California Attorney General files lawsuit against local air district

“…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.”“