Friends of Oceano Dunes accuses APCD of operating unlawfully
By KAREN VELIE
November 5, 2020
Friends of the Oceano Dunes is asking the San Luis Obispo County Air Pollution Control Board (APCD) to void all actions taken by the hearing board since Oct. 2017, contending the board was operating unlawfully at that time. This would include State Park’s agreement with the APCD to lower dust emissions on the Nipomo Mesa.
Air pollution control district hearing boards are required to have five members, one of whom is a licensed engineer, according to California Health and Safety Code 40800. Since Oct. 2017, the APCD did not have a licensed engineer on its hearing board.
The board did, however, have a hearing member who is also a professor of environmental engineering at Cal Poly. Yarrow Nelson received a Ph.D. in environmental engineering from Cornell University in 1997, but he is not a licensed engineer.
In the past, Friends of the Oceano Dunes — an off-roading organization with more than 28,000 members, has successfully sued the APCD over its regulatory actions related to the Oceano Dunes State Recreational Area.
In 2012, Friends sued the APCD, arguing the agency used flawed scientific practices in implementing the dust rule. The dust rule required state parks to reduce the particulate matter blowing from the Oceano Dunes or face fines of $1,000 per day.
Though it took several years and an appeal, Friends won the suit. In 2016, the court awarded Friends $378,273 for attorney’s fees and court costs.
But the APCD was not deterred. In 2018, State Parks entered into a stipulated order of abatement with the APCD. The order mandates that the state reduce wind-blown dust, specifically dust particles on the Nipomo Mesa by 50 percent.
The agreement was based on the APCD’s determination that 100 percent of airborne particulates blowing on the Nipomo Mesa is mineral dust from the Oceano Dunes. Recent reports from an ongoing study by the prestigious Scripps Institution of Oceanography found that only about 20 percent of the dust blowing on the Mesa is mineral dust that could have originated at the dunes.
In a letter sent last week, Friends notes it is “open to discuss settlement options to resolve the unlawful actions of this Board without litigation.”
Friends’ letter from attorney Thomas D. Roth:
Dear SLO APCD Hearing Board, Clerk and other Government Officials:
This firm represents Friends of Oceano Dunes, a California nonprofit Dunes 28,000 users of Oceano Dunes SVRA (“Friends”). This letter is sent on behalf of Friends and its members.
It has just come to Friends’ attention that the San Luis Obispo County Air Pollution Control District Hearing Board has been operating unlawfully for the past several years because it was not properly constituted during that time.
State law codified in the Health and Safety Code sets forth certain minimum requirements for hearing boards in air pollution control districts.
Health and Safety Code s 40800 requires that the Hearing Board consist of five members. Section 40801(b) provides that the Hearing Board “shall include certain members with special expertise and qualifications. One member “shall be “a professional engineer registered as such pursuant to the Professional Engineers Act (Chapter 7 (commencing with Section 67oo) Division 3 of the Business and Professions Code). This has been the law since 1975
The SLO APCD Hearing Board has met no less than five times since October 2017, and has taken action during these meetings.
During this time period, Yarow Nelson served on the Hearing Board and was held out as the person serving as the engineer in compliance with Health and Safety Code s 40801(b).
He also served as Chair or “acting Chair, so he was in a position to greatly influence on the Board. He also has greater powers under state law than other Board members. However, at no time during his tenure was Mr. Nelson a licensed engineer.
I understand that an alternate who served during this time was a licensed engineer so clearly a licensed engineer was available to serve. Also, applications during the past several months by at least three licensed engineers demonstrate an interest to serve on the Hearing Board by persons who meet state law qualifications.
The Hearing Board operates in excess of its powers and jurisdiction if it purports to take action by a Board that includes members who do not meet state law qualifications. That is what this Hearing Board has done since at least October 2017.
Accordingly, all actions taken by the Hearing Board from October 2017 through August 2020 exceed its authority and are void. This includes the Stipulated Order of Abatement and amendments to that Order. Indeed, Mr.Nelson pushed for the Stipulated Order and its Amendment and signed those Orders as Acting Chair.
Please immediately cease enforcing the Stipulated Order of Abatement as amended Friends is open to discuss settlement options to resolve the unlawful actions of this Board without litigation, but Friends requests that any such discussions commence within the next seven days.