*1 Dist., Mаy Div. Three. No. 44602. First 1980.] [Civ. CALIFORNIA, OF COMPANY OIL
STANDARD v. Plaintiff and Respondent, Officer, etc., FELDSTEIN, Pollution Control as Air
MILTON and Appellant. Defendant
Counsel Powell,
John F. Grieves, Richard W. Thomas H. Crawford and Laurence G. Chaset for Defendant and Appellant.
George Deukmejian, General, Connett, Attorney Robert H. Assistant General, Attorney Roderick E. Walston Nawi, and David At- Deputy General, torneys as Amici Curiae on behalf of Defendant and Appellant.
Pillsbury, Sutro, Madison & Noble K. Harlan Gregory, M. Richter and Michael H. Salinsky for Plaintiff and Respondent.
Opinion
FEINBERG, J.
The Procedural History the Bay Area Air (District)1 Pollution Control District granted to permit (LSFO) construct low sulfur oil fuel changed 1The name name—Bay of the District was in 1978 present to its Area Air Quality Management jurisdiction Bay District. Its extends over some seven Area coun- portions ties of two other counties. (Standard) Richmond, Standard Oil of California at its Cali- Company fornia subject by to certain conditions Standard refinery2 suggested of the LSFO was agreed completed District.3 Construction by 1976 and Standard received from the District in 1976 a August permit i.e., to operate with a “shutdown” the LSFO unit could provision, oper- ate while two of the three units were out of only preexisting operation. The with all units. District took
Standard four proceeded operate was in It ini- the view that Standard so violation doing permit. (Hearing tiatеd before the board of the District proceedings hearing effect, Board). Board, in ruled that Standard was in viola- Hearing tion of the conditions of the but authorized permit such time as Standard with the permit complied reinstatement of at which it first The District did so rein- conditions had been issued. upon upon agreement comply. state the Standard’s under of Civil Procedure sec- Standard then this action Code brought if two operate only declare No. tion 1094.5 to the condition—unit and void. units were down—null preexisting three *5 solely, The decided the case on the administrative record trial court thereon, This the writ. granted its independent judgment and exercising appeal followed. case; follows, we in the discussion that
This bare skeleton of the is the the bones. shall flesh out construct refining crude oil time the three at the refinery 2The had units units; we preexisting refer to those units as sought. convenience we shall was For No. 4. variously as LSFO or as unit LSFO unit shall refer to the are as suggested by 3The Standard follows: conditions following while the will two of the three crude units Company “a. shut down The is in operation: new crude unit [No. 4] “1) Unit Stripper Vacuum Crude Residuum “2) Battery 11-1 Crude Unit No. “3) Battery No. 11-2 Crude Unit u unit, crude operation we of the above will limit startup “d. of the new crude After Federal air standards applicable and foregoing until California units as outlined in the revised to applicable regulations are vicinity Refinery, District are met operation is approval such or written permissible, such units make for or the Air Control [Bay Area Pollution District] the BAAPCD
obtained from added.) (Italics Hearing Board.” BAAPCD The Background 1967, Air
We start with the federal Act of 81 Statutes at Quality Large as amended Clear Air Amendments of Public 91-604, Law No. at 1676. The thrust of the law was Large Statutes air, to establish national minimum standards for ambient quality i.e., the air was left outdoor we breathe. Achievement of the standards to the states which were and enforce a state required prepare imple- mentation of the Environmental Protection plan, subject approval (EPA). If a state did not submit such a to the EPA within Agency plan time was the administrator of EPA specified, required pro- and enforce such a on the state’s mulgate plan behalf. delinquent of the federal Clean Air Amendments of purpose 1970 was to national, air achieve effective pollution control and pollu- “[e]ffective both reduction tion requires control present pollution prevention (H.R. new 91-1146, significant pollution problems.” No. Rep. News, & Cong. 5360-5361; added.) U.S. Code Admin. italics pp.
In California the has created Legislature the State Air Resources Board with overall control effort to achieve ambient air quality (Health Code, standards & 39003) Saf. but has to lo given §§ bodies, cal and here, such regional as the District “the primary sources, control of air responsibility pollution from all than other (Id., 40000) emissions from motor vehicles” and these local districts § are directed to “endeavor achieve and maintain federal ambient (Id., 40001). standards” quality have Districts the power § and enforce adopt rules to achieve and regulations maintain am *6 (Id., 40001.) bient air quality. §
Each District is to an directed control officer employ pollution (Control Officer) it duty whose is to enforce the statewide provisions orders, relative (Id to the ambient air well as the District’s rules and regulations. ., 40750, 40752.) §§
Pursuant the District here authority, to 2. promulgated regulation 2 Regulation permit for a to “construct . . provided system any facility. erect, alter, “article, machine, or or or replace” any equipment” [or] increase, eliminate, the if such would operate any foregoing operation 1301, 1302.)4 or the emission of air contaminants. (§§ reduce control Thus, written if a a permit one to build such to con- sought facility, had obtained from the Control Offiсer before construction struct to be construction, a written permit oper- could begin. Upon completion ate had to secured the Control Officer before the could be from into use.5 put the the
An for dissatisfied with action of Control applicant 1306.2, 1306.3) (§§ Hearing Officer has a Board6 right appeal or the decision of the Control Officer. modifying for order reversing Issue issue in the case is whether Standard put, operat-
Simply all units is less discharging particulates7 into ing significantly four it when with three only air than did units. operated is little about the amount dispute There all four particulates units dispute are there deal of as to what base emitting; great line regulation regulations are 2 of the District’s un- section references 4Hereafter all noted. less otherwise Authority and 1302 are as follows: 2 sections 1301 “§ 5The District’s erect, alter, building, re or any or or person construct to Construct. No shall contrivance, article, machine, may which cause use of any equipment or other place eliminate, contaminants, reduce or control may of which or the use emission of air written authoriza first have obtained unless he shall emission of air contaminants the tion erection, construction, the Air Pollution replаcement or from alteration for such 1, 1972.) (Eff. July Control Officer.” building, any facility or or shall Authority person No Operate. “§ contrivance, machine, may article, cause the use which eliminate, or other any equipment reduce, contaminants, or may control of which use of air emission emission required unless he to construct is which an for air contaminants Pollu from Air authorization such written shall first have obtained (Eff. 1972.) July tion Control Officer.” each one Safety directs that there shall be in district Code section 40800 6Health and law- consisting One member shall be a hearing of five members. or more yer, boards each specialized in engineer, doctor who has professional one medical a licensed one *7 medicine, environmental, pub- two shall be occupational-toxicologic community or Board, hearing, grant may permit a (Id., 40801.) Hearing after The lic members. § Officer, existing permit. revoke may or a reinstate an by 42309.) denied the Control (Id., § air the refin- pollutants emitted into the 7There are a number of different kinds kind, only particulates, dispute. is in ery but one current emissions are to be with in order to determine compared wheth- er there has been a reduction. significant
There are other issues and we shall ancillаry note and deal with them as become they our discussion of the central pertinent issue.
