UCLA UCLA Journal of Environmental Law and Policy Title Fairness in the Air: California's Air Pollution Hearing Boards Permalink https://escholarship.org/uc/item/4kn150bn Journal UCLA Journal of Environmental Law and Policy, 24(1) Author Manaster, Kenneth A. Publication Date 2005 DOI 10.5070/L5241019526 Peer reviewed eScholarship.org Powered by the California Digital Library University of California Fairness in the Air: California's Air Pollution Hearing Boards Kenneth A. Manaster* TABLE OF CONTENTS I. INTRODUCTION ................................ 2 II. HEARING BOARD BASICS ..................... 7 A . The M embers .................................. 7 B. "Getting Through" to the Members ........... 11 III. VARIANCES ...................................... 16 A. Variance Applications .......................... 16 B. The Questions to be Answered ................ 20 C . O rders ......................................... 34 1. Explaining the Findings .................... 35 2. D uration ................................... 39 3. Conditions ................................. 41 D. Interim Variances .............................. 47 E. Emergency Variances .......................... 52 F. Variance Variations ............................ 55 1. Product Variances ......................... 55 2. Links to Federal Law ...................... 58 G. General Observations .......................... 67 IV. ABATEMENT ORDERS ......................... 67 * Professor of Law, Santa Clara University; Visiting Professor of Law, Stanford Law School; Counsel, Pillsbury Winthrop Shaw Pittman LLP; Member (1973-1990) and Chairman (1978-1989), Hearing Board, Bay Area Air Quality Management District. The author is grateful to the many people who generously assisted in his preparation of this article, beginning an embarrassingly long time ago. At Santa Clara, he was aided by Ralph Hoenle, Samantha Reardon, Eleanor Schuermann, Hilary Steven- son, Akshay Verma, and David Weaver, and at Pillsbury by Norman Carlin, Mere- dith Klein, Heidi Robertson, and Janna Scott. Helpful information also was provided by officials and hearing board members from many air pollution control districts, and most especially by the Hearing Board of the South Coast Air Quality Management District. At the California Air Resources Board, the experience and expertise of Leslie Krinsk and Judy Lewis greatly assisted the author's work. 2 JOURNAL OF ENVIRONMENTAL LAW [Vol. 24:1 A. Burdens and Penalties ......................... 69 B. A Variance by Any Other Name .............. 70 C . Proof .......................................... 71 D. Terms and Conditions ......................... 73 E. Approaches to Abatement Proceedings ........ 76 V. PERMIT DISPUTES .............................. 77 A. Varieties of Permit Disputes ................... 78 B. Standard of Review ............................ 80 C. To CEQA or Not to CEQA ................... 84 D. Approaches to Permit Cases ................... 88 VI. CHANGES, CONTROVERSIES, AND CONFUSIONS .................................... 88 A . Changes ....................................... 88 B. Controversies .................................. 94 C. Confusions ..................................... 99 VII. CONCLUSION .................................... 101 I. INTRODUCTION Air pollution law is complicated. The statutes and regulations are based on technical knowledge, and educated guesswork, drawn from various fields of environmental and health science and engineering. The complexity and frequent uncertainty of that information contribute to legal mandates which are laden with technical jargon and are often reevaluated and changed.1 The complexity of these laws is compounded in California by this state's unique, multilayered division of governmental author- ity over air pollution. Another complicating factor is the unre- lenting political sensitivity of the topic. The political stakes are high for many reasons, with the economic implications of pollu- tion control topping the list. Despite this complexity, or perhaps because of it, there is no doubt that a lot has been accomplished to improve air quality in California, both before and since the federal government assumed its heavy role in air pollution regu- lation. There also is no doubt that much more needs to be done. There is recurrent doubt, however, about whether California's regulatory system is fair, especially in its treatment of air pollu- 1. See ROBERT L. GLICKSMAN ET AL., ENVIRONMENTAL PROTECTION: LAW AND PoLicY 318 (4th ed. 2003) ("Chemistry, engineering, medicine, and meteorology in- teract with law to produce modem air quality control policy. Scientific understand- ing of air pollution is constantly in flux, which challenges air quality management schemes to stand ready for change."). 