COMMUNITIES FOR A BETTER ENVIRONMENT v. SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT

Filed 12/18/07 Modified and Certified for Partial Publication 1/16/08 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

Story continued from Part III .

Appellants arguments fail to demonstrate that substantial evidence supported a fair argument that the hazards associated with ammonia storage, use and transport were significant. First, appellants contend that they presented a fair argument showing a significant impact because their expert, Dr. Fox, opined that the risks from ammonia storage and transport were significant. (See Guidelines, 15064, subds. (g) & (h); Sierra Club v. County of Sonoma, supra, 6 Cal.App.4th at p. 1317 [if there is a disagreement among experts over the significance of an effect, the agency is to treat the effect as significant and prepare an EIR].) But, as the trial court recognized, Dr. Foxs opinions expressed only generalized concerns about the undisputed risks of dealing with ammonia. She neither challenged any of the facts underlying the SCAQMDs analysisincluding the amount of aqueous ammonia to be used, the results of the anhydrous ammonia modeling and the infrequency of any transportingnor took those considerations into account in rendering her own opinions. For example, in her supplemental comments to the SND, Dr. Fox stated: Two types of ammonia will be used by the Project, 30 percent aqueous ammonia and anhydrous ammonia. Both of these types of ammonia release large amounts of toxic ammonia fumes when they are spilled. Both of these types of ammonia will be transported to the site, stored on site, and used in the proposed SCR. Accidents may occur during transport, storage, and use that will cause releases of ammonia. These releases could result in significant impacts to residents along the transportation route, to workers in the refinery, and to residents and workers around the refinery. As aptly explained in Leonoff v. MontereyCountyBd. of Supervisors, supra, 222 Cal.App.3d at page 1352: Unsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise to the level of substantial evidence supporting a fair argument of significant environmental effect. [Citation.]

Second, appellants assert that the SCAQMDs analysis, standing alone, demonstrated the existence of a significant impact to Refinery workers and members of the public on or near the highways used to transport anhydrous ammonia. They contend the Quest study showed that within seconds potentially lethal concentrations of ammonia would be present at up to 80 feet from the accident site. To the contrary, the Quest study established that in the worst case scenario of both anhydrous ammonia cylinders fully discharging, ammonia levels would reach the ERPG-2 level at 80 feet within seconds, but would also dissipate to the ERPG-1 level within less than one minute. The ERPG-2 level is not lethal, but rather, is the level at which an individual could be exposed for up to one hour without experiencing any serious health effects or impairment to the ability to take protective action. Specifically addressing the potential impact to Refinery workers, the SCAQMD outlined the program the Refinery had developed in accordance with OSHA and the Health and Safety Code regulations that was designed to prevent or minimize the consequences of a toxic chemical release; it further noted that all workers had access to respiratory protection equipment and had been trained in its use. Addressing the risks associated with transport, the SCAQMD concluded that the protections provided by the Department of Transportation regulations, coupled with the infrequency of any transport, rendered any risk to the public less than significant. (See Pub. Resources Code, 21068 [Significant effect on the environment means a substantial, or potentially substantial, adverse change in the environment].) Appellants offered no evidence challenging the SCAQMDs finding of no significant effect.

Next, appellants contend that the SCAQMD failed to consider any risks beyond an accidental release of aqueous or anhydrous ammonia, such as those associated with terrorism. Preliminarily, we note that the trial court declined to address this issue, finding that while appellants had included it in their petitions, they neither briefed nor argued it. For this reason, we likewise need not address the issue. (E.g., Baugh v. Garl (2006) 137 Cal.App.4th 737, 746 [Points not raised in the trial court may not be raised for the first time on appeal].) In any event, the record belies appellants contention. In its response to comments in the SND, the SCAQMD specifically explained that its hazard analysis was not based on what caused the release. The release could be caused by human error, mechanical failure, a natural event, e.g., earthquake, or an act of terrorism or sabotage. Regardless of what causes a failure, the hazard impacts discussed in the Subsequent Negative Declaration . . . would not change. Beyond expressing concern about the risk of terrorism, appellants offered no evidence to support a fair argument that the possibility of terrorism affected the SCAQMDs finding of no significant impact.

Finally, appellants contend that the SCAQMDs conclusion that the use of 30 percent aqueous ammonia presented no significant impact conflicted with the 2003 AQMP Final Program EIR (AQMP EIR). That document stated that the use of ammonia in SCRs is considered to be potentially significant and imposed mitigation measures including that [r]ules encouraging the use of SCRs or permits for SCRs shall limit the catalyst to aqueous ammonia or its equivalent. Current SCAQMD policy already requires using aqueous ammonia. Following the list of mitigation measures, the AQMP EIR further stated: Use of aqueous ammonia at concentrations less than 20 percent by volume in conjunction with the above mitigation measures can reduce hazard impacts associated with ammonia use to less than significant.

We agree with the SCAQMDs interpretation of the AQMP EIR and find that it does not conflict with the SND. (See Communitiesfor a Better Environment v. State Water Resources Control Bd. (2005) 132 Cal.App.4th 1313, 1334 [an agencys interpretation of its own regulations or the regulatory scheme which the agency implements or enforces is entitled to great weight unless unauthorized or clearly erroneous].) Rather, the SND evaluated an SCR unit that used aqueous ammonia as the catalyst and relied on a small amount of anhydrous ammonia only in the event of an aqueous ammonia failure. Nothing in the AQMP EIR precludes the SCAQMD from independently evaluating such a system and concluding that it poses no significant effect. Similarly, we do not construe AQMP EIRs cautionary statement concerning the concentration level of aqueous ammonia as requiring a finding of significance for every use of aqueous ammonia exceeding 20 percent by volume. The AQMP EIR is akin to the Hazardous Waste Management Plan EIR in Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 372373, which the court characterized as a planning device that provided general guidelines for any future projects and was divisible from those projects which would be independently subject to CEQA review. Nothing in the AQMP EIR precludes or is inconsistent with the SNDs conclusion that the hazards associated with the use of aqueous ammonia and reliance on anhydrous ammonia as a backup were less than significant.

D. The SCAQMD Did Not Improperly Segment its Review of the ULSD Project.

Appellants contend that the SCAQMDs certifying three separate CEQA documents in connection with the ULSD project improperly segmented or piecemealed the project in order to avoid evaluating the full scope of its impact on the environment. As explained in Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283284, CEQA mandates that environmental considerations do not become submerged by chopping a large project into many little oneseach with a minimal potential impact on the environmentwhich cumulatively may have disastrous consequences. (Accord, Sierra Club v. West Side Irrigation Dist. (2005) 128 Cal.App.4th 690, 698 [A public agency may not divide a single project into smaller individual projects in order to avoid its responsibility to consider the environmental impacts of the project as a whole].) To facilitate a comprehensive environmental review, the Guidelines define a project broadly as the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . . . (Guidelines, 15378.) According to appellants, the FND, Addendum and SND improperly analyzed different aspects of the same project.

Neither the law nor the record supports appellants contention. Sections 15162 and 15164 of the Guidelines governed the SCAQMDs obligation under these circumstances. According to Guidelines section 15162: (a) When an EIR has been certified or a negative declaration adopted for a project, no subsequent EIR shall be prepared for that project unless the lead agency determines, on the basis of substantial evidence in the light of the whole record . . . . [] (1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects . . . . Where the lead agency determines that there are no new or increased significant impacts warranting the preparation of an EIR or subsequent EIR, it has the discretion to prepare a subsequent negative declaration, an addendum or nothing. (Guidelines, 15162, subd. (b); see also Guidelines, 15164, subd. (b) [An addendum to an adopted negative declaration may be prepared if only minor technical changes or additions are necessary or none of the conditions described in Section 15162 calling for the preparation of a subsequent EIR or negative declaration have occurred]; Mani Brothers Real Estate Group v. City of Los Angeles, supra, 153 Cal.App.4th at p. 1398.)

