Second lawsuit filed against the air quality district

January 18, 2012

By KAREN VELIE

A San Luis Obispo man filed a second lawsuit against the air quality district over its contentious Oceano Dunes dust rule, this one focusing on alleged procedural errors.

The lawsuit, filed by Kevin Rice on Tuesday, charges the air quality district with failing to follow California laws when it passed a rule that requires state parks to reduce particulate matter blowing from the Oceano Dunes State Vehicular Recreation Area or face fines of $1,000 per day.

In November, the San Luis Obispo County Air Pollution Control District voted 7-4 with one abstention to approve the new regulation without following several California laws, the suit says.

Specifically, the suit contends the air quality district failed to publish a request for public comment that included a “name, address and telephone number of the district officer to whom the comments were to be addressed,” a requirement of California Health and Safety Code 40725.

“Further, the district perpetrated a ‘bait and switch’ by promulgating one version of the rule to the public, then surreptitiously presenting a different version of the rule to its board for adoption,” Rice said. “In doing so, the air quality district violated the law and denied the public’s right to a proper hearing and to provide comment and make their voices heard.”

California law requires districts to provide the public a 30-day notice before voting to adopt a new rule. If staff changes the text of the regulation during the notice period, the district is required to give another 30 days before voting, according to California Health and Safety Codes 40725 and 40726.

The suit contends the air quality district voted on a rule that was different from the one provided to the public and posted on its website.

Rice is asking the court to vacate the dust rule and to require the district to follow laws in the future when passing new regulations.

Earlier this month, a non-profit organization, Friends of the Oceano Dunes, filed a lawsuit against the air quality district also requesting the court to vacate the dust rule.

The Friends lawsuit contends that SLO County officials are not “satisfied with the financial arrangement” they have with state parks and are using the rule to increase revenue.

During air quality district board meetings, Executive Director Larry Allen has repeatedly asked the air quality board to approve new fees saying that the agency needs to make up for about $300,000 in yearly permit fees from the Morro Bay Power Plant. The plant is slated to close in the next few years.

In its lawsuit, Friends also questions the validity of a Phase II study the air quality district produced before passing the dust rule. The air quality district contends evidence from the study shows that off-road vehicles at the dunes are causing an increase in particulate matter downwind on the Nipomo Mesa.

The suit sides with numerous local and state officials who allege that the district’s Phase II study includes numerous flaws because of poor methodology and the manipulation of data.

Air quality district officials argue the study was legally and scientifically justified.


31 Comments

  1. oto says:

    The SLO Air Pollution Control District is a “special district.” It is the LOCAL agency that is supposed to ensure “air quality” meets legal standards.

    We have a STATE agency the is supposed to ensure the state follows FEDERAL law to maintain our air quality. We have the FEDERAL Evironmental Protection Agency and law that defines the standards for air quality.

    California can set more stringent standards to ensure a higher level of air quality. In theory, the local APCD is supposed to do the same thing. But if it is only draining the county’s coffers, not improving air quality, and is not worth the money, do we really need it?

    We should decide whether or not to keep this special district or to disband it. We should attend what public meetings they have, and let them know what we are thinking.

    We should learn what we have to do to completely replace the people who have decision making power, if that is what is needed. If you want to see behind the mask, ask them that question at the next meeting. If they are sincere, they will give you an honest answer.

    Like or Dislike: Thumb up 2 Thumb down 0

  2. Maxfusion says:

    Next is the Marxist front group know as CARB and the apparatchiks that hide under its color of authority.

    Like or Dislike: Thumb up 2 Thumb down 1

    • spiritpen says:

      CARB is a corrupt organization alright, but not for their stand against the deadly particulate matter off roading on the dunes is causing in the lungs of area children. They are the people who killed the electric car! But let’s face it, off roaders don’t want electric cars, dont believe in global warming, and don’t care about asthma, particulate matter in the air, decreased lung capacity in kids, or even about running children over while driving drunk on the oceano dunescape.

      Joey Racano

      Like or Dislike: Thumb up 0 Thumb down 1

  3. ApathyWillKillYou says:

    You can say what you want about Kevin Rice, aka SloRider, but if there were MORE people like him that actually take action, there would be LESS Gerald Shea’s, John Wallace’s, Kelly Gearhart’s, Wade McKinney’s, Grigger Jones’ (that’s for you Nanci/Nancy Meek) and the endless parade of ‘human cock roaches’ that consistently down grade the lives of SLO citizens to their selfish benefit with immunity!

