Kern County should have prepared an environmental impact report before adopting an ordinance regulating the disposal of sewage sludge on agricultural land, the Fifth District Court of Appeal has ruled. The court ordered Kern County to study direct and indirect impacts of the regulation, including the effects that result from out-of-county agencies having to find new sludge disposal methods.

The court did uphold the county's authority to regulate the land application of sewage sludge, and the court ruled that sanitation agencies should have completed environmental reviews of contracts for the hauling and land disposal of sewage sludge.

The court also left the county's sludge regulation in place while the county completes an EIR.

The ruling came in a lawsuit filed against Kern County by Los Angeles County, Orange County and City of Los Angeles sanitation agencies, as well as sanitation associations and a private sludge disposal company. They object to a 1999 Kern County ordinance that requires the heightened treatment of sludge that is applied to land (seeCP&DR Environment Watch, July 2000).

Both sides claimed a measure of victory in the 104-page decision. The ruling makes clear that Kern County must evaluate the beneficial impacts of sludge application on farmland and consider the potential impacts of alternative disposal, such as hauling the sludge longer distances to willing counties, said Daniel Hyde, attorney for Los Angeles County Sanitation District No. 2.

“If it's an impact on the environment, it doesn't matter whether it occurs in Kern County or not,” Hyde said. The county still must study it.

Deputy Kern County Counsel Charles Collins, meanwhile, said that the ruling is important for local agencies because the court rejected the sanitation agency's argument that the commerce clause precluded Kern County from regulating sludge disposal.

Less than a week after the court issued its decision, Kern County supervisors directed staff members to prepare an ordinance that would prohibit the importation of any sludge into the county. The Fifth District decision “did an awful lot to give us more authority over our own future,” Board of Supervisors Chairman Ray Watson told theBakersfield Californian.

The issue of sludge disposal is controversial in many rural counties. Because of other regulatory barriers and the rising cost of dumping sludge in landfills, sanitation agencies during the 1990s began hauling most of their sludge to farmland, where the material is used as a soil amendment. However, officials and citizens in Kern and other counties that receive out-of-town sludge worry about the health impacts of large-scale land application of the wastewater treatment bi-product.

In the industry, sludge is known as “biosolids,” a term that describes human and industrial waste that has been filtered from treated wastewater, pumped into tanks and allowed to cook in its own biologically generated heat until bacteria and other pathogens have been neutralized. Whether the federal and state governments have done enough study and regulating of biosolids is a question that receives much debate. The Central Valley Regional Water Quality Control Board issued the first general order permitting use of sludge as a soil amendment in 1993. More recently, the State Water Resources Control Board adopted a regulatory framework and completed a program EIR. Kern County successfully challenged that EIR in court, and the state board revised it last year.

In October 1999, Kern County adopted Ordinance G-6638. It permitted the continued disposal of “class B” sewage sludge on already approved sites for three years. Starting January 1, 2003, sludge disposed on land would have to be “exceptional quality,” meaning it has received more treatment than Class B sludge. The county concluded that no environmental impact report was necessary and adopted a negative declaration.

The sanitation agencies and associations sued Kern County, arguing that the county should have prepared an EIR, that the county did not have authority to regulate sludge disposal, and that a “biosolids impact fee” was illegal. The county counter-sued the sanitation agencies, arguing that changes they made in their sludge disposal programs should have undergone environmental review. Tulare County Superior Court Judge Paul Vortmann essentially let everything stand. He upheld Kern County's negative declaration, ordinance and fee, and he upheld actions of the sanitation agencies. Both sides appealed.

The county contended that the ordinance itself needed no further environmental study because the law sought to improve the environment. As for the ordinance's broader impacts caused by different sludge disposal techniques, the county argued that any such impacts were too speculative to address.

The court disagreed, noting there was evidence that the disposal of sludge had beneficial effects, such as dust reduction and making marginal land useable. “[F]or projects that may cause both beneficial and adverse significant impacts on the environment, preparation of an EIR is required because the consideration of feasible alternatives and mitigation measures might result in changes to the project that decrease its adverse impacts on California's environment,” Justice Betty Dawson wrote for the court.

The court sided with the sanitation agencies and associations regarding broader impacts. They argued that evidence showed sanitation agencies would have to truck sludge longer distances, increasing vehicle traffic and, thus, increasing air pollution. They also contended the regulation would burden landfills, and force farmers to use more pesticides and untreated animal manure, thus harming water quality. Plus, they said, treating sludge to exceptional quality standards requires heating the material in gas-fired boilers, which consumes a great deal of energy and produces air pollution. The court ruled that all of these impacts were reasonably foreseeable and the county must study them in an EIR.

The county cited Magan v. County of Kings, 105 Cal.App.4th 468 (see CP&DR Legal Digest, March 2003), in which the Fifth District rejected a challenge to a similar Kings County ordinance. In that case, the court upheld the county's determination that its regulation was categorically exempt from CEQA.

Magan was different, the Fifth District ruled, because there was no substantial evidence to support a fair argument that the ordinance would cause adverse impacts.

“There is no re-inventing of the wheel here,” said Hyde, attorney for Los Angeles County Sanitation District No. 2. “It's a failure to look at impacts that were widely known and readily available.”

Deputy County Counsel Collins, though, wondered where exactly to draw the line.

“If courts continue to look at things this way, you're going to see more public entities looking into larger and larger geographical areas as part of 'the project,'” Collins said. “You can make an argument that everything is related. It almost gets philosophical.”

Regarding, the commerce clause, the sanitation agencies and associations argued that the ordinance was unconstitutional because it discriminated against out-of-county biosolids and because it was adopted for the protectionist purpose of upholding Kern County agricultural products' reputation. The court rejected both contentions.

Justice Dawson wrote, “[T]he ordinance's burden on the sewage sludge industry is the same without regard to the place of origin of the sewage sludge.” And the court ruled, “[T]he possibility that the reputation of agricultural produce from Kern County benefited from the enactment of Ordinance G-6638 is not enough to violate the commerce clause.”

Moreover, state Water Code § 13274 permits the county to regulate the application of sludge to land, the court ruled.

As for the biosolids fee, the court ruled that the fee violated the Vehicle Code but remanded the issue to the Superior Court for further proceedings.

As for Kern County's argument regarding the sanitation agencies' hauling and disposal contracts, the court agreed that the agencies must perform environmental reviews.

The Case:
County Sanitation District No. 2 of Los Angeles County v. County of Kern, No. F043095, 05 C.D.O.S. 2907. Filed April 1, 2005.
The Lawyers:
For Sanitation District No. 2: Daniel Hyde, Lewis, Brisbois, Bisgaard & Smith, (213) 250-1800.
For Orange County Sanitation District: Tami Crosby, Woodruff, Spradlin & Smart, (714) 564-2635.
For City of Los Angeles, Keith Pritsker, deputy city attorney, (213) 978-8141.
For California Association of Sanitation Agencies: Roberta Larson, Somach, Simmons & Dunn, (916) 446-7979.
For Southern California Alliance of Publicly Owned Treatment Works: Robert Dowd, Griswold, LaSalle, Cobb, Dowd & Gin, (559) 584-6656.
For Responsible Biosolids Management, Inc.: Mark Jones, Jones & Beardsley, (661) 664-2900.
For Kern County: Bernard Barmann Sr., county counsel, (661) 868-3800.