In accordance with these provisions, after the SCAQMD certified the FND, it prepared the Addendum to evaluate the Refinerys update to the fugitive component parts, which resulted in a five ppd increase of volatile organic compound emissions. It concluded that the Addendum was the appropriate CEQA document because (1) changes to the project do not require major revisions to the previously prepared Final Negative Declaration or substantially increase the severity of previously identified significant effects; (2) only minor technical and clarifying changes have been made by the Addendum; and (3) the changes to the Final Negative Declaration made by the Addendum do not raise important new issues about the significant effects on the environment. Thereafter, the SCAQMD prepared the SND to evaluate changes necessitated by the replacement of a heater which required the employment of best available control technology, or the SCR unit in this instance. While concluding that the impacts from the SCR unit were not significant, the SCAQMD determined that the SND was appropriate because the SCR unit involved a new type of control technology that was not previously evaluated and a new chemical (ammonia) that had not been part of the FNDs analysis.

The SCAQMD properly followed the Guidelines in preparing both the Addendum and the SND to address the impacts arising from changes to the ULSD project arising after the certification of the FND. These circumstances are unlike those in Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo, supra, 172 Cal.App.3d at pages 165166, where a proposed shopping center development was improperly described and reviewed as two projectsone involving the general plan amendments and zone classification and the other involving the tentative tract map approval and road abandonment. Here, the SCAQMD did not improperly segment the ULSD project, but rather, appropriately evaluated the potential environmental effects resulting from changes proposed to the ULSD project.

II. The SCAQMD Did Not Abuse its Discretion in Declining to Apply Regulation XVII to the Issuance of a Permit for the ULSD Project.

The primary issue in the second phase of the proceedings involved appellants challenge to the SCAQMDs decision not to apply Regulation XVII in issuing a permit to the Refinery for the ULSD project. Appellants maintain that Regulation XVII remains enforceable as a matter of state law because the EPAs delegation withdrawal did not affect the SCAQMDs ability to enforce the regulation pursuant to state law and, alternatively, because Sen. Bill No. 288 resurrected the regulation as of January 2004. We disagree. The EPAs withdrawal of its delegation left the SCAQMD without any authority to enforce Regulation XVII. The SCAQMD did not regain its enforcement authority with the enactment of Sen. Bill No. 288 because Regulation XVII is not among the rules and regulations that are covered by the statutory scheme. (See Health & Saf. Code,  42505.)

A. Standard of Review.

The standard of judicial review of agency interpretation of law is the independentjudgment of the court, giving deference to the determination of the agencyappropriate to the circumstances of the agency action. [Citation.] (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8; accord, Ocean Park Associates v. Santa Monica Rent Control Bd. (2004) 114 Cal.App.4th 1050, 1062.) In exercising our independent judgment on questions of interpretation of statutes and regulations, we must keep in mind that [i]n general, an agencys interpretation of statutes within its administrative jurisdiction is given presumptive value as a consequence of the agencys special familiarity and presumed expertise with satellite legal and regulatory issues. [Citation.] (PG & E Corp. v. Public Utilities Com. (2004) 118 Cal.App.4th 1174, 1194; see also Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1107 [factors governing degree of deference include agencys technical knowledge and expertise necessary to interpret complex regulations and the probability and likelihood that agency officials conducted a careful and studied review and received public input].) But despite this general rule of deference, the governing standard of review on our appeal remains de novo. (Sneed v. Saenz (2004) 120 Cal.App.4th 1220, 12341235; Motion Picture Studio Teachers & Welfare Workers v. Milan (1996) 51 Cal.App.4th 1190, 1196.)

B. Regulation XVII was Rendered Ineffective by the EPAs Withdrawal of its Delegation.

As part of the Clean Air Act, Congress established the Prevention of Significant Deterioration (PSD) program, which seeks to maintain air quality in pristine areas by governing the permissible increments of pollution increases in each planning area beyond that areas baseline pollution level. (Reno-Sparks Indian Colony v. U.S. E.P.A. (9th Cir. 2003) 336 F.3d 899, 902.) The PSD program requires that significant new or modified sources of attainment air pollutants obtain PSD permits and comply with specified requirements. (42 U.S.C. 7475, subd. (a).) The SCAQMD is subject to the federal PSD program for certain pollutants, including nitrogen oxides. (63 Fed.Reg. 39747 (July 24, 1998); 40 C.F.R. 81.305.) The federal PSD requirements are triggered when a facilitys new or increased NOx emissions have the potential to exceed 40 tons per year.^[1] (40 C.F.R. 52.21(b)(23)(i).)

