The Ultramar oil company has filed suit against the South Coast Air Quality Management District, seeking to block a new AQMD rule curbing large-scale use of hydrofluoric acid, an acutely toxic industrial chemical.
The company's Wilmington refinery is one of five plants affected by the rule, which will phase out bulk use of hydrofluoric acid by 1999 unless industry develops a safe form of the chemical by 1994. Others include the Allied Signal chemical plant in El Segundo, Mobil's Torrance refinery, and the Golden West and Powerine refineries in Santa Fe Springs.
Filed last week in Los Angeles County Superior Court, the suit by Ultramar Inc. marks the first legal challenge to the hotly debated hydrofluoric acid rule. The company's central allegation is that the air quality agency's governing board overstepped its authority when it approved the measure April 5.
"We question whether the state has given (the AQMD) the authority to regulate accidental releases," said Michael Hileman, Ultramar's vice president of corporate development. "If the court concludes they don't have jurisdiction, then the rule will be invalid."
AQMD officials acknowledge that the hydrofluoric acid measure marks a departure from the agency's customary activity of curbing routine air pollution. But they assert that the agency is on firm legal footing, pointing out that it is responsible for enforcing a state law prohibiting the discharge of air pollutants that endanger public health.
"One can argue about whether the rule was the right way to address the problem," said Barbara Baird, the AQMD's principal deputy district counsel. "But on the basic question of whether we have the authority, I think the court should hold that the district should have that authority."
The hydrofluoric acid measure is the first of what the AQMD says will be a series of rules it plans to develop to reduce the risk of a catastrophic chemical spill in the densely populated Los Angeles region.
Used by four Los Angeles area refineries to make high-grade gasoline and by Allied Signal to manufacture refrigerants, the acid is considered dangerous because it forms a highly toxic, ground-hugging cloud when released.
In its lawsuit, Ultramar asks that the rule be overturned on several grounds. Among other allegations, it charges that the air agency overstated hydrofluoric acid's risks and understated the costs of converting to sulfuric acid--currently, the only alternative to hydrofluoric acid in oil refining.
But Ultramar's chief allegation concerns the question of the AQMD's legal authority, and it cites a non-binding opinion issued by state Legislative Counsel Bion Gregory in January to bolster its case.
The opinion, requested by state Sen. Robert G. Beverly (R-Manhattan Beach), stated that aside from one narrow exception, the AQMD "does not have the authority to regulate or prohibit the use of a chemical based solely on the possibility of an accidental release of that chemical."
But air quality officials consider the legislative counsel's opinion flawed. One of the state laws that the agency is charged with enforcing, they point out, prohibits the discharge of air pollutants that "endanger the comfort, repose, health or safety" of the public. . . ."
Said Baird: "The approach that the legislative counsel took was extremely restrictive and contrary to our understanding of the intent of (state law) to protect the public."
The counsel's opinion, Baird says, also does not square with a 1989 San Diego County Superior Court ruling addressing a related question. The non-binding ruling allowed San Diego County air quality officials to take steps to ensure that harmful concentrations of a gas used at a chemical plant would not escape from the site in the event of a release.
"A regulation designed to prevent a nuisance should take effect before (a chemical spill) is imminent and the horse escapes the barn," Baird said.
Ultramar, Powerine and Golden West have been the chief source of industry opposition to the hydrofluoric acid rule. Allied Signal and Mobil indicated in February that they would accept the rule after the AQMD dropped plans to impose an earlier phase-out.
The three independent oil companies argue that if an acceptable new form of hydrofluoric acid is not developed in time, the costs of converting to sulfuric acid will be tougher on them than on large companies like Mobil.
"We've estimated it would be $50 million to convert," said Hileman, the Ultramar vice president. "This is not going to shut Ultramar Inc. down. But a $50-million cost puts us at a severe competitive disadvantage. As an independent oil company, our pockets are not as deep as the majors'."