Wednesday, August 16, 2006
Los Angeles Sues Kern County Over Imperiled Biosolids Program
By TINA BAY, Staff Writer
The City of Los Angeles yesterday filed a lawsuit in federal court seeking to enjoin and declare invalid a Kern County initiative ordinance that the city said threatens its biosolids recycling program.
The complaint, filed in the Central District of California, attacks an initiative measure that revised Kern County Code Chapter 8.05.040A by banning the application of biosolids—residual organic materials produced by the treatment of municipal wastewater—to land in unincorporated areas of the county. Kern adopted the initiative, “Measure E,” in July after voters approved it by over 83% in the June 6 primary elections.
The city alleges that Kern acted “arbitrarily based on vague and emotional speculation regarding biosolids” in adopting the ban, intending specifically to bar operations at a farm that the city owns and uses for land application of Los Angeles’ biosolids.
Green Acres Farm, located 15 miles southwest of Bakersfield, has been the site of the city’s land application program since the mid-1990s.
The city had begun working with Kern County farmers in the early 1990’s to land apply biosolids, in response to a 1987 consent decree that barred the city from dumping biosolids in the ocean, and to the Integrated Waste Management Act enacted by the state Legislature in 1989, which required localities to reduce the amount of solid waste going into landfills.
After several years of successful land application at the Green Acres site, where biosolids are used to grow crops sold as animal feed, Los Angeles purchased the farm in 1999 at a cost of $9.63 million.
Cynthia Ruiz, president of the city’s Board of Public Works, said in a release that the city must protect the economic investment in its biosolids reuse program. In addition to Green Acres’ purchase price, this includes an additional $16 million on upgrades of its wastewater treatment plants to meet heightened county requirements; the cost of operating wastewater treatment plants in Hyperion and Terminal Island that generate the biosolids recycled in Kern; and the costs of employing a full-time staff of farm workers, contractors and employees to oversee the farm’s operations.
“We regret having to file this lawsuit against another governmental entity,” Ruiz remarked, “but we were left with no other choice when Kern voters chose to take this unfortunate action to ban a federally-approved and state-encouraged practice for recycling biosolids and reducing disposal in landfills.”
Under Measure E, any site for which the County issued a land application permit has six months from the ordinance’s effective date to discontinue land application. Every day of land application in violation of the ban constitutes a misdemeanor, punishable by up to six months imprisonment and/or a $500 fine.
The ban gives the county discretion to grant an extension of up to three months if the applicant shows, and the county’s Environmental Health Services Department finds, that a six-month phase-out creates a “hardship.” If the department denies the extension, the applicant may appeal to the county’s Board of Supervisors, which has discretion to grant up to six months of additional time.
Having applied for the maximum extension allowable, the city claims that the ban is a “draconian measure” that violates the equal protection clauses of the state and federal constitutions because it singles out only unincorporated portions of the county.
“The Ban is intended to and does discriminate against biosolids generated outside of Kern County, which are land applied in the unincorporated areas of Kern County, whereas significant amounts of biosolids generated in Kern County (almost all of which are class B biosolids that have less treatment) are overwhelmingly land applied in the incorporated areas of the County,” the city alleges.
Rita Robinson, director of the Bureau of Sanitation, called Measure E “ironic” in light of the fact that cities in Kern, such as Bakersfield, Shafter, Taft, Wasco and Delano, currently land apply their Class B biosolids and are yet are not subject to the ban.
“Biosolids have only improved the environment in Kern County, and there is no basis for this ban,” Robinson said.
The complaint also alleges that the ordinance is preempted by the federal Clean Water Act, California Integrated Waste Management Act and California Water Code—all of which allow and regulate, rather than ban, the land application of biosolids. Moreover, the city claims, the measure is an unlawful attempt to regulate interstate commerce, and an invalid exercise of police power because it disregards substantial negative harm to the welfare of the communities surrounding Kern County.
Other plaintiffs in the suit include the Los Angeles County Sanitation District and Orange County Sanitation District, which operate wastewater treatment plants that generate biosolids recycled in Kern County; the Lompoc-based business Responsible Biosolids Management, Inc., contracted by the city to manage its land application program; R&G, Fanucchi, a family farming business in Kern that contracts with the city to use its biosolids as fertilizer; and Sierra Transport, Inc., a small business in Kern County that hauls biosolids from Los Angeles to Green Acres.
Counsel for Kern County could not be reached for comment.
Copyright 2006, Metropolitan News Company