WESTERN OIL AND GAS ASSOCIATION v. MONTEREY BAY UNIFIED AIR POLLUTION CONTROL DISTRICT

Reset A A Font size: Print

Court of Appeal, Sixth District, California.

WESTERN OIL AND GAS ASSOCIATION, Plaintiff and Appellant, v. MONTEREY BAY UNIFIED AIR POLLUTION CONTROL DISTRICT, et al., Defendants and Respondents.

No. H003328.

Decided: June 24, 1988

Philip K. Verleger, Donna R. Black and Michael A. Monahan, McCutchen, Black, Verleger & Shea, Los Angeles, for plaintiff and appellant. Ralph R. Kuchler, Monterey County Counsel, and W. Allen Bidwell, Deputy County Counsel, Salinas, for defendants and respondents.

We must determine in this case whether the Tanner Act, which creates a state level procedure for identifying and controlling toxic air contaminants, preempts a local regulation adopted by the Monterey Bay Unified Air Pollution Control District (District) which also creates a procedure for identifying and regulating toxic air contaminants.   We conclude the Tanner Act preempts the power of local authorities to identify toxic air contaminants.   However, once a substance has been identified as a toxic air contaminant under the state scheme, the local air pollution control districts may immediately adopt regulations to control emissions of that substance, even though the state has not yet proposed model regulations concerning it.

BACKGROUND

Appellant Western Oil and Gas Association (Western Oil) filed an action for a writ of mandate and declaratory relief to invalidate the District's Regulation X, rule 1000, which establishes a procedure to identify and regulate the emission of “toxic air contaminants.”   Western Oil alleged that the rule was preempted by state law and, in addition, constituted an improper delegation of rule-making authority.   The District and Western Oil filed cross-motions for summary judgment.   The trial court granted the District's motion for summary judgment and Western Oil has appealed.

A. The State Legislation

In 1983, the Legislature enacted the Tanner Act which established a procedure for identifying and regulating “toxic air contaminants.”  (Health & Saf.Code, §§ 39650–39674, added by Stats.1983, ch. 1047, § 1.) 1  A “toxic air contaminant” is defined by the act as “an air pollutant [other than pesticides] which may cause or contribute to an increase in mortality or an increase in serious illness, or which may pose a present or potential hazard to human health.”  (§ 39655.)   The legislation is designed to control stationary source emissions of substances which are “carcinogenic, teratogenic, mutagenic, or otherwise toxic” to humans.  (§ 39650, subd. (a).)  The legislation applies to both existing and new “nonvehicular” sources.  (§ 39666, subds. (a), (e).)

For the purpose of our analysis, it is essential to understand that the Tanner Act establishes a two-part process.   In the first part of the process, the State Air Resources Board (State Air Board) identifies substances which are toxic air contaminants through a detailed procedure.   In the second part of the process, the State Air Board establishes minimum measures to control the emission of the toxic air contaminants it has identified.   The Tanner Act specifically provides that local air pollution control districts may adopt the control measures established by the State Air Board or, alternatively, the districts may adopt “equally effective or more stringent control measures than the airborne toxic control measures adopted by the state board.”  (§ 39666, subd. (d).)

(1) Identification and Evaluation Process

The identification process begins when the State Air Board asks the State Department of Health Services to evaluate the health effects of, and prepare recommendations regarding, a substance which may be a toxic air contaminant.   (§ 39660, subd. (a).)  The Department of Health Services' written evaluation must contain (1) an estimate of the level of exposure which may cause or contribute to adverse health effects, or (2) where there is no threshold of significant adverse health effects, the range of risk to humans resulting from current or anticipated exposure to the substance.  (§ 39660, subd. (c).)

The State Air Board must then use the report prepared by the Department of Health Services to prepare its own report “in a form which may serve as the basis of regulatory action regarding” the substance to be controlled.  (§ 39661, subd. (a).)  The State Air Board report is reviewed by a “scientific review panel” composed of nine members with expertise in various disciplines.   (§ 39661, subds. (b) & (c).) 2  If the scientific review panel determines that the report is seriously deficient, it returns the report to the State Air Board which must then revise the report and resubmit it to the scientific review panel for approval.  (§ 39661, subd. (c).)

