California Attorney General files lawsuit against local air district

November 16, 2012

California Attorney General Kamala D. Harris

EDITOR’S NOTE: See a brief of the California Attorney General’s lawsuit at the bottom of this story.

By KAREN VELIE

California Attorney General Kamala D. Harris filed a lawsuit in mid-October against the San Luis Obispo County Air Pollution Control District (APCD) over its contentious Oceano Dunes dust rule, focusing on the alleged scientific flaws in the study.

The suit, filed on behalf of the California Department of Parks and Recreation, contends the APCD’s study found no correlation between riding activity and increased particulate matter blowing from the dunes, the study lacked a reliable control site monitor, there is no evidence of dune crust as claimed by the APCD and that vegetation has actually increased in the area since the park opened.

In addition, the state noted numerous alleged procedural errors by APCD staff and consultants in its suit.

The California Geological Survey, “regarded as the primary source of geological and seismological products and services for decision making by California’s government agencies,” also challenged the study calling it “inadequate and unsupported.”

Both Friends of the Dunes and Kevin Rice filed lawsuits in January charging the air quality district with failing to follow California laws when it passed the 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 Nov. 2011, 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 suits say.

For months, prior to approval of the rule, APCD Executive Director Larry Allen 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.

District expenditures have grown from $2,438,146 during the 2001-2002 fiscal year to a budget of $4,156,766 for the 2011-2012 fiscal year. Some 75 percent of the agency’s expenditures are for employee costs, according to the district’s expenditure report.

Of the district’s 21 full-time employees, in salaries benefits and “fringes,” 19 ran over $100,000 a year during the 2011-2012 fiscal year.

Without informing the public of the state’s lawsuit, on Wednesday, the APCD board voted to go around state parks and seek help from the Governor’s Cabinet in implementing its Oceano dunes dust rule. District officials have accused State Parks of not cooperating in the implementation of the dust rule which they claim was legally and scientifically justified.

County Supervisor and air district board member Adam Hill compared scientists with state parks and The California Geological Survey to climate change deniers for questioning the science of the APCD studies.

“They’ve denied the science from the beginning, the way the fossil fuel industry has denied climate change,” Hill said.

All three suits requesting that the rule be overturned are scheduled to be heard in San Luis Obispo County Superior Court on Jan. 24.

CALIFORNIA DEPARTMENT OF PARKS AND RECREATION’S OPENING BRIEF


35 Comments

  1. Mr. Holly says:

    Power corrupts. Thank you Mr. Hill and Mr. Allen.

    For once I think the people are going to win this one. With this decision one would have to ask if it’s time for Mr. Allen to have the famous “government high pressure attack” and retire with his lucrative retirement package that he has made for himself.
    At the same time what and were will Mr. Hill go now with his pompus and know all attitude. Maybe it’s time for he and Ms. Torres to take a vacation.

    Hot debate. What do you think? Thumb up 34 Thumb down 6

  2. Robert1 says:

    Starve the beast, remove the funding and scale back to a skeleton staff.

    Like or Dislike: Thumb up 26 Thumb down 4

  3. rogerfreberg says:

    Don’t you just love the way these self described environmentalists come to our aid to prevent pollution and harm to the communities?

    The problem is that our sweet environmentalists already have their goal and objective in mind and then they want to ‘back into’ their desired solution. I mean, aren’t you a little amused about all this discussion about ‘dust?’

    Hot debate. What do you think? Thumb up 39 Thumb down 9

    • Kevin Rice says:

      Roger, I tend to agree, however I have my doubts that all parties hold the same ‘desired solution’. At least for the APCD, Oceano Dunes represents a substantial revenue source to be tapped–especially in light of losing $300,000 of revenue from the soon-to-close Morro Bay power plant. Air Pollution Control Officer (APCO) Larry Allen repeatedly bemoans that the district has had the same number of employees for several years, alongside his desire to expand and do more.

      Thus, I believe the last thing the APCD wants is to close the Dunes. Without vehicles there would be no revenue to tap. Also, it would be a substantial political win and gain of credibility and political cache for APCO Allen to beat the Attorney General in this twisted science game.

      I doubt those that want the dunes closed outright will stand with the APCD when the outcome avails itself. We’ll see.

