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Asphalt Plant Sues Air Quality District

Grist Creek Aggregates, owner of the site producing rubberized asphalt on Covelo Road, about two miles east of Highway 101, has filed a lawsuit against Mendocino Air Quality Management District and Mendocino Air Quality Control Officer Robert Scaglione.

The suit claims that the Air Quality District’s Oct. 22 Notice of Suspension to Grist Creek, if enforced, would damage the company’s reputation as well the reputation of is subcontractor, Mercer-Fraser, by interfering with completion of resurfacing on Highway 101 near Laytonville. Grist Creek has a contract with Caltrans to provide the asphalt for the project. Suspension would also harm the public, according to the lawsuit, if road work cannot be completed before the rainy season.

The Sacramento firm of Harrison, Temblador, Hungerford & Johnson LLP filed the suit Nov. 6 on behalf of Grist Creek. The petition asserts that "neighbors have filed numerous false complaints with various state and local agencies, including the district, in an effort to stop operations.”

Neighbors disagree.

“The idea that the complaints are false is ridiculous,” said Doug Kerseg, who lives just across Outlet Creek from the plant. “Any one who lives over here and smells the nasty results of that operation, as I’m doing right this minute, would know how ridiculous that claim is.”

Scaglione said that the Mendocino Air Quality Management District is currently negotiating with Grist Creek to come up with a settlement agreement.

“The protection of air quality is what I’m after here,” Scaglione said. “I am trying to ensure that Grist Creek follows the rules that every other asphalt plant in the county has to follow, and that they be good neighbors.”

After a brief hiatus, the plant resumed making rubberized asphalt on Wednesday, Nov. 18.

The Grist Creek lawsuit against Air Quality alleges that “perhaps in response to public pressure,” the county has recently taken a series of “illegal, unfounded, misguided, and erratic actions that appear to intended to interfere with [Grist Creek’s] operation of the asphalt plant.”

The suit goes on to say that Air Quality has: “(1) issued two NOVs (notice of violations) without supporting evidence; (2) attempted to shut down the asphalt plant, in the middle of the Caltrans pavement project; (3) asked for further permits in contradiction to prior direction that no further permits were required, and then refused to process Petitioners’s [Grist Creek’s] applications for those additional permits; and (4) asserted, to public media, that Petitioner has committed other violations for which Respondents [Air Quality] have issued no NOV and have never discussed with Petitioner.”

Air Quality fined Grist Creek owner Brian Hurt, who would not comment on his lawsuit, a total of $172,000 for violations, including for: failure to comply with the asphalt plant’s air-permit conditions; violations of multiple Air District Regulations, and a violation of California Health and Safety Code, Section 42402.

Numerous public nuisance complaints, coupled with California Air Resources Board Enforcement Division’s investigation and documentation of over 20 instances of permit violations, resulted in Air Quality issuing multiple violation notices and penalties.

On June 2, Mendocino Air Quality Management District approved Grist Creek’s application to make 500,000 tons per year of asphalt and rubberized asphalt along the banks of Outlet Creek.The facility was constructed and is being operated by Eureka contractor Mercer-Fraser Company. Asphalt production began in early September.

Friends of Outlet Creek would like to see the plant closed down until a full environmental review, which the county did not require, has been completed. To that end, the group has filed three lawsuits — one against the Board of Supervisors, one against the Mendocino Air Quality Management District and one against Grist Creek Aggregates. The group and its attorney have long argued that such a large industrial plant on the flood plain of Outlet Creek, a major Eel River tributary, requires intensive environmental study.

In March, over the protests of neighbors and Friends of Outlet Creek, the Mendocino Board of Supervisors voted 5-0 to fast track the plant. The board subsequently rescinded its decision and handed responsibility for permitting to the county’s Air Quality Management District.

Friends of Outlet Creek members say they’re disheartened by Grist Creek’s lawsuit against the county. They worry about finding the money to fight on against Grist Creek and the deep pockets of its much larger subcontractor, Mercer-Fraser.

“The legal process takes a great deal of time and produces signifiant frustration to those of thus who have to live with all of that delay,” said Kerseg. “Now Grist Creek has received a new permit which permits the rubberized asphalt that they’ve been producing all this time. I don’t see any way to stop them from completing their Caltrans job.”

Sue Crews, who lives close to the plant, said the fumes sometimes makes the neighborhood “uninhabitable.”

“It’s sad we have to pollute people to have smooth roads,” Crews said.

For information on Friends of Outlet Creek, contact Glen Colwell of Friends of Outlet Creek at or Lyn Talkovsky at

(Jane Futcher lives near Grist Creek Aggregates and is active in Friends of Outlet Creek.)

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