Local Authorities Appeal Curbs on Emission Controls

SAN FRANCISCO â€”  In California’s arduous struggle with air pollution, local authorities have long played the primary role in regulating emissions from factories, refineries and other stationary sources of contamination.

But now, these officials say, that power could be sharply curtailed and the public health threatened by an appeals court ruling that has caused deep concern among pollution regulators and their allies throughout the state.

Joined by environmental and health groups, the authorities have asked the California Supreme Court to overturn the appellate decision, which they contend could sound the death knell for local regulation of toxic air contaminants from non-vehicular sources. A high court ruling is due by September.

At issue is whether a landmark 1983 state law, known as the Tanner Act, bars California’s 41 local air pollution control districts from regulating toxic contaminants before the state Air Resources Board has analyzed and identified them as dangerous.

Under the law, a toxic air contaminant is one that may cause an increase in death or serious illness or pose “a present or potential hazard to human health.�

Reduce Risk

The aim of the legislation was to reduce the risk of cancer, birth defects and genetic mutations from air-borne pollutants. Asbestos and benzene are examples of substances that have been labeled as toxic by both state and federal authorities. Smog--a mixture of gases and particulates--can impair health, but has not been generally recognized as toxic.

The ruling under attack was issued last summer by a state Court of Appeal in San Jose in a lawsuit by petroleum producers and refiners against precedent-setting local regulations adopted by the Monterey Bay Unified Air Pollution Control District. In a 3-0 decision, the panel held that the Tanner Act preempted the district’s power to regulate toxic emissions until the ARB had acted.

District officials, in appealing to the state high court, say the ruling will create an enforcement gap in which toxic emissions could go unregulated for long periods of time.

Too Time-Consuming

In five years, district officials note, the ARB has identified only nine chemicals as toxic substances. Nobody in the dispute is accusing the ARB of intentional delay. They say the process outlined for it to follow is just too time-consuming. The district said it wants to be able to move quickly on perhaps hundreds of substances that it believes could cause cancer, birth defects and other injury.

“The state ARB has been incredibly slow,� said Lawrence D. Odle, executive director of the Monterey Bay district. “We’d be abdicating our responsibility to the public if we didn’t do something on our own.�

Officials contend that the ruling overlooks the fact that local districts may face threats from a substance that poses an unusual danger only to their own community.

“A specific pollutant may not be a problem when viewed on a statewide basis and it may be way down the list at the ARB,� said Daniel P. Selmi of Loyola Law School, an environmental law specialist representing the district in the case. “But that pollutant may present a very big problem in a particular area of the state.�

On the other side, lawyers for the Western States Petroleum Assn., the group that challenged the Monterey Bay plan, argue that only a painstaking scientific review by the state can produce a reliable and consistent regulatory framework for controlling toxic emissions.

Allowing each separate district to perform its own scientific analysis can only lead to a patchwork of conflicting regulatory standards, the association’s attorneys say.

Complex Problems

The ARB itself was created with the purposes of conducting research and providing guidance for local districts, the association says. The Legislature, in adopting the 1983 act, meant to maintain a uniform, statewide approach to the complex problems of air pollution control, it contends.

Michael A. Monahan, a Los Angeles attorney representing the petroleum association, notes that the Monterey Bay district has labeled about 150 chemicals as toxic--several of which the state already has concluded pose no threat to health.

“Our concern is that there could be air districts all over the state identifying hundreds of chemicals� as toxic, Monahan said. “It would create a regulatory nightmare.�

The Tanner Act, sponsored by Assemblywoman Sally Tanner of El Monte, was passed in the wake of newly emerging concern over toxic emissions from stationary sources.

Identify Pollutants

The act established complex procedures in which the ARB, working with state health authorities, would first identify toxic air pollutants and then design measures to control them. Local districts then were to adopt regulations at least as stringent as those adopted by the state board. The regulation of pollution from vehicles remained the sole responsibility of the state.

Meanwhile, at the federal level, the U.S. Environmental Protection Agency in recent years has adopted national air quality standards that are to be attained by states and local communities. To date, the EPA has identified eight substances that are subject to controls as hazardous air pollutants.

Monterey Bay district authorities, unsatisfied with the pace of the ARB, in 1986 adopted their own sweeping plan to control toxic air contaminants from new or modified stationary sources. To obtain a permit to operate, emission-producing facilities must install “reasonable� technology to control toxic contaminants, and if those contaminants could cause cancer, the facilities must employ the “best� technology to control them.

Decision Reversed

A Monterey Superior Court upheld the local plan but the state Court of Appeal reversed that decision. The appellate court held that the district had no authority to regulate toxic emissions until they had been identified by the ARB. After such identification, the district could go ahead and regulate toxics even before the state had adopted the model rules, the court said.

The appeal panel found that in passing the act, the Legislature “has not expressly reserved� the toxic-identification process for the state. But in view of the “extremely detailed and thorough procedure� for identification set forth by the act, it was apparent the Legislature meant to leave that task exclusively to the state, the court said.

In its appeal to the state Supreme Court, the district has gained support from a broad coalition of environmental and health groups, including the Citizens for a Better Environment, the American Lung Assn. of California and the Sierra Club.

“We look at this case as deciding whether, in fact, we are really going to be regulating air contamination in California,� said Alan Ramo, the attorney representing the coalition. “The state process is slow and cumbersome. At the rate they’re going, it could be a hundred years before we could regulate all the contaminants that should be regulated.�

Appeal Backed

Also backing the appeal are seven local air-pollution districts, including the South Coast Air Quality Management District--which encompasses Los Angeles, Orange, Riverside and San Bernardino counties--and Los Angeles Dist. Atty. Ira Reiner, whose office prosecutes violators of pollution control laws.

The South Coast AQMD, like some other districts, is now developing a plan to assess the risks and then adopt controls for sources of toxic emissions. The specific toxics that would be subject to regulation have not yet been determined, a spokesman said.

The districts urged the justices to recognize the need for local authority in controlling toxics, noting for example that the South Coast AQMD on its own has adopted regulations to control styrene, a suspected carcinogen used in the manufacturer of fiberglass.

Regulation Argued

Although the substance may not present a major problem in many locales, it does in the South Coast region and should be regulated, the districts said.

(According to a spokesman for the South Coast AQMD, the case will not affect the South Coast AQMD’s recently proposed clean-air plan, which is designed to bring the region into compliance with federal emission standards.)

Another important ally for the district emerged in the ARB itself, which contended that the act could never have been intended to alter the long-recognized authority of local districts to impose more stringent controls on non-vehicular emissions than those required by either the state or federal government. The ARB conceded that its procedures are necessarily time-consuming and said local districts should be free to act against toxics in the interim.

Powerless to Regulate

In its presentation to the court, the Monterey Bay district warned the justices that under the appeal panel’s interpretation of the law, a new facility can locate in the middle of a city and emit toxic pollutants that local authorities will be powerless to regulate.

For example, the district cited a dilemma it now faces in weighing the risks of a proposed energy-producing “biomass� facility in the region. Under the appeal court ruling, the district could regulate six non-toxic pollutants the plant will emit, but could not control the emission of arsenic and chloroform--two contaminants it believes are toxic but that have not been identified as such by the ARB.

Attorney Selmi, representing the district in oral argument before the court last month, pointed out that under the appellate ruling, local districts actually would have less power to regulate toxic emissions than they do to control non-toxics. “The Legislature could not have intended that result,� he said.