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NPCA Scores Legal Victory in Litigation Over South Coast Limits on Architectural Coatings

Published on 2002-07-01. Author : SpecialChem

The National Paint and Coatings Association has won a major victory in its long and continuing efforts to ensure sound and reasonable decisions are made when regulatory authorities establish restrictions on coatings.

On June 24, the California Court of Appeals, Fourth Appellate District, Division Three, vacated May 14, 1999 amendments to the South Coast Air Quality Management District's architectural and industrial maintenance (AIM) coatings rule - Rule 1113. The court found that the staff had "sandbagged" the decisionmaking process of the District Board by providing last minute favorable exemptions to utilities that defused what otherwise might have been their opposition to the extremely stringent requirements of the amendments.

NPCA's California counsel, Jeff Margulies, of the Los Angeles law firm Parker, Milliken, Clark, O'Hara & Samuelian, centered his arguments on the last minute nature of the changes and the lack of required notice to the public. He also ensured that the court was aware of the substantive defects in the staff's fact finding concerning very low VOC coatings and performance.

Picking up on this, the opinion notes that the by the time the rule is fully implemented "... 97 percent of the 7,000 different kinds of paints and coatings will disappear ... 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 unsuitable in certain circumstances (e.g., harsh weather or exposure to corrosive elements.)

"The appellate court ordered the lower court to issue an order "commanding the South Coast Air Quality Management District to vacate its adoption of the amendments to Rule 1113 as adopted on May 14, 1999.

"As a practical matter the July 1, 2002 compliance date for the amendments remains in effect for the time being. There is a thirty day period in which the lower court is to issue the order, and during that time the South Coast can petition the appellate court for a rehearing. It can also seek review by the California Supreme Court. But Jim Sell, NPCA Senior Counsel, believes the District eventually will have to initiate a legally proper rulemaking which meets the appellate court's requirement "...that decisionmakers who have the power to put whole companies out of business understand the consequences of their decisions."

Source: NPCA


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