The EPA may delegate its authority to issue PSD permits. (40 C.F.R.  52.21(u)(1) [The Administrator shall have the authority to delegate his responsibility for conducting source review pursuant to this section]; see also Greater Detroit Res. Recovery Auth. v. U.S. E.P.A. (6th Cir. 1990) 916 F.2d 317, 320 (Greater Detroit) [If a state has failed to submit an approved PSD program, the EPA may nevertheless delegate its permit issuing authority to the state].) When the EPA has delegated its authority, the state agency issues the PSD permit as a federal permit on behalf of the EPA. (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 871 (City of Morgan Hill); accord, Greater Detroit, supra, at pp. 320321 [Permits issued under such a delegation are consideredto be EPA issued permits].)

Consistent with federal law permitting delegation of the EPAs authority, the SCAQMDs Governing Board adopted Regulation XVII in 1988. According to Rule 1701, subdivision (a) of Regulation XVII, the purpose of the regulation was to set forth preconstruction review requirements for stationary sources to ensure that air quality in clean air areas does not significantly deteriorate while maintaining a margin for future industrial growth. Rule 1701, subdivision (b) thereafter provided: Effective upon delegation by EPA, this regulation shall apply to preconstruction review of stationary sources that emit attainment air contaminants.

In June 1994, the SCAQMD signed the delegation agreement, which provided the delegation of authority for the administrative, technical and enforcement elements of the provisions of 40 C.F.R. 52.21, Prevention of Significant Deterioration (PSD), as they may be amended and in accordance with the permit review requirements in 40 C.F.R. 124, Subparts A and C, from EPA to SCAQMD, subject to the terms and conditions below. The delegation agreement further set forth the basis for the delegation: EPA has determined that District Rule XVII generally meets the requirements of 40 C.F.R. 52.21; therefore, District permits issued in accordance with the provisions of Rule XVII will be deemed to meet federal PSD permit requirements pursuant to the provisions of this delegation agreement. This delegation is executed pursuant to 40 C.F.R. 52.21(u), Delegation of Authority.

In view of the federal scheme and the delegation agreement executed pursuant thereto, we cannot conclude that there were any obligations under Regulation XVII left for the SCAQMD to enforce once the EPA withdrew its delegation of authority. Paragraph two of the delegation agreement expressly contemplated that the EPA could withdraw or revoke its delegation of authority: If the Regional Administrator determines that SCAQMD is not implementing or enforcing the PSD program in accordance with the terms and conditions of this delegation, . . . the requirements of 40 C.F.R. 52.21, 40 C.F.R. 124 or the Clean Air Act, this delegation, after consultation with SCAQMD, may be revoked in whole or in part. Any such revocation shall be effective as of the date specified in a Notice of Revocation to SCAQMD. Citing this paragraph, on March 3, 2003, the EPA notified the SCAQMD in writing that, in light of the recent revisions to 40 Code of Federal Regulations part 52.21 and after consultation with the SCAQMD, it had determined the PSD program was not being implemented according to federal requirements and for this reason stated: [W]e are determining that as of March 3, 2003 (when our regulatory revisions become effective), the District will not be able to implement the PSD program according to our revised 40 C.F.R. 52.21. This letter constitutes notice of our determination to revoke the delegation agreement. We will subsequently publish a notice of this action in the Federal Register. The letter unequivocally informed the SCAQMD that the EPA was revoking and rescinding [its] authority to implement the Prevention of Significant Deterioration (PSD) program for issuing and modifying federal permits for new and modified major sources of attainment pollutants.