After the scientific review panel completes its evaluation, the State Air Board holds a public hearing to determine whether the substance evaluated is a toxic air contaminant.   If the substance is determined to be a toxic air contaminant, the State Air Board must adopt a regulation so stating and must specify in the regulation a threshold exposure level (if any) below which no significant adverse health effects are anticipated.  (§ 39662, subds. (a), (b), (c).)

(2) Control Measures

The second part of the process begins after the State Air Board has adopted a regulation identifying a substance as a toxic air contaminant.   In the second phase, the State Air Board (with the participation of the local districts and after consultation with the affected sources and public) must prepare a second report on the need and appropriate degree of regulation for that substance.  (§ 39665, subd. (a).)  Thereafter, following a public hearing, the State Air Board must adopt measures to reduce emissions from nonvehicular sources of the toxic air contaminant it has identified.  (§ 39666, subd. (a).)  After the State Air Board adopts an airborne toxic control measure, the local air pollution control districts must propose regulations enacting those control measures within their jurisdictions, “except that a district may, at its option, adopt and enforce equally effective or more stringent control measures than the airborne toxic control measures adopted by the state board.”  (§ 39666, subd. (d).) 3

As of March 1988, nine substances had been identified by the State Air Board as toxic air contaminants.4  (Cal.Code of Regs., tit. 17, § 93000.)   That is, the first phase identification process had been undertaken as to these nine substances.   However, the State Air Board has not yet adopted any regulations to control the emission of those substances as provided by the second phase of the statutory scheme.   Consequently, the local air pollution control districts have not been required to adopt local regulations to control toxic air contaminant emissions from stationary sources.

B. The District's Rule 1000

In March of 1986, the District adopted rule 1000 to control the emission of toxic air contaminants.   The rule applies only to “new or modified stationary sources for which Authority to Construct or Permit to Operate is required․”  (Rule 1000, § 1.2.1.)   The rule does not apply to pre-existing sources which are not seeking modification.

Under the rule, the District's Air Pollution Control Officer is required to identify “toxic air contaminants” and “carcinogenic toxic air contaminants” based on detailed guidelines.  (Rule 1000, §§ 3.2, 3.9.)   A toxic air contaminant is defined as “any substance with the potential to contaminate the air or to create air contaminants, which ․ [¶] [b]ased on reasonable scientific information in the judgment of the Air Pollution Control Officer may cause or contribute to a recognizable increase in mortality, morbidity, or may otherwise pose a present or potential material impairment to human health or functional capacity, and is listed in Title 8 of the California Administrative Code, Section 5155․” 5  (Rule 1000, §§ 3.9–3.9.1.)

The Air Pollution Control Officer is required to identify carcinogenic air contaminants based on detailed guidelines and presumptions.6

To obtain a permit to operate, new or modified sources must install “reasonable control technology” to reduce the emission of noncarcinogenic toxic air contaminants.7  (Rule 1000, § 4.1.1.)   However, a higher standard is established for sources which emit carcinogenic air contaminants;  to obtain a permit, those sources must employ “best control technology” to reduce the emission of carcinogenic substances.8  (Rule 1000, § 4.4.1.)

To date, the District's Air Pollution Control Officer has identified 23 carcinogenic toxic air contaminants and over 100 noncarcinogenic toxic air contaminants.

DISCUSSION

A. Preemption

 Western Oil's primary contention is that the Tanner Act fully preempts the District's rule 1000.   That is, Western Oil contends the local air pollution control districts may not adopt regulations concerning a toxic air contaminant until (1) a substance has been identified as such under the first phase of the Tanner Act procedure, and (2) the state has promulgated a model regulation concerning the substance pursuant to the second step of the Tanner Act.   Since the state has not yet completed both steps with respect to any substance, Western Oil contends the District has no authority to control any toxic air contaminants.   As we explain, we agree the Tanner Act has preempted the District's authority to identify toxic air contaminants.   However, once the State Air Board has adopted a regulation identifying a substance as a toxic air contaminant, the District is free to regulate that substance by local regulation.

