Fairness in the air: California's air pollution hearing boards.

• Author: Manaster, Kenneth A.

TABLE OF CONTENTS I. INTRODUCTION II. HEARING BOARD BASICS A. The Members B. "Getting Through" to the Members III. VARIANCES A. Variance Applications B. The Questions to be Answered C. Orders 1. Explaining the Findings 2. Duration 3. Conditions D. Interim Variances E. Emergency Variances F. Variance Variations 1. Product Variances 2. Links to Federal Law G. General Observations IV. ABATEMENT ORDERS A. Burdens and Penalties B. A Variance by Any Other Name C. Proof D. Terms and Conditions E. Approaches to Abatement Proceedings V. PERMIT DISPUTES A. Varieties of Permit Disputes B. Standard of Review C. To CEQA or Not to CEQA D. Approaches to Permit Cases VI. CHANGES, CONTROVERSIES, AND CONFUSIONS A. Changes B. Controversies C. Confusions VII. CONCLUSION 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 authority over air pollution. Another complicating factor is the unrelenting political sensitivity of the topic. The political stakes are high for many reasons, with the economic implications of pollution 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 regulation. 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 pollution sources and the specific communities they affect. This article 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 extraordinarily sophisticated nature. Most significantly, the hearing boards are a key feature--indeed the key feature--of California'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 California is primarily the responsibility of local and regional air pollution 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 ARB also plays an important oversight role in stationary source control, but major responsibility there still rests with the APCDs. (4)

There are thirty five APCDs in the state, now called either "air quality management districts" (AQMDs)or "air pollution control 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 adjudicatory authority, for most of the major conflicts between regulatory authorities and stationary sources in California are brought into the administrative adjudication process, that is, to the APCD hearing boards.

Although the hearing boards are little known to the public, they have tremendous importance for air quality throughout the state. The significance of their work begins with the obvious, direct effect of their decisions on actual air pollutant emissions. Less obvious, but also critical, is that most hearing board cases fundamentally are efforts to make sure that pollution laws are applied fairly. (6) Each category of hearing board cases represents an opportunity for air quality to be protected while ensuring that other, competing interests are fully considered. Without such opportunities, air pollution control could be dangerously overwhelmed by its esoteric, technical details, and justice could be ignored. It should be reassuring to the California public that the law provides the hearing boards as forums for the mitigation of this danger. Just how strongly reassured we should be, however, is less clear, for alongside the many strengths of the hearing board process, there are undeniable weaknesses.

This article is an update of my earlier article, "Administrative Adjudication of Air Pollution Disputes: The Work of Air Pollution Control District Hearing Boards in California." (7) Because basic features of the law governing California's air pollution hearing boards have remained in place over the years, the original article reportedly continues to be useful for lawyers and others. Nonetheless, some important aspects of the law have changed, and so have many of the practices hearing boards follow. Furthermore, in many parts of the state, hearing boards now often face cases of far greater technical and legal complexity, and environmental and economic significance, than in the past. This article adds new material to address these developments, while retaining previous text that still has validity. My aim is to offer a work of continuing usefulness to government and private attorneys, hearing board members, enforcement personnel, businesses and other regulated entities, citizens groups, and technical experts and other types of witnesses--in sum, to anyone involved with the work of hearing boards.

Initially, basic aspects of hearing boards will be discussed, in Section II. Then the three types of hearing board cases will be examined in turn:

* The first type, applications for variances, will be addressed in Section III. This is by far the kind of case the boards face most frequently. (8) The key elements of all hearing board work appear most clearly in variance proceedings.

* The second category is abatement order requests, another well-established aspect of hearing board activities. As will be shown in Section IV, abatement cases usually share many of the characteristics and objectives of variance cases.

* The third category, one that has grown in importance and variety in recent years, is the resolution of permit disputes, to be discussed in Section V. These often controversial cases include appeals by individual companies, citizens groups, and others from APCD decisions on construction and operating permits for air pollution sources.

In Section VI, a host of problematic issues will be addressed under the catch-all heading of changes, controversies, and confusions. Major changes in recent years in key aspects of hearing board operations will be explored, along with aspects that have provoked sharp controversy. Overlapping with these changes and controversies are issues on which there has been, and may inevitably continue to be, confusion in hearing boards' approaches to their tasks. Section VII will offer concluding perspectives on the current and future importance of California's hearing boards.

II.

HEARING BOARD BASICS

Each of the 35 APCDs is directed by statute to have "one or more" hearing boards. (9) The only district that has more than one is the San Joaquin Valley APCD. When it came into being in 1992, it was to have a single board, but the legislature soon directed the appointment of three hearing boards, each serving a different region within that geographically expansive district. (10)

1. The Members

   A hearing board consists of five members appointed by the district governing board to staggered, three year terms. (11) Ordinarily three members are required for a quorum. The statute also specifies that "no action shall be taken by the hearing board except in the presence of a quorum and upon the affirmative vote of a majority of the members of the hearing board." (Emphasis added.) The underlined language means that the agreement of three members is needed for action, even if only three or four members are present to constitute the quorum. (12)

   Three of the members are required by statute to meet certain qualifications for the position. One member must be admitted to practice law in California, one must be a registered professional engineer, and one must be "from the medical profession" with "specialized skills, training, or interests ... in the fields of environmental medicine, community medicine, or occupational/toxicologic medicine." The other two members are simply designated as "public members." (13)

   The medical member usually is a doctor, although the statutory language does not limit this category to that segment of the medical profession. The statute does require the medical member to have some "specialized skills, training, or interests" pertinent to the types of health issues often arising in air pollution disputes. No such specific skills are required of the lawyer and engineer members, nor of the public members. Thus, with the possible exception of their medical members, hearing boards are not legally required to be composed of experts in any aspect of air pollution, and they usually are not.

   There are, however, two variations on this statutory approach to the composition of hearing boards. First, in a district with a population of less than 750,000, if the governing board "is unable to appoint a person with the qualifications specified in Section 40801 who is willing and able to serve," then a vacancy on the hearing board may be filled by the appointment of "any person." (14)

   Second, in contrast with this pragmatic provision allowing lesser expertise in smaller districts' hearing boards, there are provisions specifying greater...