1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

ASSOCIATION OF IRRITATED

RESIDENTS, an unincorporated

association

Plaintiff,

v.

C&R VANDERHAM DAIRY, a

California Proprietorship, and

RICK VANDERHAM and CORRIE

VANDERHAM, owners and

operators, CORRIE VANDERHAM

DAIRY, INC., a California

corporation, AG RESOURCES,

LLC, a California limited

liability company,

Defendants.

1:05-CV- 01593 OWW SMS

MEMORANDUM DECISION AND ORDER

GRANTING PLAINTIFFS’ MOTION

FOR SUMMARY JUDGMENT ON THE

FOLLOWING ISSUES 

1. DEFENDANTS FAILURE TO

OBTAIN AN AUTHORITY TO

CONSTRUCT PERMIT

2. DEFENDANTS FAILURE TO

INSTALL BEST AVAILABLE

CONTROL TECHNOLOGY

(“BACT”)

3. DEFENDANTS’ FAILURE TO

PURCHASE OFFSETS 

ALL IN VIOLATION OF THE

CALIFORNIA STATE

IMPLEMENTATION PLAN (“SIP”)

1. INTRODUCTION

Plaintiffs’ Association of Irritated Residents (“AIR”) filed

a complaint against Defendants C&R Vanderham Dairy alleging

violations of the Federal Clean Air Act (“CAA”), 42 U.S.C. §§

7401 et. seq. Plaintiffs move for summary judgment arguing that

C&R Vanderham Dairy has violated and continues to violate

California’s State Implementation Plan (“SIP”) by violating of

San Joaquin Air Quality Management District (“District”) Rules

2010 and 2201. Defendants oppose the motion. 

/// 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 1 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

2. PROCEDURAL BACKGROUND

A. Plaintiffs’ Motion for Summary Judgment

Plaintiffs filed their First Amended Complaint (“FAC”) on

October 21, 2006. (Doc. 58, First Amended Complaint, Filed

October 21, 2006.) Plaintiffs then filed a motion for summary

judgment on April 19, 2007. (Doc. 92, Memorandum in Support of

Motion for Summary Judgement by AIR, Filed April 19, 2007.) In

support of their motion for summary judgment, Plaintiffs filed

the Declaration on Avinash Kar. (Doc. 84, Declaration of Avinash

Kar, Filed April 6, 2007.) 

On may 4, 2007 Defendants opposed Plaintiffs’ motion and

submitted their response to Plaintiffs’ statement of facts. 

(Doc. 96, Opposition, May 4, 2007.; Doc. 97, Defendants’ Reply

to AIR’s Separate Statement of Undisputed Facts, Filed May 4,

2007.) In support of their opposition Defendants also submitted

the Declaration of David R. Albers. (Doc. 98, Declaration of

David R. Albers, Filed May 4, 2007) Plaintiffs replied to

Defendants opposition on May 14, 2007. (Doc. 100, Plaintiffs’

Reply, Filed May 14, 2007.) 

Plaintiffs’ motion for summary judgment was heard on May 21,

2007. At Defendants’ request, Defendants were given leave to

file a supplemental brief on the matter. Defendants filed their

supplemental brief on May 29, 2007. (Doc. 113, First Amended

Supplemental Brief.) Plaintiffs replied with their own

supplemental brief on June 5, 2007. (Doc. 119, Plaintiffs

Supplemental Brief.)

B. Defendants Cross Motion for Summary Judgment

On June 15, 2007 Defendants filed a cross motion for summary

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 2 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

judgment. (Doc. 123, Motion for Summary Judgment.) On July 23,

2007 Plaintiffs filed a motion to strike and opposition to

Defendants’ cross motion for summary judgment. (Doc. 139.) On

July 23, 2007 Defendants replied. (Doc. 143.)

3. FACTUAL AND LEGAL BACKGROUND

A. Defendants Vanderham Dairy

Defendants C&R Vanderham operate the dairy facility owned by

Corrie Vanderham Dairy, Inc. Rick Vanderham and Corrie Vanderham

Dairy, Inc. are partners in the C&R Vanderham Dairy. 

The C & R Vanderham Dairy is located in Kern County, which is

within the San Joaquin Valley Air basin. As an operating dairy

farm, it generates certain emissions. As a result, it is subject to

regulation by the Air District. 

On April 29, 2005, Defendant Ag Resources, LLC entered into a

site improvement construction agreement with Vander Weerd General

Construction, Inc. to build the C & R Vanderham Dairy. The dairy

was constructed to limit the project size to one thousand three

hundred twenty (1,320) milk cows, one hundred ninety-five (195) dry

cows, four hundred eighty-six (486) heifers aged over fifteen (15)

months, three hundred seventy-eight (378) heifers aged seven (7) to

fourteen (14) months, one hundred sixty-two heifers four (4) to six

(6) month and one hundred twenty (120) calves. This information

was provided to the Air District. (Doc. 98, Albers Declaration, Ex.

“A”, “F”, “G” and “H”, Filed May 4, 2007.) The correspondence

between defendants and the Air District shows that the dairy would

in fact be constructed in such a way as to limit the cow numbers to

those levels. 

On or about July 15, 2005, construction of the dairy

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 3 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

facility began. The dairy was completed in June 2006, and the C &

R Vanderham Dairy became operational at that time. At the time

construction began, the Air District used an emission factor of

12.8 pounds of VOC per cow head per year. In August 2005, the Air

District changed the emission factor to 19.3 pounds of VOC per

cow head per year. Since construction of the dairy began in July

2005, the District used the 12.8 pounds per cow head factor. A

permit to operate was issued to the C & R Vanderham Dairy in

April 2007. (Doc. 98, Albers Declaration, Ex “C.”) 

B. The Clean Air Act

The general purpose of the CAA is to enhance the nation’s

air quality resources for the benefit of public health. The CAA

requires the United States Environmental Protection Agency

(“EPA”) to set National Ambient Air Quality Standards (“NAAQS”)

for certain pollutants. The CAA requires states to designate

areas within its boundaries as “attainment” areas if the air

quality meets the NAAQS for a particular criteria pollutant. 

Areas where the air quality does not meet the NAAQS for a

particular criteria pollutant are designated as “non attainment”

areas for that pollutant. 

Non attainment areas are required to adopt state

implementation plans (“SIP”) to achieve the NAAQS by the

applicable attainment date. The CAA requires that a SIP shall

“require permits for the construction and operation of new or

modified major stationary sources anywhere in the non attainment

area.” A preconstruction permit is a New Source Review (“NSR”)

permit. The San Joaquin Valley Air Pollution Control District is

the state agency with primary responsibility for developing the

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 4 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

SIP for the San Joaquin Valley. Cal. Health & Safety Code §§

40600-40606.

“Although states retain significant flexibility in

establishing the details of these plans, the CAA, and EPA

regulations, outline many required features.” Safe Air for

Everyone v. EPA, 475 F.3d 1096, 1100 (9th Cir. 2007). “Among

them is the mandate that state plans provide for regular

revisions to reflect evolving air quality conditions and

standards.” Id. The revisions need not completely recast

provisions of the SIP. Id. The CAA allows for the submission

and review of piecemeal amendments that deal “with discrete SIP

provisions, leaving most of the plan untouched.” Id. The EPA

must determine that the SIP meets the requirements under the CAA

before the SIP becomes effective. Id.; See also, 42 U.S.C. §

7410(k)(3). “The EPA must also approve the plan amendments and

‘shall not approve a revision of a plan if the revision would

interfere with any applicable requirement concerning attainment

and reasonable further progress or any other applicable

requirement of the CAA.” Id; See also, 42 U.S.C. § 7410(l). 

C. SB 700

Former California Health & Safety Code § 42310(e) (“section

42310(e)”) exempted “any equipment used in agricultural

operations in the growing of crops or the raising of fowl or

animals” from the obligation to obtain a permit. Cal. Health &

Safety Code § 42310(e) (2003). After EPA found that the

agricultural equipment exemption in section 42310(e) conflicted

with the Act’s permitting requirements, 67 Fed. Reg. 35990 (May

22, 2002); 68 Fed. Reg. 37746 (June 23, 2003), the California

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 5 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

Legislature passed Senate Bill 700 (“SB 700”), which took effect

January 1, 2004, and removed the agricultural exemption from

Health & Safety Code § 42310(e). Cal. Health & Safety Code §

42310(b); SB 700 § 11, 2003-2004 Sess. (Cal. 2003).

Among other things, SB 700 required agricultural sources’

compliance with already-adopted rules and preserved the authority

of an air district to regulate agricultural sources pursuant to

rules adopted before January 1, 2003. SB 700 § 2, 2003-2004 Sess.

(Cal. 2003); Cal. Health & Safety Code § 39011.5. “[F]rom the

express language of the statute, § 39011.5 intended to make

District rules applicable to stationary agricultural sources and

did not intend to limit the authority of districts to comply with

[Clean Air Act] requirements.” Association of Irritated Residents

v. Fred Schakel Dairy, No. 1:05:CV-00707-OWW-SMS (E.D. Cal. Dec.

2, 2005) (related case) (Order on Defendants’Motion to Dismiss,

at 18 (Docket # 36)). However, SB 700 also contained §

42301.16(c) in its provisions. This section created a narrower

exemption under state law to the requirement of obtaining an ATC

permit for non major stationary sources that emit below a 12.5

VOC ton/year threshold. 

D. Correspondence From the District to C& R Vanderham Dairy

On July 25, 2005 C&R Vanderham Dairy received a letter from

David Warner, Director of Permit Services at the District which

stated, “Pursuant to Senate Bill 700 and District Rule 2201...

all agricultural operations including confined animal feeding

operations that commenced construction after January 1, 2004 with

emissions greater than one half the major threshold levels (12.5

tons of VOC) are required to obtain an ATC permit.” The letter

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 6 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

proceeds to state that “the District has issued a draft report

which outlines a new emissions factor of 20.6 lbs/head/year based

on the latest studies and scientific papers. This new report

indicates that emissions from dairies were very likely to have

been significantly underestimated.” The letter concludes that

“the District cannot condone the proposed construction activities

[of Vanderham dairy] until the emission factor issue is settled

on August 1, 2005 since permits may be required for the proposed

dairy. If C&R Vanderham Dairy continues with the construction,

they proceed at their own risk.” (Doc. 141, Request for Judicial

Notice, Ex. 1, Filed July 23, 2007) 

Mr. Warner then sent another letter on December 12, 2005

that stated, “based on all the information provided to the

District regarding [C&R Vanderham’s] construction activities, the

determination was made that your dairy commenced construction

prior to the date that the District started requiring Authority

to Construct (“ATC”) permits. Your dairy is therefore considered

an existing operation and no ATC is required.” (Doc. 10,

Defendants Request for Judicial Notice, Filed February 14, 2006.)

However, the letter also states that “the emissions from

[the] dairy will exceed the new permitting levels, a permit to

operate is required for [the] dairy.” The letter proceeds to

state that Defendants submitted an application for an operating

permit on October 31, 2005 which served as a temporary permit to

Operate until the final permit was granted. 

E. Allegations in the Complaint

Plaintiffs assert three claims. Plaintiffs allege that

Defendants violated the plain language of the EPA approved SIP

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 7 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

and its approved versions of District Rules 2010 and 2201. 

Plaintiffs now seek summary adjudication of the following: 

1. Defendants failed to obtain an ATC permit

2. Defendants failed to install BACT at emissions 

units that exceed thresholds and 

3. Defendants failed to purchase offsets when 

Vanderham exceeded thresholds

(Doc. 1, Complaint, Filed December 15, 2005.) 

Rule 2010 states: 

“Any person building, altering, or replacing any

operation, article, machine, or equipment... the use of

which may cause the issuance of air contaminants...

shall first obtain authorization for such construction

from an Air Pollution Control Officer (“APCO”). An

authority to construct shall remain in effect until the

Permit to Operate the source operation for which the

application was filed is granted or denied, or the

application is canceled...” 

(Doc.84-2, Kar Declaration, Rule 2010 - amended December 17,

1992, Filed April 6, 2007.)

Rule 2201 applies to “all new stationary sources and all

modifications to existing stationary sources which are subject to

the District permit requirements and after construction emit or

may emit one or more affected pollutants.” District Rule 2201, §

2.0. Section 3.25 defines a “major source” as the following: 

“For each pollutant, a Stationary Source with postproject emissions or a post-project Stationary Source

Potential to Emit (SSPE2), equal to or exceeding one or

more of the following threshold values 

Section 3.25.1 of Rule 2201 states: 

For determining major source, status, fugitives shall

only be included for calculating the air pollutant

post-project emissions or SSPE2 if the source is

included in the list of source categories identified in

the major source definition in 40 CFR Part 70.2, or

when determining if a stationary source is a major air

toxics source as defined in Rule 2520. 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 8 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

Table 3-2, Major Source Emissions Thresholds

Pollutant Threshold (Pounds Per Year)

VOC 50,000

NOx 50,000

CO 200,000

PM10 140,000

SOx 140,000

Lastly, Section 4.1 of Rule 2201 states that Best Available

Control Technology (“BACT”) requirements shall be triggered on a

pollutant by pollutant basis and on an emissions unit-by

emissions unit basis.” The rule further states that BACT shall

be required for the following actions:

“4.1.1 Any new emissions unit or relocation from one

Stationary Source to another of an existing 

emissions unit with a Potential to emit 

exceeding 2.0 pounds in any one day;

4.1.2 Modification to an existing emissions unit 

with a valid Permit to Operate resulting in 

an Adjusted Increase in Permitted Emissions 

(AIPE) EXCEEDING 2.0 pounds in any one dayl;

4.1.3 Any new or modified emissions unit, in a 

stationary source project, which results in a

Title I Modification as defined by in this 

rule.

An agricultural source is required to purchase offsets if

post project Stationary Source Potential to Emit (“SSPE2") is

above 20,000 pounds or 10 tons of VOC per year. Rule 2201 § 4.5. 

F. Timeline of Relevant Events

September 17,

1998

San Joaquin Valley Unified Air Pollution

Control District (“District”) adopts Rule 2020

(Exemptions) that exempts “any equipment used

in agricultural operations in the growing of

crops or the raising of fowl or animals” from

obtaining an authority to construct permit. 66

Fed. Reg. 37587, 37587 (July 19, 2001).

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 9 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

July 23, 1999 EPA approves Rule 2010 (Permits Required) as

part of the State Implementation Plan. 64 Fed.

Reg. 39920 (July 23, 1999).

September 14,

1999

Corrie Vanderham applies to Kern County for a

conditional use permit for the C&R Vanderham

Dairy. PSUF ¶ 33.

July 19, 2001 The U.S. Environmental Protection Agency

(“EPA”) disapproves Rule 2020 because the

exemption for agricultural equipment in Rule

2020 is inconsistent with the Clean Air Act.

66 Fed. Reg. 37587, 37589-90 (July 19, 2001).

December 19,

2002

The District adopts an amended version of Rule

2020 that eliminates the agricultural

equipment exemption. 68 Fed. Reg. 7330, 7335

(Feb. 13, 2003).

January 1, 2004 EPA finds that California’s State

Implementation Plan is substantially

inadequate and requires California to revise

the State Implementation Plan by removing the

agricultural equipment exemption in Cal.

Health & Safety Code § 42310(e) (2003). 68

Fed. Reg. 37746 (June 25, 2003).

June 16, 2004 Effective date of Senate Bill 700, which

amended Cal. Health & Safety Code § 42310(e)

to remove the agricultural equipment

exemption. SB 700 § 11, 2003-2004 Sess. (Cal.

2003).

August 24, 2004 Effective June 16, 2004, EPA approves the

December 19, 2002 versions of Rule 2020 and

2201 (New and Modified Stationary Source

Review) as part of the State Implementation

Plan. 69 Fed. Reg. 27837 (May 17, 2004).

April 29, 2005 Ag Resources, LLC enters into “Site

Improvement Construction Agreement” to build a

freestall dairy “for C&R Vanderham Dairy” at

current site. Ag Resources owned the site at

the time. PSUF ¶ 25.

July 15, 2005 Letter from Defendants’ counsel to the

District stating that C&R Vanderham Dairy is

developing a dairy project, that the dairy

will produce 12.4 tons of VOC per year, and is

under construction. PSUF ¶ 29.

July 29, 2005 Vanderham obtains building permits for milking

barn, freestall structures, shade structures,

hoof trimming shade, hay barn structures, and

commodity barn. PSUF ¶ 35.

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 10 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

September 20,

2005

AIR mails 60-day notice of intent to sue to

Rick Vanderham, Corrie Vanderham, and C&R

Vanderham Dairy. PSUF ¶ 17.

October 28,

2005

Rick Vanderham files application with District

for Permit to Operate to be issued to C&R

Vanderham Dairy. PSUF ¶ 26.

December 15,

2005

AIR files Complaint (Docket # 1).

February 2,

2006

Corrie Vanderham Dairy, Inc. enters into

agreement to purchase C&R Vanderham Dairy

property from Ag Resources, LLC. PSUF ¶ 23.

February 14,

2006

Vanderham files motion to dismiss for lack of

subject matter jurisdiction for failure to

exhaust administrative remedies (Docket # 11).

June 15, 2006 Court denies Vanderham’s motion to dismiss for

lack of subject matter jurisdiction for

failure to exhaust administrative remedies

(Docket # 36).

July 7, 2006 Vanderham files motion to dismiss for failure

to state a claim upon which relief can be

granted (Docket # 37).

July 10, 2006 AIR mails 60-day notice of intent to sue to

Corrie Vanderham Dairy, Inc. PSUF ¶ 18.

August 29, 2006 AIR mails 60-day notice of intent to sue to

Corrie Vanderham Dairy, Inc., and Ag

Resources, LLC. PSUF ¶ 19.

September 13,

2006

Court denies Vanderham’s motion to dismiss for

failure to state a claim upon which relief can

be granted (Docket # 50).

October 31,

2006

AIR files First Amended Complaint (Docket #

58).

G. Undisputed Facts

i. San Joaquin Valley Air Basin

The EPA designated the San Joaquin Valley a serious

nonattainment area for the federal eight-hour ozone standard. 

(PSUF No. 5.) 

The San Joaquin Valley Air Basin includes all of San

Joaquin, Stanislaus, Merced, Madera, Fresno, Kings, Tulare, and

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 11 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12

the Valley portions of Kern County, as defined by District Rule

(“Rule”)1020 § 3.44. (PSUF No. 6.) 

ii. Health Effects of VOC

VOCs react with oxides of nitrogen (“NOx”) in the presence

of heat and sunlight to form ground-level ozone. (PSUF No. 1.)

A document prepared jointly by the California Air Resources

Board and the American Lung Association states that ozone

pollution damages lung tissue, damages crops and vegetation,

exacerbates asthma, reduces lung capacity, increases respiratory

and cardiovascular hospital admissions, and increases school and

work absenteeism. It also states that recent research suggests a

causal connection between ozone pollution and asthma. (PSUF No.

3.)

EPA statements confirm that ozone damages lung tissue,

reduces lung function, exacerbates respiratory ailments such as

asthma, increases hospital admissions, reduces productivity, and

is a significant health concern, particularly for children and

people with respiratory ailments. (PSUF No. 4.) 

iii. District Rules

Vanderham admits that the District rules, including Rules

2010 and 2201, are “emission standards or limitations” as defined

by 42 U.S.C. §§ 7604(f), 7604(k), which define an “emission

standard or limitation” to include any standard or limitation

approved as part of the State Implementation Plan (“SIP”). (PSUF

No. 8.) 

Vanderham did not obtain an Authority to Construct (“ATC”)

permit from the District. (PSUF No. 36.)

In August 2005, the District established a VOC emission

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 12 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

factor for dairies of 19.3 pounds per cow per year. (PSUF No.

49.)

The District is responsible for determining what Best

Available Control Technology (“BACT”) is on a case by case basis.

(PSUF No. 50.)

The District has not undertaken a BACT analysis for the C&R

Vanderham Dairy. (PSUF No. 52.)

iv. AIR

AIR is an unincorporated association that advocates for

clean air and environmental health in the San Joaquin Valley. 

(PSUF No. 10.) 

On September 20, 2005, AIR mailed a 60-day notice of intent

to sue to Rick Vanderham, Corrie Vanderham, and C&R Vanderham

Dairy for failure to comply with Rules 2010 and 2201. (PSUF No.

17.)

On July 10, 2006, AIR mailed a 60-day notice of intent to

sue to Corrie Vanderham Dairy, Inc. (PSUF No. 18.)

iv. Vanderham Dairy

The C&R Vanderham Dairy emits VOC from manure decomposition,

enteric processes (cow digestion), and feed decomposition. (PSUF

No. 2.) 

The C&R Vanderham Dairy is located near Shafter in the

Valley portion of Kern County. (PSUF No. 7.) 

EPA approved the December 17, 1992 version of Rule 2010 and

the December 19, 2002 version of Rule 2201 as part of the SIP.

(PSUF No. 9.)

C&R Vanderham Dairy is a general partnership between Corrie

Vanderham Dairy,Inc., and Rick Vanderham. (PSUF No. 11.)

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 13 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

Corrie Vanderham Dairy, Inc. is a California corporation. 

(PSUF No. 12.)

Ag Resources, LLC is a California limited liability company. 

(PSUF No. 13.)

Rick Vanderham is an individual within the meaning of the

Clean Air Act. (PSUF No. 14.)

Corrie Vanderham is an individual within the meaning of the

Clean Air Act. (PSUF No. 15.)

The Vanderham defendants are persons within the meaning of

the Clean Air Act. (PSUF No. 16.)

On August 29, 2006, AIR mailed a 60-day notice of intent to

sue to Corrie Vanderham Dairy, Inc., and Ag Resources, LLC. 

(PSUF No.19. )

Corrie Vanderham is the president of Corrie Vanderham Dairy,

Inc. (PSUF No. 20.)

The C&R Vanderham Dairy partnership operates the dairy. 

(PSUF No. 21.)

Corrie Vanderham Dairy, Inc., owns the C&R Vanderham Dairy

infrastructure and property, and leases them to the C&R Vanderham

Dairy partnership. (PSUF No. 22.)

Corrie Vanderham Dairy, Inc. purchased the C&R Vanderham

Dairy property from Ag Resources, LLC on February 2, 2006. (PSUF

No. 23.)

Ag Resources, LLC, purchased the property from John

Ohanesson on April 15, 2003. (PSUF No. 24.)

On April 29, 2005, Ag Resources, LLC entered into a “Site

Improvement Construction Agreement” with Vander Weerd General

Construction, Inc. to build a freestall dairy “for C&R Vanderham

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 14 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

Dairy” at the site at which the C&R Vanderham Dairy has been

constructed and which Ag Resources owned at the time. (PSUF No.

25.)

On October 28, 2005, Vanderham applied for a Permit to

Operate for the C&R Vanderham Dairy, and identified the milking

barn, cow housing, solid manure handling, and liquid manure

management as “equipment” for which it sought a permit to

operate. (PSUF No. 26.)

The Application for Permit to Operate also lists “land

application” in the waste handling category of operations and

equipment and identifies “feed storage/commodity barns” and

“silage piles” as “other dairy equipment.” (PSUF No. 27.)

Rick Vanderham signed the Application for the Permit to

Operate as the applicant. (PSUF No. 28.)

In a July 15, 2005 letter to Mr. Sheraz Gill at the

District, Vanderham’s counsel David Albers represented to the

District that his law firm “represent[s] C & R Vanderham Dairy,

which is developing a new dairy project.” 

The letter stated that the project would be built for 1320

milk cows, 195 heifers, 486 heifers over 15 months, 378 heifers

aged 7 to 14 months, 162 heifers 4 to 6 months, and 120 calves.

Id. According to the letter, which used a worksheet downloaded

from the District website, the dairy would produce 24,861.9

pounds or 12.4 tons per year of VOC. The worksheet attached to

the letter used an emission factor of 12.8 pounds per head per

year for milk cows. The letter indicated that the dairy was

under construction. (PSUF No. 29.)

Rick Vanderham, one of the defendants, wrote a letter to the

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 15 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16

District on C&R Vanderham Dairy letterhead, in which he

represented to the District that “we will take certain steps . .

