APCD ordered back into court over dust rule

July 31, 2014

oceanoBy JOSH FRIEDMAN

A California appellate court rejected an agreement Tuesday that could have settled the San Luis Obispo County Air Pollution Control District’s legal battle over its controversial Oceano Dunes dust rule.

Adopted by the APCD board in 2011, the dust rule allows the district to levy daily fines on California state parks if it does not reduce the amount of dust flying from the Oceano Dunes off-road vehicle area to the nearby Nipomo Mesa. The passage of the rule prompted three lawsuits, including ones from state parks and from off-road advocacy group, Friends of the Dunes.

In March, state parks agreed to drop its lawsuits against the APCD after the two agencies came to terms during a closed-door meeting and filed a joint motion requesting approval of their settlement.

The agreement stipulated that the APCD would eliminate a section of the dust rule requiring state parks to obtain a permit in order operate the off-road vehicle area of the dunes. In addition to dropping its lawsuit, state parks would reimburse the air district for costs incurred implementing the dust rule.

But, Friends of the Dunes, which did not participate in the negotiations between the two agencies, appealed the settlement. Friends argued that APCD and state parks reached an illegal settlement because they opted to amend a regulation without holding a public hearing.

On Wednesday, California’s second district court of appeals denied the motion filed by the two agencies requesting approval of their settlement.

The court’s decision to reject the proposed settlement will allow Friends of the Dunes to continue litigating. Friends has been attempting to persuade the courts to throw out the dust rule in entirety since it filed suit in Jan. 2012.

Friends lost its case in San Luis Obispo Superior Court but opted to appeal the decision. Even if the appellate court rejects the request to void the dust rule, it could force the APCD to pay for Friends’ legal fees.

As a result of Wednesday’s decision, state parks also remains in the process of suing the air district.

The APCD may be able satisfy state parks by holding a public hearing in which the district’s board would strike the section of the dust rule requiring the permit to operate the off-road vehicle area. However, state parks could still return to litigating against the district.

State parks has already spent $1 million attempting to reduce the amount of dust flying out of the off-road riding area.


Loading...
mustangglp

Kevin what happened to the data from the ten commandments site that showed the pm level as high as down wind from the OHV area? Was it ever used in Court?

As far as I can tell it was wiped from the apcd website.


Kevin Rice

The instruments at Ten Commandments (Guadalupe Beach) were buried in sand, indicating much higher sand flux than down wind of the OHV area. However, the “scientists” at APCD did not take photographs, did not take measurements, did not take notes—they simply pulled out the equipment and wrote a note in the appendix (not in the report itself) that the data was bad. THEY BURIED IT.


Pelican1

For all those “non-believers” please clarify what you are referring to. It looks like many simply don’t get it.


Kevin Rice

Certainly. For the study, equipment was installed at a number of sites to measure sand movement. Some sites were down-wind of the riding area, others—like Oso Flaco Lake—are down-wind of a non-riding area. Equipment was installed at Guadalupe Beach (Ten Commandments site) because it is the only nearby vast open sand fetch where there is no riding. The equipment at Ten Commandments was overrun and buried in moving sand. Instead of documenting sand movement at Ten Commandments non-riding area was so extreme the equipment was buried, the APCD simply wrote that the data was invalidated.


The APCD study is an unscientific fraud for this, and many other reasons.


whatisup

Dr. Thomas Cahill of the University of California Davis was a lead author of the study. He ran a company called the Delta Group that was hired by the SLO APCD to complete much of the study. Thomas Cahill happens to be a personal friend of a County Supervisor and APCD Board member.

The Delta Group used off the shelf testing equipment they modified with no input from the testing equipment manufacturer. In addition, the Delta Group never had their test equipment calibrated by an independent testing lab as required by the California Air Resource Board regulations. This alone disqualifies the entire study, but there is more.


The Study authors in the main part of the study presented the data from the Delta Group as being good data. Only in the appendix of the 1000 page study was there a note that the Delta group realized their data readings for the amount of particulate matter (PM10) were faulty. The note says the readings for the amount of PM10 are inaccurate and they don’t actually know the amount of PM10 at these sites. All they were sure of was the relative readings were accurate, i.e., they could tell when more PM10 was in the air or when there was less, but did not know the accurate amounts of PM10. They further added that due to this flaw in the data the study should not be used for health concern purposes.


