Local Politics

Wednesday, Feb 13 2013 09:00 PM

Court ruling bodes ill for Kern's ban on sewage land application

BY JAMES BURGER Californian staff writer jburger@bakersfield.com

Kern County was dealt a painful blow Wednesday in its more than six-year legal battle with the city of Los Angeles over the application of treated southland sewage sludge on Kern County farm fields.

The 5th District Court of Appeal in Fresno upheld a Tulare County Superior Court ruling that blocks Kern County from enforcing Measure E, a ban on land application of treated human and industrial waste -- known in the waste industry as biosolids -- passed by county voters in June 2006, until the merits of the case are decided in the lower court.

While the ruling, technically, only upholds a temporary freeze on the enforcement of Measure E, sections of the unanimous ruling from three appellate judges foresee trouble for Kern County's case.

"We agree with both (federal district and superior) courts that plaintiffs were reasonably likely to succeed on two of their contentions: that Measure E is pre-empted by the California Integrated Waste Management Act, and that Measure E conflicted with a state constitutional principle known as the regional welfare doctrine and therefore exceeded Kern County's authority," wrote presiding Judge Rebecca A. Wiseman, a former Kern County judge.

Currently, the court wrote, 75 percent of the treated waste from Los Angeles sewage treatment plants is applied at Green Acres Farm, a 4,700-acre farm 15 miles southwest of Bakersfield in Kern County.

The 5th District ruling called land application of biosolids a "widely used, widely accepted, comprehensively regulated method by which municipalities fulfill their obligation to reduce the flow of waste to landfills."

Attorneys for the city of Los Angeles and the contractors who transport and spread the biosolids argued that Measure E conflicts with state law that mandates the recycling and reuse of solid wastes.

Kern County argued that the California Integrated Waste Management Act only encourages, not mandates, practices like land application of treated sewage sludge. But the 5th District justices, in a ruling posted online Wednesday, said the material is properly called "biosolids" and said Kern County is mandated by state law to allow the land application of it.

"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," Wiseman wrote.

The court also rejected a Kern County argument that Kern is only required by the Waste Management Act to promote recycling and reuse of biosolids produced in Kern County, but can reject biosolids produced in another jurisdiction.

It also supported the city of Los Angeles' contention that, in passing Measure E, Kern County overstepped its powers to police its own territory.

Those "police powers" must be used, the justices found, to promote the general welfare of the region.

"It is likely that plaintiffs will succeed in showing that Measure E does not strike a reasonable accommodation of the competing interests and that there is no fair argument that Measure E promotes the general welfare of the region," Wiseman wrote.

Kern County Counsel Theresa Goldner said the county can ask the California Supreme Court to review the 5th District decision. "In the next few weeks I will be asking the Board of Supervisors to decide whether the county will take that next step," she said.

Ultimately, she said, the case will return to the Tulare County Superior Court for a ruling on the merits of the case. Any decision there is likely to be appealed back to the 5th District and, ultimately, to the state Supreme Court. Goldner was reluctant to say that the clear tone of Wednesday's ruling predicts the ultimate outcome of the case.

"This case had so many legal twists and turns, this is just another one. This isn't over," she said. "That was what I said when the county prevailed in the federal court case."

Supervisors expressed frustration and disappointment over the outcome of the appeal.

"It's a pretty sad day when the city of Los Angeles can use the court system to override the clear voice of the citizens of Kern County who voted to refuse to accept Los Angeles sewage sludge," said Supervisor Mike Maggard.

Supervisor David Couch said he wasn't surprised by the decision. "But I am disappointed. It's an unfortunate decision for the citizens of Kern County."

In a further -- more financial -- blow to Kern County, the 5th District justices awarded the costs of the appeal to the city of Los Angeles. The amount was not stated. Calls to the office of the Los Angeles City Attorney were not returned Wednesday.

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