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Rift divides top air quality regulators

A rift has developed between two of the Los Angeles region's most important overseers of air pollution laws, one that might take an act of the state legislature to resolve.

In a recent meeting, the head of the board that oversees air quality in the LA basin has accused the majority of an independent hearing board -- one that decides how to enforce local smog and emissions rules -- of being too cozy with the industries it regulates.   

William A. Burke, head of the South Coast Air Quality Management District's governing board, said three of the five-member hearing board tend to side with refineries and polluters over community health concerns. 
"I talk to the members by phone every week. And trust me, I don't care what they tell you, It's warring factions. There's two sides on that board, and they're at war," Burke told the governing board's Personnel Committee Feb. 13.
Burke has asked AQMD staff to suggest ways to change the board's behavior, possibly by cutting their AQMD-paid salaries or tripling the pay of  the doctor who lends health expertise to the hearing board, or by calling on the Legislature to intervene.

Burke and his cohorts on the AQMD governing board pick the members of the hearing board. But they have no power to discipline or remove them before their three-year terms are up.

William S. "Bill" Burke
South Coast Air Quality Management District
William S. "Bill" Burke

"We don't know if what they're doing is okay, or not okay," Burke said. "We just go along based on our assumption that we pick the people and the process of the hearing board is going okay. But over the past couple of months, I've gotten the feeling that it's not going okay, and they don't care because they are an independent group."

The chair of the hearing board, Edward Camarena, would not comment on Burke's assertions. 
Why does the AQMD hearing board matter?
The AQMD's governing board sets air quality regulations for the region, and its staffers act much like prosecutors investigating air pollution violations and recommending actions. AQMD's staff attorneys can seek penalty settlements for notices of violation, sometimes obtaining settlements  for millions of dollars, said AQMD spokesman Sam Atwood.

However, some cases known as orders for abatement must be resolved by the independent hearing board, which acts as an administrative law judge.  "Only the Hearing Board has the authority to issue Orders for Abatement, which can carry more enforcement weight than a notice of violation," Atwood said.

The hearing board's decisions are felt throughout the nation's dirtiest air basin, which includes portions of L.A., Riverside and San Bernardino counties and all of Orange County.
The hearing board has ruled in such high-profile cases as lead pollution from the Exide battery recycling plant in East L.A., chromium contamination in Paramount and the natural gas well blowout near Porter Ranch.
So the news that there's a growing rift between the governing board of the AQMD and its independent hearing board is a matter of concern for people who care about air quality.
"What's at stake from the person on the street's perspective is how much pollution they have to breathe," said David Pettit, senior attorney with the Natural Resources Defense Council. "From the Industry standpoint it often comes down to, do they need to spend more money to do something the AQMD wants them to do?"
How did this situation develop?
In April 2016, Burke endorsed the appointments of long-time LA politician Nate Holden and a doctor of internal medicine Roger Lerner to fill two open spots on the five-member hearing Board. Burke called Holden one of his oldest and closest friends, one with whom he had frequent telephone conversations about goings-on at the AQMD. Lerner, he said, was a doctor trusted by a family friend.
The two new members took their seats in July, and by September, it was clear things were not going well.

Former Los Angeles City Councilman and state Sen. Nate Holden was appointed to the independent Hearing Board of the South Coast Air Quality Management District in mid-2016.
South Coast Air Quality Management District
Former Los Angeles City Councilman and state Sen. Nate Holden was appointed to the independent Hearing Board of the South Coast Air Quality Management District in mid-2016.

At September's governing board meeting, Burke asked AQMD staff to prepare a report on the operation and effectiveness of the independent hearing board.
AQMD staff contracted with a law professor Kenneth Manaster to conduct the report. In his findings, delivered to the AQMD personnel committee earlier this month, Manaster concluded that the hearing board was working well for the most part and making sound decisions, but that it was taking a long time for it to make those decisions. And he largely blamed the new members, Holden and Lerner, for the delays.

Manaster said while Holden and Lerner were qualified for their duties on the board, they were seen by many of the 20 people he interviewed as unprepared for the work load and their role as impartial arbiters of administrative law. 
"There has been a failure to really make sure that the two people getting into this position, the two most recent members, they said it to me fairly clearly, 'I didn't know what I was getting into,'" Manaster told Burke at a Feb. 13 meeting of AQMD's personnel committee, at which the report was reviewed.
Manaster said the two new hearing board members did not realize how much homework was involved -- they can get hundreds of pages of documents to review for each case, sometimes only a day or two before their hearings.

Dr. Roger Lerner was appointed to fill the medical doctor-designated slot on the AQMD's independent hearing board in mid 2016.
South Coast Air Quality Management District
Dr. Roger Lerner was appointed to fill the medical doctor-designated slot on the AQMD's independent hearing board in mid 2016.

Manaster also mentioned complaints that Holden and Lerner have had a hard time staying on topic. Manaster concluded these problems could be solved largely through training and more staff assistance.

In some of the hearing board's higher-profile cases, lawyers representing the AQMD  have questioned how well the board understood the matters before them.   An example was a hearing Feb. 16 over an agreement between AQMD staff and the Torrance Refinery on a plan to reduce excessive flaring at the plant. Holden and Lerner voted against the plan even after it was changed substantially over a lunch break to meet their suggestions.

"The district is strongly concerned with the conversation that we just heard," said Karin Manwaring, an AQMD attorney. "It seems to me we lost two votes here where we otherwise could have had a 5-0 vote on a stipulated order for abatement that is intended to increase and enhance safety."

Burke told KPCC in an interview that Lerner and Holden were not the problem.  He  said the board was "out of control" and blamed the slow decision making largely on hearing board chairman Edward Camarena.

"The relationship between the lawyers representing the defendants and the hearing board is too close," Burke said.

He said Camarena grants too many delays at the request of companies and schedules meeting times that favor industry reps over community members.


Manaster said his study found no inappropriate delays.

Camarena said that in his role as a judicial officer he would not publicly respond to Burke's assertions. He also said Holden and Lerner would not be permitted to comment either.
Burke said he was frustrated that the AQMD governing board selects and pays the hearing board members but has no power to discipline or remove them. Only the state legislature can fire board members before the end of their three-year term. 

Burke floated the idea of stripping members of the hearing board of their pay.

"If the legislature has made this (board) totally independent and we're supposed to provide space and supplies, maybe we should go back to that," Burke said. "There's nothing in the law that says we have to pay these people."
Alternatively, he suggested paying the hearing board members much more to attract members who are more professional and able to work at least half-time on the hearing board, especially to fill the seat Lerner holds, that is designated for a medical doctor.
Burke said he's been in touch with leadership of the state Legislature in search of other options too.  State lawmakers removed the entire hearing board in 1992 after a period of turmoil.

Correction:  An earlier version of this story misstated the types of cases in which the Hearing Board rules. KPCC regrets the error.