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Monday, Sep 09 2013 07:51 PM

Case of composting facility where two brothers died goes to judge

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    By Casey Christie / The Californian

    Jose Fuentes mans the gate at Community Recycling & Resource Recovery Inc. composting facility near Lamont in November 2011 as a few trucks left the facility.

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BY JOHN COX Californian staff writer jcox@bakersfield.com

The fate of a controversial composting plant -- and with it, scores of local jobs and what a Lamont utility calls a looming environmental catastrophe -- now rests in the hands of a Kern County judge.

Arguments concluded Monday in the non-jury trial without a ruling in the case of a Lamont-area composting facility that the county Board of Supervisors tried to shut down and fine $2.3 million after two brothers died there in October 2011.

The matter most vigorously debated Monday was whether the facility represented an imminent danger when the board voted to close it. It became clear from the intricacies surrounding the California Environmental Quality Act, the whole case could come down to that.

The Kern County Superior Court judge presiding over the case, J. Eric Bradshaw, acknowledged the precision legal activity involved with applying CEQA to the case.

"We're parsing words here. There's no question about it," he said in court. "We're taking a very sharp knife and we're dicing the (CEQA) statute."

Bradshaw gave no indication of when he might issue a tentative decision on the combined lawsuits filed by the three plaintiffs: Community Recycling & Resource Recovery Inc., a related family trust and the company's landlord, the Lamont Public Utility District.

The plaintiffs are asking Bradshaw to set aside county supervisors' Nov. 15, 2011 decision to pull Community Recycling's operating permit and impose fines for various alleged land-use violations and a concern for public health and safety.

They say the board had no legal basis for revoking the permit, that the fines were disproportionate to the alleged violations and that the county denied Community Recycling its due process by providing too little time for the company to respond to the accusations.

The case carries special import to the community. Not only does the facility employ about 100 local residents, but it processes some 2 million gallons per day of human waste that the utility district says would spill out onto Highway 223 if the facility closes, causing an environmental catastrophe.

The lawsuits have also gained attention because a group of Arvin and Lamont residents has blamed Community Recycling for the brothers' deaths.

Armando Ramirez, 16, was cleaning out a drainage tunnel at the site when he was apparently overcome by toxic gas and died. His 22-year-old brother, Heladio (also spelled Eladio) tried to rescue him but ended up brain dead and was removed from life support within days.

Bradshaw allowed the facility to reopen and resume operations pending the trial's outcome.

Closure on what basis?

Much discussion Monday focused on the board's justification for closing the facility, and whether that squared with CEQA law.

Bradshaw said he understood the board's closure action required an exemption from CEQA. By law, that exemption had to relate either to the plant representing a clear and imminent danger or to conditions that existed there.

County counsel contend that the exemption was based on the facility being an ongoing threat to public health and safety. Two brothers died there unexpectedly, county lawyer Michael Hogan noted, and without evidence that anything was fixed since then, the board wanted to protect others from suffering the same fate.

But if that's the reason for the exemption, Bradshaw said in court, then it could be viewed as insufficient because it was too late to prevent the deaths. Perhaps, he said, the board was acting to address a condition -- such as the presence of toxic gas -- which could have called for different measures by the county.

Hogan argued otherwise, saying the company had repeatedly violated a Cal-OSHA order not to allow access to the drainage system where the brothers died. He said the board needed to take action "more significant" than the state's action.

Bradshaw sounded unconvinced.

"The death of the two men was not a clear and imminent danger," he said. "It's a past fact."

Although the judge spent time Monday quizzing the lawyers involved, he emphasized more than once not to read anything into his attempts to play "devil's advocate," saying he was only trying to elicit both sides' "best shot."

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