Harris Transportation Co. v. Air Resources Board

• Decision Date: 31 January 1995
• Docket Number: No. C016988,C016988
• Citation: 32 Cal.App.4th 1472,38 Cal.Rptr.2d 431
• Court: California Court of Appeals Court of Appeals
• Parties: HARRIS TRANSPORTATION CO. et al., Plaintiffs and Appellants, v. CALIFORNIA AIR RESOURCES BOARD, Defendant and Respondent.

Page 431

38 Cal.Rptr.2d 431

32 Cal.App.4th 1472

HARRIS TRANSPORTATION CO. et al., Plaintiffs and Appellants, v. CALIFORNIA AIR RESOURCES BOARD, Defendant and Respondent.

No. C016988.

Court of Appeal, Third District, California.

Jan. 31, 1995.

As Modified March 2, 1995.

Rehearing Denied Feb. 24, 1995.

Review Denied April 19, 1995.

Richard W. Smith and Daniel J. McCarthy, West Sacramento, for plaintiff and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Michael J. Weinberger, Supervising Deputy Atty. Gen., Jeremiah D. Blair and Barry Martin, Deputy Attys. Gen., for defendant and respondent.

PUGLIA, Presiding Justice.

Plaintiffs appeal from a superior court judgment denying their petition for writ of mandate challenging enforcement of the Heavy-Duty Vehicle Inspection Program (Cal.Code Regs., tit. 13, §§ 2180-2187, hereafter HDVIP) adopted by defendant California Air Resources Board (Board). HDVIP establishes procedures and criteria for intermittent roadside measurement of smoke emissions from heavy-duty diesel motor vehicles. Plaintiffs' writ petition invoked Code of Civil Procedure section 1094.5 to overturn specific enforcement actions pursuant to HDVIP and Code of Civil Procedure section 1085 to prohibit future enforcement of HDVIP. The superior court concluded plaintiffs failed in the administrative proceedings to preserve their challenge to the individual enforcement actions. As to the effort to prohibit future enforcement, the court concluded that an action to enforce a citation affords recipients of future citations for violating HDVIP a plain, speedy and adequate remedy (Code Civ.Proc., § 1086) by which to vindicate the concerns raised here by plaintiffs.

On appeal plaintiffs contend, as they did in the superior court, that the HDVIP test procedure is unlawful because it is not generally accepted in the scientific community, and it creates a conclusive presumption; plaintiffs also contend the tests were not properly performed. We shall affirm.

I

The Board was established in 1967 by the Mulford-Carrell Air Resources Act (Stats.1967, ch. 1545, § 5, p. 3680) and 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." (Health & Saf. Code, § 39003; Western Oil & Gas Assn. v. Air Resources Bd. (1984) 37 Cal.3d 502, 508, 208 Cal.Rptr. 850, 691 P.2d 606.)

In 1988, the Legislature enacted Health and Safety Code section 44011.6 (hereafter section 44011.6) directing the Board to develop, "[a]s expeditiously as possible," "a test procedure for the detection of excessive smoke emissions from heavy-duty diesel motor vehicles that is feasible for use in an intermittent roadside inspection program." (Stats.1988, ch. 1544, § 26; § 44011.6, subd. (a)(1).) ¹ Section 44011.6 directs the Board to adopt regulations which "prohibit the use of heavy-duty motor vehicles which are determined to have excessive smoke emissions or other emissions-related defects, using the test procedure established pursuant to this section." (§ 44011.6, subd. (d), emphasis added.) The Board may "issue a citation to the owner or operator for any vehicle in violation of the regulations adopted under this section," (§ 44011.6, subd. (e) ) i.e., any vehicle failing to pass the test prescribed by the Board. (See Cal.Code Regs., tit. 13, § 2182, at fn. 4 post, p. 4.)

Thereafter, the Board adopted regulations establishing HDVIP and procedures for contesting a citation thereunder. HDVIP utilizes a "snap-idle" test for measuring the opacity of vehicle emissions. ² To test a vehicle, it is put through a "snap-idle cycle" three times and the maximum instantaneous value recorded during each cycle is taken as the opacity reading for that cycle. ³ (Cal.Code Regs., tit. 13, § 2182, subd. (h).) The test opacity is an average of at least two of these values. Opacity may not exceed either 40 or 55 percent depending upon the age and characteristics of the vehicle. (Cal.Code Regs., tit. 13, § 2182, subd. (a), (b), (h)(5).) ⁴

Under the hearing procedures (Cal.Code Regs., tit. 17, § 60075.1 et seq.), a vehicle owner may contest a citation by filing a request for hearing within 30 days of its receipt. (Cal.Code Regs., tit. 17, § 60075.10.) In the hearing, the issues are limited to those raised by the citation and the request for hearing. (Cal.Code Regs., tit. 17, § 60075.12.) To obtain judicial review under Code of Civil Procedure section 1094.5 of a final decision by the Board, a petition for writ of mandate must be filed within 60 days of service of the decision. (Cal.Code Regs., tit. 17, § 60075.47.)

