Kern County has lost a key round in its decade-long battle with Southern California waste districts over the land application of treated human and industrial waste.
Now the Board of Supervisors will have to decide whether to appeal the loss and continue the fight.
On Nov. 28, Tulare County Superior Court Judge Lloyd Hicks issued a tentative ruling that invalidated the County of Kern's 2006 Measure E ban on the land-application of "biosolids" in the unincorporated areas of the county.
Lawyers in the case received the ruling Monday.
The City of Los Angeles dumps roughly 180,000 wet tons of biosolids — the black sewage sludge produced after the waste from the city's residential and industrial sewer system is treated — on L.A.'s Green Acres Farm southwest of Bakersfield.
In June 2006, Kern County voters overwhelmingly supported Measure E, a county law that banned the land application of biosolids on unincorporated county land.
That triggered a court battle waged through federal courts in Los Angeles and Pasadena before the U.S. Supreme Court declined to pick up the case, leaving Kern County the temporary winner.
But Los Angeles didn't give up. The city filed a lawsuit against Measure E in Kern County Superior Court. That challenge was ultimately moved to Tulare County Superior Court and assigned to Judge Hicks.
In late April and early May, Kern and Los Angeles litigated the case in his courtroom.
Los Angeles argued that Measure E violated the commerce clause of the U.S. Constitution, that the county overstepped its police powers when it attempted to enforce Measure E, and that the Kern County measure violated the California Integrated Waste Management Act, which calls for the beneficial reuse or recycling of sewage sludge.
On Nov. 28, Hicks issued his tentative ruling. For the most part it was bad news for Kern.
Hicks ruled that Kern had, indeed, overstepped its police powers.
Kern County lawyers argued the concerns that motivated voters to approve Measure E — the possibility that pathogens and unregulated toxic chemicals that are flushed down Los Angeles toilets leach into Kern County soil and water — allowed Kern to exert its power to ban the practice.
Hicks said no evidence was presented at trial that any person or animal has gotten sick because of biosolids spread at Green Acres, no tests have found unsafe levels of contaminants in the ground or water, and they have been ruled by state and federal regulators as safe to land-apply.
Kern argued, he said, that there are unknown chemicals and compounds that can't be tested yet and that gives the county power to police its territory and ban biosolids.
He rejected that argument.
Hicks said Measure E was based on worries and "antipathy" to Southern California agencies spreading biosolids on land in Kern County. It wasn't, he wrote, based on facts.
Interim Kern County Counsel Mark Nations said Kern County was at a disadvantage in the debate.
"I think the disadvantage we had in our case is the science is just not there yet. The scientists are saying there are emerging areas of concern. They're saying there are chemicals that are going into sewers that have never been there before. But there's no way to quantify the risk," Nations said.
"Testing showed the presence of heavy metals in the soil but they had not migrated" through the soil into the water table.
Hicks also ruled that Measure E's restrictions were trumped by the state's Integrated Waste Management Act.
Measure "'E' prohibits what CIWMA requires," Hicks wrote. "Even under the restricted test proposed by Kern, 'E' is in direct conflict with, and inimical to, CIWMA and is therefore, for that reason also, void."
The only bright spot for Kern is that Hicks ruled against the City of Los Angeles on its claim that Measure E violated the U.S. Constitution's commerce clause — and an implied state standard.
That is the only issue that would have allowed Los Angeles to recover millions of dollars in attorneys' fees it spent on the trial.
Under Hicks' ruling, Green Acres Farm would still be able to spread exceptional quality biosolids on unincorporated Kern County land but Kern County would only be responsible for paying its own legal bills.
Now Kern County must decide whether to appeal Hicks' ruling and continue the bloody battle with its neighbors to the south, Nations said.
"We have to meet with the board and find out what they want to do. They are the only ones who have the authority to direct us to appeal," he said.
Nations said he hopes to discuss the issue with supervisors in a closed session hearing on Dec. 20.
The county could appeal, could seek a settlement with Los Angeles and the other parties that supported it in the case, or accept the judgment.
Before that decision is made, Nations said, he has some work to do.
"I feel like we had a fair hearing. I think the judge's ruling was thorough. What we have to determine now is if he made any errors on the application of the law," he said.
The City of Los Angeles issued a press release praising Hicks' ruling.
"The City of Los Angeles welcomed the decision and looks forward to continue recycling biosolids at its farm to grow feed crops used by Kern County dairies and to benefit the millions of city residents who depend on economical and environmentally sound wastewater management," the press release stated.
James Slaughter, a nationally known biosolids attorney who represented Los Angeles at the trial, expressed satisfaction with the outcome.
"Co-counsel Mike Lampe and I are pleased with the decision and appreciate the full and fair trial regarding Measure E," he wrote in an email.