We note initially that prior to the adoption of the Tanner Act, the local districts nevertheless had the power to control toxic air contaminants.   To aid in controlling air pollution, the state Legislature established a State Air Resources Board and more than 40 local air pollution control districts.  (§§ 39500–39607, 40000, 40100, 40150, 40300;  Note, Stationary Source Air Pollution Control in California:  A Proposed Jurisdictional Reorganization (1979) 26 U.C.L.A.L.Rev. 893, 900 (hereafter Jurisdictional Reorganization ).)   Although the Legislature vested control of vehicular air pollution in the State Air Board (§§ 39002, 39500, 40000), it left the primary responsibility for control of pollution from stationary (non-vehicular) sources with the local districts.  (§§ 39002, 40000;  Note, Jurisdictional Reorganization, supra, at p. 900.)

The local districts are specifically authorized to adopt rules and regulations to achieve and maintain state ambient air quality standards, to enforce applicable state law, and to issue permits to operate stationary sources of air pollution within their jurisdictions.  (§§ 40001, 42300, 42301.)   Among the state laws which local districts must enforce is section 41700, which in pertinent part provides:  “[N]o person shall discharge from any source whatsoever such quantities of air contaminants or other material which may cause injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public, or which endanger the comfort, repose, health, or safety of any such persons or the public․”  In our view, in the absence of the Tanner Act, the District had the unquestionable authority to adopt rule 1000 pursuant to its permit authority and power to enforce state law.9

The more difficult question in this case is whether the Legislature, when it passed the Tanner Act, intended to preempt the District's authority to independently identify and control toxic air contaminants.

“Local legislation in conflict with general law is void.   Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations].   If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a ‘municipal affair.’  [Citations.]” 10  (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807–808, 100 Cal.Rptr. 609, 494 P.2d 681;  accord Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290–291, 219 Cal.Rptr. 467, 707 P.2d 840;  People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484–485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

(1) The Tanner Act Preempts The District's Authority To Identify Toxic Air Contaminants

 Although arguments can be made that rule 1000 “duplicates” or “contradicts” the identification procedures found in the Tanner Act, we believe the strongest argument is that, to the extent it develops a system for identifying “toxic air contaminants” and “carcinogenic toxic air contaminants,” rule 1000 enters an area “fully occupied by general law,” and the identification procedure established under the rule is therefore void.  (Lancaster v. Municipal Court, supra, 6 Cal.3d at pp. 807–808, 100 Cal.Rptr. 609, 494 P.2d 681.)

Local legislation is invalid if it “enters an area fully occupied by general law, either expressly or by legislative implication․”  (Lancaster, supra, 6 Cal.3d at p. 808, 100 Cal.Rptr. 609, 494 P.2d 681;  People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 484, 204 Cal.Rptr. 897, 683 P.2d 1150.)

The Legislature has not expressly reserved identification of toxic air contaminants to the state.   However, given the extremely detailed and thorough procedure established by the Tanner Act for the identification of these substances, we are compelled to conclude that the area of toxic air contaminant identification is fully occupied by legislative implication.

“The test for determining whether the area is fully occupied on the basis of legislative implication was established in In re Hubbard [ (1964) ] 62 Cal.2d 119, 128, 41 Cal.Rptr. 393, 396 P.2d 809.   In determining whether the Legislature has preempted by implication to the exclusion of local regulation, we must look to the whole purpose and scope of the legislative scheme.   There are three tests:  ‘(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;  (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.’   [Citations.]”  (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150;  accord Cohen v. Board of Supervisors, supra, 40 Cal.3d at pp. 292–293, 219 Cal.Rptr. 467, 707 P.2d 840.)