    THANK YOU KEVIN RICE FOR TAKING A STAND AND ACTUALLY DOING SOMETHING ABOUT IT!

    More than I can say for most of us, including myself.

    Like or Dislike: Thumb up 18 Thumb down 5

    • spiritpen says:

      Uh, Apathy, I think when someone takes action, it’s supposed to be to do a good thing, not fighting the regulations that safeguard the health of the people and planet. Just sayin’ joey xoxo

      Like or Dislike: Thumb up 4 Thumb down 13

      • SLORider says:

        Joey, I respect that you’re willing to sign your name to your opinions. Best wishes. -Kevin

        Like or Dislike: Thumb up 8 Thumb down 5

        • spiritpen says:

          Kevin- I don’t actually mean it when I call you a second rate activist. I hate what you do but you are a super activist. There are some 90 thousand miles of highway in california and it cost a ton to pave it all- please stay on the highway!

          Like or Dislike: Thumb up 2 Thumb down 12

  4. spiritpen says:

    Kevin P. Rice is a spoiled child who wants him and his brain dead friends (ie: off roaders) to be allowed to destroy streams, desecrate sacred dunescapes and ignore laws- and he’s willing to do anything for attention. In my years on the Central Coast, I have yet to find a more pesky flea than Mr. Rice, his buddy Bill Yates (Morro Bay anti-Earth Mayor) or their chosen religion, the Pacific Legal Foundation.

    When people fight against threatened birds, habitat, marine mammals or butterflies, it is a sad state of affairs. But on this one, Kevin P. Rice has taken it upon himself to place in jeopardy the developing lungs of children teens and toddlers in near and or around the Oceano Dunes fro particulate matter known to decrease lung capacity.

    Hats off to the gallantry of the SLO Air Quality District as they stand fast against the tyranny of second-rate activist Kevin Rice, and the selfishness of off road cretins in general.

    Joey Racano, Director
    Ocean Outfall Group
    http://www.EarthSourceMedia.com

    Hot debate. What do you think? Thumb up 12 Thumb down 33

    • DuneDude says:

      If you think that an alleged sociopath and narcissist, clearly shown by his behavior over the years, cares about the law, social responsibility, or the health and welfare of the community, you don’t know what a low life he really is. Try a look at his house that is filled with motorcycle parts and oil. Probably lube for his parties.

      Like or Dislike: Thumb up 8 Thumb down 16

      • racket says:

        Little bit lost whether the sociopath/narcissist with the house full of motorcycle parts you are referring to is KEVIN or is JOEY.

        I have read your paragraph a couple of times now, and still cannot figure it out.

        But, it has finally come to me that it really does not matter, nor does your opinion, because all you’re doing is casting aspersions and fomenting BS.

        Like or Dislike: Thumb up 20 Thumb down 2

    • Maxfusion says:

      Uh Joey, your elitist, “I’m saving the planet” slip is showing.

      Like or Dislike: Thumb up 11 Thumb down 5

    • doggin says:

      Your an narrow minded ass labeling all OHV users as Brain dead.

      Like or Dislike: Thumb up 12 Thumb down 1

  5. oto says:

    Three things I’ve learned from Kevin P. Rice:

    1. Yes, really smart people can be really socially inept.

    2. You don’t have to like somebody to acknowledge that the guy has just identified a classic tactic used by county employees to defraud both individuals and other agencies of money which is not owed.

    3. Rice’s personal motive to take on this fight is not as important as the positive influence it will have on public interest and government transparency.

    Examples of the “bait-and-switch” in the daily workings of San Luis Obispo County government:

    This tactic was used by Raffaelle Montemurro when he switched out the “cost sheet” for the original cost sheet that was given to the public in the OCSD agenda telling residents how much more they would be paying for water on the night the board voted in the rate increase.

    The result was that the public was never given proper notice–nor was the Board–of exactly how much more they would be paying for the bi-monthly water rate, or what the percentage increase would be on their bills.

    The “bait-and-switch” tactic has been used repeatedly by the Planning and Building Dept. when assessing fees for remodels and new development fees, including those found on “will-serve” letters and assessments by the OCSD.

    It has been used by them repeatedly to violate community specific land use plans, in order to push through the plans of a favored developer when particular aspects of the developer’s plans were not allowed under the existing county codes and other laws. Every time you go to the “permit file” to view the paperwork, the paperwork has been switched out, so you can never tell which specifications were the one actually approved by the Planning Commission, and approved by the Board of Supervisors.

