STEVE BARNETT

Late last year, Passaic County, New Jersey adopted a resolution granting citizens unprecedented authority to search industrial plants and report on the potential or actual "hazards" they discovered. This Legal Backgrounder reviews the resolution and examines the legal and civil liberties ramifications it holds for local businesses, government, and the citizen investigators themselves.

Introduction. On September 8, 1998, the Board of Chosen Freeholders (the "Board") of Passaic County, New Jersey, adopted Resolution R-40. The Resolutionês stated purpose is to allow facility management, neighborhood residents, facility employees, and firefighters to "enhance hazard prevention strategies." It noted that employers will also benefit from hazard prevention through enhanced efficiencies and improved community relationships. To this end, R-40 provides that Neighborhood Hazard Prevention Advisory Committees ("NHPACês") will be established when 25 or more individuals petition the County Health Officer ("CHO") with a belief that an environmental or public health hazard exists at a facility. R-40 gives the NHPAC authority to survey the facility, list potential hazards observed at the facility, and make recommendations. The Resolution became effective on January 1, 1999, and NHPACs may now be formed.

The Resolutionês Preamble. The preamble to Resolution R-40 recites the following information: a chemical explosion and fire occurred at Morton International in Paterson on April 8, 1998; toxic substance were emitted from Heterene Chemical Company ("Heterene") in Paterson on June 12, 1998; a fire caused a chemical release at Daicolor-Pope on August 9, 1998; the existence of fifty-four facilities in Passaic County that release hazardous substances into the environment; and an investigation by the newspaper, The Record, finding that the New Jersey Department of Environmental Protection ("NJDEP") missed evaluating hazards of 1,5000 chemical drums at Heterene.

When adopting the Resolution, the Board stated that it was mindful that communities rely on chemical manufacturing companies, which are mostly responsible entities, for jobs, income, and quality of life. It proposed in the preamble that residents, management, employees, and the county health department cooperate in an advisory role to compliment traditional government enforcement strategies. According to the Board, Resolution R-40 is consistent with the legislative intent of the County Environmental Health Act ("CEHA") (N.J.S.A. 26:3A2-21 et seq.), and NHPACs are intended solely for making recommendations.

The Formal Resolution. Therefore, the Board resolved:

Definitions. The Resolution defines three key terms: "facility," "environmental health hazard," and "imminent hazard." Facility is any building or other structure or equipment located on a single suite or on contiguous adjacent sites and used for the conduct of business, which is owned or operated by the same employer. Environmental health hazard means a potential or actual danger or harm concerning public health or environment. Imminent hazard means any condition or practice that can reasonably be expected to cause death or serious physical harm.

Procedure. The Resolution requires the County Health Official ("CHO") to establish a NHPAC for a facility when twenty-five or more adult residents of Passaic County and/or employees of a facility submit a written petition. The petition must contain a statement with sufficient information such that a reasonably discreet and reasonable person would believe that a condition at the facility may present a risk of an environmental or public health hazard. The petition must name a least one of its circulators who is willing to serve as an NHPAC member for that facility. When possible, all of the proposed neighborhood NHPAC members should be named on the petition.

Within fifteen days of receipt of a petition, the CHO must provide written notification to facility management of the NHPACês formation. The CHO then calls upon the neighborhood residents, employees, and facility management at issue to participate in the NHPAC. Failure of facility management to participate does not preclude establishment of a committee. The Resolution permits NHPACs to proceed without facility management participation as set forth in rules and procedures the CHO promulgates in conjunction with the County Counsel.

Composition of NHPACs. The Resolution mandates that NHPACs shall be composed of no less than nine persons where possible. At least one-third should be neighborhood residents selected by those who signed the petition. At a facility where an employee representative speaks on behalf of employees, at least one-third of the NHPAC members must be employee representatives; if the facility does not have an employee representative, non-supervisory employees will select employee NHPAC members. One-third of the NHPAC may be facility management representatives. The municipality where the facility is located may also designate an additional NHPAC member. The Resolution also requires facility management to allow employee members of NHPACs paid time during normal working hours to participate in meetings and surveys.

NHPAC Meetings. An NHPAC should meet monthly at a time and location convenient for its members. If an allegation of an imminent hazard is made, any two members of the NHPAC may arrange a special meeting to address it. Minutes must be maintained and promptly sent to the facility management, CHO, and all NHPAC members; they also should be made available to appropriate government agencies for their review.

