WESTERN OIL AND GAS ASSOCIATION v. CALIFORNIA STATE AIR RESOURCES BOARD

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Court of Appeal, Second District, Division 2, California.

WESTERN OIL AND GAS ASSOCIATION, etc., et al., Plaintiffs and Respondents, v. CALIFORNIA STATE AIR RESOURCES BOARD etc., et al., Defendants and Appellants.

Civ. 63339.

Decided: March 10, 1982

George Deukmejian, Atty. Gen., R. H. Connett, Asst. Atty. Gen., Joel S. Moskowitz, Deputy Atty. Gen., for defendants and appellants. McCutchen, Black, Verleger & Shea, Philip K. Verleger, Jack D. Fudge, Michael L. Hickok, Los Angeles, for plaintiffs and respondents. Ronald A. Zumbrun, John H. Findley, Anthony T. Caso, Sacramento, for amicus curiae Pacific Legal Foundation.

In February of 1976, the California State Air Resources Board (Board) adopted a regulation which established a standard for the maximum level of sulfates 1 in the ambient air at 25 micrograms per cubic meter of air during a 24 hour period.

In June of 1977, the Board adopted a similar regulation fixing the standard for sulfur dioxide 2 limiting the level of that substance for a 24 hour period to .05 parts per million of air in the presence of a level of oxidants exceeding the previously adopted standard for that element.

Nine oil companies and two of their trade associations challenged the validity of these regulations on substantive and procedural grounds by instituting an action for injunctive and declaratory relief along with a petition for a writ of mandate.   The action was directed against the Board, its chairman and executive officer.  (We will hereafter refer to the defendants collectively as the Board.)

Underlying plaintiffs' attack on the regulations were their assertions that the regulations were more stringent than necessary to achieve the goal of healthful air quality and that the cost of compliance would have a devastating impact on the public and the economy.

The trial court, after a lengthy trial, concluded that the Board hearings which preceded the adoption of the regulations were unfair and that the Board was arbitrary and capricious in adopting the regulations without considering certain significant evidence and in fact relying on totally inadequate evidence.   A writ of mandate issued compelling the Board to rescind the challenged regulations.   We affirm.

THE ADMINISTRATIVE SCHEME FOR REGULATING AIR QUALITY

The Board, which is part of the California Resources Agency, is composed of five members appointed by the Governor.   Two members are required to have training or experience in automotive engineering or a related field, two members are required to have training and experience in chemistry, meteorology or related fields, including agriculture or law, and the fifth member is required to have administrative experience in the field of air pollution control with no special technical training required.  (Health & Saf. Code, § 39510.)

The Board is authorized by Health and Safety Code section 39601 to adopt standards and regulations.   In so doing, it is required to comply with the Administrative Procedure Act.  (Gov. Code, § 11340 et seq.)

A key function of the Board is to divide the state into “air basins” on the basis of meteorological and geographic conditions and to adopt standards of ambient air quality for each basin.   Those standards may vary from basin to basin.  (Health & Saf. Code, § 39606.)

Health and Safety Code section 39014 provides:

“ ‘Ambient air quality standards' means specified concentrations and durations of air pollutants which reflect the relationship between the intensity and composition of air pollution to undesirable effects established by the state board or, where applicable, by the federal government.”

In adopting those standards, the Board is required by Health and Safety Code section 39606(b) to consider “the public health, safety, and welfare, including, but not limited to, health, illness, irritation to the senses, aesthetic value, interference with visibility, and effects on the economy․  Standards relating to health effects shall be based upon the recommendations of the State Department of Health Services [health department].”  (Emphasis added.)

Responsibility for control of air pollution and the achieving of the standards of air quality established by the Board rests with local and regional air pollution control districts created by the Legislature.  (Health & Saf. Code, § 40000 et seq.)

These local and regional districts are themselves empowered to enact rules and regulations to carry out their responsibilities, but it is at once apparent that the entire enforcement mechanism with its social and economic impact depends on the standards set by the Board as permissible levels for any particulant or element in the ambient air for each basin.

