L.A. County Prevails Over Kern in 10-Year Legal War 

Rebekah Kearn

VISALIA, Calif. (CN) – After 10 years of legal wars, a California state judge struck down a Kern County law prohibiting Los Angeles from dumping treated sludge on the agricultural county’s farmland.

Kern County Counsel Mark Nations said he will confer with his Board of Supervisors to determine their next steps in the case.

Los Angeles City Attorney Frank Mateljan did not respond to emailed requests for comment sent Thursday morning.

Kern County voters overwhelmingly approved Measure E in 2006: 83 percent of them voting Yes. The measure prohibited the spreading of biosolids on unincorporated land.

Also called sewage sludge, biosolids are byproducts of the wastewater decontamination process that when stabilized and disinfected can be recycled as an organic fertilizer.

Los Angeles and others sued Kern County in February 2015, claiming Measure E was enacted to prevent them from running a 4,700-acre biosolids recycling facility at Green Acres Farm in Southwest Kern County.

Los Angeles bought the farm in 1994, though it had acidic, salty soil unsuitable for crops. But after years of receiving 800 wet tons of biosolids a day [sic] at a cost of approximately $13 million, the farm now boasts healthy, organic soil that grows corn, alfalfa, wheat and other crops.

Though Los Angeles initially prevailed in Federal Court, the Ninth Circuit vacated judgment, finding the city lacked standing to bring federal claims. When the U.S. Supreme Court declined to address the case, Kern seemed to have won.

But in 2011, the Tulare County Superior Court preliminarily enjoined enforcement of Measure E. In response, Kern adopted a new zoning ordinance that sought to restrict use of biosolids to designated areas.

Tulare County, whose seat is Visalia, is just north of Kern County. Both are at the southern end of the Great California Valley, a breadbasket for the nation.

Los Angeles also challenged the Tulare County ruling, claiming the county adopted the ordinance without environmental review, in violation of the Constitution’s Commerce Clause and the California Integrated Waste Management Act.

Tulare County Judge Lloyd Hicks struck down Measure E as invalid in a tentative ruling on Nov. 28.

Under the Integrated Waste Management Act, local agencies must reduce the amount of biosolids going into landfills and incinerators by promoting recycling and composting statewide. Without land use application, the recycling process is incomplete.

Since Measure E purports to ban land use of biosolids, it violates the state law, Hicks wrote.

He rejected arguments that Measure E is needed to protect public health and the environment from risks associated with exposure to biosolids, including heavy metals, pathogens, chemical pollutants, odor and insect nuisances.

There is no evidence that any person or animal has been harmed by exposure to biosolids, and no tests have found unsafe levels of contaminants at Green Acres. In fact, studies show that land application of biosolids is safe and can rejuvenate soil, Hicks ruled.

Kern had argued that though tests show no evidence of harm from spreading biosolids on land, it has the right to ban them because there are unknown chemicals and compounds that cannot be tested yet.

Hicks rejected that argument too. The very studies Kern cited indicate that these compounds can be detected, and that previous assessment methods overstated the risks of exposure, the judge wrote.

If Kern really were concerned about these contaminants, it would ban them in other products that have “massive actual exposure … compared to the alleged (but not shown to be) minute possible exposure from land application of biosolids.” (Parentheses in ruling.)

“The overwhelming weight of the evidence is that there is no basis in fact for any determination that land application of biosolids poses any risk to Kern County residents, let alone a real and substantial risk which would be alleviated by banning such application,” Hicks wrote.

He found that Measure E apparently had been enacted out of “antipathy” toward the sources of the biosolids, not because they actually are dangerous.

However, the judge did grant Kern County relief on its Commerce Clause argument, since Measure E was not economically motivated. Measure E applied equally to everyone, meaning that Kern itself, if it generated biosolids, would not have been able to apply biosolids to the land.

With Measure E struck down, Los Angeles can continue spreading high-quality biosolids at Green Acres. However, it must cover its own legal bills, as the failed Commerce Clause allegations were the only claim under which it could have recovered the millions in attorneys’ fees it spent on the case.