An appellate court has overturned the controversial dust rule affecting the Oceano Dunes off-highway vehicle park, but that won’t put an end to the state’s efforts to limit the amount of sand drifting from the off-road riding area.
That’s a relief.
OHV activity at the Oceano Dunes has been linked to unhealthy levels of particulate pollution on the Nipomo Mesa, where there have been numerous violations of both federal and state air quality standards.
The dust rule written by the San Luis Obispo County Air Pollution Control District was meant to remedy that, but an OHV advocacy group filed a lawsuit challenging the district’s jurisdiction over the state park. Last week, the Court of Appeal sided with the off-road group.
Although air pollution control districts do have the right to regulate emissions from “contrivances” — such as machines and heavy equipment — the court found that a state park is not a “contrivance,” and therefore, the district does not have jurisdiction.
While the case directly concerns only the Oceano Dunes, it has broader implications because — as the court ruling points out — it would open the door to allowing any local air pollution district to control “any recreational activity that combines with any natural phenomenon causing air pollution.”
“This would include boats on a lake, motorcycles in a desert and snowmobiles in a forest,” according to the ruling.
Here’s our take: If the law, as currently written, prevents air districts from intervening when there are harmful emissions from recreation facilities, it’s time for that law to change.
If residents are subjected to unhealthy levels of pollution from an off-road park or any other recreational area, they’re as entitled to protection as residents who live near apollutionemitting factory. And if local air boards don’t have the authority to regulate those sources of pollution, which agency does? We’re disappointed that the Court of Appeal ruled as it did, but if the decision stands, there is another remedy: The state Legislature could broaden the regulatory powers of air districts so they can inter vene when recreational activities are responsible for air quality violations.
If it comes to that, we strongly urge the Legislature to do so.
Any human activity that results in air quality violations — even if there is no traditional “contrivance” involved — should be subject to regulatory oversight, and air pollution control boards are the logical agencies to do so.
DUNES’ DUST CONTROL WILL CONTINUE DESPITE RULE’S STANDING
Under terms of an agreement between the San Luis Obispo County Air Pollution Control District and State Parks, dust control measures will continue, regardless of whether the dust rule is overturned or allowed to stand.
However, county air pollution control officials are not at all convinced the state’s plan will bring the park into compliance with air quality standards.
So far, the state has undertaken temporary measures — it installed sand fencing and hay bales to prevent sand from drifting out of the park — but air quality violations have continued. Recently, State Parks unveiled a more extensive, fiveyear plan that includes these proposed measures:
Planting up to 20 acres of native vegetation per year.
Temporarily installing up to 40 acres of wind fencing and/or straw bales.
Applying nontoxic soil stabilizers (The project would be piloted first).
Installing rumble strips or cattle guard-like devices at park exits to limit the amount of sand tracked onto Grand and Pier avenues.
County air pollution control officials criticized the plan, saying it doesn’t seem much different from the one already in place. The fiveyear proposal “artificially and unnecessarily limits” the extent of the project area and the scope of the dust control measures and, for those reasons, cannot be approved, the APCD said in a written response to State Parks.
The state’s plan must undergo environmental review, and a permit from the state Coastal Commission is required before the longterm program can begin.
In other words, stay tuned. The dust-up over the dunes is far from over.