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The People of the State of California v. Hardesty Sand & Gravel

February 23, 2012

THE PEOPLE OF THE STATE OF CALIFORNIA BY AND THROUGH SACRAMENTO METROPOLITAN AIR QUALITY MANAGEMENT DISTRICT,
PLAINTIFFS,
v.
HARDESTY SAND & GRAVEL, A CALIFORNIA BUSINESS IN A FORM UNKNOWN, JOSEPH HARDESTY AS AN INDIVIDUAL AND AS THE OWNER OR OFFICER OF HARDESTY SAND & GRAVEL; YVETTE HARDESTY AS AN INDIVIDUAL AND AS THE OWNER OR OFFICER OF HARDESTY SAND & GRAVEL AND DOES 1-25, INCLUSIVE, DEFENDANTS.



ORDER GRANTING PLAINTIFFS' MOTION TO REMAND

This matter comes before the Court on Plaintiffs The People of the State of California by and through Sacramento Metropolitan Area Air Quality Management District's ("Plaintiffs" or "District") Motion to Remand(Doc. #10). Plaintiffs ask the Court to remand this action back to state court on the grounds that the Court lacks jurisdiction. Defendants Hardesty Sand & Gravel, Joseph Hardesty, and Yvette Hardesty, collectively ("Defendants"), oppose the motion (Doc. 2 #12).*fn1 3

I. BACKGROUND

A. Regulatory Background 5

The Federal Clean Air Act, 42 U.S.C. § 7401 et seq., 6 ("CAA") established a combined state and federal program to 7 control air pollution. The CAA "establishes a federal framework 8 for ensuring the nation's air quality," but gives states the 9 "primary responsibility" for implementing the Act and achieving clean air standards. California v. United States, 215 F.3d 1005, 1007 (9th Cir. 2000). 2

The direct regulation of emissions from stationary sources is primarily left to the states. CAA § 116, 42 U.S.C. § 7416; see also Engine Manufacturers Ass'n v. EPA, 88 F.3d 1075, 1079 (D.C. Cir. 1996) [hereinafter "EMA"] (describing a "history of detailed state regulation of stationary sources"). On the other hand, the federal government sets nationwide emissions standards for mobile sources. The category of "mobile sources" includes both motor vehicles and "nonroad" sources. See CAA § 202, 42 U.S.C. § 7521 (giving the Administrator of the Environmental Protection Agency ("EPA") the authority to set emissions standards for new motor vehicles); CAA § 213, 42 U.S.C. § 7547 (same for nonroad sources).

States must develop plans for achieving the federal air quality standards, including regulations governing vehicle and engine use, as well as requirements controlling and limiting emissions from stationary and other pollutant sources. 42 2

U.S.C. §§ 7410, 7416, 7511a, 7521, 7543(d). As long as the 3 plans demonstrate attainment of the federal standard, states are 4 "at liberty to adopt whatever mix of emission limitations [they] 5 deem[] best suited to [their] particular situation." Train v. 6 N.R.D.C., 421 U.S. 60, 79 (1975). 7

In California, the Legislature gave the California Air 8 Resources Board ("CARB") primary authority for controlling 9 vehicular air pollution, but delegated the principal authority over all non-vehicular sources, including area-wide, indirect, stationary and portable sources, to 35 local air districts. See 2 Cal. Health & Safety Code § 40960.

Accordingly, CARB created the Portable Equipment Registration Program ("PERP"), which allows engine owners to register their engines once with the State rather than obtain local permits in each air district in which they operate.

Plaintiffs regulate air quality at the local level. To meet state and federal standards, the District has adopted a permitting scheme under Sacramento Metropolitan Air Quality Management District Rule and Regulation, Rule 201 ("Rule 201"). See Pittard Decl. (Doc. #10-3, Ex. 1). Rule 201 requires any business or person to obtain an Authority to Construct ("AC") or a Permit to Operate ("PTO") before installing or operating new equipment or processes that may release or control air contaminants. See id.

B. Factual Allegations and Procedural Background According to Plaintiffs' Complaint, Defendants operate a sand and gravel mine in a rural area in southeast Sacramento County that historically was the site of gold mining operations. 2

The gold mining left tailings consisting of soil, sand, and 3 gravel. Defendants' mining process involves digging out these 4 tailings and placing them on machinery that separates the 5 material according to type and size for use in construction and 6 other industries. 7

Defendants' facility is typical for this type of operation. 8

There is an "active mine" area where tailings are removed and 9 roughly sorted and a "central plant" where the materials are further sorted and stockpiled for sale to customers. As a result of its ongoing operations, the central plant has been 2 moved throughout the site on a more or less regular basis chasing new deposits of sand and gravel.

Defendants applied for and obtained PERP registrations for some of the engines and equipments used at the mine site. The central plant engine was registered under PERP, but the central plant equipment was not. Defendants did not obtain a local air district permit for any of the engines or equipment at the mine site.

Plaintiffs learned of Defendants' operation in August 2006. They issued a notice of violation for operating a sand and ...


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