AIR POLLUTION INVESTIGATION GUIDELINES
The purpose of the Guidelines is to ensure consistency and that investigations objectively ascertain relevant facts and discern whether a violation has been committed. These Guidelines are for use by Department personnel performing air pollution investigations, and local health agency personnel performing investigations under the authority delegated by the Department pursuant to the County Environmental Health Act, N.J.S.A. 26:3A2-21 et seq., and any local government entity performing an investigation pursuant to a valid air pollution control ordinance.
The Air Pollution Control Act (APCA) prohibits “the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as tend to be injurious to human health or welfare, animal or plant life or property, or would unreasonably interfere with the enjoyment of life or property throughout the State and in such territories of the State as shall be affected thereby and excludes all aspects of employer-employee relationships as to health and safety standards.” N.J.S.A. 26:2C-2. This standard is also codified at N.J.A.C. 7:27-5.2(a). Amendments to the APCA require the Department, in determining whether an odor unreasonably interferes with the enjoyment of life or property in violation of the APCA, to consider “all of the relevant facts and circumstances, including but not limited to, the character, severity, frequency, and duration of the odor, and the number of persons affected thereby.”
An odor caused by the release of an air contaminant is considered air pollution and a violation of the APCA if the Department determines that the odor has unreasonably interfered with the enjoyment of life or property. Many citizen complaints of air pollution involve the presence of objectionable odors.
Guidelines for Investigation of Possible Air Pollution
- The investigator should immediately call the complainant to obtain and verify pertinent information. Information to be obtained from the complainant regarding the problem should include: whether the problem is currently occurring; suspected source; other persons affected; and physical effects. (Note: whenever serious acute physical effects are described, the Regional Emergency Response personnel or the DEP Action Hot Line must be contacted immediately.)
- Once the complaint has been verified in the presence of the complainant, the complainant should then be asked to complete the “Statement of Complaint” form
(EFO-002). The complainant must be told that he or she may be needed to testify in court if a violation is cited. Without the complainant’s testimony, Subchapter 5 violations may be open to substantial challenge during the administrative hearing process.
The complainant should be as complete as possible in completing the Statement of Complaint form.
- The statutory standard being violated in odor cases is “unreasonably interfere with the enjoyment of life or property” of the complainant. The complainant attests to this interference by filing a Statement of Complaint. Although this is the primary basis for the violation, the Department, and hence the individual investigator acting as an agent of the Department, must verify that the standard was exceeded. Thus, in order to cite a violation, the investigator must independently concur with the complainant that the air contaminant, in this case a verified odor, unreasonably interfered with the complainant’s enjoyment of life or property.
If the odor is detected by the investigator, the character, severity and duration of the odor during the investigation must be described and recorded. Also, the wind direction and speed and weather conditions must also be described and recorded. For example: “strong (#4) solvent-type odor detected on the complainant’s front porch at 3:42 p.m. The wind was from the west at 5-10 mph, the sky was cloudy and temperature in the low 60’s.”
Any visual evidence pertinent to the investigation should be noted by the investigator, including, but not limited to, visible effects of the air contaminant upon the complainant and the complainant’s property, any visible emissions from nearby property, visible indications of wind speed and direction.
Note, the simple presence of an odor beyond the property line of an alleged violator does not necessarily constitute a violation, and is therefore not adequate grounds for a citation. The odor must be shown to have resulted in unreasonable interference. In making a determination as to whether or not an odor “unreasonably interferes with the enjoyment of life or property,” an investigator must take into consideration all relevant factors.
Most odor complaints involve the release of an air contaminant that causes “unreasonably interference with the enjoyment of life or property” in violation of the statute. However, some complaints may involve the release of an air contaminant that is determined to be “injurious to human health or welfare, animal or plant life or property,” in violation of the statute. In such cases, the investigator must specify that the latter standard was violated.
4. Within 10 working days of the assignment, a full report documenting the investigation should be submitted through NJEMS to the Regional Manager or his designated supervisor.