Judge knocks AQMD rulemaking process.

Judge knocks AQMD rulemaking process

A recent court decision invalidating a local air quality regulation could prove to be a major victory for small industry, increasingly the target of tougher air quality regulations.

Earlier this month, a Los Angeles County Superior Court judge overturned a South Coast Air Quality Management District rule that significantly limited the amount of smog-forming compounds that spray paint manufactures could emit. In a key portion of his ruling, the judge found that AQMD had inadequate data on the environmental impacts of spray paint alternatives, such as paint brushes and thinners.

Superior Court Judge Ronald Sohigian granted the spray paint makers a writ of mandate barring AQMD from enforcing its rule until all outstanding questions were answered. The ruling only applies directly to the 21 spray paint makers and dealers in the Los Angeles basin. But the ruling also contains an implied attack on the way AQMD draws up its stringent rules for industry in the Los Angeles basin.

"The court found that AQMD failed to consider adequately the environmental impacts of alternate consumer behavior," said Cynthia Burch, an environmental attorney with the Irvine office of Allen, Matkins, Leck, Gamble & Mallory, which represented the spray paint industry in the lawsuit. "That could have a dramatic impact on more sweeping regulations, like Regulation XV." That rule requires all companies with more than 100 employees on a site to submit rideshare plans.

In his decision, Judge Sohigian said AQMD did not adequately analyze the probabilities of consumers using specific alternatives to oil-based spray paint, including spray guns, paint brushes and thinners, and water-based spray paints. Furthermore, Sohigian said, AQMD did no analyze the air and water quality impacts of those alternatives. All of these analyses are required by the California Environmental Quality Act, the judge said.

AQMD has taken the threat to its rulemaking process so seriously that spokesman Bill Kelly said the district has decided to appeal the case.

The judge's rejection of the rule means a reprieve for Sprayon Products, the Anaheim division of Cleveland-based Sherwin-Williams Co. Last fall Sprayon threatened to consolidate its operations in Cleveland, abandoning Southern California, if the rule passed. That would have put 70 Anaheim employees out of work.

"We were not seeking a total exemption from a rule, just something we could live with," said Roger Van der Laan, operations manager at Sprayon.

AQMD is under federal and state mandates to clean up the air in Los Angeles, Orange, San Bernardino and Riverside counties, which contain the nation's dirtiest air. Under its sweeping 1989 Air Quality Management Plan, revised last month, AQMD has been enacting a series of rules limiting emissions of smog-forming volatile organic compounds in specific industries, from furniture makers to printers.

The spray paint aerosol rule originally was designed to close loopholes in previous aerosol bans, Kelly said. The case was filed by the Western Aerosol Information Bureau last December, following a Nov. 2 hearing on AQMD's aerosol paint rule. At that hearing, AQMD passed its rule banning aerosol paints containing more than two grams of volatile organic compounds per gram of coating solids.

The rule was designed to cut 11.5 tons a day of volatile organic compounds, a major component of the photochemical smog that frequently blankets the Los Angeles basin. On an average day, more than 1,200 tons of VOCs are produced in the basin.

In its complaint, the spray paint industry alleged that AQMD did not follow the guidelines of the California Environmental Quality Act, which requires that all potential alternatives designed to reduce environmental damage be examined for their own environmental impacts. Because the industry has no oil-based spray paints that could meet AQMD guidelines, consumers would have had to change to water-based spray paints, spray guns or paint brushes and thinners, industry representatives said.

Water-based spray paints are inferior in quality, while the other alternatives would cause comparable amounts of air pollution, they said. Furthermore, the spray paint makers alleged, when the agency's original rule on spray paints was rejected by its governing board at the hearing last November, a second revised rule was enacted without any hearing. That action also violated CEQA, the complaint alleged.

"The staff went into a back room and in 15 to 20 minutes came out with a new rule. which was approved," charged Steve Sanchez, president of the Western Aerosol Information Bureau, "When I asked our attorney if they could do that, she said it was the most blatant violation of the law she had ever seen."

AQMD's Kelly said the agency properly analyzed the rule. "We looked at the worst-case, most-polluting alternative," he said.

The spokesman said he could not comment further while the case was under appeal.