. to construct the dairy for the cattle listed in this letter.” 

(PSUF No. 30.)

In a letter dated December 8, 2005, Mr. Albers, on behalf of

“our client Rick Vanderham,” represented to the District that

“the Vanderhams have agreed to construct permanent barriers . . .

to limit the dairy herd size.” (PSUF No. 31.)

The December 8 letter identifies that copies were sent to

defendants Rick Vanderham and Corrie Vanderham. (PSUF No. 32.)

A 1999 Conditional Use Permit application from the Kern

County Planning Department for the defendant C&R Vanderham Dairy

identifies John Ohanneson as the property owner, defendant Corrie

Vanderham as the applicant, and defendant Richard Vanderham as

the applicant’s individual representative. (PSUF No. 33.)

On the Conditional Use Permit application, Corrie

Vanderham’s interest in the property is identified as “Buyer” and

under the “reason for request” section, Corrie Vanderham

indicates, “I would like to build a dairy on this property” above

his signature. (PSUF No. 34.)

On July 29, 2005, Vanderham obtained building permits for a

milk barn, two freestall barns, and two hay barns, shade

structures, a hoof trimming shade, and a commodity barn at the

dairy site. (PSUF No. 35.)

A construction timeline submitted with Vanderham’s first

motion to dismiss states that construction commenced on July 18,

2005. (PSUF No. 37.)

Vanderham has constructed, or is in the process of

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 16 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

constructing, a milk barn, two freestall barns, two solid

separation lagoons, two liquid manure storage lagoons, corrals,

and the feed storage area. (PSUF No. 38.)

The C&R Vanderham dairy facility contains two “freestall

barns,” that will confine the milk cow herd. Each barn is 500

feet long and 107 feet wide and equipped with a system that uses

wastewater from the liquid manure storage lagoons to “flush” the

manure from the freestall barns twice a day. The flush system

captures 80% or more of the urine and feces of the cows housed in

the freestall barns and flushes the waste to the solid separation

lagoons and the liquid manure storage lagoons. (PSUF No. 39.)

The corrals and milk barn also utilize a flush system,

except that the milk barn system uses fresh water to flush the

manure to the liquid manure storage lagoon. (PSUF No. 40.)

The two liquid manure storage lagoons each measure 110 feet

wide and 860 feet long, together storing 108 acre-feet of

liquified waste to be used for dairy flushings and to irrigate

and fertilize crops on 362 acres of the project site. (PSUF No.

41.)

The C&R Vanderham Dairy also contains several solid

separation lagoons, which are used to remove a portion of manure

solids from the liquified manure. (PSUF No.42. )

The C&R Vanderham Dairy is a stationary source of air

pollution, within the meaning of the Clean Air Act and Rule 2201. 

(PSUF No. 43.) It is undisputed that C&R Vanderham Dairy are a

non major stationary source. 

Dairy farms have a specific standard industrial

classification (“SIC”) designation (0241), and all activities

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 17 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

18

associated with a dairy fall under SIC code major group “02”

which covers “agriculture production livestock.” (PSUF No. 44.)

Vanderham admits that the cow housing and feeding areas, the

milking center, the liquid manure handling area, the solid manure

handling area, and the land application area are emissions units

as defined by § 3.18 of Rule 2201. (PSUF No. 45.)

The District also recognizes the areas listed in ¶ 45 as

emissions units at a dairy. (PSUF No. 46.)

The C&R Vanderham Dairy, as designed, includes the following

components – each of which will hold cows, manure, or feed –

located on one or more contiguous or adjacent properties:

freestall barns, corrals with flushed lanes, and feed storage

facilities (cow housing and feeding area), solid separation

lagoons and liquid manure storage lagoons (liquid manure handling

area), and milk barn (milking center). (PSUF No. 47.)

The C&R Vanderham Dairy will compost manure onsite (solid

manure handling area) and apply liquid and solid manure to land

at the dairy site (land application area), each of which will

involve manure. (PSUF No. 48.)

On August 24, 2004, Kern County approved the Conditional Use

Permit for C&R Vanderham Dairy, authorizing a maximum of 1,456

milk cows and 1,408 “support stock” (non-lactating or dry cows,

heifers, and calves). (PSUF No. 53.)

Defendants Rick Vanderham, Corrie Vanderham, and C&R

Vanderham Dairy claim that the “maximum operational design for

physical construction of the dairy is as follows”:

1,320 milk cows, 195 dry cows, 540 cows aged 15-25

months, 378 cows aged 7-14 months, 162 cows aged 4-6

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 18 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

19

months, and 120 calves aged under 3 months. 

(PSUF No. 54.)

Blueprints for the C&R Vanderham Dairy show a maximum

operational capacity at the dairy, as follows: either 1,568 milk

cows (overall site plan) or 1,624 milk cows (individual freestall

barn site plans), 280 dry cows, 470 cows aged 15-24 months, 348

cows aged 7-14 months, 84 cows aged 5-7 months, and 150 calves.

(PSUF No. 55.)

Vanderham has not purchased “emission reduction credits” or

“offsets” for VOC. (PSUF No. 64.)

On December 7, 2005, the Air District notified Vanderham

that it had completed review of the Permit to Operate, but would

not issue the Permit to Operate until the completion of

construction and a District inspection of the dairy. (PSUF No.

65.)

On April 3, 2007, the District issued the Permit to Operate.

(PSUF No. 66.)

H. Disputed Facts

Plaintiffs argue that the District does not use the document

“Preliminary Draft, Best Available Control Technology, Dairy

Operation,” dated April 27, 2004 to determine BACT for New Source

Review. (DSDF, No. 51.) 

Defendants argue that while the District does not use the

“Preliminary Draft” for guidance, it is updated by the District

and may be used for non-guidance purposes.

Also, according to Plaintiffs, the C&R Vanderham Dairy will

house the milk cows in the freestall barns and the support stock

in corrals. (DSDF, No. 56.) Defendants dispute this by arguing

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 19 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

20

that some support stock are housed in free stall barns as well. 

Defendants also dispute that, dairies emit VOC from each of

the emissions units at different rates based on the age of the

cow and the type of housing (freestall barns for milk cows and

corrals for support stock), as follows: 

Emissions Factor by Type of Cow (age) (lbs/hd/year) 

Emissions Unit M i l k

cows 

Dry 

Cows 

1 4 -24

mths 

7-14

mths 

4-6

mths 

>3 mnths 

Cow Housing and Feed 12.4 8.2 5.7 4.9 4.5 4.3 

Milking Center 0.9 N/A N/A N/A N/A N/A 

Liquid Manure Handling2.7 1.4 1.0 0.9 0.8 0.7 

Land Application 5.0 2.3 1.6 1.4 1.3 1.2 

Total 21.0 11.9 8.3 72 6.6 6.2 

(DSDF, No. 57.) 

The Potential to Emit for VOC from the cow housing and

feeding emissions unit exceeds 2 pounds a day; the Potential to

Emit is 76.3 lbs/day based on the maximum capacity shown by the

blueprints for the C&R Vanderham Dairy and 65.2 lbs/day based on

the maximum capacity provided by Vanderham. (DSDF, No. 58.) 

The Potential to Emit for VOC from the milking center

emissions unit exceeds 2 pounds a day; the Potential to Emit is

4.0 lbs/day based on the maximum capacity shown by the blueprints

for the C&R Vanderham Dairy and 3.3 lbs/day based on the maximum

capacity provided by Vanderham. (DSDF, No. 59.)

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 20 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21

The Potential to Emit for VOC from the liquid manure

handling emissions unit exceeds 2 pounds a day; the Potential to

Emit is 15.7 lbs/day based on the maximum capacity shown by the

blueprints for the C&R Vanderham Dairy and to 13.3 lbs/day based

on the maximum capacity provided by Vanderham. (DSDF, No. 60.)

The Potential to Emit for VOC from the land application

emissions unit exceeds 2 pounds a day; the Potential to Emit is

28.2 lbs/day based on the maximum capacity shown by the

blueprints for the C&R Vanderham Dairy and to 23.8 lbs/day based

on the maximum capacity provided by Vanderham. (DSDF, No. 61.)

The C&R Vanderham Dairy operation’s post-project Stationary

Source Potential to Emit VOC exceeds ten tons per year; Vanderham

calculates the “total annual emissions” at the C&R Vanderham

Dairy as 24,861.9 pounds or 12.4 tons of VOC per year, based on

an outdated emission factor of 12.8 tons of VOC per head per

year. (DSDF, No. 62.)

The C&R Vanderham Dairy’s post-project Stationary Source

Potential to Emit VOC equals 22.6 tons per year based on the

maximum capacity shown by the blueprints for the C&R Vanderham

Dairy and 19.2 tons per year based on the maximum capacity

provided by Vanderham. (DSDF, No. 63.)

Defendant dispute facts Nos. 58-63 arguing that there is no

basis for the “blueprint” capacity. However, Defendants offer no

alternative calculations or any other contrary evidence. 

Defendants merely argue that they could not have possibly been

required to install BACT since the BACT determination process is

so closely tied to the ATC permitting process. Defendants also

argue that District Rule 4.6.9 exempts agricultural sources from

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 21 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

22

the requirement to purchase offsets. 

4. REQUESTS FOR JUDICIAL NOTICE

“A judicially noticed fact must be one not subject to

reasonable dispute in that it is either (1) generally known

within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.” Fed. R.

Evid. 201(b) (1984). “A court shall take judicial notice if

requested by a party and supplied with the necessary

information.” Fed. R. Evid. 201(d) (1984). Judicially noticed

facts often consist of matters of public record, such as prior

court proceedings, see, e.g., Emrich v. Touche Ross & Co., 846

F.2d 1190, 1198 (9th Cir. 1988); administrative materials, see,

e.g., Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); city

ordinances, see, e.g., Toney v. Burris, 829 F.2d 622, 626-27 (7th

Cir. 1987) (holding that federal courts may take judicial notice

of city ordinances); official maps, see, e.g., Aiello v. Town of

Brookhaven, 136 F. Supp. 2d 81, 86 n.8 (E.D.N.Y. 2001) (taking

judicial notice of geological surveys and existing land use

maps); or other court documents, see, e.g., Rothman v. Gregor,

220 F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of a filed

complaint as a public record). Federal courts may “take notice

of proceedings in other courts, both within and without the

federal judicial system, if those proceedings have a direct

relation to the matters at issue.” U.S. ex rel Robinson

Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248

(9th Cir. 1992).

Defendants request judicial notice of the following

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 22 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

23

documents:

1. Finding of Substantial Inadequacy of 

Implementation Plan; Call for California State 

Implementation Plan Revision, Proposed Rule, 68 

Fed. Reg. 7327 (February 13, 2003). (Doc. 112, 

Defendants’ Request for Judicial Notice, Ex. A, 

Filed May 29, 2007; See also, Doc. 126, 

Defendants’ Request for Judicial Notice, Ex B, 

Filed June 15, 2007.) 

2. Finding of Substantial Inadequacy of 

Implementation Plan; Call for California State 

Implementation Plan Revision, Final Rule, 68 Fed. 

Reg. 37746 (June 25, 2003). (Id. at Ex. B; See 

also, Doc. 126 at Ex D.) 

3. Revisions to the California State Implementation 

Plan, San Joaquin Valley Unified Air Pollution 

Control District, Proposed Rule, 68 Fed. Reg. 7330

(February 13, 2003). (Id. at Ex. C; See also,

Doc. 126 at Ex C.)

4. Revisions to the California State Implementation 

Plan; San Joaquin Valley Unified Air Pollution 

Control District, Final Rule, 69 Fed. Reg. 27837 

(May 17, 2004), a true and correct copy of which 

is attached hereto as Exhibit “D.” (Id. at Ex. D;

See also, Doc. 126 at Ex E.) 

5. San Joaquin Valley Unified Air Pollution Control 

District, Final Draft Staff Report: Rules 2020 and

2201 (August 17, 2006). (Id. at Ex. E.) 

6. Letter for the California Air Resources Board 

(“CARB”) to Brent Newell dated May 30, 2007, 

available at 

http://www.arb.ca.gov/nsr/sb288/sb288ltr1.pdf. 

(Doc. 150, Defendants’ Request for Judicial 

Notice, Ex. A, Filed July 30 2007.) 

