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The following article was posted on April 24th, 2013, in the New Times - Volume 27, Issue 39 [ Submit a Story ]
The following articles were printed from New Times [newtimesslo.com] - Volume 27, Issue 39

Court shoots down dust rule challenges

BY MATT FOUNTAIN

A San Luis Obispo County judge dismissed two separate challenges to a locally implemented rule that could lead to fines against the state department of parks and recreation should air quality on and downwind from the Oceano Dunes State Vehicular Recreation Area dip below safe standards.

The two lawsuits, filed by the off-highway recreational vehicle riders group Friends of Oceano Dunes and by OHV advocate/SLO City Council candidate Kevin Rice, challenged Rule 1001, which was adopted by the county’s Air Pollution Control District in November 2011 and sought to force the state to reduce airborne particulate matter—dust, essentially—which the district says is being kicked up by off-road vehicles and carried downwind to the Nipomo Mesa.

The rule was the result of two studies completed in 2010 by the APCD, which found that concentrations of airborne particulate matter around the dunes were indeed exceeding state standards, but didn’t single out a culprit. That’s where the second study came in; it found that vehicles on the dunes break up the hardened “crust” on the surface, exposing the finer sand below, which is then picked up by the wind.

Levels of particulate matter exceed state health standards roughly 65 days out of the year.

In their lawsuit, the Friends don’t argue that the air isn’t dusty, but instead argued that the poor air quality is an “indirect” result of off-highway riding, and took issue with the methodology behind the district’s second study, contending that the district exceeded its authority in requiring State Parks to obtain a permit to operate the park.

Rice’s petition—which contended that the district’s pollution control officer, Larry Allen, made changes to the language in the rule just prior to its passage and failed to properly notify the public—was consolidated with the Friends lawsuit. State Parks, named as a party of interest in both suits, also contended that the district’s rule imposes unlawful regulation upon the state and gives too much authority to Allen.

On April 19, SLO County Superior Court Judge Charles Crandall disagreed, calling the OHV area a “direct source” of pollution.

“The elevated emissions of dust and sand would not occur but for the operations of man-made activities, i.e., the OHVs operating in and around the dunes,” Crandall wrote, noting that the courts typically adopt a narrow scope of review when it comes to a public agency adopting a rule related to the public interest within that agency’s area of expertise. “Given the deference to be afforded, the Court concludes that Rule 1001 was lawfully adopted and is amply supported by the accompanying scientific studies.”

“I think it’s a very solid and scholarly ruling that essentially holds that the Rule 1001 was legally adopted and supported by substantial evidence,” Ray Biering, who represented the APCD in the lawsuit, told New Times. “It clearly shows that Rule 1001 is necessary.”

As for Rice’s petition, Crandall found that last-minute changes to the rule “did not substantially nor significantly affect the meaning of the rule.” In an e-mail to New Times, Rice took issue with the study, pointing out that the district didn’t consider other contributing factors, including “500 million pounds of sediment [that] are deposited on our shoreline by tides each year.”

“I will continue to assist the board’s growing recognition that not including a single geologist in the APCD study produced a scientific error that will diminish a fruitful, cost-effective outcome,” Rice wrote.

Brent Marshall, superintendent of the Oceano Dunes District, which operates the OHV park, said that his staff has been working on a monitoring plan in the dunes, and has for decades worked to re-vegetate the area to reduce the amount of dust that can go airborne.

“As a part of State Parks, we understand the concerns and we want to be a good neighbor,” Marshall said. “We’re continuing to work with the district and we’re going to ID the problem and come up with the best solution.”

Marshall added that it’s too early to comment on a possible appeal.