L.A. Says $1.5 Billion Too Much For Dust Control

LOS ANGELES (CN) - The City of Los Angeles claims that a demand for dust abatement at Owens Lake could cost California's taxpayers $1.5 billion.

The city wants to test the validity of Great Basins Unified Air Pollution Control District's dust pollution control program under a section of the Health and Safety Code. It says the program could cost $1.5 billion, making it, "the most expensive dust control program in the entire nation, and likely the world."

It asks the Superior Court to order the State Air Resources Board to conduct an independent hearing to review Great Basin's 2011 Supplemental Control Requirements Decision (SCRD).

The complaint names board executive officer, James Goldstene, and the State Air Resources Board as defendants.

"This action arises out of a long running dispute between LADWP [Los Angeles Department of Water and Power] and Great Basin over the City's lawful transport of water from the Owens Valley to the City's four million people through the Los Angeles Aqueduct," the complaint states. "This dispute is another chapter in an ongoing saga that involves Great Basin's repeated attempts, in excess of its authority under Section 42316, to require LADWP to solve all of the air quality issues in the Owens Valley Planning Area ('OVPA'). The OVPA is a much larger area than Owens Lake, extending north of Independence to south of Olancha. Long before the Los Angeles Aqueduct was constructed, the Owens Valley was a naturally arid desert situated near the Mojave Desert and Death Valley, where natural wind and dust storms were prevalent."

The lawsuit continues: "LADWP is not an owner or an operator of a source that emits air pollutants and, therefore, its water gathering activities would not normally be regulated by air quality laws. It is only through special legislation, Section 42316, that Great Basin is allowed limited authority to impose reasonable measures to mitigate dust only when Great Basin proves with substantial evidence that it is LADWP's activities in water production, diversion, storage, or conveyance that causes or contributes to an EPA-recognized exceedance of the PM102 National Ambient Air Quality Standards ('NAAQS') in the OVPA. It is not enough to merely observe dust or assume the dust is caused by LADWP's water gathering activities. Further, even when the measures are reasonable and supported by the required substantial evidence, Great Basin cannot impose requirements if it affects the right of LADWP to produce, divert, store, or convey water.

"In addition to dust control mitigation, Section 42316 allows Great Basin some limited authority to require LADWP to make annual payments of reasonable fees based on estimated actual costs to Great Basin of activities related only to control measure development and related air quality analysis. For the 2011-2012 fiscal year alone, Great Basin assessed LADWP $4.48 million in fees. Great Basin has a financial interest in holding LADWP responsible for dust at Owens Lake. Great Basin is also holding 'in reserve' approximately $1.9 million in 'unused' fees that LADWP had previously paid Great Basin pursuant to prior annual assessments, but that Great Basin has not returned to LADWP. Great Basin's reserve fund constitutes approximately 30 percent of its budget," the complaint states.

The city says that it has already spent a "staggering" $1 billion to mitigate dust over an 40 square miles of Owens Lake's bed and plans to spend more than $216 million for an additional five square miles.

Nevertheless, the Great Basin's 2011 SCRD will require the city to cover an "enormous" dust control area of 2.86 square miles, according to the city.

"To put it in perspective, 2.89 miles is over 50 times larger than the size of Capitol Park in Sacramento, and 20 times larger than Disneyland. The 2011 SCRD also requires LADWP to monitor an additional 1.87 square miles of watch areas and prepare a 30 percent design for a future dust control project for the watch areas," the lawsuit states.

The complaint adds: "LADWP currently estimates the capital costs to construct dust controls on the 2.86 square-mile Phase 9 area and future 1.87-square mile future Phase 10 area could be approximately $200 million or more, and would require LADWP to use approximately 9,000 acre feet of water per year ('afy'); in addition to the approximately 95,000 afy of water LADWP is already required to allocate each year for existing dust control mitigation at Owens Lake. The estimated $200 million cost does not take into account future maintenance and operating costs. Major infrastructure construction may also be necessary, including building a third turnout from the Los Angeles Aqueduct to provide more water to the dust control areas. The total capital costs for the 49.76 square miles of controls on Owens Lake could be $1.5 billion - the most expensive dust control program in the entire nation, and likely the world."

The city states that it "is required to pay for both the prosecution and defense" to appeal the SCRD, and adds that a procedural order limits the record only to documents that the Great Basin says support the Air Pollution Control Officer's (APCO) decision.

It also claims that it is prevented "from conducting discovery to locate documents in Great Basin's possession that relate to the 2011 SCRD and should be in the record including evidence that is unfavorable or casts doubt on the APCO's decision."

"Until the fee order appeal is decided, LADWP incurs not only its own attorneys' fees and costs in prosecuting the appeal, but is at risk of paying Great Basin's attorneys' fees in defending the appeal LADWP is challenging. The public's interest is in an efficient proceeding that avoids wasteful and duplicative proceedings," the complaint adds.

Alene Taber with Jackson, DeMarco, Tidus & Peckenpaugh of Irvine filed the petition for writ of mandate, writ of administrative mandamus and declaratory relief.

The lawsuit names Great Basin, and the State of California by and through the California State Lands Commission as real parties in interest.

Theodore Schade, Air Pollution Control Officer for Great Basin APCD, told Courthouse News Great Basin was only asking the city to "follow the law and live up to the many agreements it has made with Great Basin over the last 15 years."

Schade said: "The LADWP claims that the dust controls on Owens lake are the most expensive dust controls in the country; this is because the air pollution caused by their water diversions have caused the largest single source of particulate matter air pollution in the country. An analysis prepared by LADWP's own expert consultants shows that more than 4 square miles of additional area on Owens Lake requires controls; Great Basin ordered less than 3 square miles. The LADWP's continuing water diversions from the Eastern Sierra cause public health threatening air pollution in the Owens Valley. It is Great Basin's responsibility to see that the air pollution is controlled."

"We are just doing our job," Schade added.

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