7. Notice of Deficiency for 34 Clean Air Act 

Operating Permit Programs in California, 67 Fed. 

Reg. 35990 (May 22, 2002). (Doc. 126 at Ex A.)

8. A verified complaint filed by plaintiff 

Association of Irritated Residents (“Plaintiff”) 

on or about June 18, 2004 in the action entitled 

Western United Dairymen, et al. v. San Joaquin 

Valley Unified Air Pollution Control District, et 

al., Superior Court of the State of California in 

and For the County of Fresno, Case No. 04 CE CG 

01596 (the “State Action”). (Doc. 126 at Ex F.)

9. A Memorandum of Points and Authorities in 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 23 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

24

Opposition to Order to Show Cause Re: Preliminary 

Injunction and Stay filed by Plaintiff on or about

June 18, 2004 in the State Action. (Doc. 126 at 

Ex G.)

10. San Joaquin Valley Unified Air Pollution Control 

District, Final Draft Staff Report: Amendments to 

Rule 2020 (Exemptions) and 2201 (August 17, 2006). 

(Doc. 126 at Ex H.)

11. Letter from the California Air Resources Board to 

the United States EPA dated November 5, 2004 

available at 

www.arb.ca.gov/fcaa/tv/tvinfo/overview.htm. (Doc.

126 at Ex I.)

12. Opinion letter from the State of California Office

of the Attorney General to the United States 

Environmental Protection Agency dated November 3, 

2003, available at 

www.arb.ca.gov/fcaa/tv/tvinfo/overview.htm. (Doc.

126 at Ex J.)

13. San Joaquin Valley Unified Air Pollution Control 

District Rule 2010. (Doc. 126 at Ex K.)

14. San Joaquin Valley Unified Air Pollution Control 

District Rule 2201. (Doc. 126 at Ex H.)

Plaintiffs request judicial notice of the following records: 

1. Exhibit 19 is a document entitled “Ground-level 

Ozone: Basic Information,” The attached document 

is also posted on the United States Environmental 

Protection Agency’s web-site at 

http://www.epa.gov/air/ozonepollution/basic.html, 

last updated March 6, 2007. (Doc. 86, Plaintiffs’

Request for Judicial Notice, Filed April 6, 2007.)

2. Exhibit 20 is a document entitled “Ground-level 

Ozone: Health and Environment,” The attached 

document is also posted on the United States 

Environmental Protection Agency’s web-site at 

http://www.epa.gov/air/ozonepollution/health.html,

last updated March 6, 2007. (Id.)

3. Exhibit 21 is a document entitled “Major Group 02:

Agriculture production livestock and animal 

specialties.” The attached document is also 

posted posted on the United States Environmental 

Protection Agency’s web-site at 

http://www.osha.gov/pls/imis/sic_manual.display?id

=2&tab=group , last visited Feb. 20, 2006. (Id.)

4. Exhibit 28 is a letter on Air District letterhead 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 24 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

25

notifying Defendants C&R Vanderham Dairy, et al. 

(“Vanderham”) that the Permit to Operate will be 

issued on or after December 7, 2005 after 

Vanderham completes construction and the District 

conducts an inspection of the dairy facility. 

(Doc. 87, Plaintiffs’ Request for Judicial Notice,

Filed April 6, 2007.)

5. Exhibit 29 is a document entitled “Permit to 

Operate,” issued on April 3, 2007. (Id.) 

Plaintiffs also seek judicial notice of a letter dated July

25, 2005 on Air District letterhead notifying Defendants that due

to an imminent change in the emissions factor, Defendants

proceeded in their planned construction “at their own risk.” 

(Doc. 146, Plaintiffs Request for Judicial Notice, Filed July 26,

2006.) 

There are no objections by either party to the requests for

judicial notice. The records are undisputed matters of public

record. All letters transmitted by a government agency on agency

letterhead are self authenticating pursuant to Fed. R. Ev.

902(8). However, the contents of these exhibits may contain

matters subject to dispute. A disputed fact is not the proper

subject of judicial notice. The judicial notice taken here is of

the existence of these documents and the fact that the documents

contain the contents represented, not necessarily that opinions

and information published are true. 

Plaintiffs’ request for Judicial Notice is GRANTED IN PART. 

5. APPLICATION TO FILE AMICUS BRIEF BY MILK PRODUCERS COUNCIL

Late in the evening of Friday, May 18, 2007, Milk Producers

Council filed an untimely Application for leave to file an Amicus

Curiae Brief on behalf of Defendants. The initial hearing on

Plaintiffs’ motion for summary judgment was held on Monday, May

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 25 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

26

21, 2007. The application was filed after the close of business

and did not give the parties the minimal due process opportunity

to respond in any meaningful way to the issues raised in the

Application. Further, the untimeliness of the application did

not provide the court with sufficient time to address the

request. 

Milk Producer Council’s application to file an Amicus Curiae

Brief is DENIED WITHOUT PREJUDICE. 

6. DISCUSSION

A. Summary Judgment Standard

Summary judgment is warranted only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact.” Fed. R. Civ. P. 56©;

California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). 

Therefore, to defeat a motion for summary judgment, the nonmoving party must show (1) that a genuine factual issue exists

and (2) that this factual issue is material. Id. A genuine

issue of fact exists when the non-moving party produces evidence

on which a reasonable trier of fact could find in its favor

viewing the record as a whole in light of the evidentiary burden

the law places on that party. See Triton Energy Corp. v. Square

D Co., 68 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986). Facts are

“material” if they “might affect the outcome of the suit under

the governing law.” Campbell, 138 F.3d at 782 (quoting Anderson,

477 U.S. at 248). 

The nonmoving party cannot simply rest on its allegations

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 26 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

27

without any significant probative evidence tending to support the

complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.

2001).

[T]he plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time

for discovery and upon motion, against a party

who fails to make a showing sufficient to

establish the existence of an element essential

to the party's case, and on which that party

will bear the burden of proof at trial. In such

a situation, there can be “no genuine issue as

to any material fact,” since a complete failure

of proof concerning an essential element of the

nonmoving party’s case necessarily renders all

other facts immaterial.

Celotex Corp. v. Catrell, 477 U.S. 317, 322-23 (1986). The more

implausible the claim or defense asserted by the nonmoving party,

the more persuasive its evidence must be to avoid summary

judgment. See United States ex rel. Anderson v. N. Telecom,

Inc., 52 F.3d 810, 815 (9th Cir. 1996). Nevertheless, the

evidence must be viewed in a light most favorable to the

nonmoving party. Anderson, 477 U.S. at 255. A court’s role on

summary judgment is not to weigh evidence or resolve issues;

rather, it is to determine whether there is a genuine issue for

trial. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th

Cir. 1996).

B. AIR Has Standing to Bring This Case

The Association of Irritated Residents has standing to

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 27 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

28

prosecute Vanderham’s violations of the SIP. These violations

directly affect AIR members’ health, aesthetic, and procedural

interests. Organizations have standing to bring an action on

behalf of their members if (1) neither the claim asserted nor the

relief requested requires their members to participate directly

in the lawsuit, (2) they seek to protect interests that are

germane to their purpose, and (3) their members would have

standing to sue individually. See United States v. San Francisco,

979 F.2d 169, 171 (9th Cir. 1992). 

i. AIR Members Need Not Participate Directly in the 

Lawsuit

Direct participation of any of AIR’s members is unnecessary

because AIR may bring this action. The Clean Air Act allows any

“person” to bring an action to enforce an emission standard or

limitation. 42 U.S.C. § 7604(a)(1). The Act defines “person” to

include individuals, corporations, partnerships, and

associations. 42 U.S.C. § 7602(e). AIR is an unincorporated

association. Declaration of Tom Frantz (“Frantz Dec.”) ¶ 2.

Thus, AIR may bring this action without the direct participation

of its members.

ii. AIR Seeks to Protect Interests Germane to its Purpose

AIR’s mission is to advocate for clean air and environmental

health in the San Joaquin Valley. Frantz Dec. ¶ 3. The interests

of clean air and environmental health that AIR seeks to protect

using this citizen suit fall squarely within its mission.

iii. AIR’s Members Have Standing to Sue Individually

Finally, AIR members have standing to bring this suit

individually. To satisfy the final prong of the test, an

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 28 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

organization must show that (1) at least one of its members has

suffered an injury in fact, (2) the injury is fairly traceable to

Vanderham’s illegal conduct, and (3) it is likely, as opposed to

merely speculative, that the injury will be redressed by a

favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs., Inc., 528 U.S. 167, 180-81 (2000). AIR member and

President of its Board of Directors, Tom Frantz, offers a

standing declaration here, to establish the injury in fact prong

of standing because he suffers physical, aesthetic, and

procedural harm. Vanderham’s illegal conduct caused this harm,

which a favorable decision from the Court will redress.

a. AIR Members Suffer Injury in Fact

Physical, aesthetic, and procedural harms all satisfy the

injury in fact requirement. The Ninth Circuit has held that a

plaintiff “will suffer injury if compelled to breathe air less

pure than that mandated by the Clean Air Act.” See, Hall v.

Norton, 266 F.3d 969, 976 (9th Cir. 2001)(“evidence of a credible

threat to the plaintiff’s physical well being from airborne

pollutants” establishes injury in fact); See also, Natural

Resources Defense Council v. EPA, 507 F.2d 905, 910 (9th Cir.

1974). Frantz resides in the San Joaquin Valley air basin, which

EPA has designated nonattainment for the eight-hour ozone

standard. PSUF ¶ 5; Frantz Dec. ¶ 6. The C&R Vanderham Dairy

emits VOC in the San Joaquin Valley air basin. PSUF ¶¶ 2, 6, 7.

VOC reacts with oxides of nitrogen emissions to form ozone. PSUF

¶ 1. Ozone has substantial adverse health effects. PSUF ¶¶ 3,

4. Frantz’s home for the last 16 years lies 2.3 miles west of

the dairy. Frantz Dec. ¶ 5. Frantz breathes air that contains

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 29 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

30

ozone, which harms him. PSUF ¶¶ 3, 4; Frantz Dec. ¶ 6. For

instance, Frantz suffers from breathing difficulties which are

exacerbated by ozone pollution. Frantz Dec. ¶ 6. Ozone

pollution causes Frantz to be concerned about his health, his

family’s health, and the health of his friends and students, many

of whom also live near the C&R Vanderham Dairy. Frantz Dec. ¶¶ 5,

6. 

Further, aesthetic harm establishes injury in fact. Laidlaw,

528 U.S. at 183; Environmental Rights Foundation v. Pacific

Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000). Ozone pollution

harms Frantz’s aesthetic interest because on most summer days,

ozone haze obscures the view of the Sierra Nevada, Coastal Range,

and Sierra Madre mountains from his home in Shafter. Frantz Dec.

¶ 7. Frantz has enjoyed the view of these mountains since

childhood. Id. On the extremely infrequent clear days, Frantz

enjoys the beauty of the San Joaquin Valley and the surrounding

mountains. Id. Vanderham’s failure to obtain a preconstruction

permit has also deprived AIR members, including Frantz, of

procedural rights, which provide an independent basis for

standing. Massachusetts v. EPA, 127 S. Ct. 1438, 1453 (2007),

citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7

(1992). The “injury in fact requirements are adjusted for

plaintiffs raising procedural issues in that although they must

show a ‘concrete interest’ at stake, they need not show that the

substantive environmental harm is imminent.” Covington v.

Jefferson County, 358 F.3d 626, 641 n.21 (9th Cir. 2004).

Vanderham has failed to obtain a required permit before

constructing the C&R Vanderham Dairy. See Section VI, infra. 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 30 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

31

The evasion of these requirements constitutes a procedural injury

to Frantz, as it removes safeguards specifically designed to

ensure that environmental consequences are properly considered.

Friends of the Earth v. U.S. Navy, 841 F.2d 927, 931 (9th Cir.

1988) (procedural harm where construction on project proceeded

without a required permit). Moreover, Rule 2201 requires that

the District provide the public with notice and opportunity to

comment on tentative permitting decisions for projects like the

C&R Vanderham Dairy which have a post-project Stationary Source

Potential to Emit that exceeds 10 tons per year. Rule 2201 §§

5.4, 5.5; see Section IX, infra. Frantz would have participated

in the permitting decision, and has been deprived of the

procedural rights to receive notice, provide comment, and

otherwise participate in the District’s decision to permit the

C&R Vanderham Dairy by Vanderham’s failure to obtain a permit.

