Difference between revisions of "Kern County's Ban on Sewage Sludge Land Application"

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In a June 7 hearing, the judge refused to remove the measure from the ballot but agreed that the county had some questions to answer to defend its actions.<ref>Gretchen Wenner, "[http://www.bakersfield.com/news/local/x1915425064/Sludge-Judge-sides-with-Kern-for-now Sludge: Judge sides with Kern for now]," ''The Bakersfield Californian'', April 8, 2006, Accessed June 24, 2011.</ref>
 
In a June 7 hearing, the judge refused to remove the measure from the ballot but agreed that the county had some questions to answer to defend its actions.<ref>Gretchen Wenner, "[http://www.bakersfield.com/news/local/x1915425064/Sludge-Judge-sides-with-Kern-for-now Sludge: Judge sides with Kern for now]," ''The Bakersfield Californian'', April 8, 2006, Accessed June 24, 2011.</ref>
  
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=== City of Los Angeles v. Kern County ===
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=== City of Los Angeles, et al. v. County of Kern ===
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After the sludge ban passed, Los Angeles County and Orange County filed a lawsuit, alleging that the sludge ban violated the [[Commerce Clause]] of the U.S. Constitution. In 2010, the [[Supreme Court]] refused to hear the case, leaving in place a win for Kern County.<ref>James Burger, "[http://www.bakersfield.com/news/local/x1008890272/Kern-wins-again-as-U-S-Supreme-Court-refuses-to-hear-sludge-case Kern wins again as U.S. Supreme Court refuses to hear sludge case]," ''The Bakersfield Californian'', June 1, 2011, Accessed June 24, 2011.</ref> However, the case did not end there.
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After the sludge ban passed, Los Angeles County and Orange County filed a lawsuit, alleging that the sludge ban violated the [[Commerce Clause]] of the U.S. Constitution. The ban, which passed on June 6, 2006, was to take effect in six months, December 6, 2006. However, on November 20, 2006, [[Judge Gary Allen Feess]] of the [[U.S. District Court for the Central District of California]] ruled to "temporarily block Kern County from enforcing a ban on the land application of biosolids from urban municipalities until the court rules on the merits of the case."<ref>"First-Time Ruling Backs Constitutional Claims to Limit Biosolids Bans," ''Inside EPA'', Vol. 27 No. 50, December 15, 2006.</ref>
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:"Ruling in , Feess granted the municipalities' request for a preliminary injunction against Kern County's ban on the land application of sewage sludge, saying the voter-approved ban "is likely to impermissibly discriminate against interstate commerce because it was enacted in part for the purpose of protecting the reputation of Kern's agricultural products and specifically to exclude out-of-county biosolid commerce."
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:"Feess also says in his Nov. 20 ruling that the country's ban is likely preempted by state law because it thwarts recycling activities promoted by a state waste law, and it likely constitutes an invalid exercise of police power "because it cannot reasonably be said to accommodate the regional interest in safe, cost-effective management of biosolids."
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:"While the ruling may have limited legal weight since it was only on a motion for preliminary injunction, attorneys say it is still significant because the county is likely to appeal the ruling to the U.S. Court of Appeals for the 9th Circuit, which could provide the first appellate ruling on the constitutional issue. Up to now, federal courts have generally overturned land application bans on narrow, state-specific grounds.
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:"In the suit, the city of Los Angeles, Los Angeles County, Orange County, and others allege that a Kern County ban on the land application of biosolids in unincorporated areas of the county violates the Commerce Clause of the Constitution, as well as state and federal laws governing biosolids use. Other groups challenging the ban include trucking companies that transport the biosolids, farms that apply the biosolids as fertilizer and the California Association of Sanitation Agencies, which represents wastewater treatment utilities throughout the state."<ref>"First-Time Ruling Backs Constitutional Claims to Limit Biosolids Bans," ''Inside EPA'', Vol. 27 No. 50, December 15, 2006.</ref>
 +
 
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In 2010, the [[Supreme Court]] refused to hear the case, leaving in place a win for Kern County.<ref>James Burger, "[http://www.bakersfield.com/news/local/x1008890272/Kern-wins-again-as-U-S-Supreme-Court-refuses-to-hear-sludge-case Kern wins again as U.S. Supreme Court refuses to hear sludge case]," ''The Bakersfield Californian'', June 1, 2011, Accessed June 24, 2011.</ref> However, the case did not end there.
  