      Like or Dislike: Thumb up 23 Thumb down 8

  4. Downtown Bob says:

    The APCD is not much different than the mafia with shakedowns and hits on people. Instead of henchmen they use government authority and fees to pad their own “career” and punish others with the environmentalists cheering them on.

    Well-loved. Like or Dislike: Thumb up 47 Thumb down 7

  5. Kevin Rice says:

    “…in April 2008, the [Air] District terminated its cooperation with Parks and excluded Parks from the study because Parks objected to various aspects of the study. Because the California Geological Survey was involved in the study at Parks’ request, the District also excluded the Geological Survey from the study when it terminated its cooperation with Parks.”

    “In March 2010, the District published the results of the Phase 2 study. The Phase 2 study concluded that greater amounts of PM10 are generated when wind blows over areas where off-highway vehicle riding occurs when compared to areas that are closed to riding. The premise of the study is that off-highway vehicle activity breaks a “crust” on the sand dune surface, which “increases the ability of winds to entrain sand particles from the dunes and carry them to the [Nipomo] Mesa…” (AR 2:217.) Parks, in coordination with the Geological Survey, submitted lengthy comments critical of the Phase 2 study. The District disregarded Parks’ and the Geological Survey’ comments…”

    “Because the Phase 2 study was flawed and inconclusive, the data does not support the Phase 2 study’s findings. For instance, the study showed no correlation between riding activity and PM10 levels. Moreover, the study lacked a proper control site monitor. In fact, the only control site monitor placed in or downwind of a non-riding open sand dune similar to Oceano Dunes never provided reliable data, because it became buried in sand a mere two days after installation (this alone demonstrates that there is no “crust” that traps sand particles). Instead, the Rule unlawfully imposes that obligation on Parks by requiring it to prepare the Monitoring Program in order to “get an idea of what the baseline levels [a]re…” (AR 8:1657, lines 23-24.) As a result, the District has not shown that there is a “problem” (i.e., that elevated PM10 concentrations downwind of the dunes are the result of off-highway vehicle riding and not a naturally-occurring phenomena). The Rule also exceeds the District’s authority by requiring Parks to obtain a Permit to Operate, and by unlawfully delegating the District Board’s legislative authority to the Control Officer. Health and Safety Code section 42300 only authorizes air pollution control districts to require a permit to operate an “article, machine, equipment, or other contrivance…” But Oceano Dunes is neither an article, machine, equipment, nor contrivance. As such, the District lacks authority to require permit.”

    “Finally, the District failed to analyze the cost-effectiveness of the Rule, as the Health and Safety Code requires. Instead, it shifted this burden to Parks. But nothing in the Health and Safety Code authorizes the District to abdicate its responsibility and require the regulated entity to evaluate the cost effectiveness of a regulation after it is already adopted.”

    “In sum, the District failed to determine whether there is a problem that the Rule will alleviate, the available methods of alleviating the problem, or the cost effectiveness of alleviating the problem, and instead improperly and unlawfully shifted that burden to Parks. The District also exceeded its authority by imposing a permit requirement on the dunes and by delegating its legislative authority to the Control Officer.”

    “For its part, the District recognizes that the purpose of the Rule is not to reduce naturally-occurring particulate matter, but only to reduce emissions to “natural background levels.” (AR 8:1654, lines 9-10 [“The rule itself is designed to reduce violations of the Health Standards to natural background levels”]; AR 8:1657, line 3 [“the goal of the rule is to reduce the SVRA contribution to a natural background level”]; AR 8:1669, lines 13-15 [the Rule is “going to address the incremental difference only”].) But the District has not identified the incremental contribution of off-highway vehicle riding to naturally-existing PM10 concentrations. Put another way, the District does not know what the naturally-occurring PM10 levels on the dunes are.

    “Significantly, the Phase 2 study found no correlation between riding activity and PM10 concentrations. (AR 2:279 [“the relationship between daily PM10 levels at Mesa2 and daily number of vehicles entering the SVRA …shows no statistical correlation”].)”