Yet, that is exactly what the SLO APCD did — tried to use the study to get an emergency order to immediately shut down the dunes to off road vehicles for health reasons. Due to certain County Supervisors’,SLO APCD Board members’ and SLO APCD Staff’s extreme desire to have the dunes closed to off road vehicles the conspired knowingly and together to try to fake the study to make it look like there were extreme health hazards due to blowing sand caused by the off road riders.


These people knowing colluded to perpetrate a criminal fraud and should be held criminally accountable.


mustangglp

When APCD did the original study they included data from then commandments filming area which is located south of the OHV area and not influenced by OHV use.

It does how every have the same wind patterns and natural vegetation free dunes.

It showed just as high as PM 10 as the OHV area This Data was latter removed from the

reports It looks like the area was avoided when they installed new sensors

Witch in my mind shows intent to comet fraud on the part of the APCD Part as this area most closely represents the natural state of the dunes !


Mike Byrd

What the APCD ultimately agreed to was essentially what State Parks and Mayor (“mitigate don’t litigate”) Peterson suggested in the first place – work cooperatively to address the problem and don’t require a permit. The voting majority on the APCD board decided otherwise and now we’re stuck in this expensive mess. Not exactly government at its finest.


pasodowny

No, but it is Gibson at his finest, if you could call it that. Along with Hill, Marx, and Smuckler.


Jorge Estrada

Yes, the down winders get dust and always will, ORV’s or not. If this is a serious health hazard, as claimed by the APCD, there should be a required disclosure on every real-estate transaction within that defined area. Disclosures are required for every known negative impact.


Mike Byrd

Agreed. I wouldn’t represent a home buyer on the west mesa without referring them to the APCD. I hope sellers and listing agent are including that information in their Transfer Disclosure Statements also.


analyticone

In December 2013 Mayor Peterson made a presentation to the Pismo Coast Association of Realtors. At that meeting the president advised all brokers that there should be a disclosure that high winds create blowing sand in Nipomo. The Association has now also advised that the concerns regarding water should also be disclosed.


Jorge Estrada

Don’t forget the negative impacts on your mental health, self evident, by the squelching of public comments as well as public access through radio broadcast.

This gives staff the last words before the Board of Supervisors which lately have new stage rules “shut up” making proposed new taxes / fees an assured dormant cost.


Kevin Rice

The Board of Supervisors, in conjunction with the APCD, recently unanimously voted that there is no substantial health impact from ambient dust when approving the Cypress Ridge phase 2 tract (owned by a Caren Ray contributor). Cypress Ridge residents are 50% over the age of 65, which means both the Supervisors and APCD feel there is no problem putting elderly sensitive receptors in this area. Bet you didn’t know that.


Kevin Rice

“Based upon that evidence as well as extensive APCD investigation and conclusions, the level of particulate matter in the project area [Cypress Ridge 2] does not rise to a level of a significant health concern to sensitive groups.”


Motion by Caren Ray; Second by Adam Hill. Unanimous approval.

[BOS, Tuesday, April 22, 2014. Item 31.]


topper01

Nipomo Mesa is a Sand Dune. Always has been – always will be. You can point fingers anywhere you like, but the bottom line is ~ it’s a sand dune.


Kevin Rice

*** FOR IMMEDIATE RELEASE


VENTURA — Yesterday, the Second Appellate District Court in Ventura rejected the consent decree proposed by SLO County Air Pollution Control District (APCD) and State Parks intended to resolve litigation of APCD’s Rule 1001—the “Dust Rule”—filed by Friends of Oceano Dunes January 4, 2012. The Court denied a joint motion made by APCD and State Parks to dismiss the litigation and repudiated the proposed consent decree, ruling as follows:


“We deny the joint motion to dismiss and request for approval of the consent decree filed by respondent San Luis Obispo County Air Pollution District and real party-in-interest/appellant California Department of Parks and Recreation. We vacate our previous order staying further proceedings in this appeal. California Department of Parks and Recreation’s opening brief is due 30 days from the date of this order.”


[Link to court docket: http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=2046152&doc_no=B248814%5D


The Court also lifted a stay imposed to delay proceedings while APCD and State Parks negotiated together with the California Air Resources Board (CARB).


On March 26, 2014, APCD distributed a press release announcing its “Board took action to sign a Consent Decree with California State Parks to jointly petition the Court of Appeal to approve the Consent Decree and dismiss all appeals in the pending litigation related to implementation of Rule 1001 (APCD’s Oceano Dust Rule).”