Frantz Dec. ¶ 8. Because the Frantz Declaration establishes a

concrete interest at stake – air quality that contains unhealthy

levels of ozone – these procedural failures also establish injury

in fact.

b. The AIR Member’s Injury in Fact is Traceable to 

Vanderham’s Illegal Conduct

These physical, aesthetic, and procedural harms to a member

of the plaintiff organization are traceable to Vanderham’s

illegal conduct. Vanderham’s dairy releases VOC into the San

Joaquin Valley air basin. PSUF ¶¶ 2, 6, 7. The VOC reacts with

nitrogen oxides to form ozone. PSUF ¶ 1. Ozone levels in the

air basin exceed the federal health-based 8-hour ozone NAAQS and

cause adverse health and aesthetic injuries. PSUF ¶¶ 3, 4; Frantz

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 31 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Cal. Health & Saf. Code § 42301.16(c) provides: 1

“Prior to requiring a permit for an agricultural source of air

pollution with actual emissions that are less than one-half of

any applicable emissions threshold for a major source in the

32

Dec. ¶¶ 6, 7. Thus, Frantz’s injuries are traceable to

Vanderham’s failure to obtain a preconstruction permit and

failure to comply with pollution control requirements.

c. Injunctive Relief and Civil Penalties Will Redress

the AIR Member’s Injury in Fact

Finally, a favorable order by this Court will redress the

members’ injuries from Vanderham’s violations of the Clean Air

Act. An order that compels Vanderham to obtain a permit, to

reduce the dairy’s air pollution by installing BACT, and to buy

offsets will ensure a net reduction of VOC in the Valley. An

order requiring Vanderham to obtain a permit will also redress

Frantz’s procedural injury. An order that imposes civil

penalties will deprive Vanderham of the benefit of its violations

and deter future violations of the Clean Air Act, also redressing

Frantz’s injuries. Covington, 358 F.3d at 641, citing Laidlaw,

528 U.S. at 185-86. (“Redressability is satisfied . . . by the

fines and penalties applicable for violations of [the Clean Air

Act]”). Because Frantz has injuries in fact traceable to

Vanderham’s redressable illegal conduct, he has standing to sue.

The organizational plaintiff, AIR, thus meets all three Hunt

criteria, and has standing.

C. District Rule 2010 Governs the Permit Requirements for 

Agricultural Source with the Force and Effect of Federal Law

The first issue is the legal question of whether the Cal.

Health and Saf. Code § 42301.16(c) exemption applies to 1

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 32 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

district, for any air contaminant, but excluding fugitive dust, a

district shall, in a public hearing, make all of the following

findings:

(1) The source is not subject to a permit requirement pursuant 

to Section 40724.6

(2) A permit is necessary to impose or enforce reductions of

emission of air pollutants that the district show cause or 

contribute to a violation of a state or federal ambient air 

quality standard. 

(3) The requirement for a source or category of sources to 

obtain a permit would not impose a burden on those sources 

that is significantly more burdensome than permits required 

for other similar sources of air pollution.” 

 California’s SIP includes December 17, 1992 version of 2

District Rule 2010, as well as the December 19, 2002 version of

Rules 2201 and 2020 that are also at issue in this case. 64 Fed.

Reg. 39920 (July 23, 1999); 69 Fed. Reg. 27837 (May 17, 2004); 40

C.F.R. § 52.220(c)(199)(i)(D); 40 C.F.R. § 52.220(c)(311)(i)(B).

33

agricultural sources in light of San Joaquin Valley Air Pollution

District’s (“District”) Rule 2010's incorporation in the

California SIP. There is no dispute that under state law 2

Defendants are a non major stationary source emitting less than

12.5 tons of VOC/year. According § 42301.16(c), non major

stationary sources with less than a 12.5 VOC/year emission

threshold are exempt from obtaining an ATC permit. Defendants

argue that the state law exemption applies to them because it was

enacted prior to the EPA’s approval of the SIP, the EPA had

knowledge of the exemption, and the EPA expressly referenced SB

700 in promulgating documents it used to approve the SIP. 

Defendants argue that they fall under the § 42301.16(c) exemption

because the dairy’s actual emissions were 12.4 tons VOC per year,

which is less than the rule’s threshold of 12.5 tons VOC per

year. 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 33 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Rule 2010 § 3.0 provides: “Any person building, altering, 3

or replacing any operation, article, machine, or equipment... the

use of which may cause the issuance of air contaminants... shall

first obtain authorization for such construction from an Air

Pollution Control Officer (“APCO”). An authority to construct

shall remain in effect until the Permit to Operate the source

operation for which the application was filed is granted or

denied, or the application is canceled...” 

34

Plaintiffs argue that under District Rule 2010, as

incorporated into the California SIP, any agricultural source

emitting air contaminants must obtain an ATC. There is no

dispute that § 42301.16 was ever mentioned in the provisions of

the California SIP. Plaintiffs argue, based on the plain

language of the SIP that the § 42301.16(c) exemption does not

apply to Defendants. Based on the plain language of the

California SIP, Plaintiffs argue that District rule 2010 governs 3

the permitting the Vanderham Dairy. 

i. The California SIP Which was Approved By the EPA 

Functions as Federal Law

An EPA-approved SIP is federal law and does not change

unless and until EPA approves a revision requested by a state.

Safe Air, 475 F.3d at 1105. States are free to revise their EPA

approved SIPs, subject to certain Clean Air Act (“Act”)

restrictions, but unless and until EPA approves a revision,

states are “relegated to a lone option: compliance.” El Comité

para el Bienestar de Earlimart v. Helliker, 416 F. Supp. 2d 912,

934 (E.D. Cal. 2006) (“El Comité”), quoting Friends of the Earth

v. Carey, 535 F.2d 165, 178 (2nd Cir. 1976); see also Sierra Club

v. TVA, 430 F.3d 1337, 1346 (11th Cir. 2005) (“If a state wants

to add, delete, or otherwise modify any SIP provision, it must

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 34 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

35

submit the proposed change to EPA for approval.”). 

Once “a SIP is adopted by a state and approved by the EPA,

it becomes controlling and must be carried out by the state” and

the SIP’s “requirements and commitments become binding upon the

state as a matter of federal law.” AIR v. C&R Vanderham Dairy,

435 F. Supp. 2d 1078, 1085 (E.D. Cal. 2006), citing Bayview

Hunters Point Cmty. Advocates v. Metro. Transp. Comm’n, 366 F.3d

692, 695 (9th Cir. 2004) and Beentjes v. Placer County Air

Pollution Control Dist., 254 F. Supp. 2d 1159, 1162 (E.D. Cal.

2003). The Act “precludes the right of any state to ‘adopt or

enforce any emission standard or limitation which is less

stringent than the standard or limitation’ contained in an EPA

approved SIP.” Order on Defs.’ Mot. to Dismiss (Docket 50) at 18

(emphasis added), quoting Kentucky Res. Council, Inc. v. EPA, 304

F. Supp. 2d 920, 926 (W.D. Ky. 2004); see Safe Air, 475 F.3d at

1105; 42 U.S.C. § 7416 (expressly preempting state law less

stringent than an EPA-approved SIP). Where state and federal

laws conflict, the state law must yield, pursuant to the

Supremacy Clause. U.S. CONST. art. VI, cl. 2; McCulloch v.

Maryland, 17 U.S. 316, 436-437 (1819).

Defendants fail to address the law established in Safe Air.

Instead, Defendants first argue that the incorporation of rule

2020 in the SIP did not remove the agricultural exemption for

agricultural sources altogether. They argue that the exemption

still applies for sources whose actual emissions are less than

half of the major source threshold of 12.5 tons VOC/year. 

Defendants assert, without any support in law that the EPA

approval of the SIP cannot require the district to ignore the

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 35 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

36

state exemption of § 42301.16(c) “because the EPA states in the

SIP approval that the states give the district authority to carry

out the provisions of the SIP.” (Doc. 113, Supplemental Brief in

Opposition to Summary Judgment, Filed May 30, 2007.) This

language does not grant the states complete autonomy to determine

CAA regulations without regard to federal law. The states’

authority is still subject to the conditions outlined by the

State SIP. While the State of California is free to revise the

EPA approved SIP, the revisions must be approved by the EPA. 

Until there is approval of the revisions, California is relegated

to compliance. 

Defendants provide no evidence that the § 42301.16(c)

exemption was ever expressly approved by the EPA. Defendants

instead argue that because the EPA approved the SIP after

§42901.16 was enacted and because the SIP references SB 700,

which included § 42901.16, the EPA must have approved the SIP

subject to the exemption. However, at the August 13, 2007

hearing on the supplemental briefs to this motion, Defendants

revealed that § 42301.16(c) is currently pending for approval

with the EPA. This fact necessarily means that § 42301.16(c)

could not have been previously approved by the SIP, either

expressly or impliedly as defendants argue. 

Defendants also contend that EPA’s only recourse is to

disprove the SIP “like it did when it found the SIP conflicted

with the major source threshold.” Doc. 113, Supplemental Brief

in Opposition to Summary Judgment, Filed May 30, 2007.) This

argument is legally incorrect. Once the California SIP was

adopted it became controlling and binding upon the State of

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 36 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

37

California as a matter of federal law. If the California SIP

contains regulations for the permitting of agricultural sources,

those regulations govern over any other state or district rules

that may conflict on the same issue. To interpret the California

SIP, we look to the plain meaning of its language. 

ii. Based on The Plain Meaning of California’s SIP, 

Defendants Were Required to Obtain an ATC Permit At the

Time of Construction

The recent decision in Safe Air for Everyone v. EPA speaks

directly to the legal issue of whether the § 42301.16(c)

exemption applies. Safe Air involved a conflict between an

Idaho State regulation governing field burning and the provisions

of the Idaho SIP. The original Idaho SIP was approved by the EPA

in May of 1972. Safe Air, 475 F.3d at 1101. The original SIP

incorporated an Idaho state regulation on open burning that

included field burning as a type of allowable burning, although

containing significant limitations. Id. In 1993, the EPA

approved amendments to the Idaho SIP that included an Idaho air

pollution regulation containing a general prohibition on open air

burning and substantially changed those provisions. Id. The

regulation incorporated into the SIP listed categories of

allowable burning that no longer included field burning. Id. at

1102. In 2003, the EPA approved another set of amendments that

only updated the open field burning regulations to reflect a

recodification. Id. However, in 2005 the EPA approved

amendments to the SIP that incorporated Idaho Administrative Code

§ 58.01.01.617 adding field burning as a category of allowed

burning. Id. This amendment was the first explicit reference to

those statutes in the SIP. Id. Plaintiffs submitted comments to

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 37 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Like Safe Air, Defendants also point to the legislative 4

history of SB 700 in support of their argument. However, it is

the plain meaning of the SIP that governs. Safe Air, 475 F.3d at

1103. Other interpretive material such as the legislative

history or an agency’s interpretation of the regulation should

not be considered in light of the SIP’s plain and unambiguous

meaning. Id.

38

the EPA during the 2005 rule-making process and challenged the

approval of the amendments permitting field burning. Id. at

1103. 

The issue before the Court was whether EPA’s approval of the

field burning amendment in 2005 on the premise that the pre

existing Idaho SIP did not ban field burning, so that the

amendment only clarified what was already the case, was legally

sustainable. See, Id. at 1099. The court ruled that the EPA did

not have the authority to incorporate the amendments adding field

burning as a permissable category. The court rejected EPA’s

arguments that in passing the amendment to the Idaho SIP it

considered Idaho’s intent in drafting the SIP, conducted an

examination of the state’s overall approach to field burning,

considered the legislative history of Idaho’s provisions related

to agricultural burning , and considered various reports and 4

plans prepared by the State and various agreements signed by the

State. Safe Air, 475 F.3d at 1104. The court also rejected the

EPA’s argument that its own past actions indicated it understood

agricultural burning to be allowed in Idaho and the SIP did not

prohibit it. Id. 

