Superior Court Judge Rules Against SDG&E; in Affirming Fee Plan

A Superior Court judge on Tuesday ruled against San Diego Gas & Electric and affirmed a new fee system imposed in 1986 by the county Air Pollution Control District.

Superior Court Judge Patricia D. Benke ruled that the district may levy fees based upon the number of tons of pollution emitted by a company.

As the county’s largest individual polluter, SDG&E; stands to pay the highest share of the district’s indirect air-monitoring costs covered under the new system.

“We were very pleased that the judge ruled in our favor,” said Rich Somerville, air pollution control officer. “We believed that we had a very strong case or we would not have proceeded.”

SDG&E; attorney Michael Weinstein said he was disappointed in the ruling. He called the suit “an effort to protect our rate payers . . . from costs we don’t think should be reflected in their bill.” Weinstein was unsure whether the utility would appeal the decision.

SDG&E; filed the suit in December, alleging that the new fee system was in violation of the U.S. Clean Air Act of 1977 and Proposition 13, the tax-slashing amendment approved by California voters in 1978. The utility called the fees an unconstitutional tax.

Under Proposition 13, new taxes must be approved by two-thirds’ of the voters.

But the judge declared the fees to be within the scope of the district to levy and are a violation of neither Proposition 13 nor the federal Clean Air Act. Further, she said that the fee system provided for a reasonable apportionment of the fee among polluters.

The new fee system was approved for a 12-month test program in May, 1986, by the Board of Supervisors acting in their role as the board of the Air Pollution Control District. The fees were imposed as a means of making up $400,000 cut by the board last year from the district’s budget. SDG&E;’s share of that figure amounted to $130,000, almost one third, Weinstein said.

The utility also must pay $75,000 in permit fees, based on direct costs the district incurs in processing SDG&E; permits, a district spokeswoman said. The $130,000 in new fees cover the utility’s share of the district’s indirect overhead costs. Under the new fee system, polluters are charged an “emission fee” based on a rate of $14 per ton of emissions. By those calculations SDG&E; emits more than 9,000 tons of pollutants a year.

A coalition of small businesses and environmentalists pushed for the new fee system. Under the old system, small businesses paid for 87% of the fees while generating less than half of the air pollution. The county’s 12 largest polluters spew out a third of all air pollution, but under the previous fee structure, paid only 10% of the fees collected for monitoring emissions, according to the coalition.

The system affirmed by the court Tuesday is similar to that levied against polluters by the South Coast Air Quality Management District in Los Angeles.

Times staff writer Jenifer Warren contributed to this report.