Metropolitan News-Enterprise


Friday, June 28, 2013


Page 1


Supreme Court Grants Review of Ruling in Biosolids Case


By a MetNews Staff Writer


The California Supreme Court has agreed to review a statute-of-limitations issue that imperils an injunction that the City of Los Angeles and others obtained to block implementation of a Kern County initiative ordinance that the city said threatens its biosolids recycling program.

The Fifth District Court of Appeal, in City of Los Angeles v. County of Kern (2013) 214 Cal. App. 4th 394, struck down Measure E, which 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.  The measure was approved by 83 percent of Kern County voters in 2006.

The city and others filed suit, charging 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. At the time it filed suit, the city noted that it also had spent $16 million on upgrades of its wastewater treatment plants to meet heightened county requirements, and incurred additional cost to operate 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.

The case has followed a path from federal district court, where the plaintiffs prevailed; to the Ninth Circuit, which reversed on standing grounds; back to the district court, which dismissed; to the Kern Superior Court, where the action was refiled and which ruled for the plaintiffs; and to the Court of Appeal, which affirmed the Superior Court ruling.

The Ninth Circuit, in reversing, said the plaintiffs lacked standing to sue under the dormant Commerce Clause, sending the case back to the district judge to exercise his discretion to hear the remaining claims under supplemental jurisdiction, or to dismiss.

At its weekly conference in San Francisco Wednesday, the Supreme Court granted review, limited to a single issue: whether the re-filing of the suit was timely under 28 U.S.C. Sec. 1367(d).

The  statute provides for an extended statute of limitations for the refiling in state court of claims as to which supplemental jurisdiction has been declined.  It states that “[t]he period of limitations for any claim asserted under subsection (a) … shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

The Court of Appeal agreed with the plaintiffs that under that language, the statute of limitations stops running while the claim is pending in federal court and for 30 days after it is dismissed; then the statute of limitations begins to run again from the point where it left off.  The county argued for a stricter interpretation: that the state law claims must be re-filed within 30 days of dismissal by the federal court, which would render the re-filed complaint untimely.


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