The Facts Standard operated fuel oil as well producing other distillates of crude oil. The of the refining capacity facility was 270,000 approximately barrels per of crude day (bpd) oil. Standard was interested in oil, in order expanding more fuel produce fuel oil with a low sulfur content.8 It certain contemplated alterations to three existing units and the construction of a fourth unit to produce low sulfur fuel oil. The refining capacity as a result of the proposed pro- ject 365,000 would be approximately bpd; the new LSFO unit alone 175,000 would have a bpd.
Because there was a need for increased production of fuel oil and be- cause low sulfur fuel oil is “cleaner” fuel oil, than high sulfur fuel project appeared be a desirable one to the District from the stand- point of the public good. however, problem, was oil, this: in fuel producing a fuel is used
to heat the furnaces. The combustion of that fuel produces air pollu- tants including particulates. The ambient air quality standards particulates vicinity was refinery exceeded already in 1973. Section 1309 prohibited the issuance of a permit to construct a new source, i.e., the new proposed unit No. when such a condition ob- tained.9 Standard was so advised. Standard then sought consideration oil, 8The lower the amount of sulfur in the fuel pollutants less will be emitted when the fuel oil is burned. 9Section 1309 of 2 reads as follows: Quality 1309 Denial—Air Stan “§ dards Officer, exceeded in the vicinity. The Air Pollution Control considering after all information existing available about quality, air information about the emission of air existing contaminants from operations, source information about the emission of air contaminants from proposed new operation, source deny shall an authority to con struct, erect, alter, article, replace machine, any facility, building, equipment or contrivance, other article, or an operate any machine, facility, building, contrivance, equipment or other may the use of which cause the signifi emission of quantity any cant air any contaminant if quality standard adopted by the California Air Resources Board or the Agency Environmental Protection for such air proposed contaminant from the new source is vicinity exceeded in the pro which it is posed (Eff. 1973.) to be located.” Jan *8 598
under section Section 1311 the permits reрlacement 1311.10 of one fa- if cility another the use of the results in by replacement a reduction of each pollutant facility emitted the being by replaced.
The took the that since the position productive capacity District of the productive capac- the four units would be than substantially greater units, of the three the construction could not be ity existing proposed within the of 1311. “replacement” meaning considered section it application agreed Standard submitted an Eventually, whereby units time the proposed shut two of the three at such as existing down application unit 4 came line and was in The further operation. No. on 4], crude we “After of new unit provides startup follows: [No. units will limit of the above crude as outlined in the operation foregoing 4 units down if No. is until California operating] applicable Unit [two are met in the of or vicinity Refinery, Federal standards ap- are revised to make such operation District plicable regulations of written for operation units or such obtained approval permissible, or from BAAPCD Area Air Pollution Control [Bay District] (Italics added.) The approved BAAPCD Board.” District Hearing 1311 authority as submitted under section and issued the application аt a cost completed project construct Standard 1976 accordingly. $200 of million. approximately thereto adding amended section regulation District effect, the Control Officer issue au- required
1311.2.11 In without facilities regard any construction at existing thorizing of the operation qualification provided “replacement” less result significantly would emission construction of after facility. than the or operation original each air contaminant use Improvement by Replace follows: Regulation reads as 10Section 1311 “§ deny Officer shall not an Pollution Control Cause for Denial. Air ment—Not construct, erect, any authority operate, facility, or an replace, alter or authority to article, building, machine, if the arti building, equipment or other contrivance cle, machine, existing replacement any facility, is a equipment or other contrivance contrivance, article, machine, facility, and the new build building, equipment other or machine, article, operated will when used or result ing, or other contrivance equipment original or than the use of less each air contaminant emission article, machine, for which it is building, or other contrivance equipment facility, such original were in only emissions apply if the replacement. This Section 1311 shall 1, 1972.) (Eff. July regulations.” compliance with District Significant Reduction of 2 reads as follows: 1311.2 11Section 1311.2 “§ deny an shall not Pollution Control Officer Emissions—Not Cause for Denial. The Air articles, alter, construct, erect, any buildings, operate, authority to or *9 1976, construction, Standard, completion oper- In of July upon began units, with all issuance a ating permit of pending operate. four 1976, the District to Standard a unit August permit operate issued the units be on condition that two shut down. No. 4 preexisting of construction, It the is dis- is Standard’s that after position facility, and, therefore, less with charging complied significantly particulates construct, of section 1311.2. Under the terms Standard permit concludes, allow, the amended 2 to sec- because District 1311.2, tion an an if the is a expansion facility of result existing in each has a significant discharged, decrease Standard pollutant being fundamental, vested with all four units right going. not the has position District’s is that new re- significantly facility
duced the of quantity emitted. particulates being
The evidence before the Board that Hearing showed with all four units the operating, over a facility actually full discharged year (July 1977) 1976 to June 2.4 tons per day (tpd) particulates, whereas in the two the years preceding year of the issuance of the construct, the rate was 1.4 increase discharge tpd, resulting an of al- most 70 percent amount particulates discharged into the This, contends, ambient air. District is appropriate measure of compliance with section 1311.2.
Standard asserts that comparison is It that improper. points out construction, in the two before years was at less facility operating 200,000 than 270,000 capacity, refining bpd, whereas its capacity was Thus, bpd. Standard District have argues, should calculated the amount of particulates that would have been if the had emitted plant been at full operating unit 4 came No. on year line. Standard made such with a came projection eventually up answer of tpd, 3.9 thus the discharge 1976-1977 actual of 2.4 would tpd represent significant decrease.
