INDUSTRY NEWS EXTRA: THE REGULATORY ARENA
Court Reverses Earlier Ruling, Voids Stringent South Coast VOC Rules
The decision, however, left unclear the status of VOC limits scheduled to go into effect on July 1. The National Paint & Coatings Association called the court decision a "major victory" for the industry.
The California Court of Appeals, Fourth Appellate District, voided amendments to the SCAQMD's Rule 1113 on architectural and industrial maintenance (AIM) coatings. The ruling affects only the VOC limits enacted on May 14, 1999. The court said the district's staff had "sandbagged" the decision-making process of the district board by providing last-minute exemptions to utilities that provided for use of higher-VOC coatings than originally proposed.
In addition, the court agreed with the attorney representing the NPCA that the Rule 1113 amendments, when fully implemented, would force the elimination of "97% of 7,000 different kinds of paints and coatings." The court concluded, "What will be left will be paints and coatings that generally won't last as long (something undisputed in the record), and may be wholly unsuitable in certain circumstances (e.g., harsh weather or exposure to corrosive elements)."
The 1999 amendments to Rule 1113 require VOC limits that would fall to an ultra-low 50 grams per liter (g/L) in 2006 for flat and nonflat coatings, floor coatings and quick-dry enamels. The limits would fall to 100 g/L for other product categories, including industrial maintenance coatings; primers, sealers and undercoaters; recycled flat and nonflat coatings; rust-preventative coatings; and a new category called "essential public-service coatings." VOC levels would fall to a range of 250 g/L to 450 g/L for a number of other coatings categories. The regulation, including the table of VOC limits, can be viewed at the SCAQMD website located at www.aqmd.gov.
The NPCA's California legal counsel, Jeff Margulies of the Los Angeles law firm Parker, Milliken, Clark, O'Hara & Samuelian, focused his arguments on the last-minute nature of changes made to the 1999 amendments and the lack of required notice to the public. He also cited "substantive defects in the (district) staff's fact finding concerning very low-VOC coatings and performance," the NPCA said.
The appeals court ordered a lower court to void the district's adoption of the amendments. The lower court last year had upheld the Rule 1113 amendments.
Jim Sell, NPCA senior counsel, said that as a "practical matter," the July 1, 2002, compliance date for certain VOC limits remains in effect for the time being, in part because the appeals court ruling could be appealed further by the SCAQMD. Sell said he believes the district "eventually will have to initiate a legally proper rulemaking which meets the appellate court's requirement...that decision-makers who have the power to put whole companies out of business understand the consequences of their decisions."
A spokesman for the SCAQMD had no immediate comment on the court ruling or any action the district might consider.
The appeals-court decision can be viewed for a limited time under Nat. Paint, Date Posted June 25, at www.courtinfo.ca.gov/opinions/nonpub.htm. NPCA members can contact Sell for more information.