CALIFORNIA DEPARTMENT OF PARKS AND RECREATION’S OPENING BRIEF

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Parks’ Opening Brief in Support of Petition (CV 120013)

KAMALA D. HARRIS Attorney General of California CHRISTINA BULL ARNDT Supervising Deputy Attorney General MITCHELL E. RISHE Deputy Attorney General State Bar No. 193503

300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-6224 Fax: (213) 897-2801 E-mail: [email protected]

Attorneys for Real Party-in-Interest, California Department of Parks and Recreation

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN LUIS OBISPO

FRIENDS OF OCEANO DUNES, INC., a California not-for-profit corporation,

Plaintiff and Petitioner,

v.

SAN LUIS OBISPO COUNTY AIR POLLUTION CONTROL DISTRICT, a local air pollution control district, et al.,

Defendant and Respondent.

Case No. CV 120013

REAL PARTY-IN-INTEREST CALIFORNIA DEPARTMENT OF PARKS AND RECREATION’S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE

Date: January 24, 2012 Time: 9:00 a.m. Dept: 9 Judge: Hon. Charles S. Crandall Trial Date: January 24, 2013 Action Filed: January 4, 2012

CALIFORNIA DEPARTMENT OF PARKS AND RECREATION, a department of the State of California, et al.,

Real Party-in-Interest.

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TABLE OF CONTENTS

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Introduction ..................................................................................................................................... 1

Statement of Facts and Standard of Review ................................................................................... 4

Argument ........................................................................................................................................ 5

I. The District has not identified a “problem that the proposed rule or regulation will alleviate” ......................................................................................... 5

A. The Phase 2 study does not show a “problem” ........................................... 6

1. The Phase 2 study found no correlation between riding activity and PM10 concentrations ................................................... 7

2. The Phase 2 study lacked a reliable control site monitor ................ 8

3. The California Geological Survey refuted the Phase 2 study ......... 9

B. The District cannot explain how off-highway vehicle riding contributes to PM10 exceedences ............................................................. 10

1. There is no evidence of a dune “Crust” ........................................ 11

2. Vegetation has increased at Oceano Dunes .................................. 12

C. The District has not determined that the Rule will alleviate PM10 .......... 14

II. The District lacks authority to require a permit for a coastal dune vehicular activity area ........................................................................................................... 14

A. Oceano Dunes is not an “article, machine, equipment or other contrivance” .............................................................................................. 15

B. A permit system interferes with the Legislature’s mandate that Parks operate State Vehicular Recreation Areas ....................................... 15

III. Rule 1001 lacks clear standards ............................................................................ 16

A. Rule 1001 unlawfully delegates the Board’s legislative authority to the District’s Air Pollution Control Officer. ............................................. 17

B. The Rule is susceptible to outcome-driven monitoring. ........................... 20

IV. The District failed to evaluate the cost-effectiveness of the Rule ......................... 21

Conclusion .................................................................................................................................... 24

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TABLE OF AUTHORITIES

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CASES

Agnew v. City of Culver City (1956) 147 Cal.App.2d 144 ............................................................................................... 18, 19

American Coatings Assn., Inc. v. South Coast Air Quality Dist. (2012) 54 Cal.4th 446 ......................................................................................................... 9, 22

Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139 ........................................................................................................... 16

Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692 ................................................................................................. 5, 13

Sequoia Park Associates v. County of Sonoma (2009) 176 Cal.App.4th 1270 ................................................................................................. 16

Sonoma County Water Coalition v. Sonoma County Water Agency supra, 189 Cal.App.4th ........................................................................................................... 10

Western States Petroleum Assn. v. South Coast Air Quality Management Dist. (2006) 136 Cal.App.4th 1012 ........................................................................................... 10, 22

STATUTES

40 C.F.R. § 50.1(e) (1989). ............................................................................................................. 5

Cal. Code Regs. Title 14 § 4609 ...................................................................................................................................... 16 § 4753 ...................................................................................................................................... 16

Health & Safety Code § 40001 ............................................................................................................................. passim § 40703 .......................................................................................................................... 3, 21, 24 § 40727 .................................................................................................................................... 16 § 40910 .................................................................................................................................... 22 § 40922 .................................................................................................................... 3, 21, 22, 24 § 42300 ................................................................................................................................ 3, 15 § 42400 .......................................................................................................................... 3, 18, 21

Pub. Resources Code, § 5090.02 ................................................................................................... 15

CONSTITUTIONAL PROVISIONS

Cal. Const., Article XI, § 7............................................................................................................ 16

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TABLE OF AUTHORITIES (continued)

Page

iii Parks’ Opening Brief in Support of Petition (CV 120013)

OTHER AUTHORITIES

76 Ops. Cal. Atty. Gen. 11 ............................................................................................................ 15

Cal. Jur. 3d, Municipalities § 352 ................................................................................................. 18

Watson and Smith, Soil Survey of the Santa Maria Area, California (U.S. Dept. of Agriculture 1919) .................................................................................................................... 13

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INTRODUCTION

The California Legislature created the California Department of Parks and Recreation’s

(“Parks”) Division of Off-Highway Motor Vehicle Recreation in 1971 out of the critical need to

better manage the growing demand for off-highway recreation, while at the same time fostering

respect for private property rights and protecting California’s natural and cultural resources.

Today the Division operates eight State Vehicular Recreation Areas (“SVRAs”). Oceano Dunes

SVRA (“Oceano Dunes”), established in 1982, is the most popular camping destination in all of

State Parks, welcoming more than 1.5 million visitors annually.

Oceano Dunes covers approximately 3,600 acres near Pismo Beach, California. Off-

highway vehicle riding is permitted on approximately 1,500 of the dunes’ acres, except during

March through October, when an additional approximately 250 acres are closed to vehicles to

protect nesting birds. The remaining approximately 2,100 acres are closed to vehicles year-round

and managed as native habitat.

Although Parks established Oceano Dunes in 1982, the dunes have been a favorite camping

and recreation site for families for over 100 years. Vehicle riding on the beach dates back to at

least 1906. In the 1950’s, with advancements in driving technology, vehicles began traversing

inland onto the dunes. Today, Oceano Dunes is the only place in the State where people can still

legally drive on the beach.

A residential area known as the Nipomo Mesa lies directly downwind from Oceano Dunes.

Based on air monitoring on the Nipomo Mesa that documented exceedences of California’s PM10

standard1, in March 2007 Respondent San Luis Obispo Air Pollution Control District (“District”)

published the Nipomo Mesa Particulate Study (the “Phase 1 study”). The Phase 1 study

identified particulate matter from Oceano Dunes during high wind events as the likely cause of

PM10 exceedences.

