the case of specific steam or electric power generating facilities (section 2.5(b)), and where sulphur dioxide emissions are controlled by the cleaning of stack gases to a prescribed minimum (section 2.5(a)).
The Air Pollution Control Act (1954), as amended by L. 1967, c 106, gave the Department broad powers to abate the air pollution menace to public health of which this court took judicial notice in Department of Health v. Owens-Corning Fiberglas Corp., 100 N.J. Super. 366 (1968), affirmed per curiam 53 N.J. 248 (1969). N.J.S.A. 26:2 C -8 provides:
"The department shall have power to formulate and promulgate, amend and repeal codes and rules and regulations preventing, controlling and prohibiting air pollution throughout the State or in such territories of the State as shall be affected thereby * * *."
Before any such code, rule or regulation is promulgated, there must be 30 days' notice of a hearing at which opportunity shall be given the public to be heard with respect thereto. The statute further requires that no code, rule or regulation shall become effective until 60 days after adoption.
The testimony given at the 1967 hearings was not produced in adversary fashion. Rather, the sessions were conducted in the same manner as legislative hearings: anyone interested was allowed to make a statement or presentation and speakers were sometimes questioned by the hearer. Citizen groups and legislators commended the Department for its efforts in controlling air pollution. Those opposed to the proposed regulations complained of the severe effect they would have on the state, and, to some extent, the national economy in general, and on their specific enterprises or interests in particular. Various witnesses indicated that there was not presently available any material quantity of bituminous coal which could meet the required sulphur content level in the immediate future. The economic impact of chapter X-A upon railroads, railroad labor, the coal industry and labor in Appalachia, a distressed area, would be immediate and substantial. The cost to the utility fuel companies of conversion, as well as higher fuel costs, would increase the cost of electrical energy to consumers. Some of
the witnesses stated that stack gas-cleaning is presently not effective enough to permit combustion of higher sulphur content fuels so as to emit sulphur dioxide into the atmosphere within the prescribed levels established by the proposed regulations. However, they indicated that the technology is improving and that such systems may soon be generally and practically available. Thus, some opposition spokesmen called for a relaxation in the tolerance levels while others wanted an increase in lead time to permit technological development.
In essence, those who sought to justify delay in the implementation of a program specifically designed to protect the public health and welfare did so on economic grounds. In Owens-Corning we said:
"* * * Assuredly, it is not unreasonable for the State, in the interest of the public health and welfare, to seek to control air pollution. Even if this means the shutting down of an operation harmful to health or unreasonably interfering with life or property, the statute must prevail. But no such drastic measure was called for in this case." (100 N.J. Super., at page 394)
The air pollution controls called for by chapter X-A are indeed drastic, but necessary -- a fact fully realized by the Department. The information contained in the materials accompanying the notice of public hearing -- as well as the testimony and proofs adduced in support of the regulations -- fully supports what was said in the foreword:
"While the burning of fuel produces a number of pollutants such as smoke, fly ash, carbon monoxide, aldehydes, etc. the chief villain is considered to be sulfur dioxide. This invisible gas results from the burning of sulfur which is naturally contained in coal and oil.
Ninety percent of all sulfur dioxide in our north metropolitan atmosphere comes from fuel-burning; the other ten percent comes from the chemical processes of industry which are already under regulation by Chapter VIII of the Air Pollution Control Code. Of the ninety percent which is caused by fuel burning about 1/3 results from the generation of electricity by public utilities, 1/3 from industrial heat and power generation, and 1/3 from the heating of homes, stores, and offices.
According to the United States Public Health Service the New Jersey-New York Metropolitan area is considered to have higher levels
of sulfur dioxide contamination than any other metropolis in the nation. Our own air testing confirms that the levels are high. This contaminant has been statistically associated with respiratory diseases. It has been argued -- not conclusively but very persuasively -- that the current levels are harmful to health.
Because human health and perhaps life itself are at stake, we can't wait for a long-term epidemiology to prove irrefutably that such harm is being done. Control should be undertaken now.
Because we do not yet have economical methods of removing sulfur dioxide from the combustion products in the stack, the method of regulation is to limit the amount of sulfur contained in the fuel in the first place.
Two important things can be said about the proposed code Chapter:
1. Compliance with its standards will effectively deal with the problem of sulfur dioxide pollution.
2. Compliance is possible, at a price -- a high price. The price includes increased cost of fuel, the expense of equipment conversion, and all the economic dislocations caused by the required changes in fuel use patterns."
Petitioners do not challenge the constitutionality of the Air Pollution Control Act (1954), as amended, noting the recent unsuccessful attempt to do so in Owens-Corning where it was argued that the statute unlawfully delegated legislative power to the former Air Pollution Control Commission, whose functions and powers have now been taken over by the Department. They concede that the act represents a proper exercise by the Legislature of the State's police power, designed to serve an essential and vital interest of the New Jersey public. The grounds on which petitioners challenge chapter X-A are, in brief, that (1) its requirements are unreasonable; (2) the regulations are void by reason of the failure of the Department to observe due process of law; (3) their promulgation exceeded the authority delegated to the Department by the Legislature, and (4) the regulations constitute an unreasonable burden upon interstate commerce, in violation of the United States Constitution.
Initially, we observe that chapter X-A, promulgated pursuant to the authority expressly ...