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ACA Case Heads for CA Supreme Court

Wednesday, April 18, 2012

More items for Environmental Controls

Oral arguments begin May 1 before California’s Supreme Court in a high-stakes lawsuit by coating manufacturers to block tougher VOC limits on industrial maintenance and other coatings.

The case pits the American Coatings Association, which represents coating makers, against the South Coast Air Quality Management District (SCAQMD), a bellwether Southern California agency whose strict environmental standards often set national precedent.

University of Michigan

Harnessing every available current technology will not solve Los Angeles’ pollution problem. The question before the court: Do air quality officials have the authority to mandate new technology?

South Coast is appealing a 2009 decision by California’s Fourth Appellate Court, which said the district could not require existing “emissions sources” (in this case, coating manufacturers) to adopt air pollution control technology, unless that technology was currently available.

The California Supreme Court is expected to issue a decision by August 2012.

Rule 1113 Challenge

ACA filed legal actions against the district, challenging its 2002 and 2003 amendments to Rule 1113, which imposed low VOC limits on Architectural and Industrial Maintenance (AIM) coatings. The limits were the most stringent in the nation.

ACA, which had long opposed the rule, argued that the limits compromised important performance characteristics for many coatings.

ACA (then known as the National Paint and Coatings Association) contended that South Coast had overstepped its statutory authority to promulgate air pollution regulations, because the rule specified limits that manufacturers said were not “available” or “achievable.”

The courts disagreed.

In the case of the 2002 amendments, the Superior Court of Orange County said the district had properly interpreted the state’s statutory standard of “best available retrofit control technology” (or BARCT) in selecting VOC limits for the coatings—“despite,” ACA said, “the record demonstrating the infeasibility of the VOC limits for many coatings applications.”

In May 2007, a federal district court made a similar finding for the 2003 amendments.

2009 Appeal

The coating makers appealed and, in September 2009, the case dramatically reversed course. The Fourth Appellate Court ruled that the district could not require manufacturers to adopt pollution control technology that did not exist.

The appellate court found that the district could only require existing sources to use the best available retrofit control technology as directed by the California legislature. By those criteria, the court said, South Coast had to evaluate the effectiveness and costs of the proposed controls and could impose only controls that were currently available.

“This watershed appellate ruling eviscerated the long-standing view” that South Coast and other  California air districts had the authority to require emissions controls that went beyond the best available retrofit control technology, ACA said.

Review Granted

As expected, South Coast appealed that decision and was joined by environmental groups and the California Air Resources Board as friends of the court.

In granting the review in November 2009, the California Supreme Court noted that air pollution in the South Coast district was so severe that currently available technologies could not fully address it.

To attain federal ozone standards, the court noted, the district “will need 281 tons per day of emission reductions after implementation of all control technologies and techniques that the District and the California Air Resources Board have identified as presently feasible.”

Therefore, the court said, the question is whether the district has the power to force polluters to develop new technology.

‘Available’ and ‘Achievable’

“This petition presents the question whether state law gives the District the regulatory authority needed to reduce emissions by demanding improvements in pollution control, or instead limits the District to adopting only emission standards achievable with existing technology,” the court said.

Also at issue: the meaning of “available” and “achievable.”

The court wrote: “Is technology ‘available’ if it exists and is being used for some, but not all, applications within a particular product category?"

And, it added, does “achievable” mean what is doable now or what is potentially possible in years to come? Is it a minimum standard or a maximum ceiling?

A lot is riding on those answers, says ACA counsel Tim Serie.

“The principle at issue—that of ensuring that California air districts may not impose restrictions on our product lines which are not technically feasible—is crucial to garnering balanced regulation across the spectrum into the future in this arena,” said Serie.

Comment from Bill Connor, Jr., (4/19/2012, 3:10 PM)

During one round of lawsuits (I believe it was the 1994 standards case won by manufacturers it was revealed that the total contribution for all Architectural coatings in the Bay Area was .07 %. We're talking not even a full percentage point. I think we're beating a dead horse here. We need better technology and better performing products but when pollution reduction destroys the protective qualities and longevity of the materials something is wrong. Kind of similar to the current lead standards. You can go to far.