The District then undertook further study to determine if off-highway vehicle activity plays

a role in producing the high concentrations of PM10 at Nipomo Mesa. At first, Parks worked

1 A PM10 standard is a level of particulate matter that is 10 microns or less in diameter.

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cooperatively with the District to design and implement the South County Phase 2 Particulate

Matter Study (the “Phase 2 study”). However, in April 2008, the District terminated its

cooperation with Parks and excluded Parks from the study because Parks objected to various

aspects of the study. (Motion to Correct and Augment the Administrative Record, Exh. 1.)

Because the California Geological Survey was involved in the study at Parks’ request, the District

also excluded the Geological Survey from the study when it terminated its cooperation with Parks.

(Ibid.)

In March 2010, the District published the results of the Phase 2 study. The Phase 2 study

concluded that greater amounts of PM10 are generated when wind blows over areas where off-

highway vehicle riding occurs when compared to areas that are closed to riding. The premise of

the study is that off-highway vehicle activity breaks a “crust” on the sand dune surface, which

“increases the ability of winds to entrain sand particles from the dunes and carry them to the

[Nipomo] Mesa…” (AR 2:217.)

Parks, in coordination with the Geological Survey, submitted lengthy comments critical of

the Phase 2 study. The District disregarded Parks’ and the Geological Survey’ comments and,

relying on the findings of the Phase 2 study, released draft Rule 1001. Although the Rule on its

face is applicable to any “coastal dune vehicle activity area” over 100 acres, only Oceano Dunes

meets this description.

The stated purpose of Rule 1001 is to reduce PM10 emissions to “natural background

levels.” However, because the Phase 2 study was unable to quantify what the “natural

background levels” are, the Rule requires Parks to implement a Temporary Baseline Monitoring

Program (“Monitoring Program”) to determine these levels. The Rule also requires Parks to

develop and implement a Particulate Matter Reduction Plan (“PM Reduction Plan”). Both the

Monitoring Program and the PM Reduction Plan are subject to the approval of the District’s Air

Pollution Control Officer (“Control Officer”). The Rule sets forth a strict compliance schedule to

obtain these approvals that is already under way.

Following implementation of the PM Reduction Plan, Parks must ensure that PM10

concentrations downwind of the dunes are no more than 20% above that at a control site, or it is

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subject to fine under Health and Safety Code section 42400. The Rule also requires Parks to

obtain a “Permit to Operate” from the District.

Parks and the Geological Survey submitted comments objecting to the draft Rule.

Although the District made modest changes to the Rule at Parks’ request, the District disregarded

most of Parks’ objections and adopted the Rule at its November 16, 2011 meeting. Petitioner

Friends of Oceano Dunes’ petition followed.

Health and Safety Code section 40001, subdivision (c), requires that, before adopting the

Rule, the District was required to “determine that there is a problem that the proposed rule or

regulation will alleviate.” Health and Safety Code sections 40703 and 40922 further require the

District to evaluate the cost-effectiveness of the Rule. 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. The District did

neither.

Because the Phase 2 study was flawed and inconclusive, the data does not support the Phase

2 study’s findings. For instance, the study showed no correlation between riding activity and

PM10 levels. Moreover, the study lacked a proper control site monitor. In fact, the only control

site monitor placed in or downwind of a non-riding open sand dune similar to Oceano Dunes

never provided reliable data, because it became buried in sand a mere two days after installation

(this alone demonstrates that there is no “crust” that traps sand particles). Instead, the Rule

unlawfully imposes that obligation on Parks by requiring it to prepare the Monitoring Program in

order to “get an idea of what the baseline levels [a]re…” (AR 8:1657, lines 23-24.) As a result,

the District has not shown that there is a “problem” (i.e., that elevated PM10 concentrations

downwind of the dunes are the result of off-highway vehicle riding and not a naturally-occurring

phenomena).

The Rule also exceeds the District’s authority by requiring Parks to obtain a Permit to

Operate, and by unlawfully delegating the District Board’s legislative authority to the Control

Officer. Health and Safety Code section 42300 only authorizes air pollution control districts to

require a permit to operate an “article, machine, equipment, or other contrivance…” But Oceano

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Dunes is neither an article, machine, equipment, nor contrivance. As such, the District lacks

authority to require permit. The permit requirement also conflicts with the California

Legislature’s mandate that Parks operate and manage State Vehicular Recreation Areas, since it

gives the District the ability to deny the permit and thus close the dunes to off-highway vehicle

activity.

In addition, because the Rule does not set forth any standard for approval of the Monitoring

Program and PM Reduction Plan, it constitutes an unlawful delegation of the District Board’s

legislative authority. For instance, delegating authority to the Control Officer’s unfettered

discretion will allow him to approve or reject monitoring locations in order to nudge the outcomes

to support the District’s notions of what the data should show (i.e., that PM10 concentrations are

greater on the dunes than in the control site approved by the Control Officer). And if Parks and

the District cannot agree on a Monitoring Program, the District could fine Parks.

Finally, the District failed to analyze the cost-effectiveness of the Rule, as the Health and

Safety Code requires. Instead, it shifted this burden to Parks. But nothing in the Health and

Safety Code authorizes the District to abdicate its responsibility and require the regulated entity to

evaluate the cost effectiveness of a regulation after it is already adopted.

In sum, the District failed to determine whether there is a problem that the Rule will

alleviate, the available methods of alleviating the problem, or the cost effectiveness of alleviating

the problem, and instead improperly and unlawfully shifted that burden to Parks. The District

also exceeded its authority by imposing a permit requirement on the dunes and by delegating its

legislative authority to the Control Officer.

Because the District adopted Rule 1001 without substantial justification, and because the

Rule exceeds the District’s authority, the Court should grant the petition and set aside Rule 1001.

STATEMENT OF FACTS AND STANDARD OF REVIEW

The Statement of Facts and Standard of Review are thoroughly set forth in Friends’

Opening Brief, which Parks will not repeat here.

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ARGUMENT

I. THE DISTRICT HAS NOT IDENTIFIED A “PROBLEM THAT THE PROPOSED RULE OR REGULATION WILL ALLEVIATE”

Health and Safety Code section 40001, subdivision (c), provides that:

Prior to adopting any rule or regulation to reduce criteria pollutants, a district shall determine that there is a problem that the proposed rule or regulation will alleviate and that the rule or regulation will promote the attainment or maintenance of state or federal ambient air quality standards.

California law requires that air pollution control districts plan for and attain federal and

state ambient air quality standards. (Health & Saf. Code, § 40001, subd. (a) [“the districts shall

adopt and enforce rules and regulations to achieve and maintain the state and federal ambient air

quality standards in all areas affected by emission sources under their jurisdiction”].) Nothing

authorizes an air pollution control district to implement regulations to reduce air pollution below

naturally-occurring (i.e., ambient) levels. (Ibid.)

“Ambient” air is defined as “that portion of the atmosphere, external to buildings, to which

the general public has access.” (Kings County Farm Bureau v. City of Hanford (1990) 221

Cal.App.3d 692, 713, fn. 3, citing 40 C.F.R. § 50.1(e) (1989).) In other words, “ambient” levels

are different than “emission” levels in that the latter measures “the extent to which project

emissions contribute to ambient, or already existing, air pollution.” (Id. at p. 713, fn. 3.)

