APCD board split over Oceano dunes dust rule

May 28, 2015

By JOSH FRIEDMAN and KAREN VELIE

The San Luis Obispo County Air Pollution Control District is attempting to rehabilitate its Oceano Dunes dust rule, but in the aftermath of an appellate court ruling against the regulation, some members of the APCD board are calling for the district to find a less litigious plan for dealing with wind-blown sand.

In November 2011, the APCD adopted the dust rule which requires the California Department of Parks and Recreation to reduce the amount of particulate matter blowing from the Ocenao Dunes off-road vehicle area or face fines of $1,000 per day. The rule is based on a contested study that concluded off-road activity on the dunes has caused an increase in pollution on the Nipomo Mesa.

Last month, the 2nd Appellate Court in Ventura ruled that the APCD does not have the authority to regulate air emissions at state parks through the permit process. The dust rule, as adopted, required state parks to obtain a permit from the APCD in order to operate the dunes riding area.

Some observers say the appellate court ruling voided the entire dust rule. But, air district chief Larry Allen says the APCD can keep the dust rule in place, so long as the board amends it by removing the permit requirement provision before heading back to court.

At an APCD board meeting Wednesday, Allen requested that the board make the change and keep the dust rule intact. San Luis Obispo County Supervisor Bruce Gibson, a board member and lead proponent of the dust rule, argued in favor of Allen’s position.

While making the case for keeping the dust rule, Gibson said several times that he was attempting to appeal to the reasonable members of the board.

But, some board members, particularly Arroyo Grande Councilwoman Barbara Harmon, argued the APCD should pursue a memorandum of understanding (MOU) with state parks, rather than fighting to preserve the dust rule. Board members calling for an MOU point to the Hollister Hills and Ocotillo Wells state off-road riding areas, for which state parks has MOUs with the local air districts.

Proponents of an MOU also noted that air pollution on the Nipomo Mesa has not exceeded federal limits on any day thus far in 2015. Park management put in place a massive plastic fence that appear to have somewhat mitigated dust levels.

In addition, Oceano Dunes Superintendent Brent Marshall continues to direct State Parks to plant greenery to help trap blowing sand, though because of the drought those efforts have been reduced.

“We clearly heard the board is interested in options,” Marshall said. “We can work with the APCD director to educate him. We are going to work with the APCD to look at all options. MOUs are very successful and less litigious.”

APCD Director Allen did not agree. He argued that an MOU would not provide the APCD with enough enforcement authority. Allen also said he does not have enough time to draft an MOU.

The MOU supporters argued that the appellate ruling voided the dust rule. They also said the county and air district still face a combined total of three costly lawsuits that have already cost the district over a $1 million.

San Luis Obispo Mayor Jan Marx, who sided with Gibson and Allen, said the district should move ahead with amending the dust rule and not take into account the cost of the lawsuits.

Gibson’s motions to amend the dust rule failed. In the past, the districts legal counsel has argued the dust rule and the permit are inseparable. However, the appellate court disagreed with attorney Ray Biering.

Ultimately, the board voted Wednesday to table the discussion until its June 17 meeting. The board also directed APCD staff to explore the possibility of creating an MOU with state parks.

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