Instead the court applies the well-established

interpretation rule to the SIP, that the first look is to the

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 38 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 According to Bayview Hunters, “a regulation should be 5

construed to give effect to the natural and plain meaning of its

words.” Bayview Hunters, 366 F.3d at 698 (holding that the

expected ridership increase was never described in the SIP as

anything more than a target.); See also, Crown Pac v. OSHRC, 197

F.3d 1036, 1038 (9th Cir. 1999)(Because the SIP did “not on its

face, require a ridership increase of 15%... by its plain

language the SIP does not establish a mandatory requirement to

increase transit ridership by a specified percentage weights

heavily [and] weighs heavily against the conclusion that such an

obligation can be imposed based upon the SIP.)

39

plain meaning of the plan. See, id. at 1103 (citing to Bayview

Hunters Point Community Advocates v. Metropolitan Transportation

Commission (BHPCA), 366 F.3d 692 (9th Cir. 2004).) To determine 5

the requirements of the SIP the court examined the standards

governing the interpretation of federal regulations. Id. “As a

general interpretative principle, the plain meaning of regulation

governs.” Id. “Other interpretative materials, such as the

agency’s own interpretation of the regulation, should not be

considered when the regulation has a plain meaning.” Id. “The

state’s interpretation of the regulations incorporated into the

SIP, even if binding as a matter of state law, is not directly

dispositive of the meaning of the SIP.” Id. “A SIP once

approved by EPA, has the force and effect of federal law.” Id.

at 1105. “In accord with this general proposition, a state my

not unilaterally alter the legal commitments of its SIP once EPA

approves the plan.” Id. Based on this reasoning, the court

determined that the EPA did not justify or explain its approach

in interpreting the SIP and the approach in amending the SIP

could not be reconciled with the role of SIP’s in the federal

regulatory scheme. Id. at 1104. 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 39 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Per Safe Air, District Rules 2020 and 2201 also have the 6

force and effect of federal law.

40

As in Safe Air, this case involves a conflict between a

California State exemption for non major agricultural sources and

the provisions of the California SIP. On July 23, 1999 the EPA

approves Rule 2010 as part of the SIP, making it federal law. On

June 25, 2003, upon the EPA’s review of the California SIP, the

EPA found that the plan is substantially inadequate and required

California to revise it by removing the agricultural equipment

exemption in Cal. Health & Saf. Code § 42301(e). California

passed SB 700 which amended Cal. Health & Saf. Code § 42301(e) to

remove the agricultural exemption. The bill was effective on

January 1, 2004. However, the bill also included the passage of

Cal. Health and Saf. Code § 42301.16(c) and its exemption to

permitting requirements for agricultural sources that emit below

12.5 tons VOC head/year. There is no evidence that § 42301.16(c)

was approved by the EPA. There is no reference to § 42301.16(c)

in the California SIP. On June 15, 2004, the EPA approved the

SIP which included the December 19, 2002 versions of Rule 2020

and 2201. 

6

As in Safe Air, the issue is whether California’s §

42301.16(c) passed in SB 700 governs Defendants’ permitting

rather than District Rule 2010, as incorporated by the California

SIP. Defendants arguments are as follows: 

1. The state exemption controls because the SIP 

approval process cannot grant the District 

authority to require agricultural air permits in 

contravention of state law since the District 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 40 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Defendants cite Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 7

1028 (7th Cir. 1984.) in support of their claims. Bethlehem

Steel is distinguishable because it involves a partial approval

by the EPA of an air pollution control regulation that applied to

the polluter’s non combustion emissions. Bethlehem Steel

involved the EPA’s partial approval of a single regulation. This

case involves the different issue of the EPA’s incorporation of

district rules in their approval of the California SIP and how,

as a result, the SIP conflicts with state exemptions for

agricultural sources. 

 In support of this argument, Defendants cite Citizens for 8

a Better Environment v. Deukmejian, 731 F.Supp 2d 1159 (E.D. Cal.

2003). The CBE Court only stated that “[s]tates may not amend a

SIP through the enactment of subsequent state law.” 731 F. Supp.

at 1455 n.10. The court relied on another decision which held

that the “procedure set forth in Clean Air Act for obtaining

modification of a SIP is [the] exclusive method by which a SIP

amendment can be effected.” Id. (emphasis in original). The

decision does not state the “only” limitation that can be imposed

on states’ abilities to enact laws in connection with a SIP. Not

only does CBE prevent a state from amending a SIP by enacting

state law contrary to an EPA-approved SIP after the approval of

the SIP, but CBE also prevents a state from amending a SIP at all

except by following the procedures outlined in the Clean Air Act.

Vanderham’s reliance on CBE is misplaced. 

41

obtains its authority from the State.7

2. States have absolute authority to enact state laws

that establish how the national standards will be 

met before the EPA’s approval of the SIP

3. The only limitations that can be imposed on a 

state’s ability to enact laws in connection with a

SIP is that a state cannot amend a previously 

approved SIP through enactment of a state law 

after EPA approves the SIP.8

4. The one half major source threshold exemption was 

contained in a state statute almost 8 months prior

to the EPA’s approval of the SIP 

5. The EPA had knowledge of this statute and 

expressly referenced that statute in its 

promulgating document. 

In interpreting the SIP, the plain meaning of the plan

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 41 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

42

governs. Safe Air establishes that California’s interpretation

of regulations incorporated into the SIP, even if binding as a

matter of state law, is not directly dispositive of the meaning

of the SIP. See, Safe Air, 475 F.3d at 1103. Once the EPA

approved the SIP which included District Rule 2010, the rule had

the same force and effect as federal law. See, Id. Accordingly,

California may not unilaterally alter the legal requirements of

Rule 2010 as adopted in the state SIP and approved by the EPA. 

Id. The ruling in Safe Air directly contravenes Defendants’

arguments that States have “absolute authority” to enact state

laws that establish how NAQQS will be met before the EPA’s

approval of the SIP. A state’s authority to enact laws for non

attainment areas to meet the requirements of the CAA is not

absolute. State authority is subject to federal law as

established by the CAA and the provisions of the SIP. See, El

Comité, 416 F. Supp. at 934, quoting Carey, 535 F.2d at 178. 

Defendants rejoin that Safe Air was not a preemption case

and does not apply here. According to Defendants, Safe Air was a

case involving the narrow question of whether the EPA had

misunderstood the previous SIP to allow field burning since it

did not expressly prohibit it, and, as a result, went beyond the

scope of its authority by incorporating Idaho Administrative Code

§ 58.01.01.617 in to the SIP. Defendants argue that Safe Air

found the EPA misread the SIP’s prohibition on field burning and

remanded to the District court to consider Plaintiffs’

objections. However, in its reasoning Safe Air expressly holds: 

1. the plain meaning of the SIP governs, 

2. a SIP, once approved by EPA, has the force and 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 42 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

43

effect of federal law, and 

3. a state may not unilaterally alter the legal 

commitments of its SIP once EPA approves the plan. 

Safe Air, 475 F.3d at 1105. The court in Safe Air held that

because the prohibitory language of the preexisting Idaho SIP

plainly applies to field burning, federal law banned field

burning in Idaho prior to the EPA’s 2005 approval of the SIP

amendment. Id. at 1108. Similarly, because the language of Rule

2010 was adopted in the California SIP and plainly applies an ATC

requirement to any agricultural source emitting VOC’s, federal

law currently requires an ATC for those agricultural sources

prior to construction. 

Based on a plain reading of the SIP, there is no ATC permit

exemption for stationary sources which have actual emissions less

than half the major source thresholds. 

iii. There Is No Clearly Expressed Administrative 

Intent to the Contrary and Interpreting the Plain 

Meaning Will Not Lead to Absurd Results.

“The plain language of the Regulation will not control if

‘clearly expressed administrative intent is to the contrary or if

such plain meaning would lead to absurd results.’” Id. “The

notice requirements of the APA, 5 U.S.C. §§ 552(a)(1), 553(b),

require that some indication of the regulatory intent that

overcomes plain language must be referenced in the published

notices that accompanied the rulemaking process.” Id. at 1105-

1106. “Otherwise, interested parties would not have the

meaningful opportunity to comment on proposed regulations that

the APA contemplates because they would have had no way of

knowing what was actually proposed.” Id. at 1106. “Such a mode

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 43 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

44

of interpretation is particularly sensible under the CAA which

requires that judicial challenges be filed within sixty days of

[a] SIP approval.” Id.; See also, 42 U.S.C. 7607(b)(l). “If an

agency can promulgate a regulation with plain language that

dictates one meaning but later interpret it according to an

intent indicated neither in the regulatory language nor in the

promulgation documents, parties may depend on the plain meaning

of the regulation in deciding not to launch a challenge within

the prescribed time limit.” Id. “If, later, the agency relies

on an undisclosed intended meaning, interested parties might be

foreclosed from challenging the regulation, contrary to the

statutory permission to launch such challenges.” Id. at 1106-

1107. 

In support of their argument that they were exempt under §

42301.16(c) from obtaining a permit, Defendants further argue

that the EPA had knowledge of the statute, that the statute was

enacted almost eight months prior to the EPA’s approval of the

SIP, and that the EPA referenced SB 700 in its final approval. 

As a result, the EPA must have meant to approve the exemptions in

SB 700 since it referenced the bill in the SIP. This argument

has no legal merit in the Ninth Circuit. 

Defendants have provided no persuasive authority to justify

departure from the requirement that the plain language of the SIP

governs. Defendants do not show any clearly expressed

administrative intent that is contrary to a plain reading of the

SIP. Defendants do not argue that a plain reading of the SIP

would lead to absurd results. Here, the EPA’s approval of Rule

2010 in 1992 predates SB 700 by more than a decade so that the

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 44 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

45

operative version of Rule 2010 could not possibly include the

provisions of SB 700. There is no indication that the public

notices of proposed rulemaking to approve Rules 2020 and 2201 as

part of the SIP included any discussion of SB 700 in compliance

with the notice requirements of the APA. 68 Fed. Reg. 7330 (Feb

13, 2003); See also, Safe Air, 475 F.3d at 1105-1106. EPA’s

passing mention of SB 700 in the final rule approving rules 2020

and 2201 does not satisfy the Safe Air criteria that the intent

must be expressed in the published notices to allow for

meaningful public comment on regulations. Safe Air, 475 F.3d at

1105-1106. 

The Ninth Circuit emphasized that the public must be made

aware of the proposed contents of the SIP in order to have an

opportunity to meaningfully comment on them. Id. Mentioning SB

700 in the final rule approving 2020 and 2201 after the public

comment period had closed did not provide the opportunity for

public comment contemplated by Safe Air. Because the EPA did not

provide for public comment on SB 700 exemptions in the notices

for the approval of the rules, the EPA did not express an intent

to include the exemptions in the SIP. 

The passing reference to SB 700 in the final rule does not

express an intent to include the SB 700 exemptions in the SIP. 

In Safe Air, Idaho law allowed field burning, but the plain

language of the Idaho SIP at issue did not. The EPA argued, as

Defendants in this case argue, that the approval of an Idaho anti

pollution strategy in a separate rulemaking that referenced

Idaho’s field burning statute demonstrated that the EPA

understood field burning to be allowed by the SIP. Safe Air, 475

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 45 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 The applicability of Rule 2010 is a legal issue that is 9

resolved by Safe Air. In the original motion for summary

judgment, Defendants did not address the legal issue and instead

attempted to raise triable issues of fact by producing the

following evidence:

1. A December 12, 2005 letter from the District to Defendants 

where the District reasons that the ATC permit program came 

into effect after Defendants commenced construction of their

dairy. Even though it is undisputed that the Dairy is a 

“new source” the District treated the Dairy as an existing 

source. 

46

F.3d at 1107. n.11, 1103 n.3. Such a passing mention was not

enough; the Court noted that “EPA... did not refer to the

provisions on field burning when explaining its decision to

approve the strategy.” Id. at 1107, n. 11. Similarly, here,

although the EPA mentioned SB 700 in the final rule, it did not

refer to the exemptions that Vanderham raises in either its

published notices or in the final rule. See 68 Fed. Reg. 7330;

69 Fed. Reg. 27837. The Final rule noted that SB 700 removed an

illegal blanket exemption for all agricultural sources from CAA

requirements. 69 Fed. Reg. 27838. Such a mention of SB 700 in

the final rule, approving Rules 2020 and 2201 in connection with

the removal of a separate exemption, does not express an intent

to nor does it provide notice about the inclusion of other

exemptions. 

