Positive
As of: July 5, 2023 11:41 PM Z
Hardesty v. Sacramento Metropolitan Air Quality Management Dist.
Court of Appeal of California, Third Appellate District December 27, 2011, Filed
C065784
Reporter
202 Cal. App. 4th 404 *; 136 Cal. Rptr. 3d 132 **; 2011 Cal. App. LEXIS 1638 ***; 42 ELR 20001 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.
Subsequent History: Related proceeding at California
v. Hardesty Sand & Gravel, 2012 U.S. Dist. LEXIS
23932 (E.D. Cal., Feb. 23, 2012)
Related proceeding at Hardesty v. Sacramento Metro.
Air Quality Mgmt. Dist., 2012 U.S. Dist. LEXIS 44311
(E.D. Cal., Mar. 29, 2012)
Related proceeding at Schneider v. County of
Sacramento, 2013 U.S. Dist. LEXIS 97295 (E.D. Cal.,
July 10, 2013)
Related proceeding at Tankersley v. Arcand, 2016 U.S.
Dist. LEXIS 70084 (E.D. Cal., May 25, 2016)
Prior History: [***1] APPEAL from a judgment of the
Superior Court of Sacramento County, No.
34200980000340CUWMGDS, Timothy M. Frawley,
Judge.
Disposition: Affirmed.
Core Terms
engine, registration, plant, portable, regulations,
emission, site, pollutants, statewide, pounds, local
permit, trial court, registered, emit, mining operation, exemption, consecutive months, specific location,
districts, preempted, air pollution, calculated, oil,
fundamental vested right, invalid, tavern, vested, air, substantial evidence to support, internal combustion
engine
Case Summary
Procedural Posture
Plaintiffs, an open-pit mining company and its owners,
appealed an order from the Superior Court of
Sacramento County (California), which denied their
petition for writ of mandate challenging an abatement
order issued by defendant air quality management
district. The abatement order directed the company to
cease operation of its central plant equipment and
certain internal combustion engines until the company
obtained a permit from the district.
Overview
The company's central plant engine had a Portable
Equipment Registration Program (PERP) registration.
The district found that the registration was not valid. The court held that because the abatement order did not
substantially affect a fundamental vested right, the trial court correctly reviewed the administrative findings for substantial evidence. The Clean Air Act did not preempt a district rule under 42 U.S.C. § 7543 because an
emissions exemption in the rule did not apply to the
central plant engine, because that engine was not a
nonroad engine as defined in 40 C.F.R. § 89.2 (2011),
and because the company did not argue that the rule
was preempted as to other equipment. The district had
authority under Health & Saf. Code, §§ 41753, subds.
(a), (b), 41755, subd. (a), to rule on the registration's validity. Substantial evidence supported a finding that the engine was not portable under Health & Saf. Code,
§ 41751, subd. (b)(1), and was thus ineligible for PERP registration. Substantial evidence also supported a
finding that the other central plant equipment was
ineligible for the emissions exemption in the district's rule because of the quantity of pollutants emitted.
Outcome
The court affirmed the order denying the petition for writ of mandate.
LexisNexis® Headnotes
Administrative Law > Judicial Review > Standards
of Review > General Overview
HN1[ ] Judicial Review, Standards of Review
If a decision of an administrative agency substantially affects a fundamental vested right, the trial court must not only examine the administrative record for errors of law, but also must exercise its independent judgment
upon the evidence. However, when the administrative
decision neither involves nor substantially affects such a right, the trial court must review the entire administrative record to determine whether the findings are supported
by substantial evidence and if the agency committed
any errors of law. In determining whether a decision
substantially affects a fundamental vested right, a court must decide whether it substantially affects a right that has been legitimately acquired or is otherwise vested,
and whether that right is fundamental in the sense of the importance of the right to the individual and the effect of the right in economic and human terms. The effect and
importance of rights and the degree to which they are
possessed are to be weighed together, and the search
for vestedness and the search for fundamentalness are
one and the same. The ultimate question in each case
is whether the affected right is deemed to be of
sufficient significance to preclude its extinction or
abridgement by a body lacking judicial power.
Administrative Law > Judicial Review > Standards
of Review > De Novo Standard of Review
Administrative Law > Judicial Review > Standards
of Review > Rule Interpretation
Administrative Law > Judicial Review > Standards
of Review > Deference to Agency Statutory
Interpretation
HN2[ ] Standards of Review, De Novo Standard of
Review
While questions of statutory construction are subject to de novo review on appeal, a reviewing court must
adhere to the well-settled principle of affording great weight to the contemporaneous administrative
construction of a statute by those charged with its
enforcement. An administrative agency's interpretation
of its own regulation is shown even greater deference.
Business & Corporate
Compliance > ... > Environmental Law > Air
Quality > National Ambient Air Quality Standards
Environmental Law > ... > Emission
Standards > Stationary Emission Sources > General
Overview
Environmental Law > Air Quality > State
Implementation Plans
HN3[ ] Air Quality, National Ambient Air Quality
Standards
The federal Clean Air Act (CAA) makes the states and
the federal government partners in the struggle against air pollution. Under title I of the CAA, the U.S.
Environmental Protection Agency (EPA) is responsible
for establishing primary and secondary national ambient air quality standards (NAAQSs) for each air quality
control region, setting permissible levels of
concentration for various pollutants. 42 U.S.C. §§ 7408- 7409. The states, however, are primarily responsible for assuring air quality within their borders by submitting for EPA approval state implementation plans (SIPs) for
achieving the NAAQSs. 42 U.S.C. §§ 7407, 7410. The
CAA contemplates that the states will carry out this
responsibility chiefly by regulating stationary sources, such as factories and power plants.
Business & Corporate Compliance > ... > Air
Quality > Emission Standards > Mobile Emissions
Sources
HN4[ ] Emission Standards, Mobile Emissions
Sources
Under title II of the federal Clean Air Act, the U.S.
Environmental Protection Agency (EPA) directly sets
emissions standards for mobile sources of air pollution, including motor vehicles and nonroad engines and
vehicles. 42 U.S.C. §§ 7521, 7547. Because the
regulation of mobile source emissions is a federal
responsibility, Congress has expressly preempted
states from setting emissions standards for mobile
202 Cal. App. 4th 404, *404; 136 Cal. Rptr. 3d 132, **132; 2011 Cal. App. LEXIS 1638, ***1
sources. 42 U.S.C. § 7543. California, however, has
been granted an exemption from this preemption
provision so long as it obtains EPA approval for its
emissions standards. § 7543. Other states may then opt
in to the California standards by adopting identical
standards as their own. 42 U.S.C. §§ 7507,
7543(e)(2)(B).
Business & Corporate Compliance > ... > Air
Quality > Emission Standards > Mobile Emissions
Sources
HN5[ ] Emission Standards, Mobile Emissions
Sources
A nonroad engine is any internal combustion engine that is portable or transportable, meaning designed to be
and capable of being carried or moved from one
location to another. Indicia of transportability include, but are not limited to, wheels, skids, carrying handles, dolly, trailer, or platform. However, such an engine is not a
nonroad engine if it remains or will remain at a location for more than 12 consecutive months or a shorter period of time for an engine located at a seasonal source. A
location is any single site at a building, structure, facility, or installation. Any engine (or engines) that replaces an engine at a location and that is intended to perform the same or similar function as the engine replaced will be included in calculating the consecutive time period. 40 C.F.R. § 89.2 (2011).
Civil Procedure > Appeals > Standards of
Review > De Novo Review
Governments > Legislation > Interpretation
HN6[ ] Standards of Review, De Novo Review
Issues of statutory interpretation are questions of law subject to de novo review.
Governments > Legislation > Interpretation
HN7[ ] Legislation, Interpretation
A court's fundamental task in interpreting a statute is to determine the Legislature's intent so as to effectuate the law's purpose. The court first examines the statutory
language, giving it a plain and commonsense meaning.
The court does not examine that language in isolation,
but in the context of the statutory framework as a whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If
the statutory language permits more than one
reasonable interpretation, courts may consider other
aids, such as the statute's purpose, legislative history, and public policy.
