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Joseph Hardesty et al v. Sacramento Metropolitan Air Quality Management District Et

December 27, 2011


APPEAL from a judgment of the Superior Court of Sacramento County, Timothy M. Frawley, Judge. Affirmed. (Super. Ct. No. 34200980000340CUWMGDS)

The opinion of the court was delivered by: 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 until Hardesty obtained a permit from the District. Hardesty then filed a petition for writ of mandate in the trial court, seeking an order directing the District to vacate and cease enforcement of the abatement order. The California Air Resources Board (Board) intervened in opposition to Hardesty's writ petition. The trial court denied the petition.

Hardesty appeals, arguing: (1) the trial court should have used the independent judgment standard in reviewing the hearing board's decision to issue the abatement order; (2) the District's permit program, which contains an exemption for equipment that emits less than two pounds of pollutants in any 24-hour period, is preempted by the federal Clean Air Act (CAA) because it contains an emissions standard that has not been approved by the Environmental Protection Agency (EPA); (3) the District cannot require a permit for the diesel-powered generator that runs the central plant equipment because that engine is registered under the state-wide Portable Equipment Registration Program (PERP) and the Board has not suspended or revoked this registration; (4) the generator is validly registered under PERP because it is a "portable internal combustion engine" within the meaning of Health and Safety Code section 41751*fn1 ; (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 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.


Regulatory Scheme

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

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

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

Prior to 1997, "portable equipment" was exclusively regulated by the local and regional districts. Accordingly, owners who used their portable equipment in more than one district were required to obtain separate permits for each district in which the equipment operated. (See § 41750, subd. (a) ["Existing law authorizes each district to impose separate and sometimes inconsistent emission control requirements for, and to require separate permits to operate, portable equipment that are used at various sites throughout the state"].) Concluding that this "multiplicity of permits and regulatory requirements impose[d] a complex and costly burden on California businesses that use, hire, provide, and manufacture that equipment" (§ 41750), the Legislature directed the Board to establish by regulation "an optional registration program for portable equipment that is, or may be, used in more than a single district," and to establish "emission limits and emission control requirements" for such equipment. (§ 41752, subd. (a); see also § 41754.)

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

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

The local and regional districts are required to "enforce the statewide registration program, emission limitations, and emission control requirements established by the [Board] pursuant to this article in the same manner as a district rule or regulation." (§ 41755, subd. (a).) The Board has adopted regulations implementing the program. (Cal. Code Regs., tit. 13, § 2450 et seq.) These regulations provide: "Once registration is issued by the [Board's] Executive Officer, district permits or district registrations for engines or equipment units registered in the Statewide Registration Program are preempted by the statewide registration and are, therefore, considered null and void, except for the following circumstances where a district permit shall be required: [¶] . . . [¶] (4) at any specific location where statewide registration is not valid. The owner of the engine or equipment unit shall obtain a district permit or registration for the location(s) where the statewide registration is not valid." (Cal. Code Regs., tit. 13, § 2453, subd. (l)(4).)

The Hardesty Mining Operation

Hardesty operates an open-pit sand and gravel mining operation at the Schneider Historic Mine (mine site) near Sloughhouse. The mine site encompasses 3,900 acres along Meiss Road, and was historically the site of gold mining operations. 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 conveyer 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 conveyer system. The conveyers 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 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 conveyers).

In March 2007, the District sent Hardesty a letter requesting additional information in order to determine whether the mining operation used any 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 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. 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 records of off-site 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 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 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 three other engines, without a permit in violation of District rule 201*fn2 . 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, ยง 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) ...

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