SLO air district goes to court over rule on Oceano Dunes dust

In response to two lawsuits filed by a citizen and off-roading group, lawyers defend county air district’s attempts to regulate dust levels

dsneed@thetribunenews.comJanuary 24, 2013 

A motorcycle kicks up sand at sunset at the Oceano Dunes.

DAVID MIDDLECAMP — The Tribune Buy Photo

Should the San Luis Obispo County Air Pollution Control District regulate dust blowing off the Oceano Dunes?

Lawyers spent two hours arguing that question Thursday in San Luis Obispo before Superior Court Judge Charles Crandall. Two lawsuits have been filed against the air district challenging a controversial dust control rule that requires the State Parks to reduce the amount of dust blowing off of its Oceano Dunes State Vehicular Recreation Area.

Crandall opened the oral arguments by putting the plaintiffs on notice that they have a high bar to reach if he is going to find in their favor.

“I’m inclined to give a huge amount of deference to the air district in rulemaking,” he said, challenging plaintiffs’ attorneys to change his mind.

One of the lawsuits was filed by Friends of Oceano Dunes, a group that supports off-highway vehicle riding in the dunes. State Parks has filed briefs in support of Friends of Oceano Dunes as a real party-in-interest, meaning it has a substantial interest in the outcome of the case.

The other lawsuit was filed by San Luis Obispo resident Kevin P. Rice, who is asking that the air district board be required to hold another hearing on the dust rule to correct procedural irregularities.

Lawyers for Friends of Oceano Dunes and State Parks attacked the dust rule on numerous fronts, but most of the arguments challenged the science behind the rule as fatally flawed, alleging there is no clear correlation between OHV riding in the Oceano Dunes and high levels of dust downwind on the Nipomo Mesa.

“Taken together, the Health and Safety Code required the district to demonstrate both that there is a problem and that there are available solutions to cost-effectively alleviate the problem before it adopted the rule,” said Deputy Attorney General Mitchell Rishe, representing State Parks. “The district did neither.”

Ray Biering, counsel for the air district, countered that a peer-reviewed scientific study by the district clearly showed that dust levels downwind of the riding area are higher than those downwind of where no riding occurs. The district met the legal criterion of showing a rational connection between dust reduction and the rule, and it did not need to show a definitive causation between the two, he said.

Biering showed Crandall two enlarged photographs, one showing the Oceano Dunes on a calm day and the other showing them on a windy day. The windy day photo showed a large plume of sand blowing off the riding area with little sand blowing off the adjacent, nonriding area.

“The district showed conclusively that there is a cause and effect, so the (air district) board was duty bound to solve the problem in the most reasonable manner possible,” he said.

As a result of the dust rule, State Parks has identified revegetation of the dunes, placing hay bales among the dunes to disrupt wind flow and installing wind fences as possible ways of reducing blowing dust. Air quality on the Nipomo Mesa violates state standards an average of 70 days per year because of high particulate levels.

Crandall took the matter under consideration. He did not say when his ruling would be released, only saying that it would be as soon as he could.

“It’s not my first priority, but it’s on the runway,” he said.

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