SCAQMD to litigate judicial reversal

Coatings World, Sept, 2002

* The National Paint and Coatings Association (NPCA) is "disappointed" with the South Coast Air Quality Management District's decision to ask the California Supreme Court to overturn a recent appellate decision that had voiced SCAQMD's paint rule.

According to Jeff Margulies, NPCA's attorney, SCAQMD's decision to appeal the case means that the "industry and users are left in limbo because SCAQMD can use a technical loophole to prosecute violations of the rule, that went into effect July 1, but the Court of Appeal has struck down."

Jim Sell, NPCA's senior counsel said, "It is unfortunate that SCAQMD has chosen to continue to liftgate rather than try to work with industry to develop clean air rules that are scientifically sound."

The case involved a challenge by NPCA and paint companies to SCAQMD's 1999 rule that specific technology limits for residential coatings and industrial maintenance coatings. The California Court of Appeal, Fourth Appellate District ruled in favor of NPCA, holding that the amendment had been adopted in violation of the laws that require SCAQMD to provide public notice of its proposed rules. The court found that last minute exemptions for some important constituencies "sandbagged" the rulemaking profess for others and it commanded the district to vacate the amendments in their entirety.

According to the court's decision, 97% of the 7,000 different kinds of paint and coatings will disappear under the rule and 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 unsuited in certain circumstances."

The court of appeal rejected SCAQMD's request to rewrite its opinion and NPCA is also confident that the decision will be affirmed by the California Supreme Court, said Mr. Margulies.