The joint motion and consent decree was the product of months of closed-door negotiations between APCD, State Parks and CARB which excluded plaintiff Friends of Oceano Dunes. Those negotiations took place after APCD and State Parks moved for a stay of the proceedings in a motion filed September 20, 2013. (See ATTACHMENT, “Joint Motion for Stay of Appeal”.)


Denial of the consent decree and vacating the stay now opens the door for Friends of Oceano Dunes to resume litigation against APCD’s Rule 1001, the “Dust Rule.”


[Press Release: http://slocleanair.org/images/cms/upload/files/Press_Release_26Mar_Consent_Decree_Rule_1001%281%29.pdf%5D

[SLO Tribune: http://www.sanluisobispo.com/2014/03/26/2991498/slo-county-air-board-state-parks.html%5D


THE FAILED CONSENT DECREE


The rejected consent decree contained three major aspects (below). One of the main points of opposition Friends of Oceano Dunes took against the consent decree is that it illegally altered Rule 1001 without the required legislative action of the APCD Board. Cities, counties and the state pass laws via their legislative bodies (councils, supervisors, and state congress). Similarly, the APCD has a Board. The consent decree essentially changed law without any legislative vote, public comment, notice or hearings. The consent decree was decided in closed-door meetings without any public input at all!


1. PERMIT REQUIREMENT ERASED


The proposed consent decree would have erased the permit requirement of Rule 1001 which was hotly debated when Rule 1001 was adopted by the APCD Board on November 16, 2011. The proposed consent degree states, “State Parks will not be required pursuant to this Consent Decree to obtain a ‘Permit to Operate.'”


At the November 2011 board meeting, nearly three years ago now, State Parks Division Chief Phil Jenkins testified that the operating permit requirement would actually hamper State Parks from putting dust mitigations in place quickly, stating, “…our concern about an operating permit, is an operating permit could potentially put constraints on us. We don’t feel that’s appropriate.” [ATTACHMENT: Board Transcript, at p. 153, lines 21-24.] A State Parks letter, dated November 2, 2011 stated, “The APCD may not impose a requirement to obtain an operating permit for an indirect emission source.”


The non-profit organization, Friends of Oceano Dunes, also opposed the permit requirement. A November 2, 2011 letter from Friends’ attorney proclaimed, “SLO APCD is exceeding its authority by attempting to impose regulatory controls on a permittee for natural events which are not ’emissions’.”


2. BEST MANAGEMENT PRACTICES (BMPs) EMBRACED


The proposed consent decree also would have established “…an iterative process of mitigation actions, evaluation, and revision to achieve the immediate goal of meeting the PM standard…”


This is a precise description of “Best Management Practices” (BMPs), a phrase coined by the forestry industry meaning implementation of methods that consistently show superior results by evaluating current results to evolve and adopt improved techniques as they are discovered.


State Parks, Friends of Oceano Dunes, and APCD Board members Ed Waage, Roberta Fonzi, and Frank Mecham all asked for BMPs under cooperative agreement at the 2011 board meeting. Instead, the APCD refused the offer of cooperation and opted for the heavy-handed “Dust Rule” which rejects BMPs and imposed the contested permit to operate requirement.


APCD has continually postured and castigated State Parks as uncooperative when, in fact, State Parks has always cooperated with APCD and made numerous documented concessions.


Parks Chief Jenkins testified on September 28, 2011 in front of the APCD Board, “We really feel quite strongly that the rule should be looking instead at best actions to take and since there are no clear Best Management Practices for the dunes at this point, we’re going to have to come to those together. And that’s where — and we concur with what Larry [Allen] was just saying, that it needs to be an iterative process.” [Transcript, Sept 28, 2011. at p. 72, lines 19-24.]


Director Frank Mecham opined, “I’m very uncomfortable with a Fugitive Dust Rule… So I’m really concerned about where this would go from a Fugitive Dust Rule. At this point I’m looking more at the Best Management Practices.” [Transcript, Sept. 28, 2011. at p. 135-6, lines 13-14, and 4-9.]


Director Roberta Fonzi commented, “Best Management Practices are something that we have all dealt with as city officials or county officials, and we’re very familiar with how they’re put into place an know that they can be tweaked and made to work better than a hard statistical or numeric standard… I feel more comfortable with the concept of looking at putting the Best Management Practices into place.” [Transcript, Sept. 28, 2011, at p. 134, lines 3-12.]