Accordingly, to the extent that PM10 emissions on the dunes are naturally occurring and not the

result of human activity, the District lacks authority to regulate.

For its part, the District recognizes that the purpose of the Rule is not to reduce naturally-

occurring particulate matter, but only to reduce emissions to “natural background levels.” (AR

8:1654, lines 9-10 [“The rule itself is designed to reduce violations of the Health Standards to

natural background levels”]; AR 8:1657, line 3 [“the goal of the rule is to reduce the SVRA

contribution to a natural background level”]; AR 8:1669, lines 13-15 [the Rule is “going to

address the incremental difference only”].)

But the District has not identified the incremental contribution of off-highway vehicle

riding to naturally-existing PM10 concentrations. Put another way, the District does not know

what the naturally-occurring PM10 levels on the dunes are; that is saved for implementation of

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the Rule. (AR 8:1657, lines 23-24 [under the Rule, Parks must develop a monitoring plan “to get

an idea of what the baseline levels [a]re…”].)

For its part, Parks acknowledges that Oceano Dunes is a source of PM10 in San Luis

Obispo County. (AR 8:1726, lines 18-21; AR 8:1733, line 12.) And even without the Rule,

Parks has taken action to minimize sand drift within the dunes. (See AR 8:1726-1735.) But the

mere existence of PM10 does not, in itself, mean that there is a “problem” within the meaning of

Health and Safety Code section 40001 that the District can regulate. Rather, Parks must

determine that off-highway vehicle use causes PM10 downwind at Nipomo Mesa. It has not.

A. The Phase 2 Study Does Not Show a “Problem”

The Phase 2 study used numerous downwind and control sites to monitor PM10

concentrations. (AR 2:224). The primary downwind sites are referred to as “Mesa2” and “CDF.”

(AR 2:224, 266.) The primary control site is referred to as “Oso.” (AR 2:270-276). Based on

data that shows PM10 concentrations higher downwind of the dunes than at the Oso control site2,

the Phase 2 study concluded that off-highway vehicle activity caused the elevated PM10

concentrations. (See AR 2:270-272.)

The Phase 2 study posits two theories why off-highway vehicle riding on the dunes

increases downwind PM10 concentrations above naturally-occurring levels: (1) it destabilizes the

dunes by breaking a “crust” on the dune surface; and (2) it decreases vegetation. As explained in

the Phase 2 study:

Offroad vehicle activity on the dunes is known to cause de-vegetation, destabilization of dune structure and destruction of the natural crust on the dune surface. All of these act to increase the ability of winds to entrain sand particles from the dunes and carry them to the Mesa, representing an indirect emissions impact from the vehicles. The data strongly suggests this is the primary cause of the high PM levels measured on the Nipomo Mesa during episode days.

(AR 2:217.)

2 The Phase 2 study also utilized limited data from a control site referred to as the “Dune

Center.” However, data was collected at the Dune Center site for a total of only thirteen days in March 2009. (AR 2:252.) In addition, although the Phase 2 study claims that the Dune Center “represents a control site a similar distance to the ocean as the Mesa2 site,” an aerial map of the Dune Center monitoring station shows that it is downwind of the highly vegetated Oso dune site, and thus not comparable to the open sand dunes of Oceano Dunes. (AR 2:225.)

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However, the Phase 2 study was flawed, inconclusive, and does not support these findings.

Accordingly, the District has not shown that “there is a problem that the proposed rule or

regulation will alleviate.” (Health & Saf. Code, § 40001, subd. (a).)

1. The Phase 2 Study Found No Correlation between Riding Activity and PM10 Concentrations

Significantly, the Phase 2 study found no correlation between riding activity and PM10

concentrations. (AR 2:279 [“the relationship between daily PM10 levels at Mesa2 and daily

number of vehicles entering the SVRA …shows no statistical correlation”].)

The data confirms that wind speed and direction are the predominant factors affecting

PM10 levels. (AR 2:264.) In other words, PM10 levels generally increase as wind increases. So,

in order to factor out the effect of wind on PM10 levels, the Phase 2 study averaged the 50

highest and 50 lowest days of activity at the dunes. “Averaging of the data may allow the strong

correlation with winds to get averaged out and possibly show a relationship between the number

of vehicles entering the SVRA and PM10 concentration downwind.” (AR 2:280.) Still this

averaging produced “no statistical difference between the lowest and highest activity days at

CDF.” (AR 2:281.) Although the study did find that averaging produced a statistically

significant difference at Mesa2, because CDF is closer to the dunes than Mesa2 (which produced

no statistical difference), the District acknowledged the results were “a bit contradictory.” (Ibid.)

The District explains the lack of correlation due to the fact that dune riding “increas[es] the

ability of winds to entrain sand particles from the dunes and carry them to the Mesa.” (AR

2:281.) In other words, off-highway vehicle activity alters the dune by breaking up the dune

“crust,” which allows sand particles to be carried to Nipomo Mesa during high-wind events. (AR

4:940.) But this explanation is wholly unsatisfactory. Under the District’s theory, the ability of

winds to “entrain sand particles” should increase as riding increases, by breaking more and more

of the dune “crust” throughout the riding area. As a result, there should be a statistically

significant correlation between riding and PM10 concentrations once the effects of wind are

“averaged out.” But there is none. (AR 2:281; see also AR 3:462 [“Even this indirect effect

would be expected to bear proportionality to Oceano Dunes SVRA visitation, but none is

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found.”]; AR 3:461 [“While correlation does not necessarily imply causation, the converse is true:

lack of correlation strongly suggests lack of causation.”].)

The Phase 2 study’s failure to show any correlation between riding activity and PM10

concentrations is fatal to the Rule, because the District has not demonstrated a “problem.”

2. The Phase 2 Study Lacked a Reliable Control Site Monitor

The Phase 2 study concludes that “[t]he open sand sheets subject to [off-highway vehicle]

activity on the SVRA emit significantly greater amounts of particulates than the undisturbed sand

sheets at the study control sites under the same wind conditions.” (AR 2:217.) This conclusion is

based primarily upon the finding that “the Oso control site experiences significantly less

downwind PM10 than either site downwind from the SVRA.” (AR 2: 271.) However, the

significance of these results depends on the degree to which Oso is a reliable control site. Oso is

not a reliable control site.

The Oso control site is a non-riding sand dune south of Oceano Dunes. (AR 2:224.)

However, an aerial map of the site clearly shows that it is highly vegetated, and thus not at all

similar to the open sand dunes of Oceano Dunes.3 (AR 2:225; see also AR 3:469-471 [“the Oso

station and the CDF station are not comparative environments from which to collect wind speed

data used to correlate sand movement in the dunes”]; see also AR 2:248, 266.)

