202 Cal. App. 4th 404
Cal. Ct. App.2011Background
- Hardesty operates an open-pit sand and gravel mine near Sloughhouse regulated by the Sacramento Metropolitan Air Quality Management District (District).
- The District issued an abatement order directing Hardesty to cease central plant operation and to remove internal combustion engines over 50 horsepower until a permit was obtained.
- Hardesty sought a writ of mandate in superior court; the California Air Resources Board intervened in opposition.
- The District determined central plant equipment is a stationary source not covered by PERP and that several engines (including a 1170-hp generator) were not PERP-registered or required local permits.
- The PERP program preemption and portability rules are central to whether a local permit is required, and whether the central plant engine is portable (12-month residency rule).
- The court affirmed the denial of the writ, holding the District had authority to regulate and that the central plant emits at least two pounds per day and remained at the site for more than 12 consecutive months, invalidating PERP portability for that engine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether independent judgment review applies | Hardesty—vested rights warrant independent review | District—no fundamental vested right affected | Independent judgment not required; substantial evidence review applies |
| CAA preemption of District rule 201 exemptions | Rule 201 exempted two-pound threshold preempts federal standards | Exemption not applicable to central plant; not a mobile/nonroad engine | Not preempted; central plant not a mobile engine and exemption applies to equipment, not stationary source |
| District authority to declare PERP registration invalid | PERP registration cannot be invalidated locally if registered | Board and District interpretations authorize local invalidation when location-specific validity fails | District may determine PERP validity at a location and require a local permit if invalid |
| Whether central plant engine is portable under PERP (12-month rule) | Engine is portable; still operational offsite; could be PERP | Engine remained at a fixed location >12 months; not portable | Substantial evidence supports non-portability; not PERP-eligible |
| Impact on vested mining rights by permit requirement | Vested mining rights shield from district permit pressures | No vested right to pollute; permit condition aligns with SMARA and air laws | Permit requirement does not violate vested mining rights |
Key Cases Cited
- Standard Oil Co. v. Feldstein, 105 Cal.App.3d 590 (Cal. App. 1980) (no fundamental vested right to operate units; economic burden)
- Mobil Oil Corp. v. Superior Court, 59 Cal.App.3d 293 (Cal. App. 1976) (no fundamental vested right to install vapor recovery; policy weighs public interests)
- Goat Hill Tavern v. City of Costa Mesa, 6 Cal.App.4th 1519 (Cal. App. 1992) (independent judgment not routinely applied to land use)
- The Termo Co. v. Luther, 169 Cal.App.4th 394 (Cal. App. 2008) (independent judgment when essential to avoid termination of a valuable resource or business)
- Interstate Brands v. Unemployment Ins. Appeals Bd., 26 Cal.3d 770 (Cal. 1980) (test for vested rights; balance of economic/human impact)
- Sherwin-Williams Co. v. South Coast Air Quality Management Dist., 86 Cal.App.4th 1258 (Cal. App. 2001) (emission controls may be imposed on polluters without destroying business rights)