Environmental Law > Air Quality > Operating
Permits
Governments > State & Territorial
Governments > Relations With Governments
HN8[ ] Air Quality, Operating Permits
See Health & Saf. Code, § 41753, subds. (a), (b).
Environmental Law > Air Quality > Operating
Permits
Governments > State & Territorial
Governments > Relations With Governments
HN9[ ] Air Quality, Operating Permits
See Cal. Code Regs., tit. 13, § 2450.
Environmental Law > Air Quality > Operating
Permits
Governments > State & Territorial
Governments > Relations With Governments
HN10[ ] Air Quality, Operating Permits
See Cal. Code Regs., tit. 13, § 2453, subd. (l)(4).
Environmental Law > Air
Quality > Enforcement > Administrative Proceedings
Environmental Law > Air Quality > Operating
Permits
202 Cal. App. 4th 404, *404; 136 Cal. Rptr. 3d 132, **132; 2011 Cal. App. LEXIS 1638, ***1
HN11[ ] Enforcement, Administrative Proceedings
The Legislature has required local and regional districts to enforce the statewide Portable Equipment
Registration Program (PERP), emission limitations, and
emission control requirements established by the
California Air Resources Board pursuant to this article in the same manner as a district rule or regulation. Health & Saf. Code, § 41755, subd. (a). The board's
regulations also provide that an owner or operator of
PERP-registered engines or equipment units may
operate within the boundaries of the State of California so long as such registered engines or equipment units
comply with all applicable requirements of this article and any other applicable federal or state law. Cal. Code Regs., tit. 13, § 2454, subd. (c)(2).
Environmental Law > Air
Quality > Enforcement > Administrative Proceedings
Environmental Law > Air Quality > Operating
Permits
HN12[ ] Enforcement, Administrative Proceedings
Read together, Health & Saf. Code, §§ 41753, subds.
(a), (b), 41755, subd. (a), and Cal. Code Regs., tit. 13, §§ 2450, 2453, subd. (l)(4), 2454, subd. (c)(2), establish a regime under which a portable engine that has a valid Portable Equipment Registration Program (PERP)
registration is not subject to an air quality management district's permit requirements. Where a PERP
registration has been obtained, and is valid at the
specific location where the engine is operated, any
permit issued by the district is a nullity. However, where a PERP registration has not been obtained, or where
the registration is invalid at the specific location where the engine is operated, a local permit from the district is required. Because a district is charged with enforcing
PERP registration requirements in the same manner as
the district's own rules or regulations, a district must possess the authority to determine whether a PERP
registration is valid, and if not, to require a local permit.
The fact that the California Air Resources Board's
executive director has exclusive authority under the
regulations to suspend or revoke a PERP registration
does not evince the intent of the Legislature, or the
drafters of the board's regulations, that a district cannot declare a PERP registration invalid at a specific location and require a local permit at that location.
Environmental Law > Air Quality > Operating
Permits
HN13[ ] Air Quality, Operating Permits
See Health & Saf. Code, § 41751, subd. (a)(1).
Environmental Law > Air Quality > Operating
Permits
HN14[ ] Air Quality, Operating Permits
See Health & Saf. Code, § 41751, subd. (a)(2)(A).
Environmental Law > Air Quality > Operating
Permits
HN15[ ] Air Quality, Operating Permits
See Health & Saf. Code, § 41751, subd. (a)(2)(B).
Environmental Law > Air Quality > Operating
Permits
HN16[ ] Air Quality, Operating Permits
An engine is not portable if the 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. Health & Saf. Code, § 41751, subd. (b)(1).
Environmental Law > Air Quality > Operating
Permits
HN17[ ] Air Quality, Operating Permits
See Cal. Code Regs., tit. 13, § 2453, subd. (dd)(1).
Environmental Law > Air Quality > Operating
Permits
HN18[ ] Air Quality, Operating Permits
The Legislature has recognized the California Air
Resources Board's need to establish recordkeeping and
202 Cal. App. 4th 404, *404; 136 Cal. Rptr. 3d 132, **132; 2011 Cal. App. LEXIS 1638, ***1
recording requirements for the purpose of tracking
portable equipment utilization and movement, but has
directed that these requirements shall be the minimum
that is necessary to allow adequate enforcement of the
registration program. Health & Saf. Code, § 41754,
subd. (f). The board has implemented this directive by
requiring portable equipment operators to maintain a
record of the specific location where the registered unit is located each time the equipment unit is brought to a new location including relocation for the purposes of
storage. The date the equipment unit was placed at the
new location shall also be recorded. Cal. Code Regs.,
tit. 13, § 2458, subd. (a)(2)(D).
Environmental Law > Air Quality > Operating
Permits
HN19[ ] Air Quality, Operating Permits
See Cal. Code Regs., tit. 13, § 2458, subd. (a)(2)(E).
Evidence > Burdens of Proof > Allocation
HN20[ ] Burdens of Proof, Allocation
Where evidence necessary to establish a fact essential
to a claim lies peculiarly within the knowledge and
competence of one of the parties, that party has the
burden of going forward with the evidence on the issue.
Evidence > Weight & Sufficiency
HN21[ ] Evidence, Weight & Sufficiency
See Evid. Code, § 412.
Environmental Law > Air Quality > Operating
Permits
HN22[ ] Air Quality, Operating Permits
See Cal. Code Regs., tit. 13, § 2452, subd. (dd)(1).
Environmental Law > Air Quality > Operating
Permits
HN23[ ] Air Quality, Operating Permits
Sacramento Metropolitan Air Quality Management Dist.,
rule 201, contains an exemption for equipment which
would emit any pollutants without the benefit of air
pollution control devices less than 2 pounds in any 24
hour period. Rule 201, § 122. In determining whether
this exemption applies to a sand and gravel operation,
the district takes the rate at which the operation
processes the aggregate material and multiplies that by certain emission factors depending on the particular
process involved. The district considers the use of water for dust suppression to be an air pollution control device and calculates the emission level based on operation of the equipment without the use of water. But where the
equipment requires water to operate properly, the
district assumes the equipment does not emit dust and
excludes this equipment from the calculation.
Business & Corporate Compliance > ... > Real
Property Law > Mining > Regulations
Energy & Utilities Law > ... > Surface Mining Control
& Reclamation Act > Surface Mining
Permits > General Overview
HN24[ ] Real Property, Mining Regulations
See Pub. Resources Code, § 2776, subd. (a).
Environmental Law > Air Quality > Operating
Permits
HN25[ ] Air Quality, Operating Permits
A regional air quality management district may condition approval of a permit on compliance with a limit on
emissions without violating a vested right of the
applicant because companies have no vested right to
pollute the air at any particular level.
Headnotes/Summary
Summary
CALIFORNIA OFFICIAL REPORTS SUMMARY
The trial court denied a petition for writ of mandate filed by an open-pit mining company and its owners to
202 Cal. App. 4th 404, *404; 136 Cal. Rptr. 3d 132, **132; 2011 Cal. App. LEXIS 1638, ***1
challenge an abatement order issued by an air quality
management district. The abatement order directed the
company to cease operation of its central plant
equipment and certain internal combustion engines until the company obtained a permit from the district. The
company's central plant engine had a Portable
Equipment Registration Program (PERP) registration.
The district found that the registration was not valid. (Superior Court of Sacramento County, No.
34200980000340CUWMGDS, Timothy M. Frawley,
Judge.)
The Court of Appeal affirmed, holding that because the
abatement order did not substantially affect a
fundamental vested right, the trial court correctly
reviewed the administrative findings for substantial
evidence. The Clean Air Act ( 42 U.S.C. § 7401 et seq.) did not preempt ( 42 U.S.C. § 7543) a district rule
because an emissions exemption in the rule did not
apply to the central plant engine, because that engine
was not a nonroad engine ( 40 C.F.R. § 89.2 (2011)),
and because the company did not argue that the rule
was preempted as to other equipment. The district had
authority (Health & Saf. Code, §§ 41753, subds. (a), (b), 41755, subd. (a)) to rule on the registration's validity.
Substantial evidence supported a finding that the engine was not portable ( Health & Saf. Code, § 41751, subd.
(b)(1)) and was thus ineligible for PERP registration.