    Records Management Law must state at what point such a file becomes “the permanent file” (including the specifications that were actually approved by the legislative or administrative bodies.)

    The “bait-and-switch” tactic was used when the Planning Dept. was expressly forbidden to change the zoning in Oceano’s “urban village” from single residential to multi-residential on specified lots.

    It was used when the Planning Dept. was expressly forbidden by the Board of Supervisors to change multi-residential zoning to condominium zoning because it created the domino effect of tearing down an entire neighborhood’s low-income rental housing.

    It was used when the Planning Dept. was expressly forbidden by the Board of Supervisors to change multi-residential zoning to Planned Unit Developments because to do so not only created the domino effect of the loss of low-income rental housing, but it also violated the minimum square footage requirement for single family residences stated in the Oceano Specific Plan.

    Like or Dislike: Thumb up 17 Thumb down 2

    • Josixpack says:

      Apply for an Ag Tourism Permit on a cattle Ranch-Then grade new roads-shred old growth oaks-install concrete ramps and launch pads, add a building with no permits and 5 ziplines…..then call it a docent lead tour not allowed in Ag lands?? Bait and switch if ever there was!
      Oh… but First Plant the grapes so you can then apply for the housing developments to “save your hard fought “sustainable” farming venture”- This whole county does it….Bait and Switch—

      Like or Dislike: Thumb up 3 Thumb down 6

  6. danika says:

    Thank you, Kevin. Your challenge is warranted and appreciated.

    Like or Dislike: Thumb up 20 Thumb down 9

  7. racket says:

    Is what I am reading that Larry Allen has his sights set on Oceano BECAUSE HIS AGENCY NEEDS THE MONEY ???

    I guess I have to admire him for his honesty, but that is absolutely bogus in my mind. His one-sided fee against the dunes is motivated by losing the fees from the MB Power Plant. That is wrong on so many levels.

    Hot debate. What do you think? Thumb up 35 Thumb down 6

    • SanSimeonSam says:

      This is the guy who has given himself a salary of over 200K a year for part time work. There are some 20 others in the agency that make over 100K a year. HMMMM no wonder he has to create new fees. Its another welfare dole

      Hot debate. What do you think? Thumb up 29 Thumb down 7

    • Disgusted says:

      It seems like if the APCD will no longer need to monitor the MB plant that there will be saved costs on its side. Why would they need the 300K anymore?

      Like or Dislike: Thumb up 21 Thumb down 4

  8. jimmy_me says:

    I sit here wondering where are the lawsuits are that question every aspect of the Los Osos sewer tragedy. I guess the Los Osos people being removed from their homes can’t afford the cost of the justice.

    Like or Dislike: Thumb up 3 Thumb down 15

    • BeenThereDoneThat says:

      Did I miss it? Who has been removed from their home?

      Like or Dislike: Thumb up 12 Thumb down 1

      • spiritpen says:

        Many have been forced to move, mainly the elderly. Some of them died right afterward, after having lived in 1 place all their lives.

        joey racano

        Like or Dislike: Thumb up 3 Thumb down 6

        • BeenThereDoneThat says:

          Well I could see the forced to move due to finances but when jimmy used the term removed, he implied that someone had done it through force. Words mean things.

          Like or Dislike: Thumb up 3 Thumb down 0

    • racket says:

      Guess I sort of thought the legal wrangling is what made the LO sewer so expensive. Not only legal fees, but more time means more opportunity for more regulators to make the plans more costly. Which in turn, slows down progress, adds to the expense, and gives a window for more regulators to weigh in. Which slows down progress, adds to the expense, and gives another window for more regulation. Which slows down progress …. …. ….

      Like or Dislike: Thumb up 8 Thumb down 1

      • spiritpen says:

        racket: What made the LO sewer expensive (190 million!!!!) is a bunch of crooks engaged in a rip off by abuse of the Clean Water Act and getting the green stamp of approval by the crooked SLO Coast Keeper Gordon Hensley. The real sewage system they need and that would really work runs about 20-30 million only.

        joey racano

        Like or Dislike: Thumb up 2 Thumb down 7

    • spiritpen says:

      correct. The poor are preyed upon. Its the safe way to bully.

      joey racano

      Like or Dislike: Thumb up 2 Thumb down 6

      • Maxfusion says:

        Let me see if I get it; they’re preying on the poor because the poor have so much to take. You’re clinically insane.

        Like or Dislike: Thumb up 4 Thumb down 1

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