 
==Articles and resources==
 
==Articles and resources==

Revision as of 17:21, 25 June 2011

{{#badges: ToxicSludge}}Kern County's Ban on Sewage Sludge Land Application was passed via popular referendum in 2006. It banned the application of treated human and industrial sewage sludge as fertilizer on unincorporated farmland in Kern County, CA.[1] At the time, about one-third of California's sludge was applied to land in Kern County, "mostly from Southern California, to grow crops fed to dairy cows." The ballot initiative to ban sludge application was spearheaded by Democratic CA State Senator Dean Florez. The ballot measure was challenged in court before and after it was voted upon. As of 2011, it was still being litigated.

Sludge Application in Kern County

In the years leading up to the 2006 ballot initiative, one third of California's sewage sludge was applied to land in Kern County. [2] Orange County, Los Angeles County, Oxnard and Ventura all sent their sludge to Kern County. Los Angeles applied most of its sewage sludge (750 tons per day) on a 4,688 acre Kern County farm, Green Acres owned by Los Angeles but managed by a company called Responsible Biosolids Management.[3] Green Acres grows alfalfa, wheat, and corn for use as dairy cattle feed. Orange County applied about one third of its sludge to a privately owned Kern County farm, Honeybucket Farm.

When faced with no longer being allowed to send sludge to Kern County, Los Angeles lined up farmers in Arizona to receive its sludge.[4] They projected an increased cost to taxpayers from $7 million per year to as much as $21 million per year. Orange County, which already sent some sludge to Arizona prior to the ban, planned to send even more once it was unable to dispose of its sludge in Kern County. They projected increases costs of $700,000 per year.

"Los Angeles officials contend that Kern County residents are being manipulated by a state senator who's pressing the initiative for political gain. Their sludge is perfectly safe, they say, casting themselves as victims of a campaign to cast the city as a sludge-spewing predator."[5]

The Ballot Initiative

On June 6, 2006, the Kern County ballot initiative to ban sludge application passed with 85 percent of the vote.[6] The ban was to take effect in six months. After the vote, "California Senator Dean Florez, who led the campaign to ban L.A. biosolids, said the Kern vote was common sense." He said, "Voters here came to the correct conclusion that if sludge was good for people, Southern California communities wouldn't be clamoring to send it north to us."[7]

Text of Measure E, the Keep Kern Clean Ordinance of 2006

The language of the land application ban is as follows:[8]

"BIOSOLIDS LAND APPLICATION BAN: INITIATIVE ORDINANCE. Prohibits the land application of biosolids in the unincorporated area of Kern County. “Biosolids” are treated solid, semi-solid or liquid residue generated during the treatment of sewage in a wastewater treatment facility. Land application of any materials containing biosolids is prohibited immediately. In addition,the ban prohibits the discharge of biosolids to surface waters and surface water drainage courses and prohibits leaching or other introduction of biosolids to groundwater aquifers. Biosolids, packaged for routine retail sales through regular retail outlets, which are primarily used for residential purposes in limited amounts are permissible and are excluded from the ban.
"Existing permit holders have six months to discontinue the land application of biosolids. An appeal procedure is established to request an extension of time to discontinue such application if special circumstances exist which create a hardship for those who have installed or constructed permanent improvements relating to the land application of biosolids. The final step of the appeal process is a hearing before the Kern County Board of Supervisors, which may grant an extension not to exceed six months.
"Violation of the ordinance is a misdemeanor punishable by a fine of not more than $500 or not more than six months in prison, or both, for each day of violation. An offender may also be required to pay for cleanup and disposal costs."

Lawsuits

Bonilla v. Barnett

Before the June 2006 election in which the ballot measure was voted upon, two Spanish-speaking men, Jose S. Bonilla and Rafael C. Rivera, filed a lawsuit to keep the measure off the ballot, alleging that they "had their civil rights violated because the signature-gathering petition was printed only in English."[9] Both men were truck drivers whose jobs were hauling sludge. Their attorney, Roger Parkinson of Borton, Petrini & Conron LLP, said that Bonilla and Rivera would lose their jobs if the measure passed.