According to the plain meaning of the California SIP and its

incorporation of Rule 2010, Defendants were required to obtain an

ATC permit at the time of construction. It is undisputed that

Defendants did not obtain an ATC permit. 

Motion for summary judgment on the ATC permit issue is

GRANTED IN FAVOR OF PLAINTIFFS.9

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 46 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. In the “White Paper” issued by the California Air Pollution 

Control Officers Association (“CAPCOA”), the admissibility 

of which is also in dispute in this order, which discusses 

post SB 700 rules. Plaintiffs moved to strike the White 

Paper for Defendants’ failure to properly authenticate the

White Paper. According to the White Paper “agricultural 

sources that were in existence prior to January 1, 2004 and

are now being permitted will be considered ‘grand fathered’

under NSR, which means they are not subject to review until

they are modified... New agricultural sources which initiate 

construction or installation after January 1, 2004, may be 

subject to NSR if their emissions reach the applicable 

thresholds for a ‘major source’. The timeline for 

submitting permit applications, and the specific

requirements that apply will be determined by the local air

districts.” 

The White Paper is an advisory document that is not legally

binding. Because the issue of Rule 2010 is a legal one,

arguments surrounding the admissibility of the letter and the

White Paper are moot. Further at the May 21, 2007 hearing the

parties were informed that the White Paper would be considered

only for the limited purpose of understanding the implementation

of District Rules. 

47

D. There Is No Dispute that Defendants Are in Violation of Rule

2201 for Failing to Install BACT Technology and Purchase 

Offsets. 

i. Defendants Have Violated Rule 2201 § 4.1.1 by Emitting

Above the 2 lbs/day Allowable Threshold for Emissions

Units

Section 4.1.1 of Rule 2201 states that BACT shall be

required for “any new emissions unit or relocation from one

Stationary Source to another of an existing emissions unit with a

potential to emit exceeding 2.0 lbs in any one day.” In their

motion for summary judgment, Plaintiffs argue that Defendants

potential for VOC emissions exceeds the daily allowable threshold

for emissions units. Defendants contest Plaintiffs’ calculations

and Plaintiffs’ use of blueprint capacity to determine the daily

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 47 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Vanderham argues that Plaintiffs’ calculations are 10

inaccurate because they are based on a new emissions factor of

19.3 lbs/VOC/head/year. According to Vanderham, the emissions

threshold that applied at the time of construction was 12.8

lbs/VOC/head/year. Both emissions factors yield emissions above

2 lbs/day thus triggering the requirement to install BACT. 

48

allowable thresholds. However, Defendants do not offer any

evidence to rebut the sworn affidavit by Plaintiffs’ expert

testifying to the accuracy of the calculations. 

In support of their argument, AIR provides calculations

using both the emissions factors advocated by Vanderham as well 10

as their own:

Table 1: VOC Emissions Per Day (lbs/day) Based on Current 

Emissions Factor (19.3 lbs VOC/head/year)

BACT Threshold = 2 lbs/day of VOC

Emissions Unit Vanderham Cow 

Count(1320 milk cows

+ support stock)

Blueprint

Capacity(1624 milk

cows + support

stock)

Cow Housing and Feed 64.2 76.3

Milking Center 3.3 4.0

Liquid Manure

Handling

13.3 15.7

Land Application 23.8 28.2

Table 2: VOC Emissions Per Day (lbs/day) Based on Old Emissions

Factor (12.8 lbs/VOC/head/year)

BACT Threshold = 2 lbs/day of VOC

Emissions Unit Vanderham Cow Count

(1320 milk cows +

support stock)

Blueprint Capacity

(1624 milk cows +

support stock)

Cow Housing and Feed 43.2 50.6

Milking Center 2.2 2.7

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 48 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

49

Liquid Manure

Handling

8.8 10.4

Land Application 15.8 18.7

Based on the evidence provided by the Plaintiffs, even using

the emissions factor advocated by the Defendants, the Dairy’s VOC

emission for three of the four emissions units far exceeds the 2

lbs/day threshold. Only the milking center slightly exceeds the

threshold. However, Defendants dispute the calculations arguing

that the emission factor they use has not been approved by the

Air District or EPA. Defendants have not presented any evidence

to support their arguments. 

Defendants also argue that AIR has not proved Vanderham’s

non-fugitive emissions meet the major source threshold. 

Defendants misunderstand the issue. AIR has not pleaded a claim

against Defendants that Vanderham is a major source. Whether

Vanderham is a major source is not material to AIR’s claims. AIR

claims that Vanderham has emissions units that exceed the daily

VOC thresholds of 2 lbs/day. The issue is whether the

Defendants’ emissions units exceed the BACT threshold of two

pounds per day of VOC, not whether Vanderham, emits less than the

12.5 ton/year threshold which triggers the § 42301.16(c)

exemption under state law. The exemption does not apply to

Defendants in this case because it is not included in the

federally approved SIP. 

Even viewing the evidence in a light most favorable to

Defendants, there is no material issue of fact disputed that four

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 49 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 Defendants filed an objection to Plaintiff’s expert 11

testimony of William Powers. The objection was filed the Friday

evening before the May 21 hearing. Defendants objection was

denied as untimely at the May 21, 2007 hearing on this motion. 

However, the parties were assured that Powers’ opinion would not

be considered to the extent that it exceeded the scope of his

expertise. Powers’ calculations have not been contradicted by

any evidence from Defendants. Defendants have failed to provide

further evidence to rebut Powers’ calculations.

50

of their emissions units exceed the 2.0 lbs/day threshold. 

11

ii. There is No Triable Issue of Fact that Defendants Were

Required to Install BACT Pursuant to District Rule 2201

as Incorporated in the California SIP. 

Rule 2201 defines BACT as the most stringent emission

limitation or control technique of the following: 

1. Achieved in practice for such category or class of

source;

2. Contained in any State Implementation Plan 

approved by the Environmental Protection Agency 

for such category and class of source. A specific 

limitation technique or control technology shall 

not apply if the owner of the proposed emissions 

unit demonstrates to the satisfaction of the APCO 

that such a limitation or control technique is not

presently achievable; or

3. Contained in an applicable federal New Source 

Performance Standard; or

4. Any other emission limitation or control 

technique, including process and equipment changes

of basic or control equipment, found by the APCO 

to be cost effective and technologically feasible 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 50 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

51

for such class or category of sources or for a 

specific source.

Rule 2201 § 3.9. Potential to Emit is defined as the “maximum

capacity of any emissions unit to emit a pollutant under its

physical and operational design.” Rule 2201 § 3.27. The

Potential to Emit from the dairy’s emissions units includes

fugitive emissions. Rule 2201 § 3.19 (“Fugitive emissions shall

be included in all calculations, except as provided in Section

3.24 [major modifications]”)

Plaintiffs argue that C&R Vanderham Dairy has four emissions

units which have a Potential to Emit more than two pounds of VOC

per day and that Defendants have failed to install BACT on the

four emissions units. Vanderham admits that the District rules,

including Rules 2010 and 2201, are “emission standards or

limitations” as defined by 42 U.S.C. §§ 7604(f), 7604(k), which

define an “emission standard or limitation” to include any

standard or limitation approved as part of the State

Implementation Plan (“SIP”). (PSUF No. 8.) There is no dispute

that the District has not undertaken a BACT analysis for the C&R

Vanderham Dairy. (PSUF No. 52.). There is no dispute that C&R

Vanderham Dairy is a stationary source of air pollution, within

the meaning of the Clean Air Act and Rule 2201. (PSUF No. 43.)

There is also no dispute that C&R Vanderham Dairy is a non major

stationary source pursuant to state law. Vanderham admits that

the cow housing and feeding areas, the milking center, the liquid

manure handling area, the solid manure handling area, and the

land application area are emissions units as defined by § 3.18 of

Rule 2201. (PSUF No. 45.) 

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 51 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

52

According to Plaintiffs, Defendants cannot have installed

BACT if the APCO has not determined what is cost-effective or

technologically feasible for the dairy. Plaintiffs have

submitted sworn testimony by District staff that states the

District Staff determines BACT requirements on a case-by-case

basis during the ATC permit process. (PSUF NO. 50) Plaintiffs

argue that the District has not issued a permit to Defendants and

has therefore not undertaken a BACT analysis. As a result,

Defendants cannot have installed BACT when it constructed the

Dairy. 

Defendants respond by arguing that they could not possibly

have installed BACT without a determination of BACT by the Air

District. Defendants contend the Air District determined that an

ATC permit was not required but that a permit to operate was

required. Accordingly, because the District issued Defendants a

Permit to Operate, the District must have implicitly determined

that no BACT was needed. This argument does not necessarily

follow. Defendants provide no evidence from the District or by

an APCO that they were not required to install BACT. Nor do

Defendants offer evidence that a BACT analysis can only be

undertaken alongside an ATC permit determination. 

Section 4.1.2 of Rule 2201 requires BACT for an existing

source with a permit to operate if the source exceeds 2.0

lbs/day. It is undisputed that Defendants applied for a permit

to operate on October 28, 2005 and were granted a permit on April

3, 2007. BACT analysis applies independent of the ATC permit

requirement because obligations are independent and required

under different rules. There is no indication in the record

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 52 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

53

whether, in practice, the District separates the permitting

process from the BACT evaluation. Also, while the parties’

dispute over the calculations raises an issue of fact as to

whether C&R Vanderham Dairy indeed emits more than 2.0 pounds in

any one day, Defendants have provided no evidence to the

contrary.

Defendants’ viable argument is that it is unclear whether

the Dairy can install BACT when the District has failed to

conduct a BACT analysis. While, technically, the evidence shows

that Defendants violated the SIP, it is unclear in the record

whether they could have installed BACT without the District

conducting the analysis. Plaintiffs have submitted a letter to

Defendants from the Air District that states “the District cannot

condone the proposed construction activities until the emission

factor issue is settled on August 1, 2005, since permits may be

required for the proposed dairy. If C&R Vanderham Dairy

continues with the construction, they proceed at their own

risk.”] 

Absent evidence to the contrary, which Defendants have not

provided, Defendants have exceeded the allowable emissions

threshold of 2 lbs/day and were required to install BACT for four

of their emissions units. 

Plaintiffs motion for summary judgment on the BACT issue is

GRANTED.

iii. There is No Triable Issue that Defendants Were Required

to Purchase Offsets

District Rule 2201 requires agricultural sources to purchase

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 53 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 District Rule Section 4.6 governs emissions offset 12

exemptions. According to the rules, “Emission offsets shall not

be required for... agricultural sources to the extent provided by

54

offsets if their Post-Project Stationary Source Potential to Emit

(“SSPE2") is above 20,000 pounds (10 tons) of VOC per year. Rule

2201 § 4.5. Plaintiffs argue that Defendants’ SSPE2 for VOC is

greater than 20,000 pounds (10 tons) per year and were thus

required to purchase offsets. Plaintiffs claim that according to

Defendants’ own calculations C&R Vanderham Dairy’s “total annual

VOC emissions” are at 24,861.9 pounds or 12.4 tons, above the

offsets threshold of 10 tons a year. Vanderham’s calculations

used an outdated emission factor of 12.8 pounds of VOC per head

per year. The current emission factor is 19.3 pounds per head

per year. Using the current emission factor, Plaintiffs’ expert

places the C&R Vanderham Dairy’s SSPE2 for VOC much higher, at

22.6 tons per year based on the maximum capacity shown by the

blueprints for the C&R Vanderham Dairy and at 19.2 tons per year

based on the maximum capacity provided by Vanderham. By any of

these measures, the C&R Vanderham Dairy has an SSPE2 greater than

10 tons per year. Therefore, Vanderham was required to purchase

offsets. 

