Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist.

Decision Date17 August 1989
Docket NumberNo. S006708,S006708
Citation49 Cal.3d 408,777 P.2d 157,261 Cal.Rptr. 384
CourtCalifornia Supreme Court
Parties, 777 P.2d 157, 30 ERC 1441 WESTERN OIL AND GAS ASSOCIATION, Plaintiff and Appellant, v. MONTEREY BAY UNIFIED AIR POLLUTION CONTROL DISTRICT et al., Defendants and Respondents.
[777 P.2d 158] Philip K. Verleger, Donna R. Black, Michael A. Monahan and McCutchen, Black, Verleger & Shea, Los Angeles, for plaintiff and appellant

Daniel P. Selmi, Los Angeles, Mark I. Weinberger, Shute, Mihaly & Weinberger, San Francisco, Ralph R. Kuchler, Salinas, and W. Allen Bidwell, for defendants and respondents.

Alan Ramo, San Francisco, Lloyd M. Harmon, Jr., Daniel J. Wallace, Barbara Baird, San Diego, John K. Van de Kamp, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Mary E. Hackenbracht, Deputy Atty. Gen., Ira Reiner, Dist. Atty. (Los Angeles), Harry B. Sondheim and Patrick D. Moran, Deputy Dist. Attys., as amici curiae on behalf of defendants and respondents.

EAGLESON, Justice.

Plaintiff Western States Petroleum Association, a trade association, seeks the invalidation of an air pollution control regulation of defendant Monterey Bay Unified Air Pollution Control District (Monterey District). 1 Although only one district's regulation is directly challenged, this action raises issues of statewide importance to the public health and the future of air pollution control regulation throughout California. The primary legal issue is whether California's Tanner Act (Health & Saf.Code, §§ 39650-39674) prohibits air pollution control districts from regulating nonvehicular emissions of a substance into the air until the State Air Resources Board (board) has identified the substance as a toxic air contaminant and adopted a control measure for it.

We hold that the Tanner Act does not preclude air pollution control districts from regulating emissions of a substance before the board has identified the substance as a toxic air contaminant. This conclusion is mandated by well established principles of statutory construction. Moreover, a contrary conclusion would, for all practical purposes, eliminate nonvehicular air pollution control regulation in this The secondary issue is whether the regulation challenged in this case is an improper delegation of authority by the Monterey District to its air pollution control officer. We hold there is no improper delegation.

state. Since the Tanner Act's enactment in 1983, the board has identified only nine substances as toxic air contaminants, and 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. If board identification and regulation were a prerequisite for district control, nearly all substances would remain unregulated for the foreseeable future. Moreover, in light of this state's lengthy history of air pollution regulation and other environmental protection laws, it is inconceivable, absent clear evidence to the contrary, that the Legislature intended by enacting the Tanner Act to reduce drastically, indeed practically eliminate, such regulation. As we will explain, the purpose of the Tanner Act was to improve air pollution regulation, not to eviscerate it.

FACTS
I. The Tanner Act

In 1983 the Legislature passed the Tanner Act (Health & Saf.Code, §§ 39650-39674), which established an elaborate process for the board to identify substances as being "toxic air contaminants" and to adopt "airborne toxic control measures" for those contaminants. (Stats.1983, ch. 1047, § 1, pp. 3691-3702.) 2 The act defines "toxic air contaminant" as "an air pollutant which may cause or contribute to an increase in mortality or an increase in serious illness, or which may pose a present or potential hazard to human health." ( § 39655.) 3 " '[A]irborne toxic control measure' means recommended methods, and where appropriate a range of methods, of reducing the emissions of a toxic air contaminant, including, but not limited to, emission limitations, control technologies, the use of operational and maintenance conditions and closed system engineering." ( § 39656.) The act's regulatory procedure is bifurcated into identification and control processes. Both are lengthy and complex. We will explain them briefly.

