Health

Friday, Dec 06 2013 07:29 PM

Judge rules against Kern, allows Lamont composter to stay open

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    By Casey Christie / The Californian

    Jose Fuentes is stationed at the front entrance to the Community Recycling & Resource Recovery Inc., composting facility on N. Wheeler Ridge Road, on Nov. 17, 2011 as a few trucks were seen leaving the facility.

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    Armando Ramirez

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    Heladio Ramirez

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BY JOHN COX Californian staff writer jcox@bakersfield.com

The decision by Kern County Supervisors to quickly close down a Lamont-area composting facility after the deaths of two men violated due process, a judge ruled Friday. The decision means the plant can remain open.

The county abused its discretion and didn't give the company enough of an opportunity to defend itself against allegations raised in a pair of hearings conducted by the supervisors on Nov. 15, 2011, the judge determined.

Separately, Kern County Superior Court Judge J. Eric Bradshaw set aside the board's $2.3 million fine against the facility's owner, Community Recycling & Resource Recovery Inc., over various alleged land use violations.

The company welcomed the decision. One supervisor quickly raise the possibility of an appeal.

The October, 2011, deaths of two brothers at the facility caused an uproar.

Armando Ramirez, 16, was cleaning out a drainage tunnel at the site when, according to the Kern County coroner's office, he was overcome by toxic gas and died. His 22-year-old brother, Heladio (also spelled Eladio), who worked at the site but was not a Community Recycling employee, tried to rescue him but ended up brain dead and was removed from life support within days.

Community activists urged the county to close the operation. The facility employs about 100 people and some of them showed up at the same November, 2011, hearing to ask the board to spare the company and their jobs.

Activists criticized Friday's ruling.

"It's a shame that the judge ignored the threat to both workers' and (the) community's health and safety, that this dirty and dangerous facility creates, when making his decision," Salvador Partida, president of the Committee for a Better Arvin, said in a written statement.

Partida and two other groups, Global Community Monitor and the Center on Race, Poverty & the Environment, called on the county to move forward with a long-delayed environmental impact report on the composting facility's operations.

But the company was pleased.

"I am thankful to the Superior Court for this long-awaited ruling," company President Tom Fry said in a written statement. "We are eager to move beyond the legal process and forward onto building and fostering positive working relationships with Kern County elected and community leaders."

After their hearings, Supervisors voted to close the operation.

On Feb. 6, 2012. Judge Bradshaw allowed the company to reopen, pending a verdict in the cases, mainly because of the environmental threat of sewage effluent.

The agricultural and food waste Community Recycling turns into compost uses some 2 million gallons per day of human waste provided by the Lamont Public Utility District. The utility district argued before the board, and later the judge, that the effluent would spill out onto Highway 223 if the facility were to close, causing an environmental catastrophe.

The cases Bradshaw ruled on Friday -- one regarding the closure order, the other the fine -- dealt with a host of complex legal issues, including the county's obligations under the complicated California Environmental Quality Act. But the judge ruled that the county's denial of due process rendered all the other arguments moot.

Both rulings made specific reference to a finding by Cal-OSHA that Community Recycling had repeatedly violated its order not to allow access to the drainage system where the brothers died. Cal-OSHA's finding on the matter came to light on the same day as the board hearings.

Noting that the scope of the supervisors' hearings was "vast," Bradshaw found that the county should have given the company more time to address the finding of violation and other issues the county had raised.

"Under the circumstances, with so much at stake and thousands of pages of administrative record, county's compliance with the minimum statutory noticed requirements pushed the bounds of due process to their limit," Bradshaw wrote in the ruling that allowed the facility to remain open.

He continued, "County's release of the lengthy staff report at the commencement of the Nov. 15 hearing, without giving petitioners additional time to respond, went too far."

County Supervisor Leticia Perez, who was not in office at the time of the hearings but who now represents the Lamont area, said the board will decide as soon as next week whether to appeal the court's decision.

She said her choice would be to appeal.

"We don't want to back down on tough issues," she said, "and we know that we're right and we're going to proceed forward."

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