The Phase 2 study did not use data from another control site, the Ten Commandments site

(so named because it is where the Charlton Heston movie of the same name was filmed (AR

2:293, 380.) Aerial maps of the Ten Commandments site show that it is the one control site most

analogous to the open sand dunes of Oceano Dunes. (AR 2:336; see also AR 3:464 [“the Ten

Commandments site is an undisturbed natural dune site most analogous to the Oceano Dunes

SVRA open sand sheet dune.”].)

However, the Ten Commandments monitor never provided any reliable data because,

according to the District, its monitor “did not meet the required QA [quality assurance] criteria.

(AR 2:293.) In fact, the Ten Commandments monitor failed quality assurance criteria because

3 The Phase 2 study concedes that “vegetated dune areas do not emit wind blown particles.” (AR 2:310.)

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“the entire sampler [was] buried in sand” a mere two days after the District installed it. (AR

1:166 (emphasis added).)

The lack of a control site monitor similar to the Oceano Dunes riding area puts into

question the reliability of the Phase 2 study results. More importantly, however, is that the fact

that the Ten Commandments monitor, which is not open to riding, was buried only two days after

installation, puts into doubt the basic conclusion of the Phase 2 study, which is that riding

“increas[es] the ability of winds to entrain sand particles from the dunes and carry them to the

Mesa.” (AR 2:281.)

In fact, disturbed sand interrupts the natural flow of wind over the dune, thereby reducing

wind speed and decreasing airborne particulate matter. As explained by the Geological Survey:

Dune formation is a display of efficiency. The windward side of a dune is gently sloped and smooth. This provides a relatively unobstructed path for grains to move by saltation.[4] When this surface plane is disrupted, such as by a foot print or a tire track, the wind flow over the sand surface is disrupted, becoming more turbulent and decreasing in velocity. (Citation.) As a result, sand flux and saltation decrease.

(AR 3:471.) The inability of the Phase 2 study to use an appropriate control site monitor further

undermines its conclusions.

3. The California Geological Survey Refuted the Phase 2 Study

The California Geological Survey “is regarded as the primary source of geological and

seismological products and services for decision making by California’s government agencies, its

businesses and the public.” (See Request for Judicial Notice (“RJN”), Exh. 1 [Geological Survey

Vision Statement]. The Geological Survey submitted lengthy comments challenging the findings

of the Phase 2 study.

Although the standard of a writ of mandate is to defer to the agency’s findings unless

“arbitrary, capricious, or [without] reasonable or rational basis” (American Coatings Assn., Inc. v.

South Coast Air Quality Dist. (2012) 54 Cal.4th 446, 460, citation omitted), “[a] clearly

inadequate or unsupported study is entitled to no judicial deference.” (State Water Resources

Control Bd. Cases (2006) 136 Cal.App.4th 674, 795.)

4 “Saltation” is a process whereby “sand grains are bounced along the dune surface by the wind.” (AR: 3:468; see also AR 2:226, Figure 2.4.)

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Moreover, the deference afforded an administrative agency is due to its “presumed

expertise” in the arena within which it legislates. (Sonoma County Water Coalition v. Sonoma

County Water Agency, supra, 189 Cal.App.4th at 62; see also Western States Petroleum Assn. v.

South Coast Air Quality Management Dist. (2006) 136 Cal.App.4th 1012, 1018 (“This limited

judicial review is further constrained by the recognition that ‘in technical matters requiring the

assistance of experts and the study of marshaled scientific data …, courts will permit

administrative agencies to work out their problems with as little judicial interference as possible.’

[Citation.]”].)

Here, however, the Geological Survey, not the District, is the state’s geology expert. (RJN,

Exh. 1.) The Geological Survey testified at the hearing on Rule 1001 that the Phase 2 study does

not establish off-highway vehicle activity as the cause of PM10 downwind of the dunes. (AR

8:1726, lines 2-4 [“in terms of the point about saltation being generated more readily because of

[off-highway vehicle] activity, that has not been demonstrated by the Phase 2.”].)

The ostensible basis for the Rule is the Phase 2 study the District prepared, for which it has

no particular expertise. In contrast, the Geological Survey – “the primary source of geological

and seismological products and services for decision making by California’s government

agencies” – offered a scathing critique of the study’s findings. (AR 3:467-485.) In light of the

Phase 2 study’s questionable conclusions, no particular deference to the findings and conclusions

of the District is warranted. Rather, the Court should heed, if not defer to, the designated State

expert in “geological … services,” which found the Phase 2 study flawed and inconclusive.

B. The District Cannot Explain How Off-Highway Vehicle Riding Contributes to PM10 Exceedences

As set forth above, the Phase 2 study posits that off-highway vehicle riding increases PM10

concentrations at Nipomo Mesa beyond naturally-occurring levels two ways: it breaks the dune

“crust” and it decreases vegetation. (AR 2:217; see also AR 2:311 [“study measurements indicate

the substantially lower PM emissions from the undisturbed control area dunes result from two

important features not found in the SVRA: the presence of an ephemeral crust on the sand surface

and a higher density of vegetation”]; 2:313 [“it appears the most significant impact of [off-

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highway vehicle] activity in contributing to high downwind PM levels on the Nipomo Mesa

results from denuding of vegetation and prevention of natural crust formation on the sand

surface”].) However, nothing supports either of the District’s conclusions.

1. There Is No Evidence of a Dune “Crust”

The District’s Phase 2 study concluded that off-highway vehicle riding breaks a “crust” on

the dune surface. (See, e.g., AR 2:217 [“Offroad vehicle activity on the dunes is known to cause

… destruction of the natural crust on the dune surface”]; 2:289 [“The soil crust was observed

throughout the open sand sheets upwind from the Oso site, but was not present in the SVRA.”];

2:310 [“the open sand sheet west of the Oso site had a thin crust on the sand surface…. This crust

was not observed in the SVRA.”].) However, by the time District staff proposed Rule 1001 to its

Board for approval, it appeared to have already retreated from this theory. (See, e.g., AR 4:944

[“The proposed rule is not based on speculation nor on the presence or absence of a crust on the

dunes.”]; 8:1750, lines 5-6 [“the presence or absence of a crust is one possible explanation of it.

We didn’t never [sic] claim that that was the sole reason for that.”].)

In any event, the District lacks any scientific evidence of a dune “crust.” As observed

during testimony on the Rule:

Here’s what two of your own experts have to say. And I quote, while I have seen the crust out on the dunes firsthand, I do not consider myself an expert on itself [sic] formation. This question would best be answered by a sand dune morphologist with local expertise, end quote. That was Tom Murphy, a contributor to the study and also, interestingly, one of the peer reviewers.

Tom [Cahill], principle [sic] author of the study, had this to say, quote, I included a picture in my report. But beyond that, little is known. It appears to form in the presence of moisture, but when crushed, it appears to be just sand. We did not discover it in time to make [sic] depth chemical profile, which would have given info on the presence of biological components and sea salt. We will do this on our own time sometime, I’m sure. We want the question answered too, end quote.”

