State air quality watchdogs have a little less than two weeks to decide whether the City of Los Angeles is required to continue dust mitigation efforts on the Owens Dry Lake – despite city attorneys’ adamant assertions that L.A. is “done” with any such obligations.
The California Air Resources Board met last Friday to hear arguments from the Los Angeles Department of Water and Power and Great Basin Unified Air Pollution Control District regarding a disagreement between the two entities over mandated mitigation measures.
Over the course of the eight-hour hearing, attorneys for Great Basin reiterated the district’s stance that the law requires LADWP to continue to keep dust levels down, while LADWP attorneys said outright that LADWP has completed its obligation, even going so far as to say the state board does not have the authority to require more work from the department.
Stuart Somach, a lawyer with Somach Simmons and Dunn, representing the LADWP, spoke plainly. “So the first thing I wanted to indicate to you, to everyone quite frankly, is we’re done,” Somach said to the State Air Resource Board, “We’re absolutely done in terms of going around and around with these arguments.”
In 2008, Great Basin and the LADWP agreed on a plan for dust mitigation measures on the lake that would minimize the impacts of wind-driven dirt coming off the lake as a result of the LADWP’s water gathering efforts in the Owens Valley.
Since the agreement, the LADWP has completed dust mitigation on more than 40 square miles of the lake bed that scientists from Great Basin identified as problem areas.
In February, with Great Basin preparing to issue mitigation orders for additional sections of the lake, the LADWP balked, saying that it has reduced dust blowing off the lake by 96 percent and has met its obligation for dust mitigation. The LADWP then appealed to the California Air Resources Board.
Among LADWP’s arguments is that the 2008 agreement does not indicate any stopping point for mitigation measures, and, if unchecked, Great Basin would have the ability to mandate a never-ending list of costly dust-control projects.
Speaking for Great Basin, Attorney Peter Hsiao of Morrison and Foster, said “it’s undisputed” the Owens Dry Lake bed “is the largest source of particulate air emissions in the country.” Under its agreement with Great Basin, he said, the LADWP has a duty to mitigate the dust impacts.
“There is an agreement and existing law,” Hsiao said. “Even if Mr. Somach can renege on his agreement, he cannot walk away from existing law. And existing law binds him and binds the city as well.”
Great Basin’s position, simply stated, is that the 2008 agreement with the LADWP is law, and the department, despite displeasure and disagreements, does not have the right to back out before its mitigation mandates are met.
LADWP attorney Somach fired back.
“We feel that we’re done with these arguments,” Somach said. “We feel that we’re done in terms of our obligations under Health and Safety Code 42316, but we’re also done with this continual argument that we have.”
Somach went on to say that, under the 2008 agreement, there are statutory provisions that Great Basin’s mitigation orders do not impact the LADWP’s water gathering efforts, or impact to the department’s water supply.
The LADWP is currently spreading 95,000 acre-feet of water on the lake each year to meet previous orders issued by Great Basin.
“That 95,000 acre-feet that is being spread on the lake is being spread for dust control,” Somach said. “And that dust control could be accomplished by other non-water intensive activities. The City of Los Angeles simply does not have a surplus of 95,000 acre-feet of water, the amount of water, I might add, the City of San Francisco uses on a daily basis for the entire city.”
The LADWP also says that Great Basin made an error when determining the historic levels of Owens Lake, which determines where mitigation work should be done.
At the hearing, an archeologist testified for the department that Native American artifacts pre-dating LADWP’s early-1900s water gathering efforts prove the lake was actually lower than what Great Basin has identified.
The LADWP also claims that dust blowing off the lake bed was an issue long before the LADWP had a presence in the Owens Valley, which Great Basin should take into account as it looks at mitigation mandates.
“Great Basin has ignored the fact that the level of Owens Lake would have fluctuated normally in response to changes in hydrology with associated natural dust emissions,” LADWP Owens Lake Dust Mitigation Program Manager William Van Wagoner said. “There are numerous historic accounts of major dust events in the Owens Valley, long before the Los Angeles Aqueduct was placed into survey.”
In the end, the LADWP basically told the Air Resource Board that, no matter what it determines as a result of the hearing, the state agency is not the decision-making body, and cannot provide a resolution to the dispute.
“You have no jurisdiction whatsoever to, in any way, resolve any disputes among the contracting parties with respect to (the agreements between LADWP and Great Basin),” Somach said. “If the district has a problem with LADWP’s performance under these agreements, it can sue us for breach of contract us. Pure and simple.”
The State Air Resource Board will reconvene two weeks from the hearing date, on Friday, June 29, to rule on the dispute.