Without downplaying the potential for an environmental catastrophe on Highway 223, a Kern County judge turned the tables Friday on a Lamont utility's claim that there is no responsible way to shut down a local composting facility that processes human waste.
Kern County Superior Court Judge J. Eric Bradshaw blamed the Lamont Public Utility District for relying too heavily on its controversial tenant, Community Recycling & Resource Recovery Inc.
"I think what (the district) did was build its house on a foundation that was tenuous," Bradshaw told one of the utility's lawyers.
Community Recycling, along with a related family trust and the utility, are pursuing their lawsuit that essentially appeals a November 2011 decision by the county Board of Supervisors to pull the company's operating permit and fine it $2.3 million after two brothers died at the facility.
Larry Peake, the utility's senior lawyer, did not dispute the judge's assertion that the district put itself in a precarious situation by agreeing to a lease with Community Recycling in 1993. Under the agreement, the company pays the district $20,000 a year to accept nearly 2 million gallons of effluent per day to help it turn green waste and food scraps into compost for sale to Central Valley farmers.
Instead, Peake reiterated warnings about the consequences of losing its tenant. He reminded Bradshaw that years of study by several parties have produced no viable way to divert the waste without either tripling Lamont residents' utility bills or allowing the effluent to overflow onto Highway 223 just 46 days after Community Recycling's shutdown.
"In 46 days? In 46 days, (a solution) is not going to happen," said Peake, who often has referred to a potential sewage spill as a "catastrophe."
In February of last year, Bradshaw ruled that the company could continue operating at least until the lawsuit is settled.
On Friday, just as the day before, about 30 activists from Arvin and Lamont filed into the courtroom gallery to view the proceedings. They blame Community Recycling for the death of the brothers, and have called for the company's closure.
While the lawsuit does not deal directly with the October 2011 deaths, the trial has aired county's allegation that conditions at Community Recycling represented a threat to public health and safety.
The younger of the two brothers, 16-year-old Armando Ramirez, was cleaning out a drainage tunnel at the composting facility on Oct. 12, 2011 when he apparently inhaled hydrogen sulfide, a toxic gas sometimes found at composting operations. His 22-year-old brother Heladio, (sometimes spelled Eladio), went down to rescue him but succumbed as well; he was found brain dead and removed from life support several days later.
Cal-OSHA quickly responded by ordering Community Recycling to close access to the drainage system.
But in November 2011, as the Board of Supervisors was trying to decide how to punish the company over what it considered a pattern of land use violations, a senior Cal-OSHA official accused the company of violating its order five times.
That allegation, at least partly relied on by county supervisors to justify closing the operation, has repeatedly come up in this week's trial.
On Friday, a second lawyer for the utility district said Community Recycling's alleged violation of Cal-OSHA's order may have been a misunderstanding, noting that there were two versions of it.
In any case, utility attorney Steve Torgiani said, the situation did not present an emergency requiring the facility's closure. He noted that Cal-OSHA never asked the county to penalize the company.
He added that by reacting to one so-called emergency, the Board of Supervisors could end up creating another: an effluent spill.
The Cal-OSHA matter arose again Friday as the judge was pressing the county's lawyers to explain why the supervisors pulled Community Recycling's permit the same day the company learned that the state agency had accused it of violating its order.
A lawyer for the county, Michael Hogan, said the short response time was the company's own fault because it knowingly violated the agency's order.
At that point, Bradshaw asked one of the company's lawyers, Mark Smith, what Community Recycling would have done with more time to prepare for the county hearing when its permit was on the line.
Smith said the company would have used the time to prepare a case disputing Cal-OSHA's claim that it had violated the order.
Bradshaw said he hopes to conclude the trial on Monday.