(AR 8:1718, lines 9-19.)

The “crust” theory has its genesis in observations of the Owens dry lakebed. (AR 2:289-

90.) However, the Geological Survey completely debunks this theory. As the Geological Survey

explained:

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In the most basic of ways, the coastal dunes of southern San Luis Obispo County differ from the Owens Lake playa because they are dunes, not a dry lake, and because they are on the coast, not the high desert. And there is no “stabilizing crust” in the dunes south of the SVRA that is comparable to the salt flats of the Owens Lake playa. There is no “stabilizing crust” at all.

(AR 3:468; see also AR 3:459 [“Unlike Owens Lake, which was formed by an enclosed inland,

dry lakebed comprised of fine clay and evaporite, the source of the sand along the coast of

southern San Luis Obispo County is constantly renewed from offshore sources. Recent studies by

the United States Geological Survey … indicate 115,000 cubic yards of sand are deposited and

blown inland each year along the 55-mile coastline from Pismo Beach to Point Arguello.”].) As

explained above, undisturbed sand actually increases wind-borne particulate matter, because it

can flow undisturbed over the dune. (AR 3:471.)

Without reliance on the theory of a dune “crust,” there is nothing to support the District’s

conclusion that off-highway vehicle activity “increase[s] the ability of winds to entrain sand

particles from the dunes” (AR 2:217), and the Phase 2 study falls apart.

2. Vegetation Has Increased at Oceano Dunes

The District’s second theory is that there is less vegetation on the dunes than there

otherwise would have been absent off-highway vehicle riding. Because “vegetated dune areas do

not emit wind blown particles” (AR 2:310), a loss of vegetation increases downwind PM10

concentrations. However, since the dunes came under Parks’ management in the early 1980’s

(AR 5:1004), vegetation on the dunes has actually increased. (AR 5:1005, 1024.)

In fact, the very premise that off-highway vehicle riding decreases vegetation is contrary to

the dunes’ history. Aerial maps of the dunes in 1939 (prior to dune riding) and 1979 (prior to

Parks’ management) shows little if any change in vegetation. (See AR 2:313, 3:521.) Because

technology did not allow vehicles to traverse inland until approximately the 1950’s, prior to that

time, riding was limited to the hard-pack sand near the shore. (AR 5:1004.) Accordingly, the

amount of open sand dune present in the 1930’s “is a reasonable representation of the dunes

previous to the influence of [off-highway vehicle] activity.”5 (Ibid.) Since the early 1980’s,

5 Although the Oceano Dunes did become vegetated in the early 1900’s due to the introduction of non-native species, prior to that time Oceano Dunes was an open sand dune

(continued…)

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when the dunes came under Parks’ management, the dunes have, in some areas, become heavily

vegetated. (Ibid.) For its part, the District recognizes that Parks has performed extensive

vegetation of the dunes. (AR 2:312 [acknowledging “[t]he great success of the re-vegetation

efforts undertaken by State Parks”].)

The District points to the boundary of the riding area as evidence that riding de-vegetates

the dunes. (See AR 2:313-14 [“the fence line limiting [off-highway vehicle] activity is also the

border between vegetated and non-vegetated areas of the dunes”].) The District then concludes

that “revegetation efforts in unfenced areas have failed.” (AR 2:312.) However, that conclusion

alone does not suggest that the District may regulate the dunes. The District may only regulate to

the extent that the loss of vegetation “contribute[s] to ambient, or already existing, air pollution.”

(Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at 713, fn. 3.) As the

District’s statement suggests, off-highway vehicle riding may have interfered with Parks’

artificial revegetation efforts; but the District has not shown that it interferes with naturally-

occurring vegetation.

Between 1939 (prior to dune riding) and 2010, there has been a net increase in vegetation

of approximately 650 acres. (AR 5:1005, 1024.) Even in the riding area, vegetation has

increased during this same time period by nearly 200 acres. (Ibid.) Accordingly, the Phase 2

study does not demonstrate that off-highway vehicle riding has resulted in a decrease in

vegetation below that which it would be but for off-highway vehicle riding.

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(…continued) generally devoid of vegetation. (See AR 3:516-520; AR 5:1004 [“in the early 1900’s fast-growing European beach grasses and ice plant were planted in the foredunes where Oceano Dunes SVRA is presently”]; see also Watson and Smith, Soil Survey of the Santa Maria Area, California (U.S. Dept. of Agriculture 1919) p. 46 [“The sand dunes are … are almost devoid of vegetation and essentially nonagricultural.”].)

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C. The District Has Not Determined that the Rule Will Alleviate PM10

Health & Safety Code section 40001, subdivision (c), requires not only that the District

determine that there is a “problem,” but that the Rule will “alleviate” it. Here, because the Rule

does not propose or require any specific mitigation control measures, the District does not and

cannot show that the Rule will alleviate downwind PM10 at Nipomo Mesa. Instead, it shifts that

responsibility to Parks. (AR 8:1663, lines 21-22 [“the rule itself doesn’t require any specific

control technologies. It’s up to the operator to determine which management practices can meet

the requirements [of the Rule]”].)

As explained in more detail below, the District contends that the Rule could reduce PM10

emission exceedences “by about 75% compared to existing conditions.” (AR: 4:899.) However,

the District does not offer any evidence to support its conclusion that the Rule will achieve this

reduction. (See AR 4:312 [“there is no agreement as to the degree to which Oceano Dunes

SVRA activity contributes to elevated PM10 on the Mesa or how PM10 can be controlled”].)

Indeed, it cannot, because the Phase 2 study is unable to quantify the contribution of off-highway

vehicle riding to PM10 exceedences, because it did not, with any scientific certainty, demonstrate

that there is a “problem.”

Based on the foregoing, the District has failed to show there is a problem or that there are

any available control measures that will alleviate the problem. Therefore, Rule 1001 is invalid

under Health and Safety Code section 40001.

II. THE DISTRICT LACKS AUTHORITY TO REQUIRE A PERMIT FOR A COASTAL DUNE VEHICULAR ACTIVITY AREA

Rule 1001 requires Parks to obtain a “Permit to Operate” from the District. (AR 4:889

[Rule 1001, § C.5].) However, the Health and Safety Code does not authorize the District to

enact a permit system for a coastal dune vehicular activity area.

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A. Oceano Dunes Is Not an “Article, Machine, Equipment or Other Contrivance”

The authority for a permit system is found in Health and Safety Code section 42300, which

authorizes air pollution control districts to require permits only for certain sources of air

pollution:

Every district board may establish, by regulation, a permit system that requires, except as otherwise provided in Section 42310, that before any person builds, erects, alters, replaces, operates, or uses any article, machine, equipment, or other contrivance which may cause the issuance of air contaminants, the person obtain a permit to do so from the air pollution control officer of the district. (Emphasis added.)