Defendants argue that there is a genuine issue of fact as to

whether they were required to purchase offsets. Defendants

dispute Plaintiffs’ calculations of C&R Vanderham Dairy’s daily

VOC emissions. According to Defendants, Plaintiffs run through

any number of calculations to get there and that Plaintiffs

completely ignore Section 4.6.9 of Rule 2201 which exempts

agricultural sources. Defendants continue to argue that 12

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 54 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

California Health and Safety Code § 42301.18(c)...” District

Rule 4.6.9 However, it is undisputed that section 4.6.9 does not

exist in the EPA approved SIP, which includes the December 19,

2002 version of Rule 2201 but not the September 21, 2006 version

on which Vanderham bases its argument. See 40 C.F.R. §

52.220(c)(311)(i)(B)(1). Per Safe Air, the agricultural

exemption of Section 4.2.9 does not apply to Defendants. 

 According to Plaintiffs, the number of days of violation 13

is determined by the language of the SIP. It is undisputed that

Vanderham initiated construction on or after July 15, 2005. PSUF

¶¶ 29, 35, 37. Therefore, Plaintiffs seek summary judgment on at

least 2,704 days of violation for the ongoing failure to install

BACT at four emissions units (676 x 4) and at least 676 days of

violation for the ongoing failure to purchase offsets. 

55

Plaintiffs have provided no authority that requires C&R Vanderham

Dairy to obtain offsets when federal law requires permits, of

which offsets are a part, for only major stationary sources. 

It appears the exemption for ag sources does not apply as it

was not included in the SIP. Defendants have not offered

evidence to the contrary. Defendants have not offered contrary

evidence that rebut Plaintiffs’ expert’s calculations. 

D. Amount of Days in Violations

According to Plaintiffs, the number of days of violation is

determined by the language of the SIP. Nat’l Parks Conservation

Assoc. v. TVA, 480 F.3d 410, 418 (6th Cir. 2007.) Courts

interpret the SIP “based on its plain meaning when such meaning

is apparent, not absurd, and not contradicted by the manifest

intent of the EPA, as expressed in the promulgating documents

available to the public. Safe Air, 475 F.3d at 1108. Pursuant

to the SIP, Plaintiffs claim that Vanderham is liable for a total

of 4,008 days of violations. 

13

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 55 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs calculate the number of days as the total days from

July 15, 2005 through May 21, 2007, the date of oral argument on

this Motion. See 42 U.S.C. § 7413(e)(2) (days of violation

presumed to continue until violator establishes “continuous

compliance has been achieved”). However, violations may continue

past that date. Moreover, Plaintiffs seek summary judgment on

628 days of violations for the failure to obtain an ATC permit. 

AIR calculates the number of days as all days from July 15, 2005

through April 3, 2007, when the District issued a Permit to

Operate to the C&R Vanderham Dairy. 

 Defendants argue that ““[a] given construction or 14

modification only occurs once. If a Permit is not obtained for

that particular project then the preconstruction permit

requirement of the Clean Air Act has been violated. However, the

requirement to secure a pre-construction permit applies prior to

construction or modification..., thus, a violation of the Clean

Air Act pre-construction permit requirement is singular in nature

and does not constitute an on going violation.” Niagra Mohawk

263 F. Supp. 2d at 662; See also, United States v. Campbell Soup,

Co., 1997 U.S. Dist. LEXIS 3211, *5-8 (E.D. Cal. 1997). 

Defendants argue that because the BACT analysis is embedded in

the permit process and the District determined that Defendants

were not required to obtain a permit, the violation should be

limited to one day. 

56

Defendants alternatively argue that if violations are found,

they should be limited to a single point in time because the

requirement to secure a pre-construction permit applies only

prior to construction. Defendants further argue that installing

BACT and purchasing Offsets are functions of the Air District and

are so embedded in the permit process that Defendants could not

have satisfied such requirements without the Air District’s

assistance. In support of their argument Defendants cite to New

York v. Niagra Mohawk Power Corp., 263 F. Supp. 2d 650, 662

(W.D.N.Y. 2003). 

14

Plaintiffs argue that the violations of the SIP proven here

are not limited to a single day. The number of days of violation

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 56 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

57

is determined by the language of the SIP. Nat’l Parks

Conservation Assoc. v. TVA, 480 F.3d 410, 418 (6th Cir. 2007).

Courts interpret the SIP “based on [the SIP’s] plain meaning when

such a meaning is apparent, not absurd, and not contradicted by

the manifest intent of EPA, as expressed in the promulgating

documents available to the public.” Safe Air for Everyone, 475

F.3d at 1108. Plaintiffs argue that Vanderham does not address

the language of the SIP it must abide by; it instead relies on

authority interpreting different language in the Act.

Vanderham relies on Niagara Mohawk and Campbell Soup Co. to

assert that because the construction only occurs once,

Vanderham’s failures to comply with law constitute only a single

violation of the SIP. Opp. at 20-21. The cases do not support

Vanderham’s assertion. First, Niagara Mohawk does not interpret

the California SIP; rather, it interprets the language of the Act

itself. 263 F. Supp. 2d at 661-62 (interpreting pre-construction

permit requirement for major sources in the Act). However, AIR

is suing under the SIP’s requirements. The SIP may be more

stringent than the CAA, as it is here. Second, the Campbell Soup

decision states that “when violation of a regulation subjects

private parties to criminal or civil sanctions, a regulation

cannot be construed to mean what an agency intended but did not

adequately express.” 1997 U.S. Dist. LEXIS 3211, *7 (E.D. Cal.

1997). 

Here, Rule 2010 expressly states that an ATC “shall remain

in effect until the Permit to Operate the source operation for

which the application was filed is granted or denied, or the

application is cancelled.” Rule 2010 § 3.0. Unlike in Campbell

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 57 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

58

Soup, by the very terms of the regulation, Vanderham’s violations

here continued until its application for Permit to Operate was

granted on April 3, 2007. Vanderham does not cite any authority

that holds that BACT and offset violations are singular

violations. The BACT provision simply states that BACT “shall be

required” for any emissions unit exceeding emissions of two

lbs/day of VOC. Similarly, offsets “shall be required” if the

SSPE2 exceeds 10 tons a year of VOC. These requirements apply

any time the thresholds are exceeded; the rule places no further

restriction on their application. Thus, the requirements

continue to apply, and a violation of the requirements continues

until rectified. No Ninth Circuit cases assess the number of

days of violations under the California SIP. The CAA 42 USC §

7413(e)(2) states the following: 

For purposes of determining the number of days of

violation for which a penalty may be assessed under

subsection (b) or (d)(1) of this section, or section

304(a) [42 U.S.C. § 7604 (a)], or an assessment may be

made under section 120 [42 USCS § 7420], where the

Administrator or an air pollution control agency has

notified the source of the violation, and the plaintiff

makes a prima facie showing that the conduct or events

giving rise to the violation are likely to have

continued or recurred past the date of notice, the days

of violation shall be presumed to include the date of

such notice and each and every day thereafter until the

violator establishes that continuous compliance has

been achieved, except to the extent that the violator

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 58 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

59

can prove by a preponderance of the evidence that there

were intervening days during which no violation

occurred or that the violation was not continuing in

nature.

The determination of this issue depends largely on disputed

issues of fact. There is no indication that, prior to this

litigation, the dairy was notified by the District or an APCO

that they were in violation. 

The summary judgment motion as to days of violation is

DENIED.

7. MOTION TO STRIKE DEFENDANTS CROSS MOTION FOR SUMMARY JUDGMENT

Fed. R. Civ. P. 12(f) provides that “redundant, immaterial,

impertinent, or scandalous matters” may be “stricken from any

pleading.” Fed. R. Civ. P. 12(f). “[O]nly pleadings are

subject to motions to strike.” See Sidney-Vinstein v. A.H.

Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). However, a

“motion to strike” materials that are not part of the pleadings

may be regarded as an “invitation” by the movant “to consider

whether [proffered material] may properly be relied upon.”

United States v. Crisp, 190 F.R.D. 546, 551 (E.D. Cal. 1999)

(quoting Monroe v. Board of Educ., 65 F.R.D. 641, 645 (D. Conn.

1975).

Motions to strike are disfavored and infrequently granted. 

See Pease & Curran Ref., Inc. v. Spectrolab, Inc., 744 F. Supp.

945, 947 (C.D. Cal. 1990), abrogated on other grounds by Stanton

Road Ass'n v. Lohrey Enters., 984 F.2d 1015 (9th Cir. 1993).

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 59 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

60

“[M]otions to strike should not be granted unless it is clear

that the matter to be stricken could have no possible bearing on

the subject matter of the litigation. Colaprico v. Sun

Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991)

(citation omitted).

A. Defendants’ Motion for Summary Judgment is Untimely and 

in Violation of Local Rule 

Local Rule 78-230(e) states: 

“Any counter-motion or other motion that a party may

desire to make that is related to the general subject

matter of the original motion shall be served and filed

with the Clerk in the manner and on the date prescribed

for the filing of opposition. In the event such

counter-motion or other related motion is filed, the

Court may continue the hearing on the original and all

related motions so as to give all parties reasonable

opportunity to serve and file oppositions and replies

to all pending motions.”

Air filed its motion on April 19, 2007. Defendants filed

their Opposition on May 4, 2007. The hearing on the motion for

summary judgment was held on May 21, 2007. Based on the local

rule, any opposition should have been filed at least by May 7,

2007 or 14 calendar days before the May 21 hearing. At the May

21, 2007 hearing, Defendants’ request to file a supplemental

brief on the sole issue of whether Rule 2010 applied to them was

granted. Defendants were notified by minute order on May 21,

2007 that upon filing the supplemental briefs the matter would be

deemed submitted. Defendants were not given leave to file a

cross motion for summary judgment at the hearing on May 21, 2007. 

B. Defendants’ Motion for Summary Judgment Has No Possible 

Bearing on the Subject Matter of the Litigation

Defendants have parlayed the opportunity to file a

supplemental brief into filing an additional cross motion for

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 60 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 However, according to Safe Air, “As a general 15

interpretative principle, the plain meaning of regulation

governs.” Safe Air, 475 F.3d at 1103. “Other interpretative

materials, such as the agency’s own interpretation of the

regulation, should not be considered when the regulation has a

plain meaning.” Id. 

61

summary judgment. Defendants cross motion for summary judgment

raises no new argument and merely repeats, albeit at greater

length, the arguments set forth in their opposition to

Plaintiffs’ motion for summary judgment (Doc. 96) and in their

supplemental brief (Doc. 113). 

Defendants’ first argument in their cross motion for summary

judgment is that the EPA acknowledged that state law establishes

an Air District’s permitting authority and expressly considered

SB 700 when it gave final approval to Rules 2020 and 2201. In

support of their argument, Defendants provide the entire

legislative history of the approval process for SB 700.15

Defendants also reiterate that the District cannot exceed the

permitting authority granted to it by state law. However,

Defendants have submitted no legal authority to show that Safe

Air does not control this case. Defendants attempt fails to

reframe the issue to one that solely involves whether the EPA’s

approval of the SIP can modify or enlarge the permitting

authority granted to the air district by the state of California. 

This, is not the issue. The first issue is whether the language

of the California SIP superceded state regulations not

incorporated into its provisions. The Ninth Circuit in Safe Air,

a case with facts almost identical to this one, addressed the

issue and held that the language of the SIP functions with the

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 61 of 62
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

62

same “force and effect” as federal law and supercedes any

conflicting state law. Defendants present no new arguments or

law in their untimely cross motion for summary judgment on the

arguments previously addressed. 

Plaintiffs’ motion to strike Defendants’ cross motion for

summary judgment is GRANTED. 

8. CONCLUSION

Motion for summary judgment on the issue of whether

Defendants violated rule 2010 by failing to obtain an ATC permit

is GRANTED in favor of Plaintiffs.

Motion for summary judgment on the issue of whether

Defendants violated Rule 2201 § 4.1.1 by failing to install BACT

is GRANTED in favor of Plaintiffs. 

Motion for summary judgment on the issue of whether

Defendants violated District Rule 2201 § 4.5 by failing to

purchase offsets is GRANTED in favor of Plaintiffs. 

The days of Defendants’ violations cannot be determined as a

matter of law. 

IT IS SO ORDERED.

Dated: September 24, 2007 /s/ Oliver W. Wanger 

emm0d6 UNITED STATES DISTRICT JUDGE

Case 1:05-cv-01593-OWW-SMS Document 160 Filed 09/25/2007 Page 62 of 62