Legal Lode: Whiff Due Respect

Folks in Kern County, Calif., may finally be getting the message. First, a federal court, then a local superior court judge, and now a state appeals court have weighed in. They all say that the county can’t forbid the land application of biosolids.

About 20 years ago, the city of Los Angeles began diverting 100 percent of its biosolids from landfills and applying the material as fertilizer at a 4,700-acre farm in the unincorporated area of Kern County, about 120 miles north of Los Angeles. The city purchased the farm in 1999 for almost $10 million.

Land application of biosolids is subject to federal, state, and local regulations. In 1993, the USEPA issued regulations dividing biosolids into a Class A and a Class B according to the quantity of pathogenic microorganisms remaining after treatment. As Class A biosolids are treated to eliminate virtually all pathogenic microorganisms, federal regulations allow them to be applied to land with few restrictions. Class A Exceptional Quality (EQ) biosolids, an even higher-quality grade, are exempt from federal oversight.

After Kern County adopted regulations limiting land application to EQ biosolids, the city spent about $15 million to upgrade its sewage treatment plants, enabling them to process biosolids to the highest level. These days, about 75 percent of the biosolids generated by the city’s sewage treatment plants are applied at the farm. Meanwhile, a number of Southern California county agencies and private firms have been transporting biosolids to farmers for land application in the unincorporated area of Kern County.

In June 2006, Measure E was placed on the Kern County ballot. Citing alleged public health and environmental risks, proponents sought to ban land application of biosolids in unincorporated areas of the county. With a virulent anti-Los Angeles intent and tone, the “Yes-on-E” campaign produced an 83 percent favorable vote.

Aided by a coalition of local governments and private sector operators, the city filed suit in federal district court, arguing that Measure E interfered with interstate commerce and conflicted with the California Integrated Waste Management Act (CIWMA). After initially blocking the implementation of the ban, the district court eventually ruled in favor of the plaintiffs. However, without addressing the merits of the plaintiffs’ claims, a federal appeals court in 2009 set aside the lower court ruling on the grounds that the plaintiffs’ case did not belong in federal court.

In January, 2011, Kern County notified the plaintiffs that they were subject to Measure E and must stop applying biosolids within six months of the date of the letter. The city and its allies promptly filed a complaint in Tulare County Superior Court and sought a preliminary injunction to prevent the ban from taking effect. Granting the request, Judge Lloyd L. Hicks found that plaintiffs were likely to prove, among other allegations, that the CIWMA preempted Measure E.

Why are odors suddenly a problem? After all, the county already hosts dairies and cattle ranches that also smell. “These complaints represent something those of us who live in agricultural areas know we simply have to put up with as part of our local ag based economy,” said Judge Hicks.

On appeal, the county contended that Judge Hicks was wrong in granting the injunction. The appeals court disagreed. “We are confident the superior court did not abuse its discretion in granting a preliminary injunction in this case,” the appellate panel said. “First and foremost, the superior court . . . concluded there was no evidence at all of hardship to Kern County if the injunction were granted. The proponents of Measure E insisted that land application of biosolids is dangerous, but the record in this case so far does not support their view.”

“We agree with plaintiffs that they are likely to prevail on their claim that the CIWMA preempts Measure E,” the opinion continued. CIWMA’s key provision requires cities and counties to “[p]romote” and “[m]aximize” recycling. Cal. Pub. Res. Code § 40051. “An ordinance of one local government that prohibits, within its jurisdiction, the employment by another local government of a major, widely accepted, comprehensively regulated form of recycling is not consistent with this mandate,” the appeals court concluded.

[City of Los Angeles, et al v. County of Kern, et al, No. F063381, Cal.App. Dist.5, Feb. 13, 2013.]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail:[email protected].