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By Casey Christie / The Californian
BY JOHN COX Californian staff writer email@example.com
A Kern County judge threw critical questions at both sides as a trial got under way Thursday to decide the fate of a Lamont-area composting operation where two brothers died in October 2011.
In a series of skeptical interjections, Superior Court Judge J. Eric Bradshaw took one of the company's lawyers to task for his assertions that the county Board of Supervisors had no authority to shut down the facility on the basis that it represented a threat to public health and safety.
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Bradshaw also appeared to cast doubt on the company's claim that $2.3 million was an excessive fine by the board for various allegations of land use violations by Community Recycling & Resource Recovery Inc. and a related family trust.
There was no telling, however, which way Bradshaw might be leaning as he prepares to issue a final ruling as soon as Friday. That's partly because the county hasn't yet had an opportunity to present its case.
Community Recycling and two other parties -- a family trust related to the company's owner and its landlord, the Lamont Public Utility District -- sued the county in December 2011 to reverse a decision by supervisors to shut down the facility and fine it $2.3 million. The board's decision came about a month after two brothers died while working at the facility. They are believed to have succumbed to toxic gases.
The company and the trust allege in their suit that county supervisors had failed to afford Community Recycling adequate notice -- and, by extention, the company's right to due process -- before pulling the company's operating permit. They also dispute the county's allegations of land use violations.
Filed in December 2011, the case is essentially an appeal of the board's revocation of Community Recycling's permit and the supervisors' imposition of fines.
The company won an early round in February of last year, when Bradshaw ruled that the company could continue to operate pending the trial's outcome. The utility district has argued that without Community Recycling as its tenant and effluent customer, nearly 2 million gallons a day of human waste will spill out onto nearby roads.
While the case deals largely with land use issues, the board's Nov. 15, 2011, public hearing on which the lawsuit is based was widely seen as revolving around the two brothers' deaths.
On Oct. 12, 2011, 16-year-old company employee Armando Ramirez died after apparently inhaling the toxic gas hydrogen sulfide while cleaning out a drainage tunnel at the facility. His 22-year-old brother Heladio, alternatively spelled as Eladio in some official documents, went down to rescue Armando, but was also overcome and rendered brain dead; he was removed from life support days later.
A wrongful death lawsuit filed by the brothers' mother against the company and other parties is scheduled to start next year.
Lively day in court
Some two dozen residents of Arvin and Lamont -- as well as Dolores Huerta, co-founder of the United Farm Workers union -- crowded into the courtroom gallery Thursday. Many wore stickers reading: "Protect our communities! No CRRR!" (an acronym for Community Recycling).
Shortly after the trial opened, the company's lawyers challenged each alleged land use violation. But just before lunch, almost at the moment Community Recycling attorney Mark Smith said the board had no authority to revoke the company's permit based on health and safety concerns, the judge butted in.
Bradshaw asked Smith whether it was reasonable for supervisors to suspect that hydrogen sulfide might have killed the brothers, given that there were reports the gas may have been present in the tunnel.
"It seems to me the county ... was properly considering what was happening out there," the judge said.
Smith countered that only Cal-OSHA had authority to make determinations regarding employee health and safety, and that the agency had not issued a decision by the time of the hearing.
"There weren't any violations at that point in time. There were only deaths," Smith said.
(Cal-OSHA has since issued 16 citations totaling $166,890 against Community Recycling, saying the company neglected to set up safety procedures that could have saved the brothers' lives. The company is appealing the penalties.)
Later on, when Smith was arguing that the supervisors had not given the company sufficient opportunity to review and address the board's allegations, Bradshaw asked the county to step in and respond.
Michael Hogan, an attorney for the county, said that more time would not have helped the company.
On the day of the hearing, a senior Cal-OSHA official said that Community Recycling had violated an agency order that the company not let anyone near the tunnel where the brothers had died.
The judge called the Cal-OSHA statement a "crux" of the county's revocation order. He also questioned the county's timing:
"How fair is it to shove it in (the company's) face on the day of the hearing and tell them to deal with it?" he asked.
Bradshaw raised another big question during statements by John Marshall, a lawyer representing both Community Recycling and a trust representing the owner's family.
Marshall was noting that the maximum penalty the board gave to a business between 2007 and 2012 was a $55,553 fine having to do with failure to suppress fly ash.
Bradshaw interrupted: "Is any one of those instances any instance where somebody died?"