2006] FAIRNESS IN THE AIR tion sources and the specific communities they affect. This arti- cle examines California's air pollution hearing boards, an important regulatory forum with direct bearing on this question. These boards are unique in many respects, for they are not quite the same as anything else in California environmental and land use regulation. One of their most striking characteristics is that the hearing boards are predominantly composed of individuals who are not air pollution experts, even though the decisions they make usually involve technical questions, often of an extraordi- narily sophisticated nature. Most significantly, the hearing boards are a key feature-indeed the key feature-of Califor- nia's attempt to ensure that fairness is a consistent component of government efforts to clean and protect the air. Regulation of air pollution from stationary sources in Califor- nia is primarily the responsibility of local and regional air pollu- tion control districts (APCDs).2 In contrast, state government, principally through the California Air Resources Board (ARB), regulates air pollution from most types of motor vehicles. 3 The 2. CAL. HEALTH & SAFETY CODE §§ 39002, 40000 (West 2006). See Beentjes v. Placer County Air Pollution Control Dist., 254 F. Supp. 2d 1159, 1162-63 (E.D. Cal. 2003) ("The California Legislature has determined that local and regional authori- ties have the primary responsibility for control of air pollution from all sources other than emissions from motor vehicles."); Sherwin-Williams Co. v. S. Coast Air Quality Mgmt. Dist., 104 Cal. Rptr. 2d 288, 293 (Ct. App. 2001) ("The SCAQMD conducts the primary planning, rulemaking, and enforcement activities at the local level, and adopts regulations to control sources of air pollution in Los Angeles, Orange, River- side, and San Bernardino Counties."); Western Oil & Gas Ass'n v. Monterey Bay Unified Air Pollution Control Dist., 777 P.2d 157, 162 (1989) ("Air pollution control districts are provided with the primary responsibility for the control of nonvehicular air pollution."); People ex rel. Deukmejian v. County of Mendocino, 36 204 Cal. Rptr. 897, 903 (1984) (holding that local regulation of aerial application of phenoxy herbicides was not prohibited by state or federal statute.) ("Local and regional au- thorities have the primary responsibility for the control of air pollution from all sources other than emissions from motor vehicles."). See also Nicholas C. Yost, En- vironmental Regulation - Are There Better Ways?, 25 ECOLOGY L.Q. 564, 572 (1999); William Simmons & Robert H. Cutting, Jr., A Many Layered Wonder: Nonvehicular Air Pollution Control Law in California,26 HASTINGS L.J. 109, 125 (1974). 3. CAL. HEALTH & SAFETY CODE § 39500 (West 2006). See Beentjes, 254 F. Supp. 2d at 1168 ("This general framework suggests that the State recognizes that certain aspects of air pollution control are necessarily a highly localized function."); Western Oil & Gas Ass'n v. Orange County Air Pollution Control Dist., 534 P.2d 1329 (1975); 2 KENNETH A. MANASTER & DANIEL P. SELMI, CALIFORNIA ENVIRONMEN- TAL LAW AND LAND USE PRACTICE § 41.01 (2005). ("Local and regional authorities have primary responsibility for controlling air pollution from nonvehicular sources, while the control of vehicular sources is the [Air Resources] Board's responsibil- ity.") See also JAMES E. KRIER AND KENNETH URSIN, POLLUTION AND POLICY: A CASE ESSAY ON CALIFORNIA AND FEDERAL EXPERIENCE WITH MOTOR VEHICLE AIR POLLUTION 1940-1975 (1977). 4 JOURNAL OF ENVIRONMENTAL LAW [Vol. 24:1 ARB also plays an important oversight role in stationary source control, but major responsibility there still rests with the 4 APCDs. There are thirty five APCDs in the state, now called either "air quality management districts" (AQMDs) or "air pollution con- trol districts." Most of the published literature on their functions emphasizes their rulemaking or enforcement powers or unusual policy initiatives.5 This article instead examines their adjudica- tory authority, for most of the major conflicts between regulatory authorities and stationary sources in California are brought into 4. See, e.g., CAL. HEALTH & SAFETY CODE § 42362 (West 2006) (ARB authority to revoke or modify an APCD variance which does not require compliance as expe- ditiously as practicable or otherwise meet statutory requirements); Stauffer Chem. Co. v. California Air Res. Bd., 180 Cal. Rptr. 550 (Cal. App. 1st Dist. 1982) ("The statutory scheme empowers the Board to oversee the effectiveness of local programs and regulations .... "). For fuller discussion of the functions of the ARB relative to hearing boards, see infra Section VI. See also CALIFORNIA AIR RESOURCES BOARD, REPORT TO THE LEGISLATURE ON AIR POLLUTION