Substantial evidence also supported a finding that the
other central plant equipment was ineligible for the
emissions exemption in the district's rule because of the quantity of pollutants emitted. (Opinion by Hoch, J., with Blease, Acting P. J., and Robie, J., concurring.) [*405] Headnotes
CALIFORNIA OFFICIAL REPORTS HEADNOTES
CA(1)[ ] (1)
Administrative Law § 124—Scope of Judicial Review—
Evidence—Decision Substantially Affecting
Fundamental Vested Right.
If a decision of an administrative agency substantially affects a fundamental vested right, the trial court must not only examine the administrative record for errors of law, but also must exercise its independent judgment
upon the evidence. However, when the administrative
decision neither involves nor substantially affects such a right, the trial court must review the entire administrative record to determine whether the findings are supported
by substantial evidence and if the agency committed
any errors of law. In determining whether a decision
substantially affects a fundamental vested right, a court must decide whether it substantially affects a right that has been legitimately acquired or is otherwise vested,
and whether that right is fundamental in the sense of the importance of the right to the individual and the effect of the right in economic and human terms. The effect and
importance of rights and the degree to which they are
possessed are to be weighed together, and the search
for vestedness and the search for fundamentalness are
one and the same. The ultimate question in each case
is whether the affected right is deemed to be of
sufficient significance to preclude its extinction or
abridgement by a body lacking judicial power.
CA(2)[ ] (2)
Pollution and Conservation Laws § 4—Air Pollution—
Clean Air Act—State Responsibilities.
The federal Clean Air Act (CAA; 42 U.S.C. § 7401 et
seq.) makes the states and the federal government
partners in the struggle against air pollution. Under title I of the CAA, the Environmental Protection Agency (EPA)
is responsible for establishing primary and secondary
national ambient air quality standards (NAAQS's) for
each air quality control region, setting permissible levels of concentration for various pollutants ( 42 U.S.C. §§
7408–7409). The states, however, are primarily
responsible for assuring air quality within their borders by submitting for EPA approval state implementation
plans for achieving the NAAQS's ( 42 U.S.C. §§ 7407,
7410). The CAA contemplates that the states will carry
out this responsibility chiefly by regulating stationary sources, such as factories and power plants.
CA(3)[ ] (3)
Pollution and Conservation Laws § 4—Air Pollution—
Clean Air Act—Preemption—Emissions Standards for
Mobile Sources.
Under title II of the federal Clean Air Act ( 42 U.S.C. § 7401 et seq.), the Environmental Protection Agency
(EPA) directly sets emissions standards for mobile
sources of air pollution, including motor vehicles and
nonroad engines and vehicles ( 42 U.S.C. §§ 7521,
7547). Because the regulation of mobile source
emissions is a federal responsibility, Congress has
[*406] expressly preempted states from setting
202 Cal. App. 4th 404, *404; 136 Cal. Rptr. 3d 132, **132; 2011 Cal. App. LEXIS 1638, ***1
emissions standards for mobile sources ( 42 U.S.C. §
7543). California, however, has been granted an
exemption from this preemption provision so long as it
obtains EPA approval for its emissions standards ( §
7543). Other states may then opt in to the California
standards by adopting identical standards as their own
(42 U.S.C. §§ 7507, 7543(e)(2)(B)).
CA(4)[ ] (4)
Pollution and Conservation Laws § 4—Air Pollution—
Portable Equipment Registration Program—Authority of
Air Quality Management District.
An open-pit mining operation company claimed that an
air quality management district could not require a
permit for the company's central plant engine because
that engine had a Portable Equipment Registration
Program (PERP) registration and the California Air
Resources Board's executive officer had not suspended
or revoked this registration. According to the company, because the district was precluded from requiring a local permit upon the registration of portable equipment by
the portable equipment owner or operator (Health & Saf.
Code, § 41753, subd. (b)), and because the regulations
implementing the program provided the board's
executive officer with exclusive authority to suspend or revoke a PERP registration ( Cal. Code Regs., tit. 13, § 2463), the district could not declare a PERP registration invalid and require a local permit. This argument was
not persuasive.
[Manaster & Selmi, Cal. Environmental Law & Land Use
Practice (2011) ch. 41, § 41.08; 8 Witkin, Cal.
Procedure (5th ed. 2008) Extraordinary Writs, § 294; 7
Witkin, Summary of Cal. Law (10th ed. 2005)
Constitutional Law, § 23; 12 Witkin, Summary of Cal.
Law (10th ed. 2005) Real Property, § 899.]
CA(5)[ ] (5)
Statutes § 29—Construction—Language—Legislative
Intent—Effectuating Purpose of Law.
A court's fundamental task in interpreting a statute is to determine the Legislature's intent so as to effectuate the law's purpose. The court first examines the statutory
language, giving it a plain and commonsense meaning.
The court does not examine that language in isolation,
but in the context of the statutory framework as a whole in order to determine its scope and purpose and to
harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If
the statutory language permits more than one
reasonable interpretation, courts may consider other
aids, such as the statute's purpose, legislative history, and public policy.
CA(6)[ ] (6)
Pollution and Conservation Laws § 4—Air Pollution—
Portable Equipment Registration Program—Authority of
Air Quality Management District.
Read together, Health & Saf. Code, §§ 41753, subds.
(a), (b), [*407] 41755, subd. (a), and Cal. Code Regs., tit. 13, §§ 2450, 2453, subd. (l)(4), 2454, subd. (c)(2), establish a regime under which a portable engine that
has a valid Portable Equipment Registration Program
(PERP) registration is not subject to an air quality
management district's permit requirements. Where a
PERP registration has been obtained, and is valid at the specific location where the engine is operated, any
permit issued by the district is a nullity. However, where a PERP registration has not been obtained, or where
the registration is invalid at the specific location where the engine is operated, a local permit from the district is required. Because a district is charged with enforcing
PERP registration requirements in the same manner as
the district's own rules or regulations, a district must possess the authority to determine whether a PERP
registration is valid, and if not, to require a local permit.
CA(7)[ ] (7)
Evidence § 21—Presumptions, Inferences, and Burden
of Proof—Burden of Proof—Party Upon Whom Burden
Lies.
Where evidence necessary to establish a fact essential
to a claim lies peculiarly within the knowledge and
competence of one of the parties, that party has the
burden of going forward with the evidence on the issue.
CA(8)[ ] (8)
Pollution and Conservation Laws § 4—Air Pollution—
Imposition of Permit Conditions—No Vested Right to
Pollute.
202 Cal. App. 4th 404, *406; 136 Cal. Rptr. 3d 132, **132; 2011 Cal. App. LEXIS 1638, ***1
A regional air quality management district may condition approval of a permit on compliance with a limit on
emissions without violating a vested right of the
applicant because companies have no vested right to
pollute the air at any particular level.
Counsel: Kronick, Moskovitz, Tiedemann & Girard,
Scott A. Morris and William T. Chisum for Plaintiffs and Appellants.
Kathrine C. Pittard for Defendants and Respondents
Sacramento Metropolitan Air Quality Management
District and Larry Greene.
Hanson Bridgett and Kimon Manolius for Defendants
and Respondents Sacramento Metropolitan Air Quality
Management District Hearing Board and Hearing Board
Members.
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.
Judges: Opinion by Hoch, J., with Blease, Acting P. J., and Robie, J., concurring.
Opinion by: Hoch [*408]
Opinion
[**135] HOCH, J.—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 [***2] 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; 42 U.S.C.
§ 7401 et seq.) 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 statewide Portable
Equipment Registration Program (PERP) and the Board
has not suspended or revoked this registration; (4) the generator is validly registered under [**136] PERP
because it is a “portable internal combustion
[***3] engine” within the meaning of Health and Safety
Code section 41751 1; (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 [***4] [*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
1 Undesignated statutory references are to the Health and Safety Code.
202 Cal. App. 4th 404, *407; 136 Cal. Rptr. 3d 132, **132; 2011 Cal. App. LEXIS 1638, ***1
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 [***5] 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, subd. (a).)
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 [**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, [***6] 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, [*410] hire, provide, and manufacture that equipment” ( § 41750,
subd. (b)), 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, [***7] 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, [***8] 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 [*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).)
