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."
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.
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.
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."