In the subsequent notice published in the Federal Register, the EPA, Region 9, explained that it had entered into delegation agreements with a number of agencies in California and Nevada, noting by way of background that delegations are implemented through agreements between EPA Regions and state or local air pollution control agencies. These agreements are in essence contracts between the Agency and permitting agencies, setting out the responsibilities of each in carrying out the federal PSD program for that jurisdiction. (68 Fed.Reg. 19371 (Apr. 21, 2003).) Once the EPA revised 40 Code of Federal Regulations part 52.21, it consulted with the permitting agencies, and they informed the EPA that they could not implement the revised regulations without making changes to state and/or local regulations. (Ibid.) For that reason, the EPA rescinded its delegation agreements with several permitting agencies and resumed the task of issuing federal PSD permits as of the date it withdrew its delegation of authority.^[2]

Whether we view this as a matter of statutory or contract interpretation, the result is the same. (See Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2003) 109 Cal.App.4th 1687, 1696 [if the words of an administrative regulation, given their usual and ordinary meaning, are clear and unambiguous, we presume the adopting authority meant what it said and the plain language of the regulation applies]; Oakland-Alameda County Coliseum, Inc. v. Oakland Raiders, Ltd. (1988) 197 Cal.App.3d 1049, 1057 [it is fundamental that a contract must be so interpreted as to give effect to the intent of the parties at the time the contract was entered into, and that whenever possible, that intention is to be ascertained from the writing alone]; see also RCJ Medical Services, Inc. v. Bont (2001) 91 Cal.App.4th 986, 1006 [statutory language controls the construction of federal statutes and implementing regulations].) Here, the plain language of the federal regulations, Regulation XVII and the delegation agreement leads to only one conclusion: The EPA intended to delegate its authority to administer the federal PSD program to the SCAQMD until the SCAQMD could no longer implement federal law in doing so. At that point, after consulting with the SCAQMD, the EPA had the power and ability to rescind its delegation and resume implementation of the federal PSD program. Effective March 3, 2003, the EPA unambiguously exercised that power and withdrew its delegation of authority, thereby rendering the SCAQMD without authority to implement Regulation XVII.

We find no support for appellants contention that the EPAs withdrawal affected only the SCAQMDs ability to enforce federal law, but left Regulation XVII in place as a matter of state law. As discussed in City of Morgan Hill, supra 118 Cal.App.4th at page 871, a delegation agreement between the EPA and a local air quality management district merely enables the air district to implement the federal PSD program on behalf of the EPA. The delegation agreement does not create a separate state law program. Appellants maintain, however, that the fact that Regulation XVII did not expressly provide that it was ineffective upon de-delegationin other words, that it contained no off switchshows that it remained effective under state law despite the EPAs actions. Given the express language of Regulation XVII that it was [e]ffective upon delegation by EPA, coupled with the EPAs contractual right to revoke the delegation specified in the delegation agreement, we cannot conclude that anything more was required to express the parties intent that Regulation XVII was designed to implement the federal PSD program only upon authority from the EPA. (See Hudson Oil Co. v. Shortstop (1980) 111 Cal.App.3d 488, 496 [court held as a matter of law that a leases general language sufficiently expressed the parties intent to bind successors and assigns, despite omission of the specific term successive owners].)

Nor are we persuaded that comments by federal authorities demonstrate that Regulation XVII remains effective as a matter of state law. The statement in the federal register that the EPAs withdrawal of authority the federal PSD permitting program does not affect permitting requirements under state or local law cannot be construed as referring to Regulation XVII. (68 Fed.Reg. 19371 (Apr. 21, 2003).) Rather, that statement was designed to differentiate Regulation XVIIs implementation of federal PSD permit requirements from other state or local permit requirements and provided notice that [c]ompanies should continue to work with their state or local permitting agencies to ensure that state or local permitting requirements are met. (Ibid.) Likewise, the fact that the EPA has listed Regulation XVII as active in the federal register does not suggest that it is effective pursuant to state law. The record demonstrated that on at least one occasion the EPA entered into a delegation agreement with the SCAQMD, utilizing Regulation XVII to implement a limited delegation of authority for initial issuance or administrative modification of a specific federal PSD permit. As before, Regulation XVII operated to implement the federal PSD program and not to effectuate any state law provision.

Finally, we reject appellants assertion that the EPAs delegation withdrawal was inadequate to render Regulation XVII ineffective because the withdrawal did not comply with Health and Safety Code section 40725, subdivision (a), which provides: A district board shall not adopt, amend, or repeal any rule or regulation without first holding a public hearing thereon. But the SCAQMD did not repeal the regulation. By its own terms, Regulation XVII was effective only upon EPA delegation. The EPAs withdrawal of its delegationnot any action on the part of the SCAQMDleft the SCAQMD without any power to enforce Regulation XVII.

C. Subsequent California Legislation did not Require the SCAQMD to Apply Regulation XVII as a Matter of State Law.

Appellants final argument is that, regardless of the status of Regulation XVII immediately following the EPAs delegation withdrawal, the enactment of Sen. Bill No. 288 served to codify Regulation XVII as a matter of state law. A careful reading of the applicable Health and Safety Code provisions enacted as part of Sen. Bill No. 288 leads us to the opposite conclusion.^[3]

We acknowledge the admirable goals of the Legislature in enacting Sen. Bill No. 288 to safeguard air quality in the state from degradation and ensure the enhancement of state air quality by controlling emissions from nonvehicular sources to protect public health and the environment, while at the same time allowing the economic benefits of new and expanded businesses. (Health & Saf. Code, 42502, subds. (a) & (b), 42503.) Relying primarily on legislative history, appellants assert that the Legislature implemented those goals by enacting as state law the federal regulatory requirements as they existed before the end of 2002. Generalized comments in bill analyses support this view. For example, an analysis prepared by the Assembly Committee on Appropriations provided: In essence, this bill places the NSR program, as it existed before December 31, 2002, into state statute, so that there would be no effective weakening of federal requirements enforced in California and individual LADs [local air districts]. (Assem. Com. on Appropriations, analysis of Sen. Bill No. 288 (20032004 Reg. Sess.) as amended June 27, 2003, p. 3.) Because Regulation XVII implemented the federal regulatory requirements, appellants contend that the regulations necessarily became enforceable as state law through the enactment of Sen. Bill No. 288.

But the precise statutory language of the relevant Health and Safety Code provisions is not as broad as some legislative pronouncements would suggest. Health and Safety Code section 42504, subdivision (a), states: No air quality management district or air pollution control district may amend or revise its new source review rules or regulations to be less stringent than those that existed on December 30, 2002. If the state board finds, after a public hearing, that a districts rules or regulations are not equivalent to or more stringent than the rules or regulations that existed on December 30, 2002, the state board shall promptly adopt for that district the rules or regulations that may be necessary to establish equivalency, consistent with subdivision (b). Defining the new source review rules and regulations that are subject to the restriction, Health and Safety Code section 42505 provides: For purposes of this chapter, each districts existing new source review program is comprised of those new source review rules and regulations for both nonattainment and prevention of significant deterioration for new, modified, repaired, or replaced sources that have been adopted by the district governing board on or prior to December 30, 2002, that have been submitted to the U.S. Environmental Protection Agency by the state board for inclusion in the state implementation plan and are pending approval or have been approved by the U.S. Environmental Protection Agency.^[4]

The state implementation plan (SIP) referenced in Health and Safety Code section 42505 is mandated by the federal Clean Air Act, which provides that each state has the primary responsibility for assuring air quality within its geographic area and must submit a SIP that specif[ies] the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in the state. (42 U.S.C. 7407, subd. (a); Environmental Council of Sacramento v. Slater (E.D.Cal. 2000) 184 F.Supp.2d 1016, 1019.) [T]he purposes of a SIP . . . are to make demonstrations (of how attainment, maintenance, and progress will be achieved), and to provide a control strategy that will achieve the necessary reductions and otherwise meet the requirements of the [Clean Air] Act. (57 Fed. Reg. 13498, 13567 (Apr. 16, 1992).)

Regulation XVII is not part of the California SIP that has been submitted to and approved by the EPA.^[5] Appellants claim that Regulation XVII is part of the SIP by virtue of 40 Code of Federal Regulations part 52.270, which expressly incorporates into the SIP the provisions of 40 Code of Federal Regulations part 52.21 (except paragraph (a)(1)), including the authority to delegate the responsibility for conducting review under that section provided by 40 Code of Federal Regulations part 52.21(u). Appellants reason that Regulation XVII must be read to operate as part of the SIP because it is consistent with the federally-mandated standards contained in 40 Code of Federal Regulations part 52.21 and was rendered effective by way of delegation authorized by 40 Code of Federal Regulations part 52.21(u). We disagree. Regulation XVII is not contained within the federal standards set forth in 40 Code of Federal Regulations part 52.21, nor do we construe the incorporation of a provision permitting a delegation of authority to mandate the incorporation of all local regulations implemented as a result of such delegation. Nothing in 40 Code of Federal Regulations part 52.270 reflects an intent to bypass the EPAs approval process otherwise required for local regulations to become a part of Californias SIP. (See Johnston v. Sonoma County Agricultural Preservation & Open Space Dist. (2002) 100 Cal.App.4th 973, 986 [courts should construe statutes not as antagonistic laws but as parts of a whole system which should be harmonized with every section being given effect].)

Because Regulation XVII was not submitted to and approved by the EPA as part of Californias SIPas required by Health and Safety Code section 42505it is not one of the new source rules and regulations covered by Health and Safety Code section 42504. Though our conclusion is compelled by the language of the Health and Safety Code provisions, legislative history confirms our interpretation. (See In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 719 [Even when a statute is unambiguous, it is nevertheless common for a court to review legislative history in order to confirm its statutory analysis].) Legislative committee reports concerning Sen. Bill No. 288 demonstrate that the Legislature intended for the bills provisions to extend only to those rules and regulations specified in the Code of Federal Regulations which had been approved by the EPA as part of Californias SIP. (E.g., Sen. Com. on Environmental Quality, analysis of Sen. Bill No. 288 (20032004 Reg. Sess.) as amended Apr. 10, 2003, p. 2 [This bill . . . . [] . . . [] [r]equires the ARB to adopt regulations that incorporate and implement specified provisions of the Code of Federal Regulations pertaining to new source review, as they existed on December 30, 2002]; Assem. Com. on Natural Resources, analysis of Sen. Bill No. 288 (20032004 Reg. Sess.) as amended June 27, 2003, p. 2 [same].)

Accordingly, the SCAQMD properly concluded that Regulation XVII was rendered ineffective by the EPAs delegation withdrawal and that Sen. Bill No. 288 did not subsequently render it effective as a matter of state law.

DISPOSITION

The judgment denying appellants petition for writ of mandate is reversed to the extent it concluded that appellants had not presented a fair argument that NOx emissions from the ULSD project created a potentially significant adverse environmental impact. In all other respects, the judgment is affirmed and the matter is remanded to the trial court to direct the SCAQMD to reevaluate the potential environmental significance of the NOx emissions resulting from the project in a manner that is consistent with the views expressed herein. Parties to bear their own costs on appeal.

_____________________, J.

DOI TODD

We concur:

____________________________, P. J.

BOREN

____________________________, J.

ASHMANN-GERST

Filed 1/16/08 CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:

The opinion in the above-entitled matter filed December 18, 2007, was not certified for publication in the Official Reports.

For good cause it now appears that the opinion should be partially published in the Official Reports and it is so ordered. Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts I.C.&D. and II.

It is ordered that the opinion be modified as follows:

On page 2, the seventh paragraph listing counsel as Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sally Magnani Knox, Lisa Trankley and Susan L. Durbin, Deputy Attorneys General, for Amicus Curiae State of California, in support of Defendant and Respondent South Coast Air Quality Management District should be deleted and replaced with the following: Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sally Magnani Knox, Lisa Trankley and Susan L. Durbin, Deputy Attorneys General, for Amicus Curiae State of California, in support of Plantiffs and Appellants Carlos Valdez et al.

On page 20, the sentence that begins on the second line which reads But the undisputed evidence in the FND demonstrated that the Refinerys NOx emission levels have never approached the over 8,000 ppd set by the RECLAIM permit should be deleted and replaced with the following sentence: But annual emission levels reported in the FND demonstrated that the Refinerys NOx emission levels had not approached the over 8,000 ppd set by the RECLAIM permit.

The petitions for rehearing filed by defendant and respondent the South Coast Air Quality Management District and real party in interest and respondent ConocoPhillips Company are denied.

ConocoPhillips Companys request to include exhibits with its petition is denied.

There is no change in the judgment.

