Oceano Dunes dust rule still valid, judge rules
March 14, 2016
By JOSH FRIEDMAN
Less than a year after a California appellate court struck down a key provision of the Oceano Dunes dust rule, a San Luis Obispo judge has ruled the rest of the controversial regulation should remain intact.
San Luis Obispo County Air Pollution Control District’s (APCD) dust rule, formally called Rule 1001, requires state parks to reduce the particulate matter blowing from the Oceano Dunes State Vehicular Recreation Area or face fines of $1,000 per day. The rule is based on a contested study that concluded off-road vehicle activity on the dunes has caused an increase in particulate matter blowing to the Nipomo Mesa.
In 2012, off-roading organization Friends of Oceano Dunes sued the APCD, arguing the agency used flawed scientific practices and failed to prove off-road vehicle activity caused an increase in pollution on the Nipomo Mesa. In 2013, San Luis Obispo Superior Court Judge Charles Crandall ruled against Friends of Oceano Dunes, saying the Oceano off-roading area should be considered a man-made device and as such regulated by the air district’s dust rule.
Last April, the 2nd District Court of Appeal overturned Crandall’s ruling, saying he erroneously ruled that an air pollution control district has the power to regulate emissions from a state park by a permit requirement. As adopted, the dust rule required state parks to obtain a permit from the air district in order to operate the riding area.
The appellate court ruling left uncertainty as to whether the remainder of the dust rule was still valid.
On March 7, Crandall ruled that the removal of the permit requirement does not void the entire dust rule and that the APCD retains the power to enforce the dust rule through civil penalties and other coercive action.
“Given the significant costs and genuine health concerns underlying Rule 1001, this court must be careful not to discard it entirely without having solid reasons to do so,” Crandall wrote. “Requiring new rulemaking under the circumstances present here would be wasteful, unnecessary and inappropriate.”
Friends of the Dunes did not respond to questions about a second appeal.
Last year, the APCD board spent months debating whether to keep the dust rule in place or to negotiate an alternative agreement with state parks. APCD staff and proponents of the dust rule argued the regulation is necessary to protect public health on the Nipomo Mesa.
Opponents insist the science behind the rule is flawed, and they say the air district adopted the regulation as a financial means to cover APCD salaries.
Last June, state geologist Will Harris told the APCD board the dust rule is pointless because natural background levels of dust are actually higher than the current levels. Harris recommended the APCD scrap the dust rule and pursue a memorandum of understanding (MOU) with state parks.
County supervisor and APCD board member, Adam Hill, responded to Harris by saying perhaps someone would talk to his bosses in Sacramento. Supervisor Bruce Gibson followed through on the threat with a letter to the state’s chief geologist.
The California Geological Survey then demoted Harris.
The APCD and San Luis Obispo County have faced several lawsuits pertaining to the dust rule and regulation of the off-road riding area. It has already cost the district alone more than $1 million to fight the lawsuits.