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.