State Justices Uphold Local Air Regulations : Controls of Toxic Non-Vehicular Emissions Need Not Wait for State Action, Court Rules

Citing the need for prompt action to protect the environment, the state Supreme Court on Thursday upheld the power of local air pollution districts to control toxic emissions from factories and other stationary sources of contamination.

The justices, in a unanimous decision, struck down a state Court of Appeal ruling that had barred a local district from identifying and controlling toxic substances before the state Air Resources Board had done so.

Local authorities and health and environmental groups from throughout California joined in urging the high court to overturn the appellate ruling, warning that it could all but eliminate local efforts to combat non-vehicular contaminants.

Only 9 Pollutants Acted On

In Thursday’s decision, the justices noted that in six years the state board had acted on only nine such pollutants--while scores of other substances had been recognized in the scientific community as potentially harmful.

Waiting for state action would “for all practical purposes eliminate non-vehicular air pollution control regulation in this state,” Justice David N. Eagleson wrote for the court. “Many years, perhaps decades, may pass before the board will be able to study, identify and regulate the hundreds of substances discharged into the air.”

The court pointed out that in Los Angeles County alone, industries released nearly 30 million pounds of hazardous chemicals into the air in 1987.

It is “inconceivable” that the Legislature, in enacting air pollution statutes, intended to alter the long-held authority of local districts to control non-vehicular emissions, Eagleson said. He noted that the board itself had urged the court to reaffirm the power of local authorities to curb new sources of industrial pollution.

The decision represented a major victory for the Monterey Bay Unified Air Pollution Control District, which had sought to implement a sweeping, precedent-setting plan to control nearly 150 toxic air contaminants from new or modified stationary facilities in the area.

Daniel P. Selmi, a Loyola Law School professor who represented the district, welcomed Thursday’s ruling, saying the Monterey plan now may “serve as a model” for similarly expansive efforts by other local districts in California. “This is an important reaffirmation of the ability of local districts to control toxic contaminants,” Selmi said.

Alan Ramo, legal director for Citizens for a Better Environment, one of the groups supporting the district, called the ruling “a crucial decision for air toxics regulation in California.” Now, Ramo said, “local districts can regulate the thousands of uncontrolled toxic chemicals in the air.”

Suit by Oil Interests

Donna R. Black of Los Angeles, an attorney for the Western States Petroleum Assn., a group of producers and refiners who had brought suit challenging the Monterey regulations, expressed disappointment with the ruling and voiced concern that it could result in inconsistent and conflicting regulations in the state.

“We thought we had a good argument in this case,” Black said. “We contended such controls should be implemented uniformly, rather than on a piecemeal basis. But that’s about the only result that can come out of this ruling.”

Lawyers in the case noted that while important, the ruling would not directly affect the recently state-approved, 20-year plan by the South Coast Air Quality Management District to improve air quality in the Los Angeles Basin. That plan is being developed to bring the region into compliance with federal air pollution standards.

At issue before the high court was a milestone state law known as the Tanner Act that was adopted in 1983 out of growing concern over the potential risk of cancer, birth defects and genetic abnormalities from air pollution. The act established an elaborate process for the state Air Resources Board, working with health officials, to identify non-vehicular, toxic pollutants and then design rules to combat them.

Local districts were to adopt regulations at least as strict as those of the board. As in the past, the board retained its responsibility for control of vehicular pollution.

Monterey authorities, dissatisfied with the pace of board action, adopted their own far-reaching plan to identify and control toxic emissions in 1986. To obtain a permit to operate, emission-producing facilities were required to install “reasonable” technology to control contaminants--and if those pollutants could cause cancer, the “best” technology was required.

The petroleum association filed suit to block the plan, arguing that under the 1983 act, local authorities could not implement regulations until the state board identified the contaminants as toxic and issued minimum standards for their control. Allowing any of the state’s 41 local districts to adopt plans could result in a conflicting patchwork of regulations throughout California, the association warned.

A Monterey County Superior Court judge upheld the plan but last year an appeals court in San Jose ruled the district exceeded its authority by moving against the contaminants before they had been cited as toxic by the state.

In Thursday’s ruling, the state high court reviewed the 1983 act and concluded that there was no indication the Legislature meant to repeal the long-established authority of local districts to control industrial pollution. While the Monterey district was the first to adopt such a sweeping plan, other districts in the state have long imposed similar conditions on new sources of pollution under local permit systems, the court noted.

The additional fact that the Air Resources Board itself supported the local district’s contention must be given “great weight” in resolving the issue, the court said.

If the association’s contentions were upheld, “the practical result . . . would be the absence in the foreseeable future of essentially all non-vehicular air pollution control regulation in California,” Eagleson wrote. “Non-vehicular sources could emit, in the interim, unrestricted amounts of almost all known substances, even those generally believed by the scientific community to pose serious health risks.”

Death Sentence Upheld

In other action Thursday, the justices unanimously upheld the death sentence of Constantino Carrera, now 27, convicted in the 1982 murders of a married couple who managed a motel in Mojave. The victims, Jack and Carol Hayes, died from dozens of stab wounds. The ruling marked the 59th time the court has affirmed the death penalty in 83 capital rulings issued since the defeat of Chief Justice Rose Elizabeth Bird and two other court members in the 1986 election.

The court, in a brief order, also refused to hear an appeal from an Oakland parent contending that under the 1982 anti-crime initiative, school districts may be held liable for failing to protect students from campus violence. A state Court of Appeal ruled last spring that the “safe schools” provision of Proposition 8, the Victims’ Bill of Rights, provides only a “general” right to safety and that any steps to enforce that right must be implemented by the state Legislature.

In another action, the high court let stand an appellate ruling upholding the involuntary manslaughter conviction of a Contra Costa County woman who failed to seek medical help for a man who died from a heroin overdose suffered in her home.