The District Standard used a responded by pointing had out “worst case” this its 1976 “Worst case” in in- making projection. stance means following: quantity particulates discharged machines, existing equipment part or other contrivance which will of an become construction, erection, alteration, if after operation the use or such such or significantly will result in emission of less of each contaminant usе than the (Eff. 1975.) original facility.” such Feb. produced, fuel oil it is also func-
not function of only quantity *10 process of the fuel that is in the of fuel oil. making tion kind of used Thus, if the is a “clean” fuel gas relatively furnaces are heated by gas, fuel oil. emits much less as Fur- proportionately pollutants against and ther, particulate other fuels are used as well with rates of differing The “projected” emission. District that for 1976 Standard charges fuel the units on the basis of a slate”12 preexisting “dirty compared with which as- expanded facility it estimates for the modernized and did projections sumed a much cleaner fuel slate. The District its own of the full of units and of capacity operation preexisting refinery 1976 case, with the in each similar “dirty” LSFO project, assuming, slates, “clean” fuel and found that the facilities would produce, respec- (with slate) a particulates 1.4 and of clean fuel and 3.9 tively, tpd 1.6 (with slate). 4.5 fuel In either case the result of operating a dirty the new full would be to increase particulates by at facility capacity at the its full percent about above old capacity.13 took the that section 1311.2 position contemplat- Board Hearing pollutant of being discharged decrease” the amount “significant
ed the construction, disсharge actual before against the after as by construction, preceding frame con- immediately a reasonable time using line. struction for the base that be correct. The fact is
We believe the Board to Hearing as the federal nor state standards involved neither area geographic have been met. The entire yet in the ambient air particulates level of has been to reduce actual of and state legislation thrust federal levels, to become pollution not to acceptable pollution essentials, while is that argument par- Reduced to its Standard’s worse. it had with than been operating worse four units pollution ticulate may used production period course over a of time different fuels at dif- 12In the of as a There is times. This of fuels is referred to “fuel slate.” evidence ferent combination particulates projections quantity used to calculate the that in certain Standard’s full produced preexisting operating capac- would have in 1976 units at that been pollutants have in an other ity, “dirty slate” would resulted increase of fuel regulations. violation of District emission showing projection plant that increases its by Standard’s 13We are bemused i.e., capacity, to full refining percent, percent from 75 by approximately 33 i.e., percent, by approximately from particulate increase emission rate would projected particulate tpd in 1971-1972 to the particulate emission rate 1.4 the actual tpd. rate in 1976 of 3.9 emission with the three units, isn’t as it could have been with it as bad three argument “dirtiest fuel slate.” The has units full bore using going the millions of but don’t breathe To logic. certain charm logical people air, to be a small consolation appear it would who inhale people to become worse of the air has been permitted be told that quality as bad it “could have been.” but it isn’t well
We make clear that we are aware of the role that important oil crisis. We production fuel national are plays energy *11 too, aware, of the substantial investment made Standard. An by invest- $200 ment in excess an sum of of million is even in these imposing days But, $500 and in double-digit budgets inflation federal excess of billion. considerations, these the has and against Legislature found declared that the state a people of this “have interest of primary quality live, the physical environment in which they physical and that this envi- ronment is and of being degraded by waste rеfuse civilization (Health Code, 39000; & polluting added) atmosphere” Saf. italics § “public intensive, and this interest shall be an safeguarded by coordinat- state, ed regional, and local effort protect enhance ambient (id., 39001; quality added). the state” italics It apparent is that § it is the Board’s Hearing interpretation of section 1311.2 that imple- ments the legislative not Standard’s view. policy,
We are further buttressed in our view the by very nature of the un- certain A accuracy projections. is projection an a attempt predict future event or result. It on depends certain assumptions. If the assump- tions vary, projection If some changes. assumptions turn out to be unjustified, the projection bar, loses In the validity. 1973, case at in Standard projected that the units preexisting at full operating a using fuel slate emit dirty would 4.3 tpd particulates. It later revised that figure Thus, to 3.9 tpd. the first projection was approxi- percent 10 mately higher District, than the second but the assuming slate, clean fuel calculated the at figure tpd, 1.4 about percent less than Standard’s Consider, too, revised figure. 1973, that in Standard projected 1976, that the new facility in with all four units at full capac- ity, would emit 4.1 It tpd. then revised the figure tpd, 2.5 a decrease abоut in percent; Standard did third projection and this time the figure was 1.6 tpd. The first projection tpd 4.1 was about 250 percent higher than the off, final To projection. cap while the 1976 projection was 1.6 tpd, the actual emission for 1976-1977 was 2.4 tpd so that actual contamination was 50 percent than higher the 1976 Hearing to show Board solely We cite these
projection. figures than the in on the actual rather relying hypothetical.14 was justified that the that an adminis- aspect, principle in this we believe Finally, to great of its own is entitled interpretation regulation trative agency’s courts, unless wrong, clearly and should followed weight the view that section here.15 Control Officer took 1311.2 applicable against oper- in contaminants as actual meant decrease significant basis, he in 1976 the authority On that issued past. ation down. When Standard nevertheless contin- with two units shut operate units, action four the Control Officer before brought ued to all never- operate. Board to revoke the Standard authority Hearing interpreted that the Officer had theless Control argues time of on with their views in at the the negotiation accordance Control to construct. Whatever the Officer application in- have it cannot constitute administrative may surely said until did not come into existence 1975. of a section that terpretation *12 thereafter, was the Control Officer’s view un- in 1976 and Certainly, position. to Standard’s equivocal opposed Have a “Fundamental Does Standard in All Vested Interest” Operating Four Units? it fundamental vested right that because had a