THE ADMINISTRATIVE PROCEDURE ACT (THE ACT)

At the time the Board adopted the regulations at issue here, the Act, (then Gov. Code, § 11370 et seq., now Gov. Code, § 11340 et seq.)3 primarily required regulations to be consistent with the statute which authorized an agency to adopt them and reasonably necessary to effectuate their purpose.  (Gov. Code, § 11342.2.)

A notice to interested parties was required, said notice to contain a statement of the time, place and nature of the proceedings.   The notice was required to contain, inter alia, “either the express terms or an informative summary of the proposed action;  and to be published at least 30 days prior to the date of the proposed action.”  (Then Gov. Code, § 11424, now Gov. Code, § 11346.5.)

Then, as now, a hearing was required to precede the adoption of a regulation at which hearing any interested person could present written statements, arguments or contentions with or without the opportunity to make an oral presentation, and the agency was required to consider all relevant matters presented before taking action.  (Gov. Code, § 11346.8.)

Finally, any interested person could obtain judicial review as to the validity of any regulation and in addition to any other grounds of invalidity, a regulation could be declared invalid for a substantial failure to comply with the procedural requirements.  (Gov. Code, § 11350.)

Effective July 1, 1980, just prior to the decision in the court below, the Act was amended.   All of the provisions previously referred to were carried forward under differently numbered statutes.   In addition, significant changes were made pursuant to a declaration of purpose by the Legislature.

That declaration contained in Government Code section 11340 in pertinent part states:  “The Legislature finds and declares as follows:  (a) There has been an unprecedented growth in the number of administrative regulations in recent years.  (b) The language of many regulations is frequently unclear and unnecessarily complex, even when the complicated and technical nature of the subject matter is taken into account.   The language is often confusing to the persons who must comply with the regulations.  (c) Substantial time and public funds have been spent in adopting regulations, the necessity for which has not been established.”  (Emphasis added.)

Government Code section 11346.4 now requires a 45-day notice of hearing and section 11346.5(a)(3) requires that the agency shall make available to the public upon request “a concise and clear summary of ․ the effect of the proposed action ․ in a format similar to the Legislative Counsel's digest on legislative bills.”  (Emphasis added.)  Government Code section 11346.5 also contains a new requirement—a cost impact estimate as to the cost or savings to the state.

Another completely new requirement is contained in Government Code section 11346.7, which provides in part:

“Every agency subject to the provisions of this chapter shall prepare, and make available to the public upon request, a general statement of the reasons for proposing the adoption or amendment of a regulation.   Such statement shall include, but not be limited to, the following:  (a) The specific purpose of the regulation;  (b) The factual basis for the determination by the agency that the regulation is reasonably necessary to carry out the purpose for which it is proposed;  (c) The substantive facts or other information and the technical, theoretical and empirical studies, if any, on which the agency is relying in proposing the adoption or amendment of a regulation.   The statement shall be prepared prior to the time that the notice referred to in Section 11346.5 has been published.   The statement shall be updated prior to final adoption of the regulation by the agency.   The final statement shall include a summary of the primary considerations raised by persons outside the agency in opposition to the regulation as adopted, together with a brief explanation of the reasons for rejecting those considerations.”  (Emphasis added.)

Finally the scope of judicial review was expanded by Government Code section 11350, subdivision (b), to include the following:  “In addition to any other ground which may exist, such regulation may be declared invalid if the court cannot find that the record of the rulemaking proceeding supports the agency's determination that the regulation is reasonably necessary to effectuate the purpose of the statute relied on as authority for the adoption of the regulation.”

While these latest revisions of the Act were not specifically applicable to the action of the Board at the time it adopted the challenged regulations, the 1980 additions clearly indicate a recognition on the part of the Legislature of the existence of and the need to curtail the excesses and abuses which are innate to the exercise of administrative regulatory power.