202 Cal. App. 4th 404, *409; 136 Cal. Rptr. 3d 132, **136; 2011 Cal. App. LEXIS 1638, ***4
The Hardesty Mining Operation
Hardesty operates an open-pit sand and gravel mining
operation at the Schneider Historic Mine (mine site)
near Sloughhouse. [**138] The mine site encompasses
3,900 acres along Meiss Road, and was historically the
site of gold mining operations. [***9] Hardesty began
working the mine site in the early 1980's. The central
plant periodically moves from one portion of the mine
site to another. The last relocation occurred between
2005 and 2006 when the plant was moved from the
south side of Meiss Road to the north side of the road.
Thus, at the time of the hearing on the abatement
petition, the plant had spent about four years at the
same location.
The Hardesty operation involves digging out the tailings left by the gold mining process (consisting of soil, sand, gravel, and cobblestone) and loading the material onto
conveyor belts, which connect to various pieces of
equipment, including a trommel scrubber, cone crusher,
shakers, and sand screws (central plant equipment).
This equipment washes and sorts the material by size
and then deposits it into piles located around the
conveyor system. The conveyors and other equipment
feed outward from a 932-horsepower diesel engine
(central plant engine), which serves as the central plant power source.
Water is used at all stages of the operation. With
respect to the trommel scrubber, one of the shakers,
and the sand screws (the sand production portion of the plant), water is required for the equipment [***10] to operate properly. With respect to the remainder of the
plant, water is not required to operate the equipment,
but is used to control particulate emissions (dust) and to improve the quality of the material ultimately deposited into the various piles and sold to customers. Once the
material is deposited into these piles, the surface layer has a tendency to dry out in the sun, producing dust
unless controlled by spraying water on the piles.
The District's Attempts to Regulate Hardesty
In August 2006, the District discovered the Hardesty
mining operation and issued a notice of violation for
operating a sand and gravel facility without a permit.
Hardesty then obtained PERP registrations for the
central plant engine and a portion of the central plant equipment (i.e., one receiving hopper, one screen, and
two conveyors).
In March 2007, the District sent Hardesty a letter
requesting additional information in order to determine whether the mining operation used any [*412] other
engines or equipment requiring a local permit, and
whether the PERP-registered engine and equipment
were in fact eligible for the program. Hardesty did not respond. Two months later, the District sent another
letter explaining [***11] that it considered the mining operation to be a stationary source and directing
Hardesty to apply for local permits from the District
within 90 days. Ninety days later, Hardesty responded
with a one-line letter stating: “I am in compliance with the State Agency and have wheels and tires under my
portable plant.” The District's response pointed out that the issue was not whether the plant was portable in the literal sense, but whether it qualified for PERP
registration. The District again concluded that because “the equipment is operated as part of a stationary
source,” the “state registrations (PERP) are not valid at this location and local permits are required.”
In August 2008, the District attempted to inspect the
Hardesty facility, but was denied access. The next
month, the District issued another notice of violation for operating the facility without a district permit. This
prompted another exchange of letters. The District
maintained its position that the central plant engine and equipment were ineligible for PERP registration.
[**139] Hardesty insisted that the central plant engine was eligible for the program because it had been moved
periodically for repair and use, but submitted no
[***12] records of offsite use and provided no
information about the central plant equipment.
In March 2009, the District obtained a warrant and
inspected the Hardesty facility. In addition to the central plant equipment described above, inspectors discovered
three “Tier-0” engines, which were manufactured before
the EPA adopted emissions standards and are ineligible
for PERP registration. One of these engines is a 1,170- horsepower generator (1170 engine), which Hardesty
described during the inspection as a “backup engine.”
Inspectors observed electrical lines running from the
trailer housing this engine towards the central plant and determined the engine had been operated recently due
to the fact that it was connected to fuel and “warm to the touch.”
In June 2009, District inspectors twice returned to the mine site. During these inspections, Hardesty denied
that the 1170 engine was a backup engine and stated
that it was purchased to supply power to an impact
crusher but was never operated. Additionally, during the 202 Cal. App. 4th 404, *411; 136 Cal. Rptr. 3d 132, **137; 2011 Cal. App. LEXIS 1638, ***8
March inspection the 1170 engine had a control panel
with an hour meter, but by the time the inspectors
returned three months later, the control panel had been removed and the hole [***13] covered with duct tape.
Abatement Petition
The District filed a petition for order of abatement,
alleging that Hardesty was operating the central plant
engine and equipment, the 1170 engine, and [*413]
three other engines, without a permit in violation of
district rule 201. 2 This rule requires “[a]ny person
operating an article, machine, equipment or other
contrivance, the use of which may cause, eliminate,
reduce, or control the issuance of air contaminants, [to] first obtain a written permit from [the District].” (Rule 201, pt. 302.) The rule also contains several
exemptions. Two such exemptions are relevant to this
appeal: (1) “[i]nternal combustion engines with a
manufacturer's maximum continuous rating of 50 brake
horsepower or less” and (2) “[o]ther equipment … which
would emit any pollutants without the benefit of air
pollution control devices less than 2 pounds in any 24
hour period.” (Rule 201, pts. 112.1, 122.)
Following a multiday hearing, the District's hearing
board found the central plant equipment was subject to
the District's permitting authority because the central plant is a stationary source of pollution, the equipment [***14] is not PERP registered, and the equipment does
not qualify for an exemption from rule 201. While the
central plant engine was PERP registered, the hearing
board found the registration was not valid for two
reasons: (1) the engine had resided at the same
location for more than 12 consecutive months and (2)
the engine was used to power a stationary source at
which grid power was available. The hearing board also
found that the 1170 engine, two other Tier-0 engines,
and an additional engine that was eligible for PERP but not registered, were subject to the District's permit
requirements. The hearing board ordered Hardesty to
obtain a permit from the District and to cease operations until such permit was obtained.
Petition for Writ of Mandate
Hardesty 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.
2 Undesignated rule references are to the district rules.
Hardesty essentially argued the same issues [**140]
below that it raises on appeal. The Board intervened in opposition to Hardesty's writ petition. The trial court denied the petition. Hardesty appeals.
DISCUSSION
I
Standard of Review
Hardesty contends we must reverse the denial of his
petition for writ [***15] of mandate because the trial court did not use the independent judgment standard in
reviewing the hearing board's decision to issue the
abatement order. We disagree.
[*414]
HN1[ ] CA(1)[ ] (1) “If the decision of an
administrative agency substantially affects a
‘fundamental vested right,’ the trial court must not only examine the administrative record for errors of law, but also must exercise its independent judgment upon the
evidence. However, when the administrative decision
neither involves nor substantially affects such a right, the trial court must review the entire administrative
record to determine whether the findings are supported
by substantial evidence and if the agency committed
any errors of law.” ( Whaler's Village Club v. California Coastal Com. (1985) 173 Cal.App.3d 240, 251 [220 Cal.
Rptr. 2], fn. omitted; see Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32
[112 Cal.Rptr. 805, 520 P.2d 29]; Bixby v. Pierno (1971) 4 Cal.3d 130, 143 [93 Cal. Rptr. 234, 481 P.2d 242];
Code Civ. Proc., § 1094.5.)
The administrative decision at issue in this case is the hearing board's decision to order Hardesty to obtain a
permit from the District and to cease operation until
such permit is obtained. In determining whether this
decision substantially affects a fundamental
[***16] vested right, we must decide whether it
substantially affects a right that has been “ ‘ “legitimately acquired or is otherwise ‘vested,’ ” ’ ” and whether that right is “fundamental” in the sense of “the importance of [the right] to the individual” and “the effect of the right in economic and human terms.” ( Frink v. Prod (1982) 31
Cal.3d 166, 177 [181 Cal. Rptr. 893, 643 P.2d 476].) As our Supreme Court has explained: “[T]he effect and
importance of rights and the degree to which they are
possessed are to be weighed together” and “the ‘search
for “vestedness” and the search for “fundamentalness”
are one and the same. The ultimate question in each
202 Cal. App. 4th 404, *412; 136 Cal. Rptr. 3d 132, **139; 2011 Cal. App. LEXIS 1638, ***12
case is whether the affected right is deemed to be of
sufficient significance to preclude its extinction or
abridgement by a body lacking judicial power.’
[Citation.]” ( Id. at p. 178; see Interstate Brands v.
Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770,
779–780 [163 Cal. Rptr. 619, 608 P.2d 707].)
In Standard Oil Co. v. Feldstein (1980) 105 Cal.App.3d
590 [164 Cal. Rptr. 403] (Standard Oil), the Court of
Appeal held the decision of the Bay Area Air Pollution
Control District's hearing board to require Standard Oil Company to shut down certain refinery units did not
affect a fundamental vested right. ( Id. at pp. 602–604.) In that case, Standard obtained [***17] a permit from
the district to construct a new refinery unit provided the company shut down two of three preexisting refinery
units while the new unit operated. This condition would persist until district regulations were revised to allow operation of these units; Standard argued that a certain amended regulation did just that and proceeded to
operate all four units. ( Id. at pp. 597–599.) The district disagreed with Standard's interpretation of the amended regulation, issued a permit to operate the new unit only if two of the three preexisting units were shut down, and prevailed before their hearing board. ( Id. at pp. 599– 600.) [**141] The trial court exercised its independent judgment on the administrative record and invalidated
the permit condition. (Id. at p. 594.)
[*415]
While the Court of Appeal held as a matter of law that
the amended regulation did not authorize Standard to
operate all four units, the court also held that the trial court erred by using the independent judgment standard
of review. ( Standard Oil, supra, 105 Cal.App.3d at pp. 602–606.) As the court explained, “we are concerned
with a ‘purely economic’ privilege toward the
preservation of which our Supreme Court has been
‘manifesting [***18] slighter sensitivity.’ [(Quoting Bixby v. Pierno, supra, 4 Cal.3d at pp. 144–146.)] There is no contention that Standard will be driven to financial ruin by the action of the District; there is not even a
contention that this particular facility will be forced to operate at a loss and close. It is true that Standard will not be able to produce as much fuel oil as it would want to and could produce. It may be that its operation of this facility will not be as profitable with three units as it could be with four. It may be that the return on its
considerable investment will fall short of what it might have been. None of these circumstances, nor all of
them, makes Standard's right to operate four units
instead of three ‘fundamental.’ ” (Id. at pp. 604–605, fn. omitted.)
Similarly, in Mobil Oil Corp. v. Superior Court (1976) 59 Cal.App.3d 293 [130 Cal. Rptr. 814] (Mobil Oil), the
Court of Appeal held the decision of the Air Pollution
Control District of San Diego County's hearing board
requiring two oil companies to install certain gasoline vapor recovery systems at their gas stations did not
affect a fundamental vested right. The court explained:
“Here it appears the Oil Companies are asking us to
determine they [***19] have a fundamental vested right to release gasoline vapors while dispensing fuel to their customers. How are we to answer the public, on the
other hand, who assert a fundamental vested right to
breathe clean air? If either exists, it must be the latter.
We are not presented with the enforcement of a rule
which effectively drives the Oil Companies out of
business. At most it puts an economic burden on them
increasing the cost of doing business. In weighing the
relative importance to individuals in the life situation, it is manifest the Oil Companies' right to continue releasing gasoline vapors into the atmosphere is neither
fundamental nor vested.” ( Id. at pp. 304–305; see also Sherwin-Williams Co. v. South Coast Air Quality
Management Dist. (2001) 86 Cal.App.4th 1258, 1273
[104 Cal. Rptr. 2d 288] [paint companies cannot assert
a property right to emit pollution].)
Hardesty claims independent judgment review is
required for two reasons. First, Sacramento County
determined in 1994 that the mining operation did not
require a use permit because the property owner
possessed a vested right to mine the property. Hardesty acknowledges that this does not give the company “an
unregulated right to mine” or “an unfettered [***20] right to pollute the environment.” However, Hardesty argues
that it does give the company the right to operate the
central plant equipment without District interference as long as it does not emit at least two pounds of any
pollutant in any 24-hour period. Second, Hardesty
argues that it has a vested right to operate the [*416] central plant engine under the PERP registration without being required to secure a separate permit from the
District. According to Hardesty, these rights are
fundamental in both economic and human terms. We
are not persuaded. Like Standard Oil, supra, 105
Cal.App.3d 590 [**142] and Mobil Oil, supra, 59
Cal.App.3d 293, there is nothing in the administrative
record to indicate that Hardesty will be driven out of
business by the requirement that it secure a permit from the District.
Moreover, the questions that occupy the majority of
Hardesty's appellate briefs, i.e., whether the District's regulation of Hardesty is preempted by the CAA and
202 Cal. App. 4th 404, *414; 136 Cal. Rptr. 3d 132, **140; 2011 Cal. App. LEXIS 1638, ***16
whether the District possesses the regulatory authority to declare a PERP registration invalid, are questions of law subject to de novo review. As we explain below, we
conclude the District's regulations are not preempted by the CAA and the [***21] District does possess the
authority to declare a PERP registration invalid. Thus, the only factual questions that the trial court could have decided differently had it used the independent
judgment standard are (1) whether the central plant
equipment emits at least two pounds of any pollutant in any 24-hour period, and (2) whether the central plant
engine (a) remained at the mine site for more than 12
consecutive months, or (b) supplied power to a
stationary source at which grid power was available.
The hearing board's determination of these factual
questions resulted in an order directing Hardesty to
obtain a permit from the District. Hardesty's purported right to operate a sand and gravel mine without such a
permit is not “of sufficient significance to preclude its extinction or abridgement by a body lacking judicial
power.” ( Interstate Brands v. Unemployment Ins.
Appeals Bd., supra, 26 Cal.3d at p. 779, fn. 5.)
Nor are we persuaded by Hardesty's reliance on Goat
Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th
1519, 1525–1526 [8 Cal. Rptr. 2d 385] (Goat Hill
Tavern) and The Termo Co. v. Luther (2008) 169
Cal.App.4th 394 [86 Cal. Rptr. 3d 687] (Termo). In Goat Hill Tavern, the Court of Appeal held the independent
judgment [***22] standard of review applied to Costa
Mesa's decision to deny a tavern owner's application for renewal of a conditional use permit. (Goat Hill Tavern, at p. 1527.) The tavern had been in continuous operation
since 1955, before the enactment of a zoning ordinance
requiring a conditional use permit for an establishment serving food or beverages within 200 feet of a
residential zone. A conditional use permit was issued in 1974, allowing a beer garden to be added to the tavern.
The tavern changed hands in 1984. The new owner
spent more than $1.75 million to renovate the tavern
and add a game room. He then applied for and was
given a six-month conditional use permit for the
expansion. The permit was renewed for another three
months. The city then denied the owner's application for a third renewal. (Id. at pp. 1522–1524.)
[*417]
The Court of Appeal held “the rights affected by the
city's refusal to renew Goat Hill Tavern's permit are
sufficiently vested and important to preclude their
extinction by a nonjudicial body.” ( Goat Hill Tavern,
supra, 6 Cal.App.4th at p. 1527.) Acknowledging that
“courts have rarely upheld the application of the
independent judgment test to land use decisions” (ibid.), the court explained: [***23] “Goat Hill Tavern has been in operation for over 35 years as a legal nonconforming use. [The owner] invested over $1.75 million in its
refurbishment, including substantial exterior facade
improvements undertaken at the city's behest. He then
sought a conditional use permit to allow the addition of a game room, which was granted on a temporary basis.
Now, with the expiration of the permit, the city urges he has lost all right to continue in business. [¶] We cannot conclude on these unique facts that [the owner's] right to continued operation of his business is not a [**143]
fundamental vested right. This is not, as the city so
strongly urges, a ‘purely economic privilege.’ It is the right to continue operating an established business in
which he has made a substantial investment.” ( Id. at p. 1529, fn. omitted.)
Unlike Goat Hill Tavern, supra, 6 Cal.App.4th 1519, the decision of the District's hearing board does not amount to the loss of Hardesty's right to continue in business.
Hardesty must first secure a permit from the District in order to do so. Nor is this case remotely like Termo,
supra, 169 Cal.App.4th 394, in which the state oil and
gas director ordered the plugging and abandonment of
[***24] 28 oil wells, terminating the right of a small oil company to extract oil from those wells. ( Id. at p. 398.) There, the Court of Appeal held the independent
judgment standard of review applied because
“implementation of the Order and the Decision would
have the effect not only of shutting down a business that has been in existence for 20 years or more, but also of terminating the right to produce oil—an extraordinarily valuable resource, especially in the current economic
era. There is no indication that the real property
underlying [those wells] was not legitimately acquired or that the drilling and pumping of oil was not undertaken in accordance with applicable statutory mandates.