Standard asserts units, indepen- was to exercise its required the trial court operate four Standard; trial ruled favor of on the facts. The judge dent judgment therefore, is evidence to is whether there substantial the issue on appeal 130, (1971) 4 3d Pierno Cal. (Bixby trial court’s v. support ruling. the 234, 143, 481 Harlow v. Carleson 242]; P.2d Cal.Rptr. fn. 10 [93 298, 731, 548 Pasade- (1976) 698]; P.2d Cal.Rptr. 16 Cal.3d 739 [129 purpose do a useful not serve where suggest projections that 14This is not to obviously, projections must be used. experience, is no there actual enforcing agency charged is with general is that an administrative 15The rule “when statute, great respect by interpretation of the will be accorded particular statute (Judson Steel clearly will be if not erroneous. the courts ‘and followed [Citations.]’” 658, 250, Cal.Rptr. Comp. Appeals Bd. (1978) 668 Corp. v. Workers’ 22 Cal.3d [150 issue, regulation is in the of an administrative 564].) P.2d When the construction 586 (Udall v. Tallman greater even 616, deferencе. interpretation shown administrative is Inn, 1, 625, Sail’er Inc. 792]; v. 85 S.Ct. (1964) 380 16-17 L.Ed.2d U.S. [13 329, 529, 1, 351]; P.2d 46 A.L.R.3d Kirby (1971) Cal.Rptr. 485 Cal.3d 13 5 [95 321, 935]; E. (1941) Cal.2d P.2d Mfg. Com. 17 325 Bodinson Co. California v. [109 109, 750].) Cal.Rptr. Swoap (1976) Cal.App.3d 58 114 v. [129 Westfall
603 on Competence v. Commission Sch. Dist. na Professional Unified 439, 53].) 572 P.2d Cal.Rptr. (1977) 20 Cal.3d [142 reasons. We for several disagree upon does turn between the not parties
1. dispute factual of whether that the appear question While would superficially issue. construction, as after pollutant there has been a decrease significant one, construction, real to be a factual appear before would against shown, emissions were to whether current we have was question, construction as measured the actual before experience against contended, held, or against and the Board Hearing projections District in 1976 units. preexisting as to what could have been emitted by of section question question involving interpretation That is a legal and stat- 1311.2 in of the environmental control light regulations (Carmona (1975) 13 Cal.3d utes. v. Division Industrial Safety course, trial was Of court Cal.Rptr. 161].) P.2d [118 not bound District and Board but nei- by Hearing interpretations are we rule advocated by ther bound “substantial evidence” Standard. whether question
2. we would not address the Standard Ordinarily, “fundamental, all four units because right” had a vested issue is a one of our light holding legal issue irrelevant *13 However, a of the importance rather than factual one. because this issue may of the in this context and the likelihood question if of there was a signifi- arise we hold that whether again, problem one, the court decrease been a trial particulates cant in had factual Stan- erred in its on the evidence for independent judgment exercising all right dard had neither a “fundamental” nor a “vested” units. four a is “fun- right There is whether
a. no formula magic determining basis Rather, case-by-case must decide damental.” courts on “[t]he administrative of af- substantially whether an or class decisions decision independent thus rights requires judgment fects fundamental vested case-by-case in this review. As we shall courts explain, [Citations.] it is whether of individual: right consider the nature analysis one, interference which will suffer substantial and basic fundamental the action the administrative agency,... 604
“In whether the is fundamental the courts do determining right not it, but the aspect alone the economic effect of in human weigh of it in terms and the individual the life situation.... importance asserted, “In the fundamental nature of the this analyzing right court, the preservation manifesting slighter sensitivity purely eco- nomic has that the owners of bonds had privileges, Bay Bridge found no in fundamental vested the construction right preventing second toll on the San crossing Rafael-Richmond and that a Bridge [citation], wa- ter had no company fundamental vested to a right to divert Thus, likewise, water from the Kern River. in Beverly Hills [Citation.] (1968) 306, & Superior Fed. S. L. Assn. v. Court 259 Cal.App.2d 316- 317 several Cal.Rptr. 183], loan with savings associations of- [66 attempted protect fices in Hills their Beverly interest free being additional competition by from license opposing application of an- Hills and loan Beverly savings organization. other Justice Hufstedler for the court that no ‘By observed stretch imagination can petition- free from being competition ers’ interest be deemed a “vested” right. do have a right Petitioners vested being permitted to continue operat- their and loan existing savings businesses. ing however, That right, (259 not here threatened.’ at Cal.App.2d 316-317.)” pp. v. (Bixby Pierno, 144-146; at pp. 4 Cal.3d supra, omitted.) fns. has not Supreme
Our Court deviated from Bixby intervening it has emphasized rather years, continuing vitality. v. (Strumsky San County Employees (1974) 28, Retirement Assn. Diego 11 Cal.3d 34 805, Carleson, P.2d Cal.Rptr. 29]; v. Harlow Cal. supra, 16 [112 736-737; 731, v. Dickey (1976) 3d Retirement Board 16 Cal.3d 289, 548 P.2d Cal.Rptr. 689]; 750-751 Anton v. San Antonio [129 (1977) 19 Cal.3d Community Hosp. Cal.Rptr. [140 1162].) P.2d bench, we are
In the case at concerned with a “purely economic” preservation toward the of which our Supreme Court has been privilege *14 sensitivity.” There no “manifesting slighter is contention that Standard District; ruin by will driven to financial action of the not there is that this will particular facility even a contention be forced operate to true that will at a and close. It is Standard not be to produce loss able want that produce.16 as fuel oil as it would to and could It be may much production plant “2 capacity with units down” out that even point 16We 5,000 bpd preexisting production more than the was after construction units. as with three units its of this will not be as operation facility profitable in- it could be with It be that the return on considerable four. may of these what it have been. None vestment will fall short of might circumstances, them, four makes Standard’s to right operate nor all of units instead of three “fundamental.” units. to four operate
b. Standard that it had a “vested” argues right construct, au- Its that was is when it received its to theory authority District thorized to all four units at such time as operate “applicable permissible.” are revised make of such units regulations operation to projections When section 1311.2 Standard’s adopted was what all that the emission of particulates four units would emit showed what the three preex- would be less than its projections significantly There- at full operation capacity. units would emit based isting upon fore, under section 1311.2 of all four units was “permissible” when all four units and vested. Thus Standard could lawfully operate We construction was complete. disagree. “‘legiti- possessed’”
A
is “vested” when it is
right
‘“already
Carleson,
735.)