Director Ed Waage stated, “I like the idea of the Best Management Practices…” [Transcript, Sept. 28, 2011, at p. 132, lines 20-21.]


Pismo Beach Mayor Shelly Higginbotham, in a November 3, 2011 letter, wrote, “…cooperation is more likely if the draft rule is modified to require a Best Management Practices program instead of the punitive measures as currently written.”


Friends of Oceano Dunes wrote in a November 15, 2011 letter, “The district has failed to allow the implementation of alternative methods of emission reduction, emissions monitoring, or record keeping through State Parks’ implementation of best management practices.”


3. SPECIAL MASTER


The proposed consent decree further contained a mechanism to resolve disputes without litigation. It called for appointment of a “special master” who would act as a mediator.


APCD CHOSE LITIGATION OVER COOPERATION


State Parks stood ready to implement Best Management Practices, including undertaking immediate dust mitigation actions in 2012. It was APCD who refused to cooperate and took a hard-line stance instead. APCD chose litigation along with the ensuing delays and expense.


In spite of all the 2011 support favoring Best Management Practices and opposing a permit requirement, the APCD Board narrowly voted to approve Rule 1001 in a 7-4 vote, with Grover Beach Councilmember Karen Bright abstaining (despite having been directed by her Council and Mayor John Shoals to oppose Rule 1001 during a November 7, 2011 city council meeting). [See Grover Beach council minutes, Item 8.]


Friends of Oceano Dunes had delivered clear notice that it was their intent to litigate if Rule 1001 was passed as proposed. San Luis Obispo resident, Kevin P. Rice, also conveyed intent to seek judicial review of the passage of Rule 1001, if passed.


APCD passed the rule and Friends filed suit on January 4, 2012. Rice filed suit on January 17.


APCD REVERSES AFTER 2-1/2 YEARS OF LITIGATION


The consent decree proposed by APCD and approved by unanimous Board vote in March this year, reverses and goes back to exactly what State Parks, Friends of Oceano Dunes, and the minority Board members were asking for in November 2011. The permit to operate requirement was removed, and Best Management Practices embraced.


After 2-1/2 years of litigation, the APCD Board has agreed to go with what was asked for in the first place! At what cost?


GROVER BEACH MAYOR PETERSON OUSTED FOR BEING RIGHT


Meanwhile Grover Beach Mayor Debbie Peterson was placed on the APCD Board in 2013, replacing Councilmember Karen Bright who failed to vote on Rule 1001 as her council led by then Mayor John Shoals directed in 2011. Peterson adopted a “Mitigate, not litigate” position, essentially supporting the four existing APCD Board members who had voted against Rule 1001. Also in 2012, Supervisor Debbie Arnold replaced former Supervisor Jim Patterson.


The addition of Peterson and Arnold to the APCD Board caused the de facto 2011 seven vote board majority to be reduced to six—an even split, which upset politicians and activists supporting Rule 1001. Because all county supervisors automatically sit on the APCD Board, Arnold’s position is untouchable until the 2016 election. Thus, activists targeted Peterson and pressured Grover Beach City Council to remove her from the APCD Board.


Peterson vocally opposed Rule 1001 along with several other board members. However, she was falsely cast as an outlier, standing alone. Peterson supported Best Management Practices, oversight and replacing the inflexible permit requirement with alternative measures that would be more in line with common practice and would protect the APCD from court action. At the same time, she raised the ire of fellow Councilmember Bill Nicolls when she was voted into his long-held seat on the South SLO County Sanitation District, replacing him. The Sanitation District was flailing financially. Peterson initiated a major turnaround and the Sanitation District budget is now well into the black for the first time in years—district spending was reduced by hundreds of thousands of dollars. Despite this major change for the public good, Nicolls was irate and seeking retribution.


Nicolls eventually moved that Grover Beach remove Peterson from the APCD board, and with the political manipulation of Supervisor Adam Hill, the Grover Beach council did just that.


http://www.sanluisobispo.com/2013/07/16/2585688/oceano-dunes-petition-spawns-dust.html

http://www.newtimesslo.com/news/10387/peterson-gets-punted-from-the-apcd-board/


Debbie Peterson became the front page story of the Los Angeles Times:

http://www.latimes.com/local/la-me-grover-beach-dust-20140312,0,6168543,full.story


The ironic outcome, however, is the APCD consent decree adopted the exact same positions Mayor Peterson had fought for: Elimination of the permit to operate requirement, and implementation of cooperative mitigation—”Mitigate, not litigate.”


