Hardesty v. Sacramento Metropolitan Air Quality Mgmt. Dist., No. C065784.

CourtCalifornia Court of Appeals
Writing for the CourtHOCH
Citation11 Cal. Daily Op. Serv. 15507,136 Cal.Rptr.3d 132,2011 Daily Journal D.A.R. 18443,202 Cal.App.4th 404
PartiesJoseph HARDESTY et al., Plaintiffs and Appellants, v. SACRAMENTO METROPOLITAN AIR QUALITY MANAGEMENT DISTRICT et al., Defendants and Respondents; California Air Resources Board, Intervener and Respondent.
Docket NumberNo. C065784.
Decision Date27 December 2011

202 Cal.App.4th 404
136 Cal.Rptr.3d 132
11 Cal.
Daily Op. Serv. 15,507
2011 Daily Journal D.A.R. 18,443

Joseph HARDESTY et al., Plaintiffs and Appellants,
v.
SACRAMENTO METROPOLITAN AIR QUALITY MANAGEMENT DISTRICT et al., Defendants and Respondents;
California Air Resources Board, Intervener and Respondent.

No. C065784.

Court of Appeal, Third District, California.

Dec. 27, 2011.



[136 Cal.Rptr.3d 135]Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Scott A. Morris and William T. Chisum for Plaintiffs and Appellants.

Katherine C. Pittard for Sacramento Metropolitan Air Quality Management District and Larry Green; Hanson Bridgett, San Francisco, and Kimon Manolius for Sacramento Metropolitan Air Quality Management District Hearing Board and Hearing Board Members Weyers, German, Moak, Olson and Woo, Defendants and Respondents.


Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Assistant Attorney General, Sara J. Russell and Deborah L. Barnes, Deputy Attorneys General, for Intervener and Respondent.

HOCH, J.

[202 Cal.App.4th 408]

Joseph and Yvette Hardesty are the owners of Hardesty Sand and Gravel (Hardesty), an open-pit mining operation located near Sloughhouse. The Sacramento Metropolitan Air Quality Management District (District) obtained from its hearing board an abatement order directing Hardesty to cease operation of the central plant equipment and all internal combustion engines with a rating greater than 50 horsepower until Hardesty obtained a permit from the District. Hardesty then filed a petition for writ of mandate in the trial court, seeking an order directing the District to vacate and cease enforcement of the abatement order. The California Air Resources Board (Board) intervened in opposition to Hardesty's writ petition. The trial court denied the petition.

Hardesty appeals, arguing: (1) the trial court should have used the independent judgment standard in reviewing the hearing board's decision to issue the abatement order; (2) the District's permit program, which contains an exemption for equipment that emits less than two pounds of pollutants in any 24–hour period, is preempted by the federal Clean Air Act (CAA) because it contains an emissions standard that has not been approved by the Environmental Protection Agency (EPA); (3) the District cannot require a permit for the diesel-powered generator that runs the central plant equipment because that engine is registered under the state-wide Portable Equipment Registration Program (PERP) and the Board has not suspended or revoked this registration; (4) the generator is validly registered under[136 Cal.Rptr.3d 136]PERP because it is a “portable internal combustion engine” within the meaning of Health and Safety Code section 417511; (5) the central plant equipment does not emit at least two pounds of pollutants in any 24–hour period; and (6) the District's attempt to regulate Hardesty's mining operation improperly interferes with vested mining rights.

We disagree with each contention and affirm the trial court's order denying Hardesty's writ petition. As we shall explain, because Hardesty does not have a fundamental vested right to emit air pollution without a permit from the District, the trial court properly reviewed the hearing board's factual determinations under the substantial evidence standard. Turning to the merits, we conclude the District's permit program is not preempted by the CAA because the two-pound per day emissions threshold applies to stationary equipment, not mobile sources of air pollution. We also conclude the District possesses the regulatory authority to determine whether a particular PERP registration is valid and, if not, to require a local permit, which it did in this case with respect to the generator supplying power to the central plant. Substantial

[202 Cal.App.4th 409]

evidence supports the hearing board's determination that the generator remained at the Hardesty mining operation for more than 12 consecutive months, and therefore was not eligible for PERP registration. With respect to the central plant equipment, substantial evidence supports the hearing board's conclusion that this equipment emits at least two pounds of pollutants in any 24–hour period. Finally, requiring Hardesty to obtain a permit from the District does not improperly interfere with vested mining rights.