(Harlow
Cal.3d at p.
v.
mately acquired.’”
supra,
Here,
Standard had
after
construction
completion
to
authority
had no written
no
units because
right
operate any
they
is
position
1302.
in Standard’s
operate
required
Implicit
as
section
once
operate
that
District of an
authority
granting by
We do not
formality.
construction had been
was
completed
purely
re-
purpose
scheme. Obviously
that to be the
perceive
regulatory
the Control Officer
written
is to enable
operate
quiring
authority
do
would
completed,
decide whether the
after construction
instance,
with the
do,
ap-
comply
which
in this
that
it was supposed
if the Control
Can it be
contended
plicable regulations.
seriously
increase
actually
would
completed
that the
as
Officer concluded
Such
nonetheless?
he had to issue
pollution,
meaningless.
make it
of section 1302 would
construction
Unem-
Brands v.
in Interstate
opinion
The recent
Court
Supreme
(1980)
Cal.Rptr.
Thus, if the issue here were a factual rec- on the administrative independent judgment erred in exercising to sup- was substantial evidence that there say It remains to only ord. Board that the level of the Hearing determination port the factual reduced. not been significantly had particulates (1976) v. Court As in Mobil Oil put Corp. Superior was eloquently “Here it the Oil Cal.Rptr. appears Cal.App.3d 814]: [130 have a fundamental vested are us to determine Companies asking they fuel to their customers. to release while right gasoline vapors dispensing hand, assert a fun- on the other who public, How are we to answer exists, must be If either it damental vested to breathe clean air? right of a rule which the latter. We are not with the enforcement presented it an puts of business. At most Cоmpanies drives the Oil out effectively business. economic burden on them the cost of increasing doing situation, it is individuals in the life importance the relative weighing vapors manifest the Oil to continue Companies’ right releasing gasoline into the nor vested. The trial court atmosphere neither fundamental will use rule evidence in of the whole light of ‘substantial evidentiary record’....”
Did the District Issuing Authority Authority Construct Give to Standard With Section 1311.2? Determine Compliance (d) to con Standard contends that paragraph (see effect, 3, ante) from the struct fn. constituted a delegation, District whether operation to Standard of the to determine power four units with section 1311.2. We do not so read it. complied (d) changed are regulations We read that paragraph say if with complies of the four units operation the District decides if limitation will not be then the shut-down new or changed regulation, words, are changed, if the law or the regulations In other applicable. al- the law and the regulations Standard will be to do what permitted limitation. It low; down it be “locked-into” the two-unit would not and, fact, the District been a reasonable act would seem have will be permitted that Standard position is still the District’s com- the District finds that such all four units at such time as with its plies regulations.
607 Further, (d) if Standard’s strained were interpretation paragraph correct, did District intend to to Standard its delegate power decide whether the met a in the change requirements of the reg- ulations, such a would be void and as delegation unenforceable against (See Avco public policy. Community Inc. v. South Coast Developers, 785, (1976) Regional Com. 17 Cal.3d Cal.Rptr. [132 546].) P.2d
Is the District From Estopped Using the Actual Preconstruction Emissions
as a Base Line? argues Standard that at time of the 1973 the Dis- negotiations, trict that a agreed projection amount of that would particulates the three produced by units at full preexisting operating would be the base line be used in event appropriate of a change that regulation might permit the of all four Fur- units. ther, Standard that it alleges was in 1973 that a new “apparent” regulation would be issued in permitting expansion production by additional construction such as Standard was In reliance of proposing. Standard made its foregoing handsome investment.
There is a welter of evidence as to whether it was conflicting repre- sented to Standard that could be used as a base line. Suffice projections it to that the say Board found that thе District had not Hearing repre- sented to Standard that could be so projections used. There substantial evidence to that support finding.
But even if the District had
that a base line
represented
premised
upon a
would be
was
induced
projection
acceptable,
spend
Standard
$200 million
An essential element in
is that the in
thereby?
estoppel
relied
jured party
upon
to be
Beach v.
party
estopped. (City
Long
(1970)
423];
Mansell
Any only 2; been in the context of a in it was irrelevant change regulation future Thus, could terms of the existed 1973. Standard regulation have “relied” if it knew not that there was to be only only going and when. Stan- 2 but what the would be change change be a but change dard it was that there would says “apparent” would as to know that prescient change Standard could not be so *17 It overstrains credulity relevant consideration. make “base lines” a $200 the million on the proposition invested believe that Standard date, a in its District, change regula- would effect such at some future of all four units.17 possible tions as would make if, claims, And, District made similar represen- even as Standard 1976, tations in 1975 and this was after Standard had received long that, nature to construct and had construction so authority begun in un- Standard could not have relied on those things, representations dertaking project. held that “Estop- Court has Supreme very recently our
Finally, if the result agency will not lie pel ordinarily against governmental Bib’le v. Committee public policy.” will be the frustration of a strong Bar Examiners (1980) 606 Cal.Rptr. 26 Cal.3d [162 Here, P.2d raise an the District would 733].) estoppel against in the ambient air breathed an increase the level of pollution our “a frustration of a enunciated by people, strong public policy” by and embodied law. Legislature reversed; it is directed to vacate its of the trial court is judgment for said petition writ of mandamus and enter its judgment denying writ.
White, J., P. concurred. 1975, more than 15 point promulgated 17We out that section 1311.2 was not until authority Parenthetically, we observe months after Standard received its to construct. 1311.2, here, was eliminated and that in section as it read at times relevant wholly different criteria substituted. Further, “(a) requires that: A district board Safety Code Health and section amend, holding regulation public first adopt, repeal any shall or rule or without not hearing thereon. amend, repeal any “(b) public hearing adopt, or place Notice of the time and of a board, given days prior thereto to the state regulation rule or shall be not less than 30 adopted, to be copy proposed of the rule or which notice shall include a amended, be, may publication pursuant in the district repealed, as the case portions includes case of a district which Section 6061 of the Government Code. county.” published in each such county, the notice shall be of more than one receipt application for and at the time of its Standard nowhere contends that construct, hearing to be given any public notice of the District had Safety required by Health and Code adding 1311.2 as purpose held for the section 40703. section
SCOTT, J.—I dissent. Area Pollu-
Appellant, Air Pollution Control Officer of Bay District, tion Control from a the issuance of judgment granting appeals writ of mandamus under Code of Civil Procedure section peremptory board, 1094.5. The district’s or- appellant, hearing upon application by *18 dered to fuel oil at respondent’s permit low sulphur facility Richmond, California revoked on 1978. The refinery February supe- court’s writ ordered the board to set aside its order hearing rior revoking respondent’s I would affirm the permit. judgment.
