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County APCD, state parks headed to hearing over dust control violations 

click to enlarge VIOLATION CONFRONTATION California Department of Parks and Recreation and the SLO County APCD continue to clash over alleged violations of dust mitigation regulations at the Oceano Dunes.
  • VIOLATION CONFRONTATION California Department of Parks and Recreation and the SLO County APCD continue to clash over alleged violations of dust mitigation regulations at the Oceano Dunes.

The SLO County Air Pollution Control District (APCD) is moving forward with plans to slap the California Department of Parks and Recreation with fines for violating dust mitigation regulations at the Ocean Dunes State Vehicular Recreation Area.

The issue will come before the APCD's hearing board later this year, despite the report of a third party dust emissions expert, which concluded that pursuing the violations wouldn't be an adequate solution to the years long back-and-forth between the two entities over the issue of dust pollution at the dunes.

"It is my opinion that the Notice of Violation is not an effective tool to hasten resolution of the ongoing wind erosion problem and disputes between the two parties, and therefore, should be withdrawn," the expert, W.G. Nickling, wrote in his Oct. 10 report.

The APCD initially notified state parks of the potential violations May 5, stating that the state entity failed to execute dust mitigation measures for the dunes' 2017 season. Among the violations, APCD alleged that state parks only installed 20 of the 50 acres of wind fencing it was supposed to and removed a dust particulate monitoring station from the dunes' Oso Flaco area in December 2016 without notifying the APCD of the decision.

After the notice, state parks officials requested a third party review under a dispute resolution process laid out in an agreement between the two parties. Nickling was appointed as the "special master" for the case. Nickling heard arguments from both parties during a joint hearing in early September, and later toured the dunes before making his recommendation.

In his report, Nickling wrote that there was "nothing to be gained" from fining state parks, noting that it would diminish the ability of the agency to rectify dust emission issues over the long term, and called on the two groups to work together to resolve a long-standing lack of trust and communication.

"The two groups should work together cooperatively, as opposed to antagonistically, which seems to have been the model over the past several years," Nickling wrote.

Noting that neither party was legally bound to follow the special master's recommendations, the APCD said it was still going to pursue the violations. In written arguments, the APCD stated that while Nickling was an expert on the scientific subject of dust emissions, he was not an expert on the legal interpretation of the state's dust emission laws.

For APCD Executive Director Larry Allen, who is retiring at the end of the year, the APCD's action is long overdue.

"They've been in violation of our regulations since 2012, and we have not issued a violation up until this point," Allen said. "Something like this definitely requires enforcement action by the APCD."

Mathew Fuzie, deputy director for state parks' Off-Highway Motor Vehicle Division (OHMVD), told New Times that state parks agreed with Nickling's recommendation and added that he didn't view disagreements between his department and the APCD as "personal."

"It's really their decision what way they want to go," he said. "I do think that, in order to solve this problem, it's going to have to be a community-based solution."

Some had hoped that a five-year dust mitigation plan—approved with a few modifications by the California Coastal Commission on Sept. 14—might be a step toward that solution. Fuzie said that settling the dispute over the violations could impact the project's timeline.

"It could create some barriers," Fuzie said. "But we are going to continue to work with the APCD and the [California Air Resources Board] to work toward solutions."

A hearing on the violations is tentatively scheduled for Nov. 13. The APCD's hearings board is a group of local individuals selected by members of the APCD's board of directors.

On Oct. 23, the OHV advocacy group Friends of Oceano Dunes filed a lawsuit against the Coastal Commission over its approval of the five-year dust mitigation plan.


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