In our view, it is absolutely clear the subject matter we are concerned with here—the identification of toxic air contaminants—has been “so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern.”  (County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

To reiterate, the Tanner Act establishes a detailed and structured procedure for identifying toxic air contaminants.   The State Department of Health Services is given the primary responsibility for evaluating whether a substance is a toxic air contaminant.  (§ 39660, subd. (a).)  In its report, the department is required to consider “all available scientific data” in evaluating the substance (§ 39660, subd. (b)), and must estimate the level of exposure to the substance which may cause or contribute to adverse health effects, or, if there is no such threshold level, the range of risks to humans resulting from current or anticipated exposure (§ 39660, subd. (c)).

The Department of Health Services then transmits its report to the State Air Board which must utilize the evaluation and recommendations contained therein to prepare its own report in a form which may serve as the basis for regulatory action.  (§ 39661, subd. (a).)  The report prepared by the State Air Board must be reviewed by a scientific review panel composed of nine “highly qualified” experts in relevant disciplines.  (§§ 39661, subd. (a), 39670.)   The panel examines the scientific procedures and methods used to support the data, the data itself, and the conclusions and assessments on which the report is based.  (§ 39661, subd. (b).)

After the scientific review panel approves the report, the State Air Board must prepare a regulation stating whether the substance is a toxic air contaminant and, if it is, specifying a threshold level, if any, below which no significant adverse health effects are anticipated.  (§ 39662, subds. (a), (b).)   Finally, the regulation may be adopted only after it is reviewed at a public hearing.  (§ 39662, subds. (a), (b).)

In our view, this procedure so fully and completely covers the subject of toxic air contaminant identification that it clearly indicates this subject has become exclusively a matter of state concern.  (County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)

Moreover, we believe the result we reach is necessary to effectuate two of the goals the Legislature set out in the legislative findings and declarations to the Tanner Act:  namely, “[t]hat the identification and regulation of toxic air contaminants should utilize the best available scientific evidence gathered from [all sources] and that the scientific research on which decisions related to health effects are based should be reviewed by a scientific review panel and members of the public.”  (§ 39650, subd. (d).)  These goals can only be realized if the local districts defer adopting regulations until such time as they have available the report prepared by the State Air Board evaluating whether a particular substance is a toxic air contaminant.

Finally, we note that, although there is no direct conflict between rule 1000 and the Tanner Act at the present time, one could arise were the State Air Board to determine that a particular substance is not a toxic air contaminant, while the District's Air Pollution Control Officer finds otherwise.   By limiting the District's ability to control toxic air contaminants to those substances which have been identified as such by the Tanner Act process, we avoid this potential conflict.

(2) The Local District May Regulate A Toxic Air Contaminant Once It Has Been Identified As Such By The State Air Board

 As we previously described, once a substance has been identified by the State Air Board as a toxic air contaminant, the second phase of the Tanner Act process may begin.   In the second phase, the State Air Board prepares a report on the need and appropriate degree of regulation for the toxic air contaminant.  (§ 39665.)   The Board must then propose and, following a public hearing, adopt airborne toxic control measures to reduce emissions of the toxic air contaminant.  (§ 39666, subd. (a).)

Significantly, the local districts are not required to adopt the precise control measures adopted by the State Air Board.   Instead, “a district may, at its option, adopt and enforce equally effective or more stringent control measures than the airborne toxic control measures adopted by the state board.”  (§ 39666, subd. (d).)  Consequently, the Legislature has clearly expressed its intent to permit local regulation of toxic air contaminants once they have been identified pursuant to the Tanner Act process.

Nevertheless, Western Oil contends that the statutory scheme is such that a local district may adopt its own regulations only after the State Air Board has adopted a regulation identifying a substance as a toxic air contaminant (§ 39662) and has also adopted control measures to reduce emissions of that substance (§ 39666, subd. (a)).  We disagree.   Although the local districts must propose regulations “[n]ot later than 120 days after” the State Air Board adopts an airborne toxic control measure, and those regulations must be adopted “not later than six months” after the State Air Board adopts a control measure, we do not read these requirements to mean that the local districts must wait until the State Air Board has promulgated model regulations before they may act.  (§ 39666, subd. (d).)  Instead, the purpose of this language is to set a time limit by which the local districts must adopt control measures;  clearly, it was not intended to prevent local districts from adopting regulations before the State Air Board has adopted its own.