Here, the dunes are neither an “article, machine, equipment, or other contrivance.” The

District contends that the dunes are a “contrivance.” (AR 5:988 [“State Parks is altering and

operating a “contrivance which may cause the issuance of air contaminants”].) However, a

contrivance “is generally thought of as a mechanical device.” (76 Ops. Cal. Atty. Gen. 11, citing

Webster’s New Internat. Dict. (3d ed. 1966) pp. 123, 496; see also Black’s Law Dict. (6th ed.

1990), p. 329, col. 1 [“An instrument or article designed to accomplish a specific objective and

made by use of measure of ingenuity.”].) As Oceano Dunes functions neither as a “mechanical

device” nor an “instrument,” it is not a “contrivance.”

B. A Permit System Interferes with the Legislature’s Mandate that Parks Operate State Vehicular Recreation Areas

The Legislature created State Parks’ Division of Off-Highway Motor Vehicle Recreation

out of recognition of the ever-increasing popularity of off-highway motor vehicles and the need to

effectively manage areas and facilities for the use of off-highway vehicles while protecting the

environment, wildlife habitats, native wildlife, and native flora. (See Pub. Resources Code, §

5090.02.) Without legal places to ride, riders tend to move to unregulated areas.

By imposing a permit system on Parks’ operation of Oceano Dunes, the Rule effectively

gives the District the power to close a State Vehicular Recreation Area, pre-empting the mandate

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of the Legislature.6 This exceeds the District’s authority. (Cal. Const., art. XI, § 7 [“A county or

city may make and enforce within its limits all local, police, sanitary, and other ordinances and

regulations not in conflict with general laws.”]; see also Big Creek Lumber Co. v. County of Santa

Cruz (2006) 38 Cal.4th 1139, 1150 [“Local legislation in conflict with general law is void.”].)

Sequoia Park Associates v. County of Sonoma (2009) 176 Cal.App.4th 1270 held that local

legislation is in conflict with general law when “the subject matter has been partially covered by

general law and the subject is of such a nature that the adverse effect of a local ordinance on the

transient citizens of the state outweighs the possible benefit to the locality.” (Id. at p. 1278,

citations and internal quotations omitted.) Here, the Legislature specifically required Parks to

operate State Vehicular Recreation Areas. Oceano Dunes is a recognized SVRA. (See Cal. Code

Regs. tit. 14, § 4753; see also Cal. Code Regs. tit. 14, § 4609.)

A permit system, which allows a local air pollution control district the ability to close a

State Vehicular Recreation Area, interferes with this legislative mandate.

Because the District lacks authority to require a Permit to Operate a coastal dune vehicular

activity area, Rule 1001 is invalid.

III. RULE 1001 LACKS CLEAR STANDARDS

The Health and Safety Code required the District to make findings of “clarity” before

adopting Rule 1001. (Health & Saf. Code, § 40727, subd. (a) [“Before adopting, amending, or

repealing a rule or regulation, the district board shall make findings of necessity, authority,

clarity, consistency, nonduplication, and reference…”].) “‘Clarity’ means that the regulation is

written or displayed so that its meaning can be easily understood by the persons directly affected

by it.” (Health & Saf. Code, § 40727, subd. (b)(3).) The District avers that Rule 1001 satisfies

6 During the hearing on Rule 1001, Phil Jenkins, Chief of Parks’ Division of Off-Highway

Motor Vehicle Recreation, testified before the District as follows:

And that’s the problem, is the requirement to get an operating permit …. Our fear is that despite our best efforts … [t]he rule sets the situation where if we together, after agreeing on a plan of action … [a]nd then if it fails, we get fined.

(AR 8:1736, line 20 – 1737, line 5.)

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this requirement because it is “written in clear English and … [is] as easily understood as

possible.” (AR 4:903.) That is not enough.

A. Rule 1001 Unlawfully Delegates the Board’s Legislative Authority to the District’s Air Pollution Control Officer

Rule 1001 requires Parks to develop a Temporary Baseline Monitoring Program

(“Monitoring Program”) and Particulate Matter Reduction Plan (“PM Reduction Plan.”) (AR

4:889 [Rule 1001, § C.1].) Both documents must be approved by the District’s air pollution

control officer, Larry Allen (“Control Officer”). (Ibid.; AR 4:887, 8:1638.) Even if the District

determined that there was a “problem” which the Rule could alleviate, which it has not, the Rule

unlawfully delegates uncontrolled authority to the Control Officer to approve Parks’ Monitoring

Program and PM Reduction Plan.

The Monitoring Program and PM Reduction Plan are new concepts the District conceived

in an attempt to address off-highway vehicle’s alleged contribution to PM10 at Nipomo Mesa.

Parks knows of no other use of a Monitoring Program or PM Reduction Plan. Yet the Rule fails

to provide a uniform standard for monitoring locations; sampling methods and equipment;

operational and maintenance policies and procedures; data handling, storage, and retrieval

methods; and quality control and quality assurance procedures. (AR 5:985-86.) Thus, acceptable

standards are left to the unfettered and uncontrolled discretion of the Control Officer in his review

and approval of these plans.

Legislative bodies may not delegate rule-making authority to an administrative officer, but

rather must give that officer specific standards to apply:

A municipal legislative body has no power to delegate to an administrative board or officer its exclusive power and function of determining what acts or omissions on the part of an individual are unlawful. The distinction between the legislative and administrative function must be recognized and enforced. [Citation.] A delegation by a municipality of a power giving an administrative officer uncontrolled discretion constitutes a delegation of legislative power.

Ordinances, to be valid and effectual, must set forth with clarity some norm or standard by which all persons may know their rights and obligations thereunder. Where an ordinance commits its application to municipal officials it should set up a uniform standard or rule of conduct. [Citation.] Regulations prescribed by ordinance must be clear, definite, and specific in their application and operation, and their application may not be left to the caprice of enforcement officers.

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(Agnew v. City of Culver City (1956) 147 Cal.App.2d 144, 153-154; see also Cal. Jur. 3d,

Municipalities § 352 [“where an ordinance commits its application to municipal officials, it

should set a uniform standard or rule of conduct”].)

Although the District’s Phase 2 study concludes that off-highway vehicle activity on the

dunes increases PM10 levels, the study does not quantify that increase over naturally-occurring

levels. (AR 2:310; see also AR 3:653, lines 17-19 [the Phase 2 study “doesn’t quantify what the

role or relationship the SVRA has to that figure [PM10 elevations]”].) Rather, that is the purpose

of the Rule’s Monitoring Program. (AR 4:888; see also AR 8:1744, lines 12-14 [acknowledging

that “comparative monitoring is necessary for us [District staff] to truly determine how effective

the strategies are and what differences we’re seeing between natural background and the

emissions from the riding area”].) Although the Rule requires Parks to develop and implement

the Monitoring Program, it is subject to the Control Officer’s approval. (AR 4:889 [Rule 1001,

C.1].)

