Kern County has decided to end its decade-long legal battle to defend a voter-approved ban on the land application of treated sewage sludge, settling with the City of Los Angeles.

That means the death of Measure E.

Members of the Kern County Board of Supervisors voted unanimously in closed session Tuesday to sign a deal worked out with Los Angeles that will end the long, bitter and expensive fight that started nearly 11 years ago.

Los Angeles will be allowed to continue spreading its human and industrial waste — treated to “exceptional quality” in compliance with federal environmental standards — at Green Acres Farm southwest of Bakersfield.

But the city will give up any chance it had to make Kern County pay for millions of dollars in Los Angeles legal costs, taking only $54,000 in fees from Kern County.

Most of the supervisors declined to talk about the decision Tuesday. But Supervisor Mick Gleason said there simply wasn't a win at the end of the fight for Kern County.

"We fought this as best we could for as long as we could," he said. "We are at the end."

Lawyers for the City of Los Angeles issued a statement cheering Kern County's vote and the settlement:

"The City of Los Angeles appreciates the County’s approval of the settlement. The settlement reflects that after a full trial, the court concluded that farming with biosolids is safe and beneficial.

"Both Kern County and the City will benefit from the fair and agreed resolution of this dispute, which will allow recycling of biosolids at Green Acres Farm to continue. The City Council is expected to review the settlement soon."

BATTLE LINES

Measure E was passed by 83 percent of Kern County voters in June 2006.

It banned the application of treated human and industrial sewage waste — called biosolids — on open farmland.

Los Angeles, and a host of other Southern California sewer treatment agencies, sued to block the law in October of that year.

While Kern County successfully fended off a challenge in federal court — in part because a federal appeals court ruled the suit belonged in California’s legal jurisdiction — a duplicate case in Tulare County Superior Court hasn’t gone Kern County’s way.

Behind in the fight, and with only a couple appeals left to it, Kern County decided Tuesday to cut its losses and make a deal.

Now county leaders will wait to see if Los Angeles and the other parties to the lawsuit will approve the deal their lawyers have crafted.

“We’ve been assured that they will,” said Kern County Council Mark Nations.

UPHILL FIGHT

Two facts have stymied Kern County’s attempt to defend the wishes of its voters and keep Southern California sludge off unincorporated county fields.

The U.S. Environmental Protection Agency has approved the use of biosolids on farmland.

And the California Integrated Waste Management Act encourages the practice as a way to recycle the black, jelly-like material that is the end product of everything flushed down a toilet or run into an urban drain.

Those two facts were enough, Tulare County Superior Court Judge Lloyd Hicks ruled in November, to invalidate Measure E.

Kern County lawyers argued passionately that even the most highly treated sewage sludge has trace amounts of chemicals and substances that are not regulated by the EPA but could have harmful effects on humans and animals.

But Hicks noted that Kern County was unable to show, despite the decades sewage sludge has been spread on farmland in Kern County, that any human or animal has been harmed by biosolids.

The current scientific tools available to study the chemical — to detect it in the ground or water — are not enough to prove there is a danger, Nations said Tuesday.

“The science isn’t really there,” he said.

Gleason echoed Nations' statements.

"The current science was not supporting our position," he said.

Kern County could have appealed its loss before Hicks’ bench to the 5th District Court of Appeal and ultimately the California Supreme Court.

But, Nations said, it would have been a financial risk.

“It’s futile at this point because the issues we lost on in the trial court we already lost on in the appeals court” during an earlier appeal of the case, he said.

There was no reason to think the appeals court would change its mind.

Kern County has spent roughly $9 million fighting Los Angeles in first federal and then state courts, Nations said.

Under the settlement, it won’t have to pay Los Angeles’ legal bills as well.

“In my opinion it’s a waste of taxpayer money” to continue the fight, Nations said.

Gleason said supervisors chose not to risk more money pursuing a win that wasn't there.

NEXT STEP

As a result of the settlement, Kern County’s biosolids regulations will return to where they were in 2005 — requiring all sewage sludge spread here to be treated to exceptional quality.

That triggers the need for a full environmental examination of the practice of applying biosolids on land in the county, Nations said.