This recognition and the Legislature's response is germane to and provides a background for our discussion and disposition of the claims which the Board makes in this appeal.   As will later be apparent, under the Act as it is now worded, the procedures followed in the instant matter clearly would be in violation of the Act.   The Board concedes that fact.

ACTION OF THE TRIAL COURT

The trial court filed extensive written findings of fact and conclusions of law incorporating therein a lengthy and well-reasoned memorandum of intended decision in support of its conclusion that the two regulations were invalid.

These findings and conclusions can be distilled as follows:

(1) As to Regulation 76–11, setting the ambient air standards for sulfates at 25 micrograms per cubic meter of air, interested parties were denied a full and fair opportunity to meaningfully participate in the hearing in that, (a) the staff report which provided the only evidence relied on by the Board to support this standard was made available to the public only eight days before the hearing and was not received by some of the interested parties until three days before the hearing, (b) interested parties were not afforded a reasonable opportunity to comment on or rebut the staff report.

(2) As to Regulation 77.41, setting the ambient air standard for sulfur dioxide, (a) the notices for the hearing were so broad that they failed to provide either the express terms or an informative summary of the proposed action as required by then Government Code section 11424(c), (now section 11346.5) and (b) the standards were based on evidence placed in the administrative record after interested parties no longer had an opportunity to comment on or refute.

(3) That both standards were contrary to the recommendation of the State Health Department.

(4) The Board improperly refused to consider any evidence of economic impact in setting the two standards.

(5) The Board acted arbitrarily and capriciously in setting both standards in that there was no substantial evidence which would support them.

THE PROCEDURAL ISSUES

There is no question but that the Board was acting in a “quasi-legislative” capacity, hence the procedure followed presents no constitutional issue of due process.  (Horn v. County of Ventura, 24 Cal.3d 605, 156 Cal.Rptr. 718, 596 P.2d 1134.)   The procedural requirements for conducting the Board's hearings are to be gleaned solely from the Act.

Proceeding from this basic premise, the Board contends that the trial court's decision constitutes a violation of the doctrine of separation of powers in superimposing on the “quasi-legislative” function and the prescribed statutory procedure a notion of “fairness” which a court must define on a case-by-case basis.

Though the doctrine of separation of powers, of course, prevents the courts from dictating to the Legislature itself the procedure to be followed in holding hearings and enacting legislation, an administrative agency, in the exercise of what has been described as “quasi-legislative” functions is in no way comparable to the Legislature itself, which is composed of individuals directly elected by the people.

Administrative agencies (with some exceptions) are creatures of statute and have limited authority.   The Act imposes on administrative agencies a myriad of constraints not applicable to the Legislature.   The agencies' actions are specifically made subject to judicial review.   Thus we wish to disabuse the Board of the notion reflected in its briefs that it enjoys a status comparable to that of the Legislature.

The role of the courts in reviewing the actions of an administrative agency is essentially that of discerning what the Legislature intended by the statute which created the agency and the Act which the agency is obliged to obey.

 It is entirely consistent with the doctrine of the separation of powers for a court, as the trial court did here, to interpret the requirements of the Act as manifesting a legislative intent that an agency provide the persons to be regulated with a fair opportunity (1) to present their case, (2) to insure that the agency has available to it all relevant evidence, and (3) to counter or refute input which is contrary to their position.   The California Supreme Court and the Courts of Appeal have repeatedly expressed this concept.

“The procedural directions of the APA are designed to promote fulfillment of its dual objectives—meaningful public participation and effective judicial review.  (California Assn. of Nursing Homes etc., Inc. v. Williams, 4 Cal.App.3d at pp. 810–812, 84 Cal.Rptr. 590.)   Although implied rather than expressed, these objectives are just as statutory and just as binding as the APA's itemized directions.   Compliance with procedural minima does not necessarily achieve these goals.”  (California Optometric Assn. v. Lackner, 60 Cal.App.3d 500, at 509, 131 Cal.Rptr. 744.)

Further the Supreme Court in California Hotel & Motel Assn. v. Industrial Welfare Com., 25 Cal.3d 200, stated at page 212, 157 Cal.Rptr. 840, 599 P.2d 31:

“Although administrative actions enjoy a presumption of regularity, this presumption does not immunize agency action from effective judicial review.   A reviewing court will ask three questions:  first, did the agency act within the scope of its delegated authority;  second, did the agency employ fair procedures;  and third, was the agency action reasonable.”  (Emphasis added.)

 The Board relies heavily on the United States Supreme Court decision in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460.   There the high court, in interpreting the federal Administrative Procedure Act, which is similar to California's Act, concluded that the procedures set forth in the federal law were “the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.”  (Page 524, 98 S.Ct. page 1202.)

We are asked by the Board to adopt that same approach in interpreting the Act and hold that literal compliance with the Act is all that is required.   In making that proposal, the Board points to Government Code section 11346 (formerly § 11420) which reads:

“It is the purpose of this article to establish basic minimum procedural requirements for the adoption, amendment or repeal of administrative regulations.   Except as provided in Section 11346.1, the provisions of this article are applicable to the exercise of any quasi-legislative power conferred by any statute heretofore or hereafter enacted, but nothing in this article repeals or diminishes additional requirements imposed by any such statute.   The provisions of this article shall not be superseded or modified by any subsequent legislation except to the extent that such legislation shall do so expressly.”  (Emphasis added.)

Board contends that the use of the words “imposed by any such statute” and the further reference to subsequent legislation indicate that the Legislature intended to foreclose the courts from imposing additional requirements and reserved that power solely to itself.

We read the language in a different light.   The above quoted provisions are simply an attempt by the Legislature to avoid any implied repeal of statutes previously enacted or any conflict with future statutes which may arise because of legislative oversight.   As to the subject of judicial interpretation, the statute is silent and therefore neutral.   The rationale of Vermont Yankee Nuclear Power Corp. v. NRDC, supra, has previously been refused application in California.  (California Optometric Assn. v. Lackner, supra.)   We agree with that refusal.

Furthermore it is not at all clear that the Board complied with the letter of the Act in any event.   The trial court found that insofar as the hearing on the sulfates standards was concerned, the notice did not comply with the Act as it was then written.   Certainly the procedure followed did not comport with the present requirements of the Act.

In order to demonstrate the soundness of the trial court's conclusion that, assuming a compliance with the statutory minimum, the overall procedure was arbitrary and unfair, it is necessary to set out in some detail the background of the dispute and the procedure that was followed.

On January 15, 1976, the Board noticed a public hearing for February 20 and 21, 1976, to consider the standard for sulfates and at the conclusion of the hearings adopted the standard earlier noted.   The health department's presentation at the hearing contained the statement that it would require three to five years to develop the necessary scientific data for a sulfate regulatory program.   This is because of the great variety of sulfates that exist in the environment, not all of which are harmful.

Hence the evidentiary basis for the Board's action became an 84 page complex staff report which was provided to the interested parties, as the court found, just three days prior to the hearing.   All requests for continuances in order to examine and comment on that report were denied.

As distinguished from the hearing on the sulfate standard, which was apparently the first attempt to set a standard for that material, the hearings in 1977 as to the standard for sulfur dioxide were conducted against a background of prior ventures into the field.

In 1969, the standard had been set at .04 parts per million.   In 1974, it had been raised to .10 parts per million only to be changed back to .04 parts per million in 1975.   That latter action had, however, been enjoined by the Sacramento Superior Court.   That injunction apparently prompted the notice for new hearings on the subject in April of 1977.

The Board issued four separate notices of the new hearings in which it indicated that it would consider a number of wide-ranging alternatives from levels lower than the existing .04 parts per million standard to much higher concentration.   Board's staff recommended the re-adoption of the .04 parts per million standard.   All of the testimony at the hearing focused on that recommendation including expert testimony that implementation of such standard would cost a minimum of 44 billion dollars by the year 2000.

