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APCD litigation

A loss of $378,273 for clean air

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In 2013 I took a huge political risk—one that was widely used against me. The San Luis Obispo Air Pollution Control District (APCD) board had one meeting left before creating and implementing Dust Rule 1001 requiring the Oceano Dunes State Vehicle Recreation Area (SVRA) to have a permit to operate. I made a last-ditch effort to give the board political cover to reconsider by drafting the petition of a local business group calling for the repeal of the Dust Rule.

Had that meeting been held, the APCD would have saved millions of dollars. Instead, the day of the meeting five board members and their alternates were absent, canceling the meeting due to the lack of a quorum. So now, five years since the dust rule was proposed, we are $378,273 poorer.

What if that meeting had been held? The board could have reviewed the permit one final time, saving face and resources, rather than heading into fights against long costly lawsuits. Several board members agreed that a memorandum of understanding to regulate sand blowing from the SVRA was preferable to requiring a permit to operate the park. The health and safety code required that the board make findings of necessity, authority, clarity, non-duplication, reference, and consistency.

I asked the board to “mitigate, not litigate.” I could not support a finding of necessity, because it was not necessary to require State Parks to have a permit to operate in order to access State Parks’ deep pockets to pay for mitigating dust blowing inland from park lands.

I said a local agency did not have the authority to require a state agency to have a permit to operate.

I argued that the dust rule lacked clarity because it was unclear what was being permitted—was it vehicles in the dunes, or was it operating a state park?

Finally, I argued that the finding of consistency did not exist because no other park is required by an air pollution control district to have a permit to operate.

I voiced an alternative view to that of SLO County 3rd District Supervisor Adam Hill. He called me a “disgrace” for questioning legal costs, in the same manner he proposed that state geologist Will Harris be fired for expressing the view that a memorandum to operate is the appropriate vehicle for the dust rule.

In the May 29, 2013, board meeting Hill obfuscated:

I think the board at some time needs to consider this is an ongoing pursuit by Miss Peterson at a great expense to the taxpayers that we want to hire a legal consultant that Miss Peterson bear the cost from it. It just seems excessive, squandering public resources. The questions I heard just on the last item from Miss Peterson essentially questioning the effectiveness of our counsel, who is very well regarded as a public agency attorney and considered one of the best litigators in our county, despite the fact that he won the most recent case and has won most of the cases that have come before him. I don’t think that that’s the best use of our public resources. We are seeing enormous amounts of staff time being put in with no great public interest being served.” 

Last year the California Appellate Court ruled that the APCD could not require a permit to operate from State Parks. This month, Superior Court Judge Charles Crandall ruled that the APCD must pay $378,273 in court costs. This is only one of four cases and doesn’t include legal costs and time of the courts, State Parks, the attorney general, the Air Resources Board, or APCD.

Adam Hill’s comments do a fine job of outlining his APCD activities of the past five years—enormous amounts of staff time with no public interest being served at great cost to the public. Perhaps Hill should use a legal consultant and bear the costs he engineered by circumventing the democratic process.

The disgrace is that local representatives collaborated to stifle alternative views without regard for the mission of their agency, for political purpose. The disgrace is that the press and media supported them. The disgrace is that the interests served are not the interests of the public and not the interests of clean air. The disgrace is that millions of dollars intended for clean air will be diverted while the air pollution control officer and lawyers get rich as government agencies duke it out. 

Debbie Peterson is the former mayor of Grover Beach and a former member of the APCD board. Send comments through the editor at clanham@newtimesslo.com.

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