As such, the Rule does not provide Parks or the Control Officer with a clear understanding

of the expectations for an acceptable Monitoring Program or PM Reduction Plan. Approval is

fully subject to the Control Officer’s unfettered discretion. This unlawful delegation of the

District Board’s authority deprives the Rule of its required clarity.

Moreover, the Rule assumes that observations of ambient PM10 air concentrations at two

locations – one downwind of the dunes, one at a control site – are sufficient to determine a

violation. (See AR 4:900.) However, this is an unrealistic assumption. The Phase 2 study

utilized no less than 17 monitors (AR 2:229, 235, 237, 241, 243, 247, 287) to measure wind speed

and direction (AR 2:253-54) and particle mass, composition and size (AR 2:287), and the results

were inconclusive. (See Section I, above.) The Monitoring Program is predicated on the

assumption that feasible, reliable, scientifically valid comparative observations can be made. As

exemplified by the Phase 2 study’s shortcomings, the District has not shown that this can be done.

(See AR 4:913.)

And, should Parks be unable to comply with the Rule, it could be subjected to fines of up to

$1,000 per day per violation. (Health & Saf. Code, § 42400.) As a legislative body, the District

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Board has no power to delegate to the Control Officer the Board’s power to determine when

Parks is acting unlawfully and subject to a fine. (Agnew v. City of Culver City, supra, 147

Cal.App.2d at p. 153 [“A municipal legislative body has no power to delegate to an

administrative board or officer its exclusive power and function of determining what acts or

omissions on the part of an individual are unlawful.”].)

Moreover, even if Parks timely submits plans, it is not yet clear at what point it would be

subject to fine if a submitted plan or other document fails to meet the expectations or as-yet

unknown standards of the Control Officer. The decision is fully within the Control Officer’s

unfettered discretion. Although the Control Officer testified at the hearing on Rule 1001 that he

intends to “sit down and work with” Parks before levying any fine (AR 8:1669, line 9), nothing in

the Rule requires him to do so. Delegation of uncontrolled discretion is an impermissible

delegation of the Board’s legislative power. (Agnew v. City of Culver City, supra, 147

Cal.App.2d at p. 153.)

Finally, Parks is required to obtain all required permits from appropriate land-use agencies

and other affected governmental agencies and satisfy the requirements of the California

Environmental Quality Act (“CEQA”) and the National Environmental Quality Act (“NEPA”) if

any proposed measure indentified in the Monitoring Program or PM Reduction Plan require

environmental review. (AR 4:889 [Rule 1001, § C.4].) Each of these requirements has its own

compliance schedule. (AR 4:890 [Rule 1001, § F.1.e].) However, other land-use or

governmental organization approvals are beyond Parks’ control. Thus, under the Rule, Parks may

be subject to fine if it is unable to obtain the requisite land-use approvals by the May 31, 2015

final compliance deadline.7 (AR: 890 [Rule 1001, § F.1 & 2].)

To be valid, the Rule must set forth with clarity some norm or standard by which Parks can

know when its actions or plans would be in violation of the Rule. Because the proposed Rule

7 Although the Rule was amended to provide that Parks “will not be subject to civil penalties for failure to meet any timeframe … caused solely by delays from regulatory or other oversight agencies required to consider and approve the operator’s [PM Reduction Plan] or any part thereof,” Parks must still commence PM10 mitigation no later than May 31, 2015, or be subject to fine. (AR: 890 [Rule 1001, § F.2].) Parks cannot commence PM10 mitigation if it lacks the necessary government approvals.

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commits application of the rule to the Control Officer’s unfettered and uncontrolled discretion, it

constitutes an unlawful delegation of rule-making authority.

B. The Rule is Susceptible to Outcome-Driven Monitoring

Because the District adopted the Rule before it first determined the nature and extent of the

“problem,” as Health and Safety Code section 40001 requires, the Rule is susceptible to

subjective implementation under the Control Officer’s discretionary review. The purpose of the

Monitoring Program, as set forth in the District’s response to Parks’ comments to the Rule, is “to

establish current baseline air quality conditions downwind of the riding area and a comparable

non-riding area to help determine the actual effectiveness of the PM [Reduction Plan] measures

once they are implemented.” (AR 5:987.) However, allowing the Control Officer to approve the

monitoring sites allows him to control the outcomes. Parks’ staff articulated these concerns

during testimony on the Rule:

As long as we’re still not in 100 percent agreement on the cause of the problem -- is there a crust, is there not a crust where the vehicle is disturbing it -- that could cause conflict in how we address the problem.

(AR 8:1741, lines 9-11.)

The challenges to the Oso monitoring station data in connection with the Phase 2 study,

discussed in Section I.A.2 above, illustrate this potential for subjective monitoring. For instance,

Parks observed that “[t]he Oso sand sheet … we estimate to be about a tenth the size of the

Oceano Dunes SVRA site, but produced, by the limited data available, nearly one-half the level

of PM claimed to be attributable to Oceano Dunes SVRA.” (AR 3:463). The Geological Survey

similarly observed that “the Oso [control] station and the CDF [downwind] station are not

comparative environments from which to collect wind speed data used to correlate sand

movement in the dunes.” (AR 3:471.) The District, however, rejected Parks’ and the Geological

Survey’s challenges and approved the Phase 2 study. (AR 1:156-57.)

As with the Phase 2 study, delegating to the Control Officer unfettered discretion to

approve the Monitoring Program will allow him to approve or reject monitoring locations in order

to nudge the outcomes to support the District’s notions of what the data should show (i.e., that

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PM10 concentrations are greater on the dunes than in the control site approved by the Control

Officer).

The Control Officer acknowledges that development of the Monitoring Program

contemplates cooperation among Parks and the District. (AR 8:1768, lines 23-24 [“hopefully, we

hire professionals that we can both agree on and we rely on them to provide an unbiased

assessment of where the best locations would be”].) But nothing in the Rule requires the District

to work cooperatively with Parks. And, if the District and Parks cannot mutually agree on a

Monitoring Program, the District could fine Parks up to $1,000 per day for every day that the

District does not approve Parks’ Monitoring Program. (Health & Saf. Code, § 42400; see also

AR 4:896 [“Should State Parks fail to meet any of the rule requirements, fines could be levied

under the California Health and Safety Code.”].) The Rule therefore establishes a coercive

mechanism whereby Parks must prepare a Monitoring Program acceptable to the Control Officer

or be subject to fine.

The Rule therefore lacks clarity because it constitutes an unlawful delegation of authority to

the Control Officer, which subjects the Rule to uncertainty and subjective implementation.