He said the County of Kern, under the terms of the settlement, will do an environmental report that could guide the future permitting of similar land application projects.

Los Angeles’ Green Acres Farm would be protected from those additional regulations – grandfathered in under the old rules.

But the environmental impact report could recommend new regulations for any new project proposed in unincorporated Kern County, Nations said.

The regulations can’t become a ban.

But Kern County isn’t done talking about treated sewage sludge yet.

CAN'T BLAME THE BOARD

Former state Sen. Dean Florez, D-Shafter, helped champion Measure E in 2006.

“I don’t necessarily blame the supervisors for looking out for Kern taxpayers.We fought valiantly,” Florez wrote in a message to The Californian Tuesday.

But, he said, Kern County and its leaders cannot stop pursuing environmental protections for citizens just because this lawsuit is over.

“It does concern me to think that perhaps the people of Kern County will let their guard down and stop thinking of ways of pressuring LA to stop sludge dumping in Kern. We shouldn’t stay helpless,” he wrote. “I’m afraid that Kern leaders will give up the fight in general and when that happens, they might as well put a big sign at the county line inviting sludge and other dumpers to ‘dump on us.’”

As for Los Angeles, Florez said all the city leaders and legislators there who pride themselves on their environmental credentials have tarnished their reputations and will pay for it when they run for higher office.

“You can’t dump your human waste on other, smaller communities and expect to call yourselves an environmentalist."

James Burger can be reached at 661‑395-7415. Follow him on Twitter: @KernQuirks.

(3) comments

mstar

Applying chemicals to our (farm!)land notwithstanding, is the sludge composted prior to land application?

Craig Monk

It is not the county, it is not Los Angles it is the US EPA that hold the key to a ill conceived process. Your State and US legislature also hold the key because they approved the process. Bottom line it saves money and therefore make money for the sewage industry at the health expence of the voter.
Here are just two reason not to give up and in spit of the county giving up each individual need to step up to protect your families.
Most have no clue what is even in what is being wholesale dumped into your environment and Los Angles is certainly not going to tell you. Here is one clue: Industrial, Medical, Storm and Household waste all end up in sewage. Here are the other clues from the U.S. EPA:

1. U.S. EPA's 40 CFR 261.30(d) and 261.33 (4), every US industry connected to a sewer can discharge any amount of hazardous and acute hazardous waste into sewage treatment plants. There are over 80,000 chemicals in commerce and growing even today.
2. EPA's Office of Inspector General's Report (OIG) No. 14-P-0363 is the final RED flag on the ill-conceived practice of land application of industrial, medical, storm and household waste. Just Google this EPA OIG number to see that industrial pre-treatment has not worked and is not working. attached
3. Sewage sludge and biosolids are over burdened with phosphate which is the cause of algae blooms.

To make it a lot worse you will find that Home depot and Lowes handle bags of municipal biosolids disguised as fertilizer and even TruGreen lawn care uses this mess without the consent or knowledge of their clients.
Chemicals that are persistent in the environment, bio-accumulate in people and/or wildlife, and are toxic are called PBTs and neurotoxins such as microcystin (a hemotoxin), phycotoxins, domoic acid, brevetoxin. Because of these features, as
long as they remain in commerce and may therefore be released into the environment, will threaten the health of humans, wildlife including aquatic life.

Good luck putting you head in the sand on this one. Have you noticed how many
more of the folks you know are getting cancer since 1990?

Exposures to chemicals cause cancer.


gary chandler

Not enough science about the lethal nature of sewage sludge? The science is being ignored. Deliberately poisoning Americans and wildlife with infectious waste is a sad statement about the state of our homeland. It's time to divert all sewage sludge to lined landfills to protect human health, wildlife, livestock and entire watersheds. http://crossbowcommunications.com/alzheimers-disease.../ Biosolids and sewage sludge dumped on land or in our rivers is a clear violation of the Bioterrorism Preparedness and Response Act of 2002. Biosolids are fueling the spike in autism, Alzheimer's, chronic wasting disease, mad cow disease, Zika virus, West Nile virus, valley fever and more.

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