Therefore, we must conclude that the right to extract oil is vested. Moreover, the right is fundamental
considering its potentially massive economic aspect and its considerable effect in human terms.” ( Id. at pp. 407– 408.) Again, in this case, there is nothing in the
administrative record to indicate that Hardesty will be driven out of business by the requirement that it secure a permit from the District.
Because the abatement order does not substantially
affect a fundamental vested right, the trial court
[***25] correctly reviewed the administrative record to determine whether the hearing board's findings were
supported by substantial evidence. We use the same
standard of review on appeal. ( Jaramillo v. State Bd. for 202 Cal. App. 4th 404, *416; 136 Cal. Rptr. 3d 132, **142; 2011 Cal. App. LEXIS 1638, ***20
Geologists & Geophysicists (2006) 136 Cal.App.4th
880, 889 [39 Cal. Rptr. 3d 170].) And HN2[ ] while
questions of statutory construction are subject to de
novo review on appeal, we must “adhere to the well-
settled principle of [*418] affording ‘great weight’ to ‘the contemporaneous administrative construction of [a
statute] by those charged with its enforcement … .’ ”
(Carmel Valley Fire Protection Dist. v. State of California (1987) 190 Cal.App.3d 521, 536 [234 Cal. Rptr. 795],
quoting Coca-Cola Co. v. State Bd. of Equalization
(1945) 25 Cal.2d 918, 921 [156 P.2d 1]; see People ex
rel. Lungren v. Superior Court (1996) 14 Cal.4th 294,
309 [58 Cal. Rptr. 2d 855, 926 P.2d 1042].) An
administrative agency's interpretation of its own
regulation is shown even greater deference. ( Standard
Oil, supra, 105 Cal.App.3d at p. 602, fn. 15; Udall v.
Tallman (1965) 380 U.S. 1, 16–17 [13 L.Ed.2d 616, 625,
85 S. Ct. 792]; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 13 [95 Cal. Rptr. 329, 485 P.2d 529].)
II
Federal Preemption
Hardesty asserts the District's attempt to regulate the central plant engine is preempted by the CAA because
rule 201 contains [***26] an emissions standard that
has not been approved by the EPA. Specifically,
Hardesty refers to the portion of the rule that exempts from the District's permit requirements “[o]ther
equipment … which would emit any pollutants without
the benefit of air pollution control devices [**144] less than 2 pounds in any 24 hour period.” (Rule 201, pt.
122.) Hardesty is mistaken.
HN3[ ] CA(2)[ ] (2) The CAA makes “the States and
the Federal Government partners in the struggle against air pollution.” ( General Motors Corp. v. United States (1990) 496 U.S. 530, 532 [110 L.Ed.2d 480, 485, 110 S.
Ct. 2528].) Under title I of the CAA, the EPA is
responsible for establishing primary and secondary
national ambient air quality standards (NAAQS’s) for
each air quality control region, setting permissible levels of concentration for various pollutants. ( 42 U.S.C. §§ 7408–7409.) The states, however, are primarily
responsible for assuring air quality within their borders by submitting for EPA approval state implementation
plans for achieving the NAAQS’s. ( 42 U.S.C. §§ 7407,
7410.) The CAA contemplates that the states will carry
out this responsibility “chiefly by regulating stationary sources, such as factories and power plants.” ( Engine
Manufacturers Assn. v. U.S. Environmental Protection
Agency (D.C. Cir. 1996) 319 U.S. App.D.C. 12 [88 F.3d
1075, 1078–1079]; see [***27] 42 U.S.C. § 7416.)
HN4[ ] CA(3)[ ] (3) Under title II of the CAA, the EPA
directly sets emissions standards for mobile sources of air pollution, including motor vehicles and “nonroad”
engines and vehicles. ( 42 U.S.C. §§ 7521, 7547.)
“Because the regulation of mobile source emissions is a federal responsibility, Congress has expressly
preempted states from setting emissions standards for
mobile sources.” [*419] (Jensen Family Farms, Inc. v.
Monterey Bay Unified Air Pollution Control Dist. (9th Cir. 2011) 644 F.3d 934, 938; see 42 U.S.C. § 7543(a) &
(e).) California, however, has been granted an
exemption from this preemption provision so long as it
obtains EPA approval for its emissions standards. ( 42
U.S.C. § 7543(b) & (e)(2)(A).) Other states may then “
‘opt in’ to the California standards by adopting identical standards as their own.” (Engine Manufacturers Assn. v.
U.S. Environmental Protection Agency, supra, 88 F.3d
at p. 1080; see 42 U.S.C. §§ 7507, 7543(e)(2)(B).)
Hardesty's argument fails because the “less than 2
pounds [of any pollutant] in any 24 hour period” (rule
201, pt. 122) exemption does not apply to the central
plant engine. All internal combustion engines with a
rating above 50 horsepower are subject to the District's permit [***28] requirement regardless of emissions
level. (Rule 201, pt. 112.1.) The emissions exemption
Hardesty cites applies to “[o]ther equipment,” which
includes the central plant equipment, but Hardesty does not argue that title II of the CAA prevents the District from applying an emissions standard to this equipment.
Such an argument would fail because the central plant
equipment is not a mobile source of air pollution within the meaning of the CAA. Indeed, by the date of the
abatement hearing, this equipment had been at the
same location for about four years.
In any event, even if the emissions exemption applied to the central plant engine, this engine is not a “nonroad” engine within the meaning of the CAA. ( 42 U.S.C. §§
7521, 7547.) HN5[ ] A nonroad engine is “any internal
combustion engine” that “is portable or transportable,
meaning designed to be and capable of being carried or
moved from one location to another. Indicia of
transportability include, but are not limited to, wheels, skids, carrying handles, dolly, trailer, or platform.”
However, such an engine is not a nonroad engine if it
“remains or will remain at a location for more than 12
consecutive months or a shorter period of time for an
[***29] engine located at a seasonal source. A location is any single site at a building, structure, facility, or 202 Cal. App. 4th 404, *417; 136 Cal. Rptr. 3d 132, **143; 2011 Cal. App. LEXIS 1638, ***25
installation. Any engine (or engines) that replaces an
engine at a location and that is intended to perform the same or similar function as the engine replaced will be [**145] included in calculating the consecutive time
period.” (40 C.F.R. § 89.2 (2011).) Because, as we
explain below, substantial evidence supports the
hearing board's determination that the central plant
engine remained at the Hardesty mining operation for
more than 12 consecutive months, this engine is not a
“nonroad” engine within the meaning of the CAA.
[*420]
III
State Preemption
CA(4)[ ] (4) Hardesty also claims the District cannot
require a permit for the central plant engine because
that engine has a PERP registration and the Board's
executive officer has not suspended or revoked this
registration. According to Hardesty, because section
41753 precludes the District from requiring a local
permit “upon the registration of portable equipment by
the portable equipment owner or operator” ( § 41753,
subd. (b)), and because the regulations implementing
the program provide the Board's executive officer with
exclusive authority to suspend or revoke [***30] a
PERP registration (Cal. Code Regs., tit. 13, § 2463), the District cannot declare a PERP registration invalid and require a local permit. We are not persuaded.
HN6[ ] CA(5)[ ] (5) Issues of statutory interpretation
are questions of law subject to de novo review. ( Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492 [35 Cal.
Rptr. 3d 596].) HN7[ ] “Our fundamental task in
interpreting a statute is to determine the Legislature's intent so as to effectuate the law's purpose. We first
examine the statutory language, giving it a plain and
commonsense meaning. We do not examine that
language in isolation, but in the context of the statutory framework as a whole in order to determine its scope
and purpose and to harmonize the various parts of the
enactment. If the language is clear, courts must
generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the
Legislature did not intend. If the statutory language
permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy. [Citations.]”
(Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733, 737 [21 Cal. Rptr. 3d
676, 101 P.3d 563]; see San Leandro Teachers Assn. v.
Governing Bd. of San Leandro Unified School Dist.
(2009) 46 Cal.4th 822, 831 [95 Cal. Rptr. 3d 164, 209
P.3d 73].)
As [***31] Hardesty correctly observes, section 41753, subdivision (b), provides that HN8[ ] “upon the
registration of portable equipment by the portable
equipment owner or operator, a district shall not, with respect to the affected portable equipment, … [¶] (1)
Require a permit for the construction or operation of the portable equipment.” Subdivision (a) of section 41753
declares 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.”
(Italics added.) However, this subdivision also provides that “if the owner or operator of portable equipment
[*421] 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 Board's regulations implementing the program
provide: HN9[ ] “These regulations preempt districts
from permitting, registering, or regulating portable
[***32] engines and equipment units, including
equipment necessary for the operation of a portable
engine (e.g. fuel tanks), registered with the [**146]
[Board's] Executive Officer … except in the
circumstances specified in the regulations.” ( Cal. Code Regs., tit. 13, § 2450, italics added.) The regulations also provide: HN10[ ] “Once registration is issued by
the 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
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), italics added.) HN11[ ] The Legislature has required local and
regional districts to “enforce the statewide registration program, emission limitations, and emission control
requirements established by the [Board] pursuant to this article in the same manner [***33] as a district rule or 202 Cal. App. 4th 404, *419; 136 Cal. Rptr. 3d 132, **144; 2011 Cal. App. LEXIS 1638, ***29
regulation.” ( § 41755, subd. (a).) The Board's
regulations also provide that an owner or operator of
PERP-registered engines or equipment units “may
operate within the boundaries of the State of California so long as such registered engines or equipment units
comply with all applicable requirements of this article and any other applicable federal or State law.” ( Cal.
Code Regs., tit. 13, § 2454, subd. (c)(2), italics added.) HN12[ ] CA(6)[ ] (6) Read together, these provisions
establish a regime under which a portable engine that
has a valid PERP registration is not subject to the
District's permit requirements. Where a PERP
registration has been obtained, and is valid at the
specific location where the engine is operated, any
permit issued by the District is a nullity. However, where a PERP registration has not been obtained, or where
the registration is invalid at the specific location where the engine is operated, a local permit from the District is required. Because the District is charged with enforcing PERP registration requirements in the same manner as
the District's own rules or regulations, we conclude the District must possess the authority to determine whether a PERP registration [***34] is valid, and if not, to
require a local permit.
[*422]
Contrary to Hardesty's argument on appeal, the fact that the Board's executive director has exclusive authority
under the regulations to suspend or revoke a PERP
registration does not evince the intent of the Legislature, or the drafters of the Board's regulations, that the
District cannot declare a PERP registration invalid at a specific location and require a local permit at that
location. For instance, if the owner of a PERP-registered engine who operated the engine for brief periods of time at several different locations throughout the state
decided to operate the engine at a single location for
more than 12 consecutive months, he or she would be
required to obtain a local permit to operate the engine at that location because the engine would not be “portable” as used at that location. (See § 41751, subd. (b)(1).) But if the same owner then decided to return to using the
engine for brief periods of time at different locations, the engine would regain its portability under PERP, and the owner could operate it under the PERP registration
without obtaining local permits for these locations. Thus, the fact that a PERP registration is [***35] invalid at a specific location does not mean that the registration
must be suspended or revoked; and it certainly does not mean that the entity in charge of suspending or revoking the registration is the only entity that may declare it invalid at a specific location.
[**147] Nor are we persuaded by Hardesty's reliance
on the PERP registration itself, which provides: “The
portable engine shall not be operated under both
statewide registration and a district permit at any
specific location.” Hardesty's apparent concern is that it will be forced to violate this provision if required to obtain a permit from the District. Not so. If the PERP
registration was valid at the Hardesty mine site and the District improperly required Hardesty to obtain a local permit, that permit would be a nullity. ( Cal. Code Regs., tit. 13, § 2453, subd. (l)(4).) However, because the
PERP registration is invalid, Hardesty is required to
obtain and operate under a local permit from the District.
In neither scenario would Hardesty be required to
operate the engine under both a PERP registration and
a permit from the District.
Finally, our conclusion that the District possesses the regulatory authority to determine whether [***36] a
PERP registration is valid at a specific location, and if not, to require a local permit, is bolstered by the fact that this is also the interpretation of both the Board and the District. When an administrative agency is charged with enforcing a particular statute, its interpretation of the statute is entitled to great weight and should be followed by the courts unless clearly wrong; an administrative
agency's interpretation of its own regulation is shown
even greater deference. ( People ex rel. Lungren v.
Superior Court, [*423] supra, 14 Cal.4th at p. 309;
Sail'er Inn, Inc. v. Kirby, supra, 5 Cal.3d at p. 13.) Here, the Board drafted the PERP regulations and the District is charged with enforcing the program at particular
locations. Accordingly, their interpretation of the PERP statutes and regulations is entitled to great weight.
IV
Portability of the Central Plant Engine
We now turn to Hardesty's contention that the central
plant engine is in fact portable within the meaning of
section 41751. Using the appropriate standard of
review, we conclude substantial evidence supports the
hearing board's determination that this engine remained at the Hardesty mining operation for more than 12
consecutive [***37] months, and therefore was not
eligible for PERP registration.3
3 Because this determination is sufficient to render the central plant engine ineligible for PERP registration, we need not decide whether substantial evidence supports the hearing board's conclusion that a local permit was required for the 202 Cal. App. 4th 404, *421; 136 Cal. Rptr. 3d 132, **146; 2011 Cal. App. LEXIS 1638, ***33
As already mentioned, section 41751 defines HN13[ ]
“ ‘portable equipment’ ” to include “any portable internal combustion engine and equipment that is associated
with, and driven by, any portable internal combustion
engine.” (§ 41751, subd. (a)(1).) A HN14[ ] “ ‘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 HN15[ ] “‘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 HN16[ ] an engine [***38] 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).)
Hardesty does not dispute that the central plant engine had powered the central plant equipment at the mine
site since at least August 2006. At the hearing on the
abatement petition, the District presented evidence that this engine was purchased in October 2005 and used to
power the central plant beginning when the plant was
located on the south side of Meiss Road and continuing
after the move to the north side of the road. The District also [*424] presented evidence this engine was
housed in a trailer with “a significant amount of silt
buildup,” which indicated to District inspectors that the trailer had not been moved in quite some time. The
engine was also connected to fuel and power
distribution lines that would take “some effort” to
disconnect in order to remove the engine from its
location.
Hardesty does dispute that the central plant engine
remained at the mine site for any consecutive 12-month
period. According to Hardesty, the [***39] engine left the site on multiple occasions for repairs. However, both the hearing board and trial court found that offsite
movement for purposes of repair paused, but did not
reset, the 12-month residency clock. The Board's PERP
regulations provide: HN17[ ] “The period during which
the engine or equipment unit is maintained at a storage facility shall be excluded from the residency time
determination.” (Cal. Code Regs., tit. 13, § 2452, subd. central plant engine for the separate reason that this engine supplied power to a stationary source at which grid power was available.
(dd)(1).) The hearing board reasoned that, like
maintaining an engine at a storage facility, simply
moving the engine to a repair facility “does not implicate the strong policy rationale underlying the PERP, which
was to avoid multiple and duplicative permitting by local air districts.” We agree with this assessment. Excluding these repair visits from the residency time
determination, the central plant engine remained at the mine site for well over 12 consecutive months.
Hardesty also asserts the central plant engine left the mine site on three occasions for actual use. According
to Hardesty: (1) the engine left the mine site to do
exploratory work near Placerville in February 2007; (2) the engine left the mine site to do exploratory work in Nevada in [***40] January 2008; and (3) the engine left the mine site to do exploratory work in Ione in
December 2008. We conclude Hardesty's failure to
present any documentation of these purported periods
of offsite use is fatal to the claim that the 12-month
residency clock reset.
