BAKERSFIELD, Calif. (CN) - Kern County secretly adopted a zoning ordinance that will prevent Los Angeles from running its biosolids recycling facility, Los Angeles and others claim in court.
Biosolids, or sludge, include human waste processed at sewage and wastewater treatment plants.
The City of Los Angeles, sanitation district in Los Angeles and Orange counties, two biosolids treatment companies and the California Association of Sanitation Agencies sued Kern County and its Board of Supervisors on Feb. 10 in Kern County Court.
"This action challenges Kern County's surreptitious adoption of a new zoning ordinance, the sole purpose of which is to impose onerous new requirements on the recycling of biosolids," the complaint states.
It continues: "County officials concealed the purpose of the ordinance, never once mentioning biosolids in the public notices of hearings on the proposed ordinance. Nor did the county pay heed to the important environmental consequences of burdening the widespread practice of recycling biosolids as an alternative to landfill disposal and a substitute for the use of chemical fertilizer on feed crops."
After domestic wastewater has been cleaned and disinfected, the resulting biosolids can be recycled and used as an organic fertilizer, according to the Environmental Protection Agency's biosolids page.
Farmers and gardeners use biosolids because they are rich in phosphorous and nitrogen with trace elements magnesium and zinc that promote plant growth, increase crop yield, and improve the soil's ability to retain moisture.
Plaintiffs say they have run a biosolids recycling facility at Green Acres Farm in Kern County since the 1990s and have "invested millions of dollars" to comply with the county's stringent biosolids ordinances.
In 1999, most of the current plaintiffs sued Kern for adopting a new biosolids ordinance without preparing an environmental impact report that complied with the California Environmental Quality Act. Six years later, the Tulare County Court ordered Kern to prepare an environmental study concerning land application of biosolids, but the county never did it, according to the new complaint.
In June 2006, Kern voters passed Measure E, which purportedly banned the use of biosolids in unincorporated areas, but mainly served to prevent the plaintiffs from running their recycling operation, according to the complaint.
Though the plaintiffs successfully challenged the ban in Federal Court, the 9th Circuit vacated the judgment, "solely on the basis that plaintiffs lacked prudential standing to assert their federal claims," and remanded the case, Los Angeles says.
The Tulare County Court preliminarily enjoined enforcement of Measure E in January 2011, and the plaintiffs moved for summary judgment in September 2014.
Confronted with the possibility of having Measure E struck down, the defendant Kern County Planning Commission announced a public hearing on Dec. 11, 2014, allegedly to consider adding a zoning ordinance to ensure that land use in the county complied with federal water quality pollution standards, according to the complaint.
The hearing announcement, which the plaintiffs say they did not receive, did not mention biosolids. But the proposed revision restricts the use of biosolids to designated areas, and requires those who want to recycle biosolids to "obtain a zoning change and approval of a site development plan, both of which would be subject to potentially lengthy and expensive CEQA review," the complaint states.
The Kern County Board of Supervisors adopted the revision as Measure G-8533 on Jan. 6 this year. A day later, the plaintiffs say, the board issued a notice asserting that the project would have no impact on the environment and was thus categorically exempt from CEQA analysis.
The plaintiffs claim the county abused its discretion by approving the ordinance without environmental review.
They also claim that Kern County ignored the fact that discouraging the use of biosolids on county land will create indirect environmental impacts by forcing people to use less environmentally friendly alternatives, such as chemical fertilizers, and "shift[ing] biosolids land application activities to more distant locations, entailing greater environmental impacts."
Kern County purposefully deceived the public about the true nature of the zoning ordinance to prevent the plaintiffs from submitting comments opposing the ordinance, the complaint adds.
If the ordinance is not vacated, Los Angeles's biosolids recycling facility at Green Acres Farm will be transformed to nonconforming use, "restricting the city's ability to alter or expand its operations," according to the lawsuit.
The plaintiffs seek declaratory judgment that the ordinance violates CEQA, and want Kern County enjoined from enforcing it until the county completes an environmental study that complies with CEQA regulations.
The city of Los Angeles is represented by Michael J. Lampe of Visalia and City
Attorney Michael Feuer. Gary J. Smith, with Beveridge & Diamond of San Francisco, represents the other plaintiffs.