At the close of the hearing, the Board announced that it would keep the record open until June 5, 1977.   On June 6, 1977, the Board placed in the record a staff report based on data received from Japan concerning the effect of concentrations of .05 to .09 parts per million of sulfur dioxide in combination with high levels of oxidants—another form of pollution.

The standard adopted was, as noted, the .05 parts per million level in combination with high oxidant level.   This standard was based primarily on the Japanese data.   All efforts by the interested parties to obtain the right to challenge this belated material were rejected.   Needless to say, the final result had never been mentioned in the notices of hearing either in express terms or by way of an informative summary.

While there is no requirement in the law that an administrative agency obtain a staff report or follow the recommendation of such report, it is a matter of common knowledge, borne out by the above described conduct of the Board, that administrative agencies rely heavily on staff reports and that staff recommendations carry great weight.

 We are of the opinion that the Board's conduct in the proceeding were contrary to the spirit and purpose of the Act and were arbitrary and capricious.

The entire thrust of the Act as pertains to rule making is that there be a full exposure of the issue involved and the agency's proposal so that the agency may have the benefit of all relevant evidence.   Additionally, the persons to be regulated are to be permitted to respond in a meaningful way to the proposed action and the evidence upon which it is based.   Here there was no such opportunity at either hearing.

The trial court's findings that there was a lack of fundamental fairness in the hearings and a failure to comply with minimum statutory requirements are unassailable.

ECONOMIC IMPACT

 In adopting the two standards under attack the Board specifically rejected any contention that, in setting ambient air quality standards, the cost of, or the resources available to achieve, compliance be considered.   The position of the Board is that its responsibility is to determine the permissible concentration levels of various pollutants in terms of the public health and welfare and that the economic impact of compliance is a consideration for the local or regional districts in adopting “reasonable” strategies in meeting those standards.   It argues that the phrase “effect on the economy” as used in Health and Safety Code section 39606, refers only to the effect of pollution on the economy and not to the effect of its regulation.

Health and Safety Code section 39606 provides that the Board shall adopt standards of ambient air quality for each air basin on the basis of a number of considerations.   When these standards are adopted the local districts are mandated to adopt reasonable regulations to achieve and maintain them (Health & Saf. Code, § 40001).   The Board is then empowered to review those local regulations for reasonableness and efficacy (Health and Saf. Code, § 41500).

It is evident from an examination of the statutory scheme and the application of common sense that the level at which the ambient air quality standards are set will, in large measure, predetermine at least the minimum level of the cost of compliance.   The statutory scheme does not envision “reasonable attempts to achieve compliance” at the local level, instead it mandates compliance by the most reasonable method.

The Board's position that the consideration of the economic impact of achieving and maintaining a particular standard has no place in the adoption of the standard in the first instance is pure sophistry and simply ignores reality.   One might ask how can the economic effects of pollution be considered without any reference to the effect on the economy of the cost of eliminating it?

The basic statute (Health & Saf. Code, § 39606), in enumerating the many factors to be considered in adopting ambient air quality standards, includes such things as “irritation to the senses”, “aesthetic value” and “interference with visibility,” which are, of course, matters detrimentally affected by pollution but are not health related.

It is a fact of life that in our modern industrialized and urban society an absoulte pure environment under the present state of the art, is unattainable.   Further, a viable, thriving industry and commerce is the life blood of our economy and thus an ingredient of the public welfare.

While it is true, as Health and Safety Code section 39606 recognizes, that air pollution detrimentally affects the public welfare and the economy in its impact, for example, in agriculture and tourism, it seems to us that it is impossible to promulgate a reasonable standard for ambient air quality, as the Board is required to do, without balancing the benefit of the standard against the cost of its achievement and the level of the resources available for control.

In considering pollution's effect on aesthetics, visibility, minor irritation of the senses or other aspects of “public welfare”, the cost of eliminating the undesirable effect certainly must be a significant factor in setting the standard.

We also believe that in the area of health, for reasons which we will point out, the effect of the regulations on the economy must be considered as well.   The record before us reveals that the Board, by virtue of its composition, lacks any expertise in the medical field and is operating in an area in which the scientific data is anything but exact or conclusive.   Hence the standards here were not set on the basis of medical evidence which dealt in absolute terms with certain effects upon health.

We have no clear legislative history to guide us in determining the Legislature's intent concerning economic considerations in regulating air quality insofar as it pertains to health considerations.   On its face, Health and Safety Code section 39606 appears to us to call for a consideration of the economic impact of the standards themselves as well as the impact of pollution on the economy.

This interpretation is fortified by the fact that the Board is authorized to adopt different standards for each of the various air basins.   It seems logical that the effect on the health or well being of human beings of a particular level of pollution would be the same throughout the state.   From that it follows that the only significant variable between the various air basins would be the impact on the economy in achieving and maintaining a particular level of air quality.

That the Legislature is concerned with economic impact in the area of regulating air quality, is evidenced by the fact that in Health and Safety Code section 43101 it requires the Board to consider impact on the economy in adopting vehicle emission standards.   Further, Government Code section 11346 requires a statement of the effect of all regulations in the form of the legislative council's digest which appears on bills in the Legislature.   That form always includes a governmental cost impact statement.

The very creation of the Board is evidence that the Legislature intended that there be a balancing process in setting the standards.   Otherwise the Legislature could have simply set the ambient air standards at zero pollution and mandated the local districts to achieve that level.

Even if we were to assume that the phrase “effect on the economy” as used in the statute meant only the effects of pollution, or if that phrase were deleted from the statute entirely, we would still conclude that consideration of the effect of compliance on the economy is a necessary ingredient of “reasonableness.”

Perhaps the strongest support for our conclusion is to be found in a portion of the Board's own brief in attacking another facet of the trial court's ruling.   The trial court in several of its conclusions ruled that the Board was not authorized to adopt a standard, based on a margin of safety, more stringent than the scientific evidence would support, and that the Board was required by statute to follow the recommendations of the health department.

The Board on the other hand contends that it has a wide-ranging mandate in protecting public health to adopt safety margins and to be more stringent in setting levels of air quality than those recommended by the health department or suggested by other scientific data.

In support of that position, and in asserting the need for flexibility, the Board points out that the area is “on the forefront of evolving scientific evidence”, that the evidence before the Board consists of “highly technical and disputed scientific evidence,” and that all scientific evidence is merely a matter of assessing probabilities and risks.   In short, the Board concedes the lack of certainty and provable clinical harm in the scientific evidence.

From this the Board argues for broad discretion on its part and cites with approval the following language from Ethyl Corp. v. Environmental Protection Agcy., 541 F.2d 1, at pages 24, 25:

“Questions involving the environment are particularly prone to uncertainty.   Technological man has altered his world in ways never before experienced or anticipated.   The health effects of such alterations are often unknown, sometimes unknowable.   While a concerned Congress has passed legislation providing for protection of the public health against gross environmental modifications, the regulators entrusted with the enforcement of such laws have not thereby been endowed with a prescience that removes all doubt from their decision-making.   Rather, speculation, conflicts in evidence, and theoretical extrapolation typify their every action․  ¶ Undoubtedly, certainty is the scientific ideal—to the extent that even science can be certain of its truth.   But certainty in the complexities of environmental medicine may be achievable only after the fact, when scientists have the opportunity for leisurely and isolated scrutiny of an entire mechanism.”

While we agree with the Board that because of the lack of certainty in the area it necessarily must have some flexibility, that same lack of certainty looms large as the very reason why the effects of the standards on the economy must also be considered.

Flexibility does not amount to an unbridled license under which the Board, in its quest for the elusive goal of absolutely pure air, may destroy the economy which is also necessary for our survival.

Thus it behooves the Board to be judicious in its adoption of air quality standards for the reason that the costs of compliance are ultimately borne directly and indirectly by the very public which the Board professes to protect.