A. The identification process

The board initiates the identification process by requesting the State Department of Health Services (Health Services) to evaluate the health effects of a specific substance that may be a toxic air contaminant and to prepare recommendations regarding the substance. ( § 39660, subd. (a).) Health Services is required to consider "all available scientific data" ( § 39660, subd. (b)) and to estimate the threshold level of exposure that may cause significant adverse health effects or, if there is no threshold level, "the range of risk to humans resulting from current or anticipated exposure." ( § 39660, subd. (c).) Health Services must submit its written evaluation and recommendations to the board no later than 120 days after receiving the board's request for the evaluation. ( § 39660, subd. (d).) 4

After receiving Health Services' evaluation, the board must prepare "a report in a form which may serve as the basis for regulatory action regarding a particular substance." ( § 39661, subd. (a).) (The act does not specify a time limit within which the board must prepare its report.) The board submits its report and supporting scientific data to a Scientific Review Panel on Toxic Air Contaminants. ( § 39661, subd. (b).) The panel must review the report and supporting data and submit written Within 10 working days after receiving the scientific review panel's findings, the board must prepare a hearing notice and proposed regulation. ( § 39662, subd. (a).) After the hearing, the board "shall list, by regulation, substances determined to be toxic air contaminants." ( § 39662, subd. (b).) "If a substance is determined to be a toxic air contaminant, the regulation shall specify a threshold exposure level, if any, below which no significant adverse health effects are anticipated." ( § 39662, subd. (c).)

findings to the board no later than 60 days after receiving the report. ( § 39661, subd. (b).) 5

B. The control process

When the identification process is completed, the control process begins with the board preparing "a report on the need and appropriate degree of regulation" for the substance identified as a toxic air contaminant. ( § 39665, subd. (a).) The board must consult with air pollution control districts, affected sources, and the interested public in preparing the report, which must address a number of factors, including emission levels, sources, health effects, technology, and costs. ( § 39665, subds. (a) and (b).) After a period for public review and comment and a public hearing, the board must adopt an airborne toxic control measure to reduce emissions of the toxic air contaminant from nonvehicular substances. ( § 39666, subd. (a).) 6

The board's control measure is a minimum standard for regulation by districts throughout the state. 7 Not later than 120 days after the board adopts a control measure, each district in the state must propose its own regulation enacting control measures for nonvehicular sources of that substance. The act states that "... a district may, at its option, adopt and enforce equally effective or more stringent control measures than the airborne toxic control measures adopted by the state board." ( § 39666, subd. (d), italics added.) Each district must adopt its own regulation not later than six months after the board has adopted its control measure. ( § 39666, subd. (d).)

C. Implementation of the act

The procedures set forth in the act result in the passage of considerable time before the board can adopt a control measure for a particular substance. Aside from the procedures themselves, administrative difficulties have also apparently delayed board proceedings. For example, the board began the identification process for inorganic arsenic by asking Health Services for its evaluation in August 1985. Pursuant to the act ( § 39660, subd. (d)), the evaluation was due in December 1985, but the board did not receive it until February 1988--a delay of more than two years--and numerous steps remain to be taken under the act before the board can identify inorganic arsenic as a toxic air contaminant. Only then can the board begin the process of considering and adopting control measures for the substance. The lengthy nature of proceedings under the act is perhaps best demonstrated by the fact that the board has identified only nine substances as toxic air contaminants pursuant to the act, which was enacted six years ago. (Cal.Code Regs., tit. 17, § 93000.) 8

II. Rule 1000 of the Monterey District

In March 1986, the Monterey District adopted Rule 1000, an air pollution control regulation that applies to new or modified stationary emission sources for which an applicant seeks a construction or operation permit. (The rule does not apply to existing sources that are currently operating and not seeking modification of their operations.) Rule 1000 applies to two categories of emissions--"toxic air contaminants" and "carcinogenic toxic air contaminants."

Monterey District's Air Pollution Control Officer (control officer) determines whether to designate a substance as being one of the two types of regulated contaminants. A "toxic air contaminant" is defined as a substance: (1) that the control officer concludes "may cause or contribute to a recognizable increase in mortality, morbidity, or may otherwise pose a present or potential material impairment to human health or functional capacity;" and (2) that is listed in state regulations for controlling employee exposure to hazardous substances in the workplace. (Rule 1000, § 3.9.1.) Similarly, the control officer also determines whether to designate a substance as a "carcinogenic toxic air contaminant." His...

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