NHPAC Surveys. Members of the NHPAC may, with reasonable cause to believe that there is an actual or potential environmental or public health hazard, survey monthly all or part of the facility provided that there is adequate notice to facility management. If facility management objects to the NHPACês scheduled surveys, the Resolution requires facility management to notify the NHPAC and formally file objections with the Passaic County Counsel. Once such a notice is filed, a NHPAC cannot conduct any surveys until the County Counsel offers an opinion that the survey is for reasonable cause. The Resolution provides that, if facility management refuses to comply with the opinion of the County Counsel, then County Counsel may move before the New Jersey Superior Court for a warrant authorizing the survey. Facility management has the right to receive a written list of potential hazards observed, if any, during each survey. If they do receive such a copy, management must retain and conspicuously post it at the facility. A copy of this survey report must also be sent to the CHO.

NHPAC members have the right to accompany an inspection or investigation of the facility by government fire, safety, health, or environmental officials, subject to approval by the government inspector. Each commission may also use appropriate hazard prevention experts, at its own expense, to accompany it on surveys, to participate in NHPAC meetings, and/or to provide technical assistance. The only situations where NHPAC members will not have access to a facility is during or immediately following a fire or emergency, unless the person in charge of emergency response requests otherwise.

Responsibility of the CHO. The CHO provides initial organizational assistance to facility management, neighbors, and employees in establishing a NHPAC. He or she may attend NHPAC meetings and/or provide technical assistance, and will review and maintain copies of submitted petitions, NHPAC meeting minutes, and survey reports and recommendations. The CHO, in conjunction with County Counsel, will issue rules and procedures governing the protection of trade secret and confidential business information, as well as others to implement the Resolution.

Current Status of Rules and Procedures. As of this writing, the Passaic County CHO advises that meetings have been held with regard to preparing rules and procedures. In response to comments received, rules are being drafted, and it is anticipated a health educator will be retained to assist in receiving comments and preparing the rules.

Analysis. The heart of the Resolution is its purported authorization of warrantless searches by NHPACês. The leading federal case on warrantless searches, New York v. Burger, 482 U.S. 691 (1987), upheld a New York statute authorizing warrantless inspections of automobile junkyards by state police. The New Jersey Supreme Court is currently considering the constitutionality of warrantless searches in New Jersey Medical Society and W.C., M.D. v. Bernard Robins, A-2917-97T5. This case involves a Fourth Amendment challenge to N.J.S.A. 45:18-1, the state statute authorizing warrantless searches by almost two dozen state regulatory boards. Even if the New Jersey Supreme Court followed the result of the Burger decision, a challenge to Resolution R-40's warrantless search authorization would involve the compellingly distinguishing factor that private citizens are participating in the investigation. No precedent exists in New Jersey reviewing a law empowering private citizens to perform warrantless searches, so the case would be one of first impression.

Both the Resolutionês provisions for surveys and postings of their results may be preempted by federal and state statutes and regulations. Federal and state environmental regulators in New Jersey are authorized to make inspections pursuant to N.J.S.A. 13:1D-9d. Also, federal and state statutes provide for inspections and information posting.

If not preempted, the Resolution may be superfluous. It may be difficult for County Counsel to argue there is reasonable cause for a search warrant on behalf of the NHPAC if federal and/or state inspectors, who already have authority to enter the facility, do not find an inspection necessary.

The Resolution also may function as an unconstitutional ex post facto law. Rather than only prospectively requiring inspections, for instance, as a condition of obtaining a construction permit and/or an occupancy permit from the County or local authorities, it retroactively requires existing facilities to submit to warrantless searches.

NHPACs and their individual members may create or incur liabilities by their actions. Both may be liable for negligent inspection or subject to liability to third parties under the Restatement (Torts) Section 324A (1965), "Liability to Third Person For Negligent Performance of Undertaking." NHPACs, their members, and their retained experts may be subject to lawsuits by facility owners and operators for libel, slander, and/or tortious interference with business practices and opportunities. Also, the presence of untrained private citizens in industrial work facilities poses risks, regarding which the Resolution is silent as to training prior to entry into the facilities and insurance coverage for damages and injuries sustained by NHPAC members surveying facilities. The Resolution also fails to address whether NHPAC members or their experts are immune from suit as government officials or covered under insurance policies as public officials.

Conclusion. Passaic Countyês Resolution R-40 represents a unique, and somewhat bold, extension of the "right-to-know" movement in environmental law which has resulted in the passage of statutes and regulations requiring businesses to disclose the use and storage of certain hazardous substances. See supra note 2. While the Countyês motivations for improving environmental protection may be genuine, one wonders if the Board fully evaluated the consequences of sending potentially unqualified, untrained, and uninsured private citizens into industrial workplaces.

In light of these questions, policy makers in other jurisdictions examining Passaic Countyês action as a possible model must seriously consider R-40 and the liability exposure it creates for citizens and government, particularly in light of existing, proven statutes and regulations for the promotion of environmental health and safety. They should ask: is the NHPAC process worth allocating precious health and safety resources, given existing demands on those resources and the uncertainty of the NHPAC process?

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