Western Oil contends that its interpretation of the Act is necessary to effectuate two of the Act's purposes:  (1) to utilize the best available scientific evidence gathered from all sources and to subject that evidence to review by a scientific review panel and the public (§ 39650, subd. (d));  and (2) to minimize inconsistencies in protecting the public health in various areas of the state (§ 39650, subd. (k)).  We believe our construction of the Tanner Act satisfies both of these goals.

First, since we hold that the local districts may not adopt regulations concerning a substance until the State Air Board has identified it as a toxic air contaminant, the local districts will have available to them the State Air Board's detailed initial report—which will have been approved by the scientific review panel—at the time they formulate their control measures concerning that substance.   Consequently, the local district will be able to utilize the scientific evidence contained in this report to formulate their own control measures.

Secondly, inconsistencies will be minimized because the local districts can only regulate those substances identified by the State Air Board as toxic air contaminants.   Moreover, since the local districts must adopt control measures “equally effective or more stringent” than those adopted by the State Air Board, inconsistencies will be minimized to the extent that there will be a floor below which the control measures may not fall.

(3) Since Our Conclusion That State Law Preempts Toxic Air Contaminant Identification Requires That Rule 1000 Be Extensively Redrafted, We Do Not Consider Whether The Control Provisions of the Rule Conflict With Or Contradict The Tanner Act

Our conclusion that the District may only regulate toxic air contaminants which have been identified as such by the State Air Board essentially guts rule 1000.   Our decision not only affects the identification portion of the rule, but also has a direct impact on the control measures specified in rule 1000 since the type of control measures to be applied (“reasonable control technology” or “best control technology”) depend on whether the Air Pollution Control Officer has identified a substance as a carcinogenic or noncarcinogenic air contaminant.  (Rule 1000, §§ 4.1.1, 4.4.1;  see discussion, ante, at p. 422.)   Since we have held that the identification procedures contained in rule 1000 are preempted by the Tanner Act, it is likely that, in redrafting the rule, the District will also amend portions of the rule concerning the control of toxic air contaminants.   Consequently, it is premature to consider whether the control provisions now contained in the rule conflict with or duplicate the regulatory provisions contained in the Tanner Act.

However, we do note what has been implicit in our discussion above;  namely, that the field of toxic air contaminant regulation (as opposed to identification) has not been fully occupied by the state.   There is no express indication the state intended to fully occupy the area of toxic air contaminant regulation.   To the contrary, the state has expressed its intent to permit local regulation.  (§ 39666, subd. (d).)  Moreover, “[p]reemption by implication of legislative intent may not be found when the Legislature has expressed its intent to permit local regulations.”  (County of Mendocino, supra, 36 Cal.3d at p. 485, 204 Cal.Rptr. 897, 683 P.2d 1150.)   Consequently, the area of toxic air contaminant regulation (as opposed to identification) has not been fully occupied either expressly, or by legislative implication.

DISPOSITION

The judgment is reversed and the trial court is ordered to enter judgment consistent with the views expressed in this opinion.   The parties shall each bear their own costs on appeal.  (Cal.Rules of Court, rule 26(a).)

FOOTNOTES

FOOTNOTE.  

1.   Subsequent statutory references are to the Health and Safety Code unless otherwise noted.

2.   The review panel is composed of a pathologist, oncologist, epidemiologist, atmospheric scientist, biostatician, toxicologist, biochemist or molecular biologist, and experts in occupational medicine and the operation of scientific review or advisory bodies.  (§ 39670, subd. (b).)

3.   Section 39666, subdivision (d), provides in full:  “Not later than 120 days after the adoption by the state board of an airborne toxic control measure pursuant to this section, the districts shall propose regulations enacting control measures on nonvehicular sources within their jurisdiction which meet the requirements of subdivisions (b), (c), and (e), except that a district may, at its option, adopt and enforce equally effective or more stringent control measures than the airborne toxic control measures adopted by the state board.   A district shall adopt rules and regulations implementing airborne toxic control measures on nonvehicular sources within its jurisdiction in conformance with the requirements of subdivisions (b), (c), and (e), not later than six months following the adoption of airborne toxic control measures by the state board.”

