Local News

Wednesday, Jun 08 2011 05:42 PM

Judge likely to freeze Kern's sludge law

BY JAMES BURGER, Californian staff writer jburger@bakersfield.com

It appears that Kern County’s ban on the land application of treated human and industrial waste in unincorporated county land will, once again, be frozen by a judge.

Tulare County Superior Court Judge Lloyd L. Hicks issued a tentative ruling Wednesday that Los Angeles sanitation districts and haulers are likely to win their case against Kern County and that the city and county of Los Angeles would be seriously harmed if Measure E were allowed to take effect.

Attorneys for Kern County and Los Angeles will argue their cases before Hicks Thursday in Visalia.

Hicks wrote in his tentative ruling that two central claims by Los Angeles attorneys — that Measure E oversteps Kern County’s governmental powers and that it is trumped by California’s Integrated Waste Management Act recycling mandates — are reasonably probable to succeed in his court.

Addressing Los Angeles’ police powers claim, he wrote that the campaign to pass Measure E failed to take into account the potential harm to Southern California interests that the ban would create.

He sympathized with Los Angeles, which has no way to reduce the amount of waste flushed into its sewer system.

“The competing interests here are Kern’s need to protect its citizens from the unknown potential harm from biosolids, and their alleged effect on the reputation of Kern’s agricultural products, versus L.A.'s need to dispose of biosolids in an environmentally appropriate and least costly manner,” Hicks wrote.

Los Angeles must deal with its sludge somehow, Hicks argued, and however it does that, “someone will be affected.”

Hicks seems prepared to grant a request from Los Angeles for an injunction against Measure E.

“The court finds that there is no evidence at all that Kern will suffer any harm or injury by the grant of the injunction, and that there is a substantial likelihood of significant, and some irreparable, harm to Plaintiffs if the injunction is denied,” Hicks wrote in his tentative ruling.

If Hicks’ ruling stands, Los Angeles sewage agencies and the trucking companies that ferry the material to Kern County daily would be allowed to continue to transport the treated sewage sludge, also called biosolids, to Green Acres Farm and Honeybucket Farms in Kern County.

It would not be the first time the law has been halted in its tracks.

Kern County voters passed Measure E overwhelmingly in 2006 after a campaign powered by concerns about potential groundwater contamination, odors, flies and harm to Kern County’s agricultural industry.

The city of Los Angeles, which owns Green Acres Farm, Orange County and the companies that haul and spread the sludge sued immediately to block the Kern County law in U.S. District Court.

Judge Gary Feess, in November 2006, supported the claims of Los Angeles, Orange County and their business partners and issued an injunction stopping Measure E from taking effect.

Nearly three years later, the 9th Circuit Court of Appeals overturned Feess’ ruling, reversing his decision on federal law claims and refusing to hear state law claims that, the justices wrote, belonged in state court. That essentially gutted the federal case against Measure E. The U.S. Supreme Court refused to take the case and Feess chose to dismiss the case.

But, as Kern County prepared to enforce Measure E earlier this year, Los Angeles revived the case in state court, bringing back some of the federal claims.

Hicks’ stance in the case was clear as he discussed his interpretation of the campaign to pass Measure E.

“We are left with campaign material, which, as a generality, seems to be an indication the proponents were seeking to prevent big L.A. from taking advantage of little Kern by exporting its foul products to Kern and dumping them in Kern,” Hicks wrote.

Hicks’ tentative ruling appears to give Los Angeles a leg up in this new fight.

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