IV. THE DISTRICT FAILED TO EVALUATE THE COST-EFFECTIVENESS OF THE RULE

Health and Safety Code, sections 40703 and 40922, requires the District to make findings

related to the cost effectiveness of a pollution control measure. In particular:

In adopting any regulation, the district shall consider, pursuant to Section 40922, and make available to the public, its findings related to the cost effectiveness of a control measure, as well as the basis for the findings and the considerations involved. A district shall make reasonable efforts, to the extent feasible within existing budget constraints, to make specific reference to the direct costs expected to be incurred by regulated parties, including businesses and individuals.

(Health & Saf. Code, § 40703.) Section 40922 further provides:

(a) Each plan prepared pursuant to this chapter shall include an assessment of the cost effectiveness of available and proposed control measures and shall contain a list which ranks the control measures from the least cost-effective to the most cost-effective.

(b) In developing an adoption and implementation schedule for a specific control measure, the district shall consider the relative cost effectiveness of the measure, as determined under subdivision (a), as well as other factors including, but not limited to, technological feasibility, total emission reduction potential, the rate of reduction, public acceptability, and enforceability.

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(Health & Saf. Code, § 40922.) Moreover, section 40910 requires air pollution control districts to

“consider the cost-effectiveness of their air quality programs, rules, regulations, and enforcement

practices in addition to other relevant factors, and shall strive to achieve the most efficient

methods of air pollution control.” (Health & Saf. Code, § 40922.)

The District has defined cost effectiveness in its own Clean Air Plan, applicable county-

wide:

Cost-effectiveness is typically stated as the total cost of a measure, divided by the total emissions reduced, over a specified time frame. It is usually expressed as a rate, in dollars per pound, or ton, of pollutants reduced. The use of rates makes comparison between different control measures possible. This is important because, in the air quality arena, “cost-effectiveness” has come to have a relative meaning. A measure may be deemed cost-effective if it reduces emissions at a cost per ton comparable to other measures recently adopted or proposed for that pollutant.

(See RJN, Exh. 2 [2001 Clean Air Plan San Luis Obispo County, p. 5-2].) Similarly, in Western

States Petroleum Ass’n v. South Coast Air Quality Management Dist. (2006) 136 Cal.App.4th

1012, 1022-23, the court affirmed a cost per ton of PM10 reduced as an appropriate cost-

effectiveness analysis. (See also American Coatings Assn., Inc. v. South Coast Air Quality Dist.

(2012) 54 Cal.4th 446, 469 [cost-effectiveness of regulation limiting pollutants in paints and

coating estimated at $13,317 per ton].) As set forth in the District’s Clean Air Plan, in 2001 it

typically cost $12,000 to remove a ton of particulate matter from a stationary source. (RJN, Exh.

2, p. 5-2.)

By its own definition, the District has not determined the cost-effectiveness of Rule 1001,

because it has failed to calculate the cost per ton of pollution abatement. Rather, the District

simply estimates that development of the PM Reduction Program alone – before any actual

implementation – could cost Parks “$200,000 to $400,000 and possibly more.” (AR 4:900.) In

addition, the District estimates that the cost of equipment to be $69,000 for each monitoring site,

and another $15,500 in annual operating costs for each site, with a minimum of two monitoring

sites, and possibly more. (Ibid.; see also AR 8:1660, lines 13-17; 8:1662, lines 14-21.) This cost

would be entirely borne by Parks. (AR 8:1662, lines 23-24.) Accordingly, the District estimates

that Parks could incur more than $500,000, plus additional annual operating costs, before it even

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implements the PM Reduction Plan. But the actual cost of implementing the PM Reduction Plan,

and its effect on PM10 levels at Nipomo Mesa, is wholly unknown at this time.

The District contends that its own cost-effectiveness requirement under the Clean Air Plan

“is not applicable in this instance because the individual strategies and their emission reduction

effectiveness is currently unknown, and will depend entirely on the measures proposed by the

applicant. In the process of developing the PM Reduction Plan, the affected source will develop

the control strategies, rank their effectiveness and propose those measures they deem necessary

and feasible, subject to [air pollution control district] approval.” (AR 4:900; see also AR 8:1660,

lines 8-9 [“it would be up to the operator [sic] the SVRA to determine which projects are most

cost-effective.”].) In other words, the District has shifted the burden of determining the cost

effectiveness of Rule 1001 to Parks. However, nothing in the Health and Safety Code authorizes

an air pollution control district to abdicate its responsibility and require the regulated entity to

determine the cost effectiveness of a regulation after it is adopted.

The District believes that the Rule could reduce PM10 emission exceedences “by about

75% compared to existing conditions.” (AR: 4:899.) However, the District does not offer any

evidence to support its conclusion that the Rule will achieve this reduction, nor does the District

attempt to estimate the cost to achieve this reduction.8 (See AR 4:312 [“there is no agreement as

to the degree to which Oceano Dunes SVRA activity contributes to elevated PM10 on the Mesa

or how PM10 can be controlled and there is no scientific basis to estimate the scope of cost-

effective control measures”].) Moreover, because the District does not quantify its reduction

target in terms of any rate over time, it is impossible for the District or Parks to determine the cost

effectiveness of the Rule. As Parks explained in its comments to the Rule, “the Draft Rule

imagines that the [air pollution control district] directive can be met, without taking into account

the practicality of measures and the financial and environmental cost to the State.” (AR 4:912.)

8 In addition, the District’s “75%” figure is hopelessly vague. Does the District mean that off-highway vehicle riding accounts for 75% of the Dunes’ PM10 emissions, that the Rule will reduce 75% of the off-highway vehicle riding contribution to the Dunes’ PM10 emissions, or simply that the Rule will reduce the Dunes’ PM10 emissions by 75% without quantifying the amount caused by off-highway vehicle riding (meaning that the Rule could require Parks to reduce PM10 emissions below ambient levels)?

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Finally, because the Rule deferred the cost effectiveness determination, it does not evaluate

other factors such as “technological feasibility, total emission reduction potential, the rate of

reduction, public acceptability, and enforceability,” as Health and Safety Code section 40922,

subdivision (b), requires.

State Parks, as the real party-in-interest, is entitled to know the expense of implementation

prior to being subject to the Rule. But, without baseline information of the extent to which riding

on the dunes actually results in PM10 emission exceedences, if at all, it simply is not possible to

evaluate the potential cost of control measures or their potential effectiveness. Therefore, Rule

1001 is invalid under Health and Safety Code sections 40703 and 40922.

CONCLUSION

For the foregoing reasons, Parks respectfully requests that the Court grant Friends’ petition

and set aside Rule 1001

Dated: October 11, 2012

Respectfully Submitted, KAMALA D. HARRIS Attorney General of California CHRISTINA BULL ARNDT Supervising Deputy Attorney General

MITCHELL E. RISHE Deputy Attorney General Attorneys for Real Party-in-Interest, California Department of Parks and Recreation

LA2012104287 51175599.doc

CALIFORNIA DEPARTMENT OF PARKS AND RECREATION’S OPENING BRIEF

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