HN18[ ] The Legislature has recognized that the Board
would need to establish “recordkeeping and recording
requirements … for the purpose of tracking portable
equipment utilization and movement,” but directed that
these requirements “shall be the minimum that is
necessary to … allow adequate enforcement of the
registration program.” ( § 41754, subd. (f).) The Board implemented this directive by requiring portable
equipment operators to maintain a record of “the
specific location where the registered unit is located … each time the equipment unit is brought to a new
location including relocation for the purposes of storage.
The date the equipment unit was placed at the new
location shall also be recorded.” ( Cal. Code Regs., tit. 13, § 2458, subd. (a)(2)(D).) HN19[ ] “For engines, the specific location where the registered engine is located … shall be recorded no less than once a month.” ( Cal.
Code Regs., tit. 13, § 2458, subd. (a)(2)(E).)
[***41] The hearing board concluded that “[o]ne of the
reasons for record-keeping requirements is to [*425]
prevent after-the-fact arguments such as the one made
here by [Hardesty]. If the [hearing board] were to
entertain the argument that [Hardesty was] in
compliance even in the absence of record-keeping,
[**148] the entire regulatory scheme would be
undermined.” We agree. It would make no sense to
allow Hardesty to use the PERP regulations as a
defense to the District's permit requirements while
simultaneously allowing Hardesty to prevent the District from verifying the company's compliance with the
program.
202 Cal. App. 4th 404, *423; 136 Cal. Rptr. 3d 132, **147; 2011 Cal. App. LEXIS 1638, ***37
CA(7)[ ] (7) Rather than submit documentation
establishing the engine had been moved for offsite use, Hardesty attempted to prove such movement with the
testimony of Dan Tankersley, a man who had worked
closely with Hardesty for 12 to 13 years. The hearing
board rejected this testimony as “not persuasive or
credible.” This credibility determination was more than reasonable. (See Estate of Jones (2004) 122
Cal.App.4th 326, 337 [18 Cal. Rptr. 3d 637] HN20[ ]
[where evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and
competence of one of the parties, that party has the
burden of going forward with [***42] the evidence on
the issue]; Evid. Code, § 412 HN21[ ] [“If weaker and
less satisfactory evidence is offered when it was within the power of the party to produce stronger and more
satisfactory evidence, the evidence offered should be
viewed with distrust.”].)
Moreover, even if Hardesty had established the central
plant engine was used at these other locations,
substantial evidence would still support the hearing
board's determination that the engine violated the 12-
month residence requirement. This is so because the
Board's PERP regulations provide: HN22[ ] “Any
engine or equipment unit such as back-up or stand-by
engines or equipment units, that replace engine(s) or
equipment unit(s) at a location, and is intended to
perform the same or similar function as the engine(s) or equipment unit(s) being replaced, will be included in
calculating the consecutive time period. In that case, the cumulative time of all engine(s) or equipment unit(s),
including the time between the removal of the original
engine(s) or equipment unit(s) and installation of the
replacement engine(s) or equipment unit(s), will be
counted toward the consecutive time period … .” ( Cal.
Code Regs., tit. 13, § 2452, subd. (dd)(1).) Here, the
[***43] District presented substantial evidence the 1170 engine served as a backup engine. While Hardesty cites
Tankersley's testimony in which he stated the 1170
engine did not and could not have served as a backup
engine, this testimony merely created a conflict in the evidence. The administrative record supports the
hearing board's resolution of this conflict.
We conclude substantial evidence supports the hearing
board's determination that the central plant engine
remained at the mine site for more than 12 consecutive
months.
[*426]
V
Central Plant Equipment Emissions
Substantial evidence also supports the hearing board's
determination that the central plant equipment emits at least two pounds of pollutants in any 24-hour period.
Hardesty argues that substantial evidence supports the
conclusion that the central plant equipment does not
emit at least two pounds of pollutants in any 24-hour
period. In support of this argument, Hardesty cites the testimony of Scott Taylor, an environmental engineer
who testified that based on the information he received from Hardesty concerning the amount of water used in
operating the plant, the plant would generate less
emissions than the two-pound threshold. Hardesty's
[***44] argument turns the standard of review on its
head. The question is not whether there is substantial
evidence to support Hardesty's conclusion that the
equipment does not [**149] require a permit, but
whether there is substantial evidence to support the
hearing board's conclusion that it does. There is such
evidence in the administrative record.
As already mentioned, HN23[ ] rule 201 contains an
exemption for equipment “which would emit any
pollutants without the benefit of air pollution control devices less than 2 pounds in any 24 hour period.”
(Rule 201, pt. 122, italics added.) In determining
whether this exemption applies to a sand and gravel
operation, the District takes the rate at which the
operation processes the aggregate material and
multiplies that by certain emission factors depending on the particular process involved. The District considers the use of water for dust suppression to be an air
pollution control device and calculates the emission
level based on operation of the equipment without the
use of water. But where the equipment requires water to operate properly, the District assumes the equipment
does not emit dust and excludes this equipment from
the calculation.
At the Hardesty operation, [***45] the trommel
scrubber, one of the shakers, and the sand screws
require water to operate properly. This equipment was
excluded from the District's emission level calculation.
With respect to the remainder of the central plant
equipment, the District calculated an estimated emission level for each year it was able to obtain mining
production information. Based on the 2005 production
level, the District calculated an emission level of 2.55 pounds per day. Based on the 2006 production level,
the District calculated an emission level of 2.98 pounds per day. Based on the 2007 production level, the District 202 Cal. App. 4th 404, *425; 136 Cal. Rptr. 3d 132, **148; 2011 Cal. App. LEXIS 1638, ***41
calculated an emission level of 4.26 pounds per day.
And based on the production level information Hardesty
provided to Taylor, the District calculated an emission level of 5.64 pounds [*427] per day. Indeed, Taylor
agreed that uncontrolled equipment emissions would
exceed the two-pound emission threshold.4
We conclude this evidence was more than sufficient to
support the hearing board's conclusion that the central plant equipment emits at least two pounds of pollutants in any 24-hour period.
VI
Vested Mining Rights
Nor do we accept Hardesty's position that requiring a
permit from the District will improperly interfere with vested mining rights.
CA(8)[ ] (8) As Hardesty correctly observes, the
Surface Mining and Reclamation Act of 1975 (SMARA)
(Pub. Resources Code, § 2710 et seq.) provides: HN24[
] “No person who has obtained a vested right to
conduct surface mining operations prior to January 1,
1976, shall be required to secure a permit pursuant to
[SMARA] as long as the vested right continues and as
long as no substantial changes are made in the
operation except in accordance with [SMARA].” ( Pub.
Resources Code, § 2776, subd. (a).) However,
assuming Hardesty has a vested right to conduct mining
operations within the meaning of SMARA, the permit
Hardesty is required to obtain from the District is not “a permit pursuant to [SMARA].” Hardesty has cited no
authority standing for the proposition that the holder of a vested mining right is exempt from complying with
California's air pollution laws. [***47] To the contrary, our Supreme Court has explained that HN25[ ] a
regional air quality management district may condition
[**150] approval of a permit on compliance with a limit on emissions without violating a vested right of the
applicant because companies have “no vested right to
pollute the air at any particular level.” ( Communities for a Better Environment v. South Coast Air Quality
Management Dist. (2010) 48 Cal.4th 310, 323–324 [106
4 The District also calculated the estimated emission level of the piles, both as they are formed and after formation. The emission level during formation was calculated to be 24.64 pounds per day. The emission level caused by wind erosion was calculated to be 6.3 pounds per day for active piles [***46] and 1.7 pounds per day for inactive piles.
Cal. Rptr. 3d 502, 226 P.3d 985], citing Sherwin-
Williams Co. v. South Coast Air Quality Management
Dist., supra, 86 Cal.App.4th at p. 1273; see Mobil Oil, supra, 59 Cal.App.3d at p. 305.)
The abatement order requiring Hardesty to obtain a
permit from the District does not violate any vested right Hardesty might have to mine the property.
[*428]
DISPOSITION
The judgment (order denying petition for writ of
mandate) is affirmed. Costs on appeal are awarded to
respondents. (Cal. Rules of Court, rule 8.278(a)(1).)
Blease, Acting P. J., and Robie, J., concurred.
End of Document
202 Cal. App. 4th 404, *426; 136 Cal. Rptr. 3d 132, **149; 2011 Cal. App. LEXIS 1638, ***45