THE ROLE OF THE STATE DEPARTMENT OF HEALTH SERVICES

Prior to 1967, the health department had the responsibility for establishing ambient air quality standards.   In that year, the Legislature enacted the Mulford Carroll Air Resources Act.   The Board was created and given responsibility for establishing ambient air quality standards with the proviso that standards relating to health effects shall be based on recommendations of the health department.  (Health & Saf. Code, § 39606(b).)

It seems obvious that this proviso was to insure that the Board, whose membership lacks any medical training or expertise, look to the health department as its primary source of information and expertise.

Board contends that the trial court's findings and conclusions amounted to a holding that the Board rather than merely basing its standards on “recommendations” of the health department was required to adhere to and not deviate from such recommendations.   We do not read the trial court's conclusion in that manner.

We agree with the Board that while its standards relating to health must be based on recommendations of the health department, those standards do not have to be simply a rubber stamping of the recommendations.   These recommendations, however, must provide the base from which the standard is evolved and constitute the central core of the regulation.

In determining the ultimate issue of whether the Board's regulation is within the scope of its delegated authority, reasonable (California Hotel & Motel Assn. v. Industrial Welfare Com., supra) and supported by substantial evidence, the court must examine the basis for the health department's recommendation and the Board's deviation from those recommendations.

In essence that is exactly what the trial court did.   The trial court found that as to the SO2 standard, the essence of the health department input was that there was no demonstrable adverse health effects from a level lower than .10 parts per million 4 and as to the sulphate standard there was no present scientific data upon which to base any standard.   The health department as a safeguard based on a complete lack of scientific data, did recommend the adoption of an interim standard of .25 per cubic meters of air in the presence of elevated levels of oxidants.

The trial court then, after an exhaustive examination of the administrative record, found that there was simply insufficient evidence to justify the wide divergence between the material presented by the health department and the standards finally adopted.   In essence this was a holding that the Board acted arbitrarily and capriciously.

SCOPE OF REVIEW

Since we are here examining a “legislative” type of regulation purportedly adopted pursuant to a statutory grant of authority, we are not bound by the determination of the trial court, but must make our own determination of whether the record shows a reasonable basis for the Board's determination.   (Lockard v. City of Los Angeles, 33 Cal.2d 453, 202 P.2d 38;  Ralphs Grocery Co. v. Reimel, 69 Cal.2d 172, 70 Cal.Rptr. 407, 444 P.2d 79.)

We are persuaded, however, that the trial court's conclusion based on the administrative record was sound, well supported and correct.   The test, we reiterate, is whether the regulation was within the delegated authority, reasonable and adopted pursuant to proper procedures.  (Davis, Admin. Law Treatise (2d ed.) Vol. 2, p. 59, § 7.13 (1979).)

 As we have indicated, the procedures followed were defective.   Beyond that, given the requirement that the statute under which the Board purportedly acted, required that the ambient air quality standards be based on recommendations from the health department, we conclude that the scientific evidence underlying those recommendations and the recommendations themselves were insufficient to forms a basis for the regulations that were adopted.

Such a characterization of the evidence does not involve this court in reweighing the evidence before the Board, but simply exposes the necessity for the Board to adopt ambient air quality standards which bear some rational relationship to the scientific data and the health department's recommendations and to balance the hoped-for benefits against the cost of compliance in attempting to adopt regulations which are worthy of the appellation “reasonable.”

The judgment is affirmed.

FOOTNOTES

1.   The term sulfate is a general term applied to a number of chemical substances which are derived from sulfuric acid, which is itself referred to as a sulfate.   Some sulfates are toxic, others are harmless.

2.   Sulfur dioxide is produced by the burning of any fuel containing sulfur as well as other sources.

3.   We will hereafter refer to the provisions of the Act by the present Government Code section numbers unless otherwise indicated.

4.   The federal standard is .14 parts per million.

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.

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