Plaintiffs are owners of vehicles subject to HDVIP who were issued citations and timely requested administrative hearings. In the administrative proceedings, plaintiffs contested the scientific validity of the snap-idle test procedures adopted by the Board. The Board rejected the challenge and upheld the citations.

Plaintiffs petitioned the superior court for relief under Code of Civil Procedure sections 1094.5 and 1085. (Further statutory references to sections of an undesignated code are to the Code of Civil Procedure.) Plaintiffs' writ petition alleged HDVIP is unlawful as it utilizes an inaccurate test and the hearing procedures are unconstitutional in that they preclude challenge to the test results. In oral argument before the superior court, plaintiffs raised the additional claim that the tests were not properly performed. Plaintiffs sought relief under section 1094.5 ordering the Board to set aside its decisions on the individual citations and under section 1085 ordering the Board to cease enforcing HDVIP.

The superior court dismissed the petition as to certain of the plaintiffs for failure to file their writ petition within 60 days of the administrative decision. (Cal.Code Regs., tit. 17, § 60075.47.) As to the remaining plaintiffs, the court denied relief, concluding plaintiffs may not challenge the regulations in a proceeding contesting a citation, and any issue regarding performance of the tests was waived for failure to raise it in the administrative proceeding. Regarding the request prospectively to enjoin enforcement of HDVIP, the court concluded plaintiffs have an adequate remedy in the ordinary course of law. (§ 1086.)

II

We first consider plaintiffs' appeal from the rejection of their section 1094.5 challenge to the individual citations.

Section 1094.5 provides for review of a final administrative decision to determine "whether [the Board] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (§ 1094.5, subd. (b).)

In their writ petition, plaintiffs challenged the regulations establishing HDVIP and the hearing procedures. Plaintiffs alleged they were denied a fair hearing because the snap-idle test results were received in the administrative hearing over their Kelly/ Frye objection and they were not permitted to introduce evidence in rebuttal. ⁵ The trial court refused to consider this argument, indicating the validity of the regulations themselves is not a proper subject of review in an enforcement proceeding.

On appeal, plaintiffs appear to raise three arguments to attack the superior court's ruling: (1) the Kelly standard is applicable to administrative proceedings, (2) the regulations are invalid because they utilize a test which does not satisfy the Kelly standard, and (3) validity of the administrative regulations may be tested in a section 1094.5 proceeding.

We agree as a general matter the Kelly standard is applicable to administrative proceedings. (See Seering v. Department of Social Services (1987) 194 Cal.App.3d 298, 310, 239 Cal.Rptr. 422.) Had the question before the Board been the opacity of plaintiffs' vehicle emissions, and snap-idle test results were admitted to prove the particular level of opacity, Kelly would require proof of the general scientific acceptance of that test. However, the dispositive issue before the Board was not the particular opacity level but the test results themselves. Section 44011.6 directs the Board to adopt a test to measure vehicle emissions and authorizes the Board to cite the owner of "any vehicle in violation of [Board] regulations." (§ 44011.6, subd. (e).) Board regulations prohibit the operation on California highways of heavy-duty diesel motor vehicles which fail the snap-idle test. (Cal.Code Regs., tit. 13, § 2182.) Whether the snap-idle test is scientifically accepted as an accurate measure of vehicle emissions is not the relevant issue at this juncture. Rather it is whether the plaintiffs' vehicles failed the test prescribed by the Board, i.e., the snap-idle test. If a vehicle fails the snap-idle test, it is in violation of Board regulations and the owner is subject to citation. In this context, Kelly is inapplicable.

Nevertheless, as plaintiffs contend, the scientific validity of the snap-idle test may be contested in an enforcement proceeding by challenging the quasi-legislative act of the Board in adopting the test. An administrative enforcement action is adjudicatory in nature. Evidence is presented and the hearing officer makes factual determinations as to whether there has been a violation. In such proceedings a challenge to the legality of the regulations is cognizable. (See, e.g., Woods v. Superior Court (1981) 28 Cal.3d 668, 676-677, 170 Cal.Rptr. 484, 620 P.2d 1032 [unsuccessful applicant for welfare benefits may contest validity of...