    “…Aerial maps of the Ten Commandments site show that it is the one control site most analogous to the open sand dunes of Oceano Dunes. (AR 2:336; see also AR 3:464 [“the Ten Commandments site is an undisturbed natural dune site most analogous to the Oceano Dunes SVRA open sand sheet dune.”].) However, the Ten Commandments monitor never provided any reliable data because, according to the District, its monitor “did not meet the required QA [quality assurance] criteria.(AR 2:293.) In fact, the Ten Commandments monitor failed quality assurance criteria because
    the entire sampler [was] buried in sand” a mere two days after the District installed it
    . (AR 1:166 (emphasis added).) The lack of a control site monitor similar to the Oceano Dunes riding area puts into question the reliability of the Phase 2 study results. More importantly, however, is that the fact that the Ten Commandments monitor, which is not open to riding, was buried only two days after installation, puts into doubt the basic conclusion of the Phase 2 study, which is that riding “increas[es] the ability of winds to entrain sand particles from the dunes and carry them to the Mesa.” (AR 2:281.)”

    “In fact, disturbed sand interrupts the natural flow of wind over the dune, thereby reducing wind speed and decreasing airborne particulate matter. As explained by the Geological Survey: ‘Dune formation is a display of efficiency. The windward side of a dune is gently sloped and smooth. This provides a relatively unobstructed path for grains to move by saltation.[4] When this surface plane is disrupted, such as by a foot print or a tire track, the wind flow over the sand surface is disrupted, becoming more turbulent and decreasing in velocity. (Citation.) As a result, sand flux and saltation decrease.’

    The California Geological Survey Refuted the Phase 2 Study. The California Geological Survey “is regarded as the primary source of geological and seismological products and services for decision making by California’s government agencies, its businesses and the public.” (See Request for Judicial Notice (“RJN”), Exh. 1 [Geological Survey Vision Statement]. The Geological Survey submitted lengthy comments challenging the findings of the Phase 2 study.”

    “[a] clearly inadequate or unsupported study is entitled to no judicial deference.” (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 795.)

    “Moreover, the deference afforded an administrative agency is due to its “presumed expertise” in the arena within which it legislates. Here, however, the Geological Survey, not the District, is the state’s geology expert. (RJN,Exh. 1.) The Geological Survey testified at the hearing on Rule 1001 that the Phase 2 study does not establish off-highway vehicle activity as the cause of PM10 downwind of the dunes… The ostensible basis for the Rule is the Phase 2 study the District prepared, for which it has no particular expertise. In contrast, the Geological Survey – “the primary source of geological and seismological products and services for decision making by California’s government agencies” – offered a scathing critique of the study’s findings.” …the Court should heed, if not defer to, the designated State expert in “geological … services,” which found the Phase 2 study flawed and inconclusive.

    “…the District lacks any scientific evidence of a dune “crust.” As observed during testimony on the Rule: ‘Here’s what two of your own experts have to say. And I quote, while I have seen the crust out on the dunes first hand, I do not consider myself an expert on itself [sic] formation. This question would best be answered by a sand dune morphologist with local expertise, end quote. That was Tom Murphy, a contributor to the study and also, interestingly, one of the peer reviewers.Tom [Cahill], principle [sic] author of the study, had this to say, quote, I included a picture in my report. But beyond that, little is known. It appears to form in the presence of moisture, but when crushed, it appears to be just sand. We did not discover it in time to make [sic] depth chemical profile, which would have given infoon the presence of biological components and sea salt. We will do this on our owntime sometime, I’m sure. We want the question answered too, end quote.””

    “The District’s second theory is that there is less vegetation on the dunes than there otherwise would have been absent off-highway vehicle riding. Because “vegetated dune areas do not emit wind blown particles” (AR 2:310), a loss of vegetation increases downwind PM10 concentrations. However, since the dunes came under Parks’ management in the early 1980’s (AR 5:1004), vegetation on the dunes has actually increased… Between 1939 (prior to dune riding) and 2010, there has been a net increase in vegetation of approximately 650 acres. (AR 5:1005, 1024.) Even in the riding area, vegetation has increased during this same time period by nearly 200 acres. (Ibid.) Accordingly, the Phase 2 study does not demonstrate that off-highway vehicle riding has resulted in a decrease in vegetation…”

    The District contends that the dunes are a “contrivance.” (AR 5:988 [“State Parks is altering and operating a “contrivance which may cause the issuance of air contaminants”].) However, a contrivance “is generally thought of as a mechanical device.” (76 Ops. Cal. Atty. Gen. 11, citing Webster’s New Internat. Dict. (3d ed. 1966) pp. 123, 496; see also Black’s Law Dict. (6th ed.1990), p. 329, col. 1 [“An instrument or article designed to accomplish a specific objective and made by use of measure of ingenuity.”].) As Oceano Dunes functions neither as a “mechanical device” nor an “instrument,” it is not a “contrivance.”

