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Hardesty v. Sacramento Metropolitan Air Quality Management District

ELR Citation: 42 ELR 20001
Nos. C065784, (Cal. App. 3d Dist., 12/27/2011)

A California appellate court affirmed a lower court decision dismissing a petition challenging an air district's abatement order directing the owners of an open-pit mining operation to cease operation of the central plant equipment and all internal combustion engines with a rating greater than 50 horsepower until the owners obtained a permit from the district. The owners argued that 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 CAA because it contains an emissions standard that has not been approved by EPA. But the two-pound per day emissions threshold applies to stationary equipment, not mobile sources of air pollution. The CAA, therefore, does not preempt the permit program. In addition, the district properly required a permit for the diesel-powered generator that runs petitioner's central plant equipment even though the engine is registered under the state-wide Portable Equipment Registration Program (PERP). The district possesses the regulatory authority to determine whether a particular PERP registration is valid and, if not, to require a local permit. Here, substantial evidence shows that the generator was not eligible for PERP registration since it remained at the mining operation for more than 12 consecutive months. With respect to the central plant equipment, substantial evidence supports the conclusion that this equipment emits at least two pounds of pollutants in any 24-hour period. And the abatement order does not violate any vested right the operators might have to mine the property.