In a June 7 hearing, the judge refused to remove the measure from the ballot but agreed that the county had some questions to answer to defend its actions.[10]

City of Los Angeles, et al. v. County of Kern

After the sludge ban passed, Los Angeles County and Orange County filed a lawsuit, alleging that the sludge ban violated the Commerce Clause of the U.S. Constitution. The ban, which passed on June 6, 2006, was to take effect in six months, December 6, 2006. However, on November 20, 2006, Judge Gary Allen Feess of the U.S. District Court for the Central District of California ruled to "temporarily block Kern County from enforcing a ban on the land application of biosolids from urban municipalities until the court rules on the merits of the case."[11]

"Ruling in , Feess granted the municipalities' request for a preliminary injunction against Kern County's ban on the land application of sewage sludge, saying the voter-approved ban "is likely to impermissibly discriminate against interstate commerce because it was enacted in part for the purpose of protecting the reputation of Kern's agricultural products and specifically to exclude out-of-county biosolid commerce."
"Feess also says in his Nov. 20 ruling that the country's ban is likely preempted by state law because it thwarts recycling activities promoted by a state waste law, and it likely constitutes an invalid exercise of police power "because it cannot reasonably be said to accommodate the regional interest in safe, cost-effective management of biosolids."
"While the ruling may have limited legal weight since it was only on a motion for preliminary injunction, attorneys say it is still significant because the county is likely to appeal the ruling to the U.S. Court of Appeals for the 9th Circuit, which could provide the first appellate ruling on the constitutional issue. Up to now, federal courts have generally overturned land application bans on narrow, state-specific grounds.
"In the suit, the city of Los Angeles, Los Angeles County, Orange County, and others allege that a Kern County ban on the land application of biosolids in unincorporated areas of the county violates the Commerce Clause of the Constitution, as well as state and federal laws governing biosolids use. Other groups challenging the ban include trucking companies that transport the biosolids, farms that apply the biosolids as fertilizer and the California Association of Sanitation Agencies, which represents wastewater treatment utilities throughout the state."[12]

In 2010, the Supreme Court refused to hear the case, leaving in place a win for Kern County.[13] However, the case did not end there.

Articles and resources

Related SourceWatch articles

References

  1. ↑ Gretchen Wenner, "Civil rights suit aims to block sludge initiative," The Bakersfield Californian, April 5, 2006, Accessed June 24, 2011.
  2. ↑ Steve Chawkins, "Sludge Ban Is Primed to Pass; Strong support for the Kern County measure could force L.A. and others in the state to find new areas to dump tons of treated human waste," Los Angeles Times, May 2, 2006.
  3. ↑ Kerry Cavanaugh, "Kern County: L.A. To Weigh Options After Voters Ban Imported Sludge," The Daily News of Los Angeles, June 7, 2006.
  4. ↑ Steve Chawkins, "Sludge Ban Is Primed to Pass; Strong support for the Kern County measure could force L.A. and others in the state to find new areas to dump tons of treated human waste," Los Angeles Times, May 2, 2006.
  5. ↑ Steve Chawkins, "Sludge Ban Is Primed to Pass; Strong support for the Kern County measure could force L.A. and others in the state to find new areas to dump tons of treated human waste," Los Angeles Times, May 2, 2006.
  6. ↑ Kerry Cavanaugh, "Kern County: L.A. To Weigh Options After Voters Ban Imported Sludge," The Daily News of Los Angeles, June 7, 2006.
  7. ↑ Kerry Cavanaugh, "Kern County: L.A. To Weigh Options After Voters Ban Imported Sludge," The Daily News of Los Angeles, June 7, 2006.
  8. ↑ Measure E
  9. ↑ Gretchen Wenner, "Lawsuit to keep on truckin' in Fresno today," The Bakersfield Californian, April 7, 2006, Accessed June 24, 2011.
  10. ↑ Gretchen Wenner, "Sludge: Judge sides with Kern for now," The Bakersfield Californian, April 8, 2006, Accessed June 24, 2011.
  11. ↑ "First-Time Ruling Backs Constitutional Claims to Limit Biosolids Bans," Inside EPA, Vol. 27 No. 50, December 15, 2006.
  12. ↑ "First-Time Ruling Backs Constitutional Claims to Limit Biosolids Bans," Inside EPA, Vol. 27 No. 50, December 15, 2006.
  13. ↑ James Burger, "Kern wins again as U.S. Supreme Court refuses to hear sludge case," The Bakersfield Californian, June 1, 2011, Accessed June 24, 2011.

External resources

  • Measure E, also known as the "Keep Kern Clean Ordinance of 2006."

External articles

2011:

2010:

2006:

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