This action events encompasses which date back to the year 1973. In that year Standard Oil respondent, Company, operated at refinery Richmond, California consisting three crude units which produced high fuel The sulphur oil. at that time refinery’s was capacity approxi- 270,000 mately oil, barrels per day (bpd) of fuel it had though been for operating 200,000 several at a years approximately bpd due to the deactivation of several pieces of equipment. to a response oil, critical need recognized for low fuel sulphur respondent appel- lant began discussions in 1973 concerning construction of a low fuel sulphur oil at the project refinery. plan certain contemplated alterations to the three crude existing units and the construction of a fourth crude unit to produce low fuel It sulphur oil. was estimated that the alterations and construction would result in an increase of capacity 270,000 at the 365,000 from refinery bpd bpd.
In order to proceed and, with construction subsequently, to operate the new it was for necessary respondent an acquire authority to construct1 and a permit operate2 from the district. The application were, issuance times, of these permits at all relevant governed by provides: “Authority person any 1Section 1301 to Construct. No shall construct fa- erect, alter, article, machine, cility contrivance, building, replace any equipment or or or or other contaminants, may the use of which cause the emission of air or the use of eliminate, may which reduce or control the emission of air contaminants unless he shall construction, erection, first have obtained written authorization for such alteration or 1, 1972.) (Eff. replacement July from the Air Pollution Control Officer.” provides: “Authority Operate. 2Section 1302 person operate any facility No shall article, machine, contrivance, building, or any equipment or or other the use of which contaminants, eliminate, reduce, may cause the may emission of air or the of which use or control the authority emission of air contaminants which for an to construct is re quired operation unless he shall first have obtained written for authorization such from (Eff. 1972.) the Air July Pollution Control Officer.” effectuate was adopted regulation 2.3 That the district’s directing section Code and Safety mandate of Health ambient the federal and maintain to achieve to “endeavor district Agency. Protection Envirоnmental established standards” quality (See 50.) pt. 40 C.F.R. the denial of a new source regulation requires 13094 of that
Section new cause “may of a where the use or air quality if any emission of air contaminant any [state federal] new source is from the proposed . such air contaminant standard. .for to be located.” At the in which it is proposed exceeded in the vicinity construct, the feder- respondent’s application time of Thus, Area. Bay were exceeded al ambient air standards quality within an to the exception provisions fell application unless respondent’s *19 be granted. section it could not of will that a provides of the district’s regulation
Section 13115 of an ex- new is a “replacement” not be denied if the proposed in result operated the new “will when used or isting facility the use or operation of each air contaminant than the emission of less Respondent . .for which it is a facility. replacement.” the such original under section 1311. for consideration application submitted its regulations they written at regulations those were are to to district 3All citations appeal. this which are the basis of time of the events the vicinity. the exceeded in Quality Standards provides: “Denial—Air 4Sеction Officer, ex- considering available about all information after The Air Pollution Control existing from emission of air contaminants about the isting quality, information air pro- from the of air contaminants about the emission information operations, source erect, alter, construct, replace or authority deny an operation, shall posed new source article, contrivance, machine, authority or an other equipment or facility, building, any contrivance, machine, article, the or other building, equipment facility, operate any any air contaminant if significant quantity of of a may cause the emission use of which Board or the Envi- Air Resources adopted by the California any quality standard air proposed new source contaminant from Agency for such air Protection ronmental 18, 1973.) (Eff. Jan. to be located.” vicinity proposed which it is in exceeded The by Replacement—Not Cause for Denial. provides: “Improvement 5Section 1311 construct, erect, alter deny authority to or Officer shall not Air Pollution Control article, machine, building, equipment any facility, operate, replace, or an machine, article, equipment or other con- facility, building, if the or other cоntrivance article, machine, existing facility, building, equipment any replacement trivance is a article, machine, building, equipment or facility, new or other contrivance and the other contrivance will when used emission of less of each air operated or result article, building, original facility, operation of the such than the use or contaminant machine, replacement. which it is a This Section other contrivance for equipment or regula- with District only original compliance emissions were in apply 1311 shall if the 1, 1972.) (Eff. July tions.” section interpreted district respondent’s application, evaluating ca- replacement existing to refer to requirement 131l’s replacement determined this district refinery. purpose, For pacity was 270,000 op- bpd though even had an existing capacity refinery 200,000 project’s Since the bpd. proposed at only approximately erating 270,000 ca- bpd than the greater would have been capacity significantly respondent’s the district rejected of the then pacity existing refinery, application. it agreed an application whereby Standard submitted
Subsequently, pro- units at time as the shut down two of three such existing operation. applicatiоn unit four came on line and was posed crude we will 4], “After of the new unit further provided startup [No. units as outlined in the foregoing limit of the above units operation [two and federal down if unit No. 4 is until California applicable operating] Dis- applicable standards are met vicinity refinery, trict are make of such units regulations operation permis- revised to sible, from or written for such is obtained approval BAAPCD BAAPCD Area Control or the [Bay Pollution District] to limit the Board.” The effect of the shutdown condition was Hearing (new refinery refinery) approxi- after construction 275,000 close to which the district considered mately bpd, sufficiently *20 (old 270,000 the refin- of the before construction bpd capacity refinery ery) to be deemed a of section 1311. replacement purposes that the new emit less of each air contaminant hav- requirement facility satisfaction, met to the district ing already approved been the district’s the authority under section 1311 and issued an application submitted to the in 1976 at an construct Standard accordingly. completed project $200 cost of approximate million. adding
In December of amended 2 by the district effect, In from denying section 1311.2.6 it control officer prohibited a рermit to existing regard construction at facilities without authorizing the fa- any “replacement” requirement provided operation after in the significantly construction would result emission of cility provides: “Significant 6Section 1311.2 Reduction of Cause for Deni- Emissions—Not erect, construct, deny al. or authority The Air Pollution Control Officer shall not to alter, articles, machines, authority operate, buildings, equipment or other any or an to existing facility operation of part contrivance which will become of an if the use or construction, erection, alteration, in the emission such after such or will result original significantly each air than the use of the operation less of contaminant (Eff. 1975.) facility.” such Feb. less of each air than the contaminant before construction. 1976, Standard,
In construction, July upon completion began oper- with all four units. It had ating not received to authority operate. August the district issued to Standard a unit permit operate No. condition, 4 which contained the same that two of the preexisting down, units be shut as was contained in the to construct. 7, 1977, On the district filed with the January board an hearing “Ap- plication for Permit Revocation Pursuant to Health and Code Safety sections 42307-42309.” The aрplication that the for the alleged grounds revocation of the were based permit operate upon violations of the i.e., terms specific permit failure to shut operate, down two of the three crude units of crude unit preexisting during operation No. 4. After board, 2, 1978, hearing argument, on hearing February issued an order crude unit revoking permit operate No. 4.