Peterson was right, and the APCD board unanimously endorsed her positions in the proposed consent decree.


WHAT NOW? MORE LITIGATION.


The Court’s rejection of the consent decree and vacating of the stay of proceedings now restarts Friends of Oceano Dunes’ litigation against Rule 1001.


The APCD and its board has to do better. To fulfill its role of protecting air quality, it must not continue its hard-line stance, inviting litigation, and squandering resources and money in court that should be directed cooperatively toward public health. APCD was pleaded with in 2011 to work cooperatively. A bare seven vote majority of the APCD Board—there are twelve members—adopted Rule 1001 over the opposition of the minority members, State Parks, Friends of Oceano Dunes, several local government councils, and hundreds of members of the public.


It would be irresponsible to say that Friends has won at this point. Nevertheless, Friends appears to have won certain issues. It seems the permit to operate requirement has been conceded, and Best Management Practices destined to be employed. These wins are enough that Friends may eventually be considered the “prevailing party” when litigation finally ends some unknown date in the future. If that occurs, Friends could seek repayment for their legal costs under Code of Civil Procedure section 1021.5. That could cost the APCD and the public major dollars that should have been conserved for cooperative solutions.


The APCD chose litigation. They chose badly. It’s been three years and counting…


# # #


Moderator

Press releases can be submitted to the email’s to the right, an excerpt and link is customary and acceptable


“Do not submit comments containing large blocks of text, lists, the text of long court filings, copyrighted song lyrics, and such from any source, an excerpt and link is customary and acceptable.”


Kevin Rice

In that I am the author, it wasn’t copied from any “source”, nor is there a link as the material is unpublished elsewhere.


MajorityFan

Save it for your book.


Moderator

What part of “Do not submit comments containing large blocks of text, lists,” is not clear?


Thanks for your understanding, links and excerpts are welcome.

Have your say, we just don’t want wall’s of text to become a thing.


Fun fact: in the comment dustbin there are chapters from books, full lawsuits, sections of the bible, full text government regulations and more…..


Further discussion or !/? > moderator@calcoastnews.com


Kevin Rice

No.


MarkGB

Our wonderful APCD needs to fine Mother Nature because she’s the one blowing the sand (mostly) and dust (much lesser amount) into Nipomo. You can see this when you drive northbound on the 101 through Santa Maria on very windy days. In fact the particulate matter blowing into Nipomo isn’t any greater on the weekends when there are much more ATVs and dune buggies playing in the dunes.


Pelican1

A palling

P lundering

C orrupt

D ysfunctional

Any questions?


TacomaRose

This is truly a WTF scenario.


One governmental agency (APCD) suing another governmental agency (State Parks) with another governmental agency (Appelate Court) deciding the outcome.


Guess what folks? You know who funds all of these entitiesand the legal wrangeling? Thats right folks ….. its us the taxpayers.


This is a circus at best……………


Step right up, folks

And see Little Egypt do her

Famous dance of the Pyramids


She walks, she talks

She crawls on her belly

Like a reptile


Just one thin dime

One tenth of a dollar

Step right up, folks


Mr. Holly

Have to agree. Insanity at its best.

Don’t forget to vote for all of these tax increases, bond issues and for those politicians who support these measures or have voted for them in the past.


Pelican1

They say imitation is the greatest form of flattery…lol


Kevin Rice

Not exactly accurate. State Parks isn’t suing. They were named as a “Real Party-In-Interest”, meaning they have the right to weigh-in on the lawsuit. Initially, State Parks took the side of Friends of Oceano Dunes (during the local superior court trial). Since the suit was appealed, State Parks negotiated the “Consent Decree” and won concessions from APCD—that has caused them to take the side of APCD during the appeal (since they got some of what they wanted—no permit requirement and Best Management Practices).


Perspicacious

Way to go Friends, Kevin, et al. Put this worthless APCD in their place. Good grief! Paying that chump Larry 200k+ to send out press releases on windy days saying theere might be dust in the air?! APCD, IWMB, and all the rest of those useless unelected organizations filled need to be disbanded now!


Perspicacious

…was supposed to read, “…filled by useless bureaucrats…”


Kevin Rice

FYI– My lawsuit pertained to procedural deficiencies in the legislative process that adopted Rule 1001. I chose not to appeal my case. The Friends case is separate and I have no part in it.


Perspicacious

Gotcha…