BACKGROUND
Regulatory Scheme

We begin with a brief overview of California's air quality regulatory scheme in order to place the facts of this case in their proper context. Provisions important to the resolution of this appeal will be examined in greater detail in the discussion that follows.

California has divided responsibility for control of air pollution between the Board and 35 local and regional air quality management districts. One of these districts is the Sacramento Metropolitan Air Quality Management District, as mentioned above. (§ 40960.)

The Board is “charged with coordinating efforts to attain and maintain ambient air quality standards, to conduct research into the causes of and solution to air pollution, and to systematically attack the serious problem caused by motor vehicles, which is the major source of air pollution in many areas of the state.” (§ 39003.) The Board has exclusive responsibility for control of emissions from motor vehicles, while the local and regional districts have primary responsibility for control of air pollution from all sources other than emissions from motor vehicles. (§§ 39002, 39500, 40000.) These districts “shall adopt and enforce rules and regulations to achieve and maintain the state and federal ambient air quality standards in all areas affected by emission sources under their jurisdiction, and shall enforce all applicable provisions of state and federal law.” (§ 40001.)

Prior to 1997, “portable equipment” was exclusively regulated by the local and regional districts. Accordingly, owners who used their portable equipment in more than one district were required to obtain separate permits for each district in which [136 Cal.Rptr.3d 137]the equipment operated. (See § 41750, subd. (a) [“Existing law authorizes each district to impose separate and sometimes inconsistent emission control requirements for, and to require separate permits to operate, portable equipment that are used at various sites throughout the state”].) Concluding that this “multiplicity of permits and regulatory requirements impose[d] a complex and costly burden on California businesses that use,

[202 Cal.App.4th 410]

hire, provide, and manufacture that equipment” (§ 41750), the Legislature directed the Board to establish by regulation “an optional registration program for portable equipment that is, or may be, used in more than a single district,” and to establish “emission limits and emission control requirements” for such equipment. (§ 41752, subd. (a); see also § 41754.)

As relevant here, “ ‘portable equipment’ includes any portable internal combustion engine and equipment that is associated with, and driven by, any portable internal combustion engine.” (§ 41751, subd. (a)(1).) A “ ‘portable internal combustion engine’ is any internal combustion engine that, by itself, or contained within or attached to a piece of equipment, is portable or transportable.” (§ 41751, subd. (a)(2)(A).) And “ ‘portable or transportable’ means designed to be, and capable of being, carried or moved from one location to another. Indicia of portability or transportability include, but are not limited to, wheels, skids, carrying handles, or a dolly, trailer, or platform.” (§ 41751, subd. (a)(2)(B).) However, such an engine is not portable if “[t]he engine remains, or will remain, at a fixed location for more than 12 consecutive months. For purposes of this paragraph, a ‘fixed location’ is any single site at a building, structure, facility, or installation.” (§ 41751, subd. (b)(1).)

Section 41753, subdivision (a), expresses the intent of the Legislature that “the registration of, and the regulation of emissions from, portable equipment that is operated in more than one district and that is subject to the registration program be done on a uniform, statewide basis by the [Board] and that the permitting, registration, and regulation of portable equipment by the districts be preempted.” However, this subdivision also provides that “if the owner or operator of portable equipment elects not to register under the statewide registration program, the unregistered portable equipment shall be subject to district permitting requirements pursuant to district regulations.” (§ 41753, subd. (a).)

The local and regional districts are required to “enforce the statewide registration program, emission limitations, and emission control requirements established by the [Board] pursuant to this article in the same manner as a district rule or regulation.” (§ 41755, subd. (a).) The Board has adopted regulations implementing the program. (Cal.Code Regs., tit. 13, § 2450 et seq.) These regulations provide: “Once registration is issued by the [Board's] Executive Officer, district permits or district registrations for engines or equipment units registered in the Statewide Registration Program are preempted by the statewide registration and are, therefore, considered null and void, except for the following circumstances where a district permit shall be required: [¶] ... [¶] (4) at any specific location where statewide registration is not valid. The owner of the engine or equipment unit shall

[202 Cal.App.4th 411]

obtain a district permit or registration for the location(s) where the statewide registration is not valid.” (Cal.Code Regs., tit. 13, § 2453, subd. ( l )(4).)

The Hardesty Mining Operation

Hardesty operates an open-pit sand and gravel mining operation at the Schneider Historic Mine (mine site) near Sloughhouse.[136 Cal.Rptr.3d 138]The mine site encompasses 3,900 acres along Meiss Road, and was historically the site of gold mining operations. Hardesty began working the mine...

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