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  6. isoslo says:

    The APCD should be disbanded, it is a colossal waste of taxpayer money!

    Well-loved. Like or Dislike: Thumb up 55 Thumb down 11

    • MaryMalone says:

      The APCD was developed as a valid environmental watchdog.

      However, any watchdog organization can be corrupted if those who make the decisions on how the organization will wield its powers are corrupt.

      You don’t get rid of a watchdog organization because those who administer it and form its policies are corrupt. You get rid of the corrupt administrators of the organization and install administrators who will use the organization’s powers for the public’s good.

      Hot debate. What do you think? Thumb up 13 Thumb down 38

  7. Disgusted says:

    Adam Hill is once again involved in controversy. His English lecturer skills must make him a scientific genius……in his eyes obnly.

    Well-loved. Like or Dislike: Thumb up 55 Thumb down 8

    • MaryMalone says:

      I think Adam Hill is an a$$hat. However, I have to say that any politician who is active in multiple government organizations is going to be involved in controversy, because some will see their positions and decisions as controversial, while others will believe their positions will be of sound merit.

      Like or Dislike: Thumb up 7 Thumb down 26

      • Kevin Rice says:

        I gave you a ‘thumbs up’ for at least one of your comments above.

        Adam Hill invokes the deeply pejorative “climate change denial” label, a phrase designed to reminisce “Holocaust denial”. In doing so, Hill uncovers his own bigotry held against any skeptic or scientist challenging the flawed air district study. Hill incredulously likens the California Geologic Survey experts and Attorney General Kamala Harris with Holocaust deniers and Flat Earth Society archetypes!

        At the same time, Hill, and a majority of the APCD Board, display their own distaste for skeptical science–proper science–by refusing to hear or contemplate the witness and testimony of experts. They accuse State Parks of not cooperating when, in fact, it is the APCD and its Board who have plugged their ears and refuse to deal and transact in a thinking, scientific, diplomatic manner.

        The APCD Board, as previously reported, is now seeking to achieve a force majeure coup via getting the Governor and other high public officials involved to undercut State Parks, the California Geologic Survey and the Attorney General—and, indeed, sound skeptical science itself. Enacting such an end-run around structured process steals the debate out of the public realm and due process of judicial review, instead bringing about a strong arm political trump card that has no place in public transparency and openness.

        The APCD and its Board have proven they have no harbor for process, comment, criticism or debate. They are one way, and it all points to themselves.

        So, yes, I agree with your first sentence.

        Hot debate. What do you think? Thumb up 29 Thumb down 8

      • Disgusted says:

        I like a$$hat!
        With Hill, who’s a puppy dog following Gibson every chance he gets, his opponent in the Supervisoral election actually understood the “scientific” report from the APCD. So, if Hill isn’t on the right side of this one, he’s exposed to all as the buffoon he is. JMHO.

        Like or Dislike: Thumb up 26 Thumb down 7

  8. racket says:

    Oughta be costly on the taxpayers, to have our government(s) feeding on each other. Nonetheless, I believe it’s a worthwhile suit to stymie a megalomaniac and an agency gone awry.

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  9. easymoney says:

    “The suit, filed on behalf of the California Department of Parks and Recreation, contends the APCD’s study found no correlation between riding activity and increased particulate matter blowing from the dunes, the study lacked a reliable control site monitor, there is no evidence of dune crust as claimed by the APCD and that vegetation has actually increased in the area since the park opened.

    In addition, the state noted numerous alleged procedural errors by APCD staff and consultants in its suit.”

    Oh, oh, aren’t facts and procedure a bitch?

    Well-loved. Like or Dislike: Thumb up 48 Thumb down 5

Comments are closed.