By Theresa-Marie Wilson

The California Appellate Court in Ventura last week ruled that the San Luis Obispo County Air Pollution Control District’s so-called Dust Rule was beyond the organization’s authority to regulate.
Rule 1001, adopted in 2011, required State Parks, which operates state vehicle recreation area (SVRA) in the Oceano Dunes, take responsibility for monitoring and reducing windblown particulate dust that exceeds state air quality standards that makes its way from the off-highway riding area to the Nipomo Mesa. The rule allowed for substantial fines of up to $1,000 per day if dust emissions were in violation of state and federal standards.
The APCD 2010 Phase 2 Particulate Study, which is the genesis for Rule 1001, said that SVRA off-road vehicular activities are an indirect source of higher concentration of particulate emissions in the air on the Nipomo Mesa.
Those higher concentrations were not the result of the direct dust that gets blown up from the wheels of OHVs that are moving across the dunes, but rather the ongoing vehicle activity prevents a natural crust from forming that you find in undisturbed dune areas, which holds the sand down pretty closely to the ground.
Another source of the problem is the lack of vegetation that can grow in the area because of the vehicle activity. Vegetation also keeps dust levels down.
The APCD said that state standards are violated about 65 days a year in the Nipomo Mesa area exposing residents to serious health risks.
It was the rule’s requirement that State Parks apply for an annual permit that created a sandstorm of legal grumblings.
In 2012, the Friends of the Oceano Dunes filed a suit against the APCD saying the rule “exceeds the district’s statutory authority.”
“Because air pollution control districts are precluded from regulating indirect sources of PM10 emissions, district asserts on appeal that fugitive dust/sand from the SVRA is a direct source emission,” the appellate court ruling said. “We reject this contention.  The argument would be plausible if a state park was operating a sand quarry or removing contaminated soil with machinery. The Legislature has provided that those activities are subject to regulatory permits. A sand dune, however, is an inert mound of sand. If off-road recreational vehicles cause or exacerbate PM10 emissions and District can regulate them, then any local air pollution district could 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.”
The APCD maintained that the state park is a “contrivance” because it has gates, fences, walking paths, access roads, signage, parking lots, and restrooms, meaning it is not something that occurs naturally, which causes the emissions of airborne particulate matter (sand and dust) from the dunes, which would fall in the APCD’s regulation purview.  In 2013, the San Luis Obispo County Supreme Court ordering in favor of the APCD agreeing with the contrivance definition.
The 2nd District Court of Appeal disagreed.
“The trial court ‘stretched’ to find a dictionary definition of the word ‘contrivance’ to describe a state park,” the appellate court ruling said adding, “Neither the trial court nor an appellate court is at liberty to pick a dictionary definition to reach a desired result. Thus, the trial court erroneously ruled that a local air pollution control district has the power to regulate air emissions emanating from a state park by a permit requirement.”
County Board of Supervisor’s 3rd District candidate Debbie Paterson publically took a lot of heat when she advocated against the legality of the APCD permit requirements.
In 2013, Peterson, who was then the mayor of Grover Beach and the city’s delegate on the APCD board, questioned the rule in an online petition that said in part, “The net result is that one state agency is requiring another to carry out and fund work and mitigation and then charging them again to monitor their work and then fining them if they don’t get the desired result.”
Peterson told Coast News that the recent ruling supports what her intentions were all along.
“Everything I urged the Air Pollution Control District board to address regarding the Dust Rule has now been unanimously supported,” she said. “The APCD board in their March 26, 2014 Consent Agreement addressed the issue of oversight, scientific process cessation of litigation between state agencies. Now three judges in the California Appellate Court have agreed that air pollution control districts do not have the authority to require a permit to operate from state parks. The APCD has the tools it needs to support better air. The time and money spent defending indefensible legislation would have been better spent on cleaning up the air. Now it’s time to set politics aside and focus resources on working together to improve air quality.”
The SVRA, formerly known as the Pismo Dunes State Vehicular Area, was created in 1974 for dune buggies and off-road recreational vehicles. The Oceano Dunes area attracts 1.6 million visitors each year and generates $170 million to the local economy.
The California Appellate Court ruling could be appealed to the state Supreme Court.