Respondent filed a for a writ of mandamus in the petition superior court seeking review of the revocation of the After permit operate. court hearing, superior respondent determined that had a funda- mental vested crude unit No. and issued a right writ board to set aside its peremptory ordering hearing order revok- ing permit and to declare shutdown null condition and void. This followed. appeal construction,
Standard contends that its after fits within refinery, therefore, that, terms of section 1311.2 and under the terms of per- mit to operate, no must abide the shutdown condition. longer *21 construction, Appellant contends that after does not fit refinery, that, therefore, within the terms of 1311.2 and section all four units at once constitutes a of the terms of the permit violation to operate.
The central section issue in this case is the рroper interpretation 1311.2 of the district’s 2. The between the is dispute parties the facility over the base line to which the emissions of after proper there construction are to be in order to determine whether compared has been a reduction in the emissions of each air contami- significant nant as a result of the construction. contends that the base line is the actual emissions
Appellant proper contends that prior Respondent to construction. refinery base line is the level of emissions of the old proper projected refinery at full in on line. unit No. came operating capacity year The difference between these is in interpretations light two significant of the fact that for two its for au- prior application date of years to construct had been at thority respondent operating refinery reduced capacity.
Both parties that under either there has been a agree interpretation Evi- significant reduction of all contaminants except particulates. that, dence before the board hearing showed to estimates according submitted to and accepted in with the by appellant conjunction apрlica- construct, tion for the new with all four units refinery would emit operating 1.6 tons Observed per day (tpd) particulates. emissions of for the in particulates 1977 were 2.4 year ending July tpd. It was estimated that the old at full under refinery, operating capacity conditions in expected present would have emitted 3.9 tpd. The actual emissions of at particulates the old at re- refinery, operating duced was 1.4 capacity tpd.
It is apparent the new respondent’s right at refinery full turns capacity upon which of section is interpretation adopt- 1311.2 ed. If appellant’s is position adopted, would not be in project conformance with section 1311.2: actual emissions prior construction were 1.4 tpd where both the projected and observed emissions after con- struction were If higher. respondent’s position adopted, project would be conformance with section 1311.2: emissions of the projected old at full were both refinery operating tpd 3.9 where and observed emissions after projected construction were lower. Respondent contends that it had a fundamental vested right oper- units, ate all four the trial exercised his judge properly independent facts, and, thеrefore, on the the issue on is whether judgment appeal there is substantial evidence to the trial court’s of fact. support findings (Pasadena Sch. Dist. v. Commission on Compe- Unified Professional *22 (1977) 309, 439, tence 20 314 572 Cal.Rptr. 53]; Cal.3d P.2d [142 731, 298, (1976) Cal.Rptr. Harlow v. Carleson 16 Cal.3d 739 548 [129 731, 234, (1971) 4 698]; Cal.Rptr. P.2d v. Pierno Cal.3d 739 Bixby [93 481 242].) P.2d
614 court, however,
The question before this does not turn a factual upon issue but rather a upon one: of section legal proper interpretation 1311.2. “In reviewing... an decision a court must determine agency whether the in applied proper legal administrative standard agency the evidence evaluating interpretation before it. The of a [Citation.] statute, is, course, regulation, like the of a interpretation question of a of law [citations], and while an administrative agency’s interpretation its own regulation deserves the ulti- obviously great weight [citations], (Carmona mate such resolution of rests with the courts.” v. questions Division Industrial 303, Safety (1975) 310 Cal.Rptr. Cal. 3d [118 473, 530 161].) P.2d
When court should determine statute or interpreting of the statute intent order to effectuate the legislative purpose (1978) Cal. Caudillo v. 21 Cal.3d (People regulation. [146 Equal. Base Materials Board v. Select Rptr. 274]; 580 P.2d dis- (1959) P.2d Here intent of 672].) 51 Cal.2d 645 [335 by referring trict section can be ascertained 1311.2 adopting under circumstanсes federal controlling legislation specific adopted regulations. which the district which District is a regional agency Area Pollution Control Bay quality federal ambient air
has an role to play implementing integral (81 485), as Act of 1967 Stat. Quality standards under the federal Air 91-604, (Pub. L. No. Amendments of 1970 amended the Clean Air act, quality the ambient air 1676). achievement of 84 Stat. Under that and en- which required prepare left to the states were standards was approval to the plan, subject force state implementation Protection Agency. Environmental Resources has created the State Air the Legislature California ambient air quality effort achieve control of the
Board with overall lo- Code, 39002, 39003) but (Health given & has Saf. standards §§ district, bodies, “the primary responsibility as the cal and such regional than emissions from all sources other from pollution for control of above, these Code, 40000.) (Health As stated & Saf. motor vehicles.” § fed- and maintain the to achieve are directed to “endeavor local bodies Code, 40001.) (Health & Saf. eral ambient air standards.” quality § Amendments of federal Clean Air As the to the Report House was to achieve national clear, that statute purpose makes “both control, which reduction includes effective air pollution *23 new pollution problems.” of present pollution prevention significant (House 91-1146, News, & Admin. Rep. Cong. No. 1970 U.S.Code 5360-5361.) pp.
The district’s 2 was to effectuate this mandate. adopted Section the denial of a new source where the requires application source proposed would emit contaminant significant quantities any for which federal or state air standard is exceeded in vi- any quality of the new cinity source. Since air the San Francisco quality Bay Area has never attained the standards established Environmental Protection the district could not new source Agency, approve appli- any cation unless there was some exception provisions to the of section 1309.
The provisions of section 1311 were prevent intended to this obviously undesirable result. That section allows the of an replacement existing if the use of the new will result in the emissions of less of each air contaminant than the use old It is facility. apparent from the record that section 1311.2 was to the limi- adopted response tations which the replacement requirement imposed upon new source development. The extent of these limitations became appаrent during the processing of respondent’s for an application to construct. Under the district’s interpretation section respondent would be unable to alter its existing refinery increase its even if the net effect of the alterations would be to reduce the level of significantly emissions of each air contaminant. Such a result would not further the purposes the federal Clean Air Amendments and would be particu- larly inappropriate of the critical light need for low sulphur fuel oil. Section 1311.2 was adopted with the intent new source con- struction and operation consistent with the goal basic of the federal Clean Air Amendments.
Appellant and amicus contend that the actual emis- only by adopting sions of the old as refinery the base line for the purposes section 1311.2 will the intent of section 1311.2 be effectuated. They argue no other interpretation would result in the reduction pollu- of present tion. The purpose Amendments, however, of the federal Clean Air is to both reduce present pollution prevent development of signifi- cant new pollution problems. Appellant’s interpretation, accepted by here, the majority these dual ignores purposes. respondent’s re- finery was at reduced It operating not contested that capacity. *24 regulations, and the
respondent, operating permits applicable under its the old at operated refinery and equipment could have reactivated its lev- full To do would have resulted significantly greater so capacity. the level of projected els of emitted. Only by adopting pollutants being in 1976 as the base the at full refinery capacity emissions of operating an of line section 1311.2 can accurate determination purposes for the of of result in a reduction significant whether the would proposed project the of is with interpretation purpose be made. This consistent emissions it the the since allows construction federal Clean Air Amendments which would aid development prevention of new source This can pollution problems. of new development significant that the level of seen reference to the case: record shows present than it would from the new lower refinery significantly emissions have if there no been had been new construction. encourage
The would also of section 1311.2 majority’s interpretation Clean Air Amend- inconsistent with the federal purposes conduct will this Assume point. A suffice to illustrate simple example ments. an facility old percent capacity, that a owner at 50 facility operates, emis- facility produces particulate which burn fuel. The cannot clean his within If need to double activities tpd. sions of 100 the owner has a (1) at old operating three he faces a choice between years, emissions producing particulate full in the third capacity year allows, (2) so that his altering which tpd of 120 Un- tpd. can burn cleaner fuel and emissions produce particulate not the district could interpretation, approve der the majority’s past emissions. compare favorably because it would not alteration is to the facili- The this force applying interpretation effect of necessary emissions from substantially either more ty produce owner an or to continually operate the old expanded operation facility, that, so if and when expan- at dirtiest level possible original facility Neither be obtained. may authorization to construct required, sion is with of the federal purpose be consistent course action would Clean Amendments. Air ac- fails to into of section 1311.2 take majority’s interpretation and the permits applicable
count under respondent, operating and, at there- could old full regulations, refinery fore, the new lead determination of whether does not accurate in the level of emissions would result in a reduction significant refinery inconsistent conduct encourage of air This failure would contaminants. Air Amendments. with of the federal Clean the purpose I hold would that section 1311.2 allows the use of emissions projected at full old under conditions that were refinery operating capacity, *25 to be in as to expected present the base line which emissions of refinery the new are to be for the compared purposes determining of whether there been a significant has reduction.
Amicus and that the calculation of appellant’s argument projected emissions is speculative and highly subject self-serving to manipula- tions unconvincing. The district has a staff technical whose is competence, presumably, includes the to evaluate the ability accuracy of the projections fact, made In by applicants. record that reveals the district accepted made in projections by Standard its evaluating ap- plication and, under section 1311 had no apparently, difficulty assessing event, their accuracy. any amicus and appellant’s position is fatally flawed in that the district’s own interpretation of section requires 1311.2 the use of emissions from the projected proposed facili- ty determine, in order at the time of an issuing construct, if there will of be reduction emissions. If the is district competent evaluate emissions of the it is projected proposed facility, competent to evaluate emissions of old projected To the ex- facility. tent an applicant have a may tendency to manipulate projections interests, serve own its this re- tendency may corrected careful by view the of projections the district. by that,
Appellant further if argues even emissions of the old projected are line, refinery adopted the base made projections by respon- dent in 1973 should not be adopted for the purposes assessing respondent’s under section 1311.2. re- Appellant contends that spondent’s projections emissions of the old and the compare refinery new refinery utilizing different fuel slates. Appellant argues that Stan- dard has compared the case showing maximum emissions old showing minimum emissions of the new rеfinery. with the case refinery contest, however, does Appellant not have respondent could operat- ed, under and old operating permits applicable regulations, at full refinery under conditions which would result level level, of emissions Standard projected. this maximum if that Adopting case, is the as the base line for is purposes section 1311.2 reasonable of that A light purposes section. reduction in significant level had respondent of emissions under its right, operating permits, emit would serve to help new prevent development significant addition, pollution problems. In the district re- had opportunity under with the application conjunction view these in 1973 projections comparison. them as a reasonable accepted section find- not issuing trial court erred in that the contention Appellant’s waived Appellant of law unsound. fact conclusions ings them request when it failed to conclusions of law of fact and findings 1109; (See Proc., Civ. law. Code allowed within time §§ Court, v. South Coast 232(c); Regional Kennedy Rules of rule Cal. 396].) (1977) Cal.Rptr. 666-667 68 Cal.App.3d Com. [137 *26 I would affirm judgment. 30, 1980, the opinion was denied rehearing May
A petition Scott, J., opinion was of the was above. modified to read printed for a hearing Respondent’s petition should be petition granted. J., Clark, J., Richardson, 30, 1980. denied July Court was Supreme Manuel, J., granted. that the should petition were of the opinion