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Can regulators of coating emissions actually require the use of technologies that don’t exist?
Yes, the California Supreme Court has unanimously ruled, dealing a stinging blow to manufacturers in a long-running lawsuit filed by the American Coatings Association.
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tamu.edu |
| Coatings emissions in the Los Angeles region “are greater than the emissions from the entire refinery community, the furniture manufacturing industry, printing industry and aerospace industry combined, multiplied by a factor of two,” according to the South Coast district. |
In a decision handed down late Monday (June 25), the state’s high court declared that the influential South Coast Air Quality Management District may set pollution standards “based on technologies that do not currently exist but are reasonably anticipated to exist by the compliance deadline.”
Although he immediately criticized the ruling, an ACA attorney noted that it was final.
Emission Challenge
The case involved ACA’s years-old challenge to South Coast standards first proposed in 1999 that set strict VOC limits on Architectural and Industrial Maintenance (AIM) coatings.
The suit stemmed from the District’s 2002 and 2003 amendments to Rule 1113, which limits VOC emissions. ACA claimed that the new limits amounted to arbitrary and capricious rulemaking, saying they established technically infeasible standards that would eliminate 90 percent of available coatings.
ACA accused the District of mandating unachievable limits through the use of technologies that were not even available.
ACA also contended that coating performance would suffer if VOC limits were reduced too soon too quickly and that the rule would drive coating manufacturers out of the important Southern California market.
The Supreme Court disagreed in a 40-page opinion that called the association’s challenges “without merit.” Just because ACA disputed the District’s technical judgments did not mean the regulations were “arbitrary, capricious, or entirely lacking in evidentiary support,” the court held.
Coating Emissions
Coatings are the single largest source of VOCs that the South Coast District can regulate. In 2002, architectural, traffic and industrial maintenance coatings emitted about 58 tons of ozone—the equivalent of emissions from 1.7 million motor vehicles—per day in the South Coast air basin.
According to the District, coating emissions in the South Coast air basin “are greater than the emissions from the entire refinery community, the furniture manufacturing industry, printing industry and aerospace industry combined, multiplied by a factor of two.”
What ‘Available’ Means
The ACA’s case turned largely on a dispute over the meaning of two terms.
As the high court opinion noted, the South Coast District holds quasi-legislative power from a state statute that authorizes the agency to issue regulations to achieve air pollution objectives.
That law allow requires “the use of best available control technology [BACT] for new and modified” emissions sources” and “the use of best available retrofit control technology [BARCT] for existing sources” to reach “achievable” reductions in emissions.
The retrofit issue was especially sensitive in the coatings case, because it would affect all existing operations.
The court noted that the District had drawn its conclusions about the “availability” of high-performing, low-VOC coatings in part from manufacturers’ own product data sheets. (Manufacturers claimed, in turn, that the agency relied too heavily on data sheets as opposed to real-world performance.)
The District also relied on studies conducted by outside consultants and supervised by a technical advisory committee that included paint industry representatives. The studies included testing for corrosion resistance, the court said.
The court also said that that no coating manufacturers had applied for a variance from the rule because of an inability to comply.
What ‘Achievable’ Means
As for “achievable,” the Court found that the concept was not limited to something already achieved. “’Achievable’ also describes a potentiality to be fulfilled or a goal to be achieved at some future date,” the court said.
In fact, it added, best available retrofit control technology should be considered “a technology-forcing standard designed to compel the development of new technologies to meet public health goals.”
And the four years that coating manufacturers were given to achieve the new emissions limits made those reductions “achievable,” it said.
The “reduction that is ‘achievable’ in this context is readily understood as a reduction that, from the vantage point of 1999 or 2002, was capable of being achieved by 2006,” the court wrote.
In summary, it said, “we conclude that the District sufficiently demonstrated that its challenged emissions limits were achievable in each [coating] category and that the categories were reasonably drawn.”
ACA Responds
In a statement Tuesday (June 26), ACA counsel Timothy Serie criticized the Supreme Court decision and warned of implications throughout—and even beyond—the coatings market.
“ACA is concerned that the Supreme Court’s decision grants the district unfettered authority to regulate stationary sources of emissions and impose pollution controls, based on technology that, in fact, is not reasonably available for critical categories of coatings when the regulation is implemented,” Serie said.
He said the industry had worked for years “to reformulate its products to reduce their environmental impact and ensure their safe and effective use in the face of increasingly stringent regulations.”
At the same time, however, South Coast and other regulators “have been overly optimistic in predicting future technology that will allow for the high-performance products that consumers and businesses expect and need,” Serie said.
Paint and coating suppliers now must re-evaluate whether to remain in the Southern California market, “since doing so could negatively affect their ability to produce high-quality, high-performing products.”
The ruling “will undoubtedly increase regulatory uncertainty for not only paint and coatings manufacturers, but other companies wishing to do business in the unstable California market.”
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