4.   Benzene, ethylene dibromide, ethylene dichloride, hexavalent chromium, asbestos, dibenzo-p-dioxins, certain dibensofurans, cadmium, and carbon tetrachloride.

5.   Section 5155 establishes requirements for controlling employee exposure to contaminants in the work place.   The section lists substances for which controls are established.  (Cal.Code of Regs., tit. 8, § 5155, subd. (a).)

6.   The District's rule 1000, section 3.2 provides:  “Any chemical or compound shall be listed by the Air Pollution Control Officer as a potential carcinogenic toxic air contaminant, if the following criteria are met:“3.2.1.1.  Sufficient evidence exists for carcinogenesis in animals demonstrating positive carcinogenesis from properly conducted bioassays in either two species or two properly conducted bioassays in the same laboratory or preferably, in two separate laboratories.   This in turn shall be deemed sufficient evidence for potential human carcinogenesis.“3.2.1.2.  Sufficient evidence exists in animal bioassays demonstrating a statistically significant increase in the incidence of malignant tumors or a decrease in the time of tumor formation.   Benign tumors may augment the evidence for carcinogenesis provided by malignant neoplasms.“3.2.1.3.  Where evidence conflicts in several animal bioassays, the bioassay(s) to be utilized shall be determined by the Air Pollution Control Officer after consultation with the California Air Resources Board and the State Department of Health Services.   The determination shall be weighted on the positive and negative results, the adequacy of the study design, the appropriateness of the species tested, the pharmacokinetics of the species, and the statistical power of the test.   In choosing between equally weighted evidence, the positive will be chosen over the negative evidence, unless otherwise approved by the Air Pollution Control Officer.“3.2.1.4.  Properly conducted epidemiological studies may determine that a substance will be classified as potentially carcinogenic.   A single study is insufficient for compliance with this criteria, unless otherwise approved by the Air Pollution Control Officer and based on corroborating evidence from animal bioassays.“3.2.1.5.  Where evidence conflicts between epidemiological studies, the study(s) utilized shall be determined by the Air Pollution Control Officer based upon weighing the positive and negative results of the studies, the adequacy of the study design, length of follow-up, adequacy of exposure information, and statistical power.   In choosing between equally weighted evidence, the positive will be chosen over the negative evidence, unless otherwise approved by the Air Pollution Control Officer.“3.2.2.  For the purposes of this rule, a list of potential carcinogens determined to meet the criteria set forth in section 3.2. shall be developed and maintained by the Air Pollution Control Officer.   Said list shall be available at the District office and available for inspection and/or copying upon request.“3.2.3.  Determinations pursuant to this section shall be made by the Air Pollution Control Officer in consultation with the California Air Resources Board and the State Department of Health Services.   In his determination the Air Pollution Control Officer shall be guided by the International Agency for Research on Cancer Monographs.”

7.   “Reasonable control technology” is defined as the control device or technique readily available and commonly used for similar types of equipment.  (Rule 1000, § 3.7.1.)

8.   “Best control technology” is defined as “[t]he most effective emission control device, or technique, which has been successfully used for the type of equipment comprising such a stationary source, to control the emission of carcinogenic toxic air contaminants ․ and which is determined by the Air Pollution Control Officer to be cost-effective, unless the applicant demonstrates to the satisfaction of the Air Pollution Control Officer that such limitations imposed on other sources are not achievable.”  (Rule 1000, 3.1.1.)

9.   See Pipoly v. Benson (1942) 20 Cal.2d 366, 370, 125 P.2d 482:  “ ‘Where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipality with subordinate power to act in the matter may make ․ new and additional regulations in aid and furtherance of the purpose of the general law․’  [Citation.]”

10.   The parties agree that we must apply the rules for determining whether a city or county ordinance has been preempted by state law.

ZECHER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

AGLIANO, P.J., and BRAUER, J., concur.