Metropolitan News-Enterprise


Thursday, October 1, 2009


Page 3


Court Largely Rejects Challenge to AQMD Standards for Paint




An air quality management district may limit the amount of volatile organic compounds in paint and other coatings as long as the technology to meet those limits currently exists, the Fourth District Court of Appeal has ruled.

Div. Three Tuesday largely affirmed a lower court ruling that upheld a 2002 rule change adopted by the South Coast Air Quality Management District. The panel did, however, send the case back to the trial court with directions to determine whether the technology currently exists to comply with standards for two particular types of coatings.

The National Paint and Coatings Association, an industry group, has been fighting the district since 1999, when it adopted strict limits on VOCs, as they are commonly referred to. The litigation has basically revolved around whether the limits are “available” and “achievable,” as required by Health and Safety Code Sec. 40440(b)(1) and 40406.

Presiding Justice David Sills explained:

“The challenged rule basically says:  Here’s a list of the maximum levels of volatile organic compounds that paint manufacturers may have in different kinds of paint and coatings, with the effective levels kicking in at various times. The rule also has an averaging provision, similar to federal car mileage standards, which allows manufacturers to average the ‘actual cumulative emissions’ of their paints and coatings so that the total emission can be under a hypothetical compliance limit, even if some of their paints and coatings are not.”

First Challenge

The NPCA’s first challenge to the rule succeeded in the Court of Appeal in 2002. While the decision was based solely on the district’s failure to give proper notice of the district’s intention to consider changes in the rule as originally proposed, the court noted that there was “a serious question” as to whether low VOCs were available for certain heavy-duty uses.

By the end of 2002, the district had amended the rule, and the association challenged it again.

For complex jurisdictional reasons, the challenge to the amended rule bounced between federal and state court, resulting in rulings by U.S. District Judge Dean Pregerson of the Central District of California and by Orange Superior Court Judge Ronald L. Bauer. Both of those rulings were in favor of the district. 

(Pregerson’s ruling does not preclude a state court challenge, Sills explained, because the public interest exception to collateral estoppel calls for a binding  adjudication of the state law issues in state court.)

Bauer’s ruling was upheld Tuesday, except with respect to quick-dry enamels and rust preventers.

 “There is substantial evidence that there are floor coatings, industrial maintenance coatings, high temperature industrial maintenance coatings, nonflat coatings, primers, sealers and undercoaters and quick dry primers, sealers and undercoaters which both exist and comply with even the most recent limits (effective July 2006) required under the rule,” Sills explained.

Because the technology exists, the presiding justice elaborated, it is necessarily “available” and “achievable,” even if it will not be suitable for every possible application.

‘Source of Pollution’

“You can slap paint on anything,” the jurist reasoned. “It is therefore unreasonable to believe that the Legislature intended to think of the object receiving the paint or coating as a regulated ‘source of pollution’; the natural reading of the word is that the paint or coating itself is the regulated ‘source,’ particularly when one realizes that it is paint or coating that is the ‘source’ of any obnoxious fumes from an object that might escape into the air.  It follows then that if the district’s rule directed at the paint or coating—as distinct from whatever the paint or coating is put on—is within the authority of the statute, that is enough to comply with the statute.”

When it comes to quick-dry enamels and rust preventers, however, the administrative record reveals that there were “zero—count ‘em, zero” products meeting the district’s standards.

Lawmakers, Sills wrote, could not have intended to permit an AQMD to adopt standards that could only be complied with by using technology to be developed at an uncertain time in the future.

For a goal to be “achievable,” he explained, the required technology need not presently exist, but must be capable of being “readily assembled out of things that currently do exist.”

In upholding the district’s limits on VOCs in quick-dry enamels and rust preventers, Sills noted, the trial judge cited a 1997 study predicting “major progress over the next 5 to 7 years.”

Such “H.G. Wells[-]style” projections are insufficient, the presiding justice concluded.

“Science fiction is not substantial evidence,” he wrote. “A trend line does not achievability make. There is the logical fallacy of extrapolation, which assumes that the future will be like the past, only more so.”

He likened the use of trend lines to “those bumptious predictions in the 1950s forecasting that we’d all be commuting to work in flying aerocars.”

In view of the procedural journey the case has taken and the length of time it has consumed, however, it would be appropriate for the court to determine on remand whether the limits can be met with current technology, Sills said.

The case was argued on appeal by Jeffrey B. Margulies of Fulbright & Jaworski’s Los Angeles office for the NPCA and by Matthew D. Zinn of San Francisco’s Shute, Mihaly & Weinberger for the district.

The case is National Paint and Coatings Association, Inc. v. South Coast Air Quality Management District,  09 S.O.S. 5846.


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