BOREN, P. J. DOI TODD, J. ASHMANN-GERST, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] In view of our earlier conclusion that there was a fair argument that the ULSD projects NOx emissions were potentially significant, we reject the SCAQMDs and the Refinerys assertion that PSD review was inapplicable to the ULSD project because NOx emission were less than 40 tons per year. We instead rely on the SCAQMDs best case estimate that the ULSD project would generate 237 ppd of additional NOx emissions, or approximately 43 tons per year.

^[2] Because we have not considered the content of PSD program rules implemented by other air quality or air pollution control districts, we deny the Refinerys request to take judicial notice of those rules. (Schifando v. City of Los Angeles(2003) 31 Cal.4th 1074, 1089, fn. 4 [appellate court will not take judicial notice of irrelevant material].)

^[3] The Hearing Board concluded that construing Regulation XVII as ineffective by reason of the EPAs delegation withdrawal did not violate Health and Safety Code section 42504 because such action did not amount to a prohibited amendment or revision of the rules. Although we disagree with the basis for the Hearing Boards and ultimately the trial courts ruling, a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. (Ladas v. CaliforniaState Auto. Assn. (1993) 19 Cal.App.4th 761, 769; accord, ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1268.)

^[4] Although the term existing new source review program defined in Health and Safety Code section 42505 does not appear verbatim in section 42504, section 42502 explains that under state law, [t]he primary mechanism for controlling pollution from new and modified stationary sources is the existing new source review program of the districts and that the requirements for such programs are set out in the rules and regulations adopted by the districts to establish the new source review program. (Health & Saf. Code, 42502, subds. (c) & (e).) We construe statutes as a whole, and in context, giving effect wherever possible to the usual and ordinary import of the language used, and avoiding interpretations which render a measure unreasonable, disharmonious, or superfluous in whole or in part. [Citation.] When two statutes touch upon a common subject, they are to be construed in reference to each other, so as to harmonize the two in such a way that no part of either becomes surplusage. [Citations.] [Citation.] (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (1999) 72 Cal.App.4th 366, 374.) Guided by these principles, we construe the definition in Health and Safety Code section 42505 to apply to the entire statutory scheme, including section 42504.

^[5] Californias SIP is identified in 40 Code of Federal Regulations part 52.220. As of December 30, 2002, the provisions applying specifically to the SCAQMD were contained in 40 Code of Federal Regulations part 52.220(b)(38)(i), (39)(vi), (41)(xiv), (42)(xvi), (45)(ii), (47)(i), (58)(ii), (65)(i), (66)(i), (67)(i), (68)(i), (69), (70)(i), (78)(i), (79)(iv), (85)(viii), (88)(iii), (89)(vii), (92)(vi), (95)(iv), (96)(i), (98)(x), (99), (102)(iv), (103)(xviii), (104)(ii), (107), (116)(118), (121)(i), (124)(iv), (125)(ii), (126)(iv), (127)(vii), (134), (139)(vii), (144), (148)(vi), (153)(vii), (154)(vii), (155)(iv), (156)(vii), (158)(v), (160)(i)(E), (164)(i)(E), (165)(i)(B), (166)(i), (168)(i)(H), (169)(i), (173)(i)(F), (174)(i), (176)(i)(E), (182)(i)(A), (184)(i)(B), (186)(i)(C), (187)(i)(C), (188)(i)(C), (189)(i)(A), (191)(i), (193)(i)(A), (194)(i)(H), (197)(i)(A), (198)(i)(H), (204)(i)(B), (207)(i)(I), (214)(i)(A), (215)(i)(A), (217)(i)(C), (220)(i)(C), (222)(i)(A), (225)(i)(A), (229)(i), (230)(i)(B), (232)(i), (233)(i)(A), (237)(i), (239)(i)(B), (240)(i), (242)(i)(B), (244)(i)(D), (247)(i), (248)(i)(B), (249)(i)(A), (254)(i)(D), (255)(i)(F), 262(i)(C), (263)(i)(A), 264(i)(A), (265)(i), (266)(i)(A), (268)(i)(A), (269)(i)(D), (270)(i)(C), (271)(i), (272)(i), (277)(i)(D), (278)(i)(A), (280)(i)(A), (282)(i)(A), (284)(i)(B), (286)(i), (288)(i)(E), (293)(i)(A).