City of Los Angeles v. County of Kern

• Citation: 509 F.Supp.2d 865
• Decision Date: 10 August 2007
• Docket Number: No. CV# 06-5094 GAF (VBKx).,CV# 06-5094 GAF (VBKx).
• Parties: CITY OF LOS ANGELES, et al., Plaintiffs, v. COUNTY OF KERN, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California

509 F.Supp.2d 865

CITY OF LOS ANGELES, et al., Plaintiffs, v. COUNTY OF KERN, et al., Defendants.

No. CV# 06-5094 GAF (VBKx).

United States District Court, C.D. California.

August 10, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Rockard J. Delgadillo, City Attorney, Christopher M. Westhoff, Assistant City Attorney, Kieth W. Pritsker, Deputy City Attorney, Los Angeles City Attorney's Office, Los Angeles, CA, for City of Los Angeles.

James J. Dragna, Thomas S. Hixson, Marc R. Bruner, Bingham McCutchen LLP, Los Angeles, CA, James B. Slaughter, Gary Smith, Beveridge & Diamond P.C., Washington, DC, for City of Los Angeles, Responsible Biosolids Management, Inc. R&G Fanucchi, Inc., and Sierra Transport, Inc.

Daniel V. Hyde, Paul J. Beck, Lewis Brisbois Bisgaard & Smith, LLP, Los Angeles, CA, for County Sanitation District No. 2 of Los Angeles County.

Bradley R. Hogin, Woodruff Spradlin & Smart, Orange, CA, for Orange County Sanitation District.

Michael J. Lampe, Law Offices of Michael J. Lampe, Visalia, CA, for Shaen Magan, Honey Bucket Farms, Tule Ranch/Magan Farms and Western Express, Inc.

Roberta L. Larson, Jonathan Schutz, Somach Simmons & Dunn, Sacremento, CA, California Association of Sanitation Agencies.

Bernard C. Barmann, Sr., County Counsel, Bakersfield, CA, for County of Kern and Kern County Board of Supervisors.

ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT, PLAINTIFF'S' MOTION TO STRIKE

GARY ALLEN FEESS, District Judge.

I. INTRODUCTION

Plaintiffs City of Los Angeles, Orange County Sanitation District, and County Sanitation District No. 2 of Los Angeles County generate large amounts of sewage treatment residues known as "sludge" or "biosolids," some substantial portion of which they ship to farmland located in unincorporated areas of Kern County for use as fertilizer. This arrangement has, perhaps predicably, aroused substantial local opposition in Kern County even though the EPA considers land application to be a safe, effective means of recycling biosolids.

That opposition reached a fever pitch in 2006 when a local State Senator sponsored a ballot initiative known as Measure E, which sought to ban land application of biosolids in the unincorporated areas of the County. The initiative campaign included colorful attacks on "Los Angeles sludge" and drew on long-simmering anti-Southern California sentiment for support. There being no "Friends of Sludge" to mount opposition to the initiative, the ordinance passed overwhelmingly, and therefore threatened to permanently ban Plaintiffs from further land application at their Kern County facilities. And though the ban may at first impression appear to eliminate all land application of sludge in Kern County, it actually imposes relatively few burdens on in-county interests. Without acknowledging any irony, Kern County ships its materials to a local composting company for sale to private firms out of its jurisdiction. Moreover, local cities continue to apply biosolids on land in their incorporated areas which are outside of Kern County's jurisdiction. By contrast, Measure E would effectively force Plaintiffs out of the County.¹

In an effort to preserve their biosolids recycling programs, the government Plaintiffs, along with private firms and individuals that handle the material, filed suit against Defendants Kern County and Kern County Board of Supervisors (collectively "Kern") on a variety of constitutional and statutory grounds. After dismissing some of their claims, City of Los Angeles v. County of Kern, No. CV 06-5094, 2006 WL 3073172 (C.D.Cal. Oct.24, 2006) ("Kern I"), this Court preliminarily enjoined enforcement of Measure E, as it concluded that Plaintiffs, though not likely to succeed on their Equal Protection claim, demonstrated irreparable harm and a likelihood of success on their claims that Measure E(1) violated the dormant Commerce Clause; (2) was preempted by the California Integrated Waste Management Act ("CIWMA"); and (3) exceeded Kern's police power under the California Constitution. City of Los Angeles v. County of Kern, 462 F.Supp.2d 1105 (C.D.Cal.2006) ("Kern II").

Kern has now moved for summary judgment on all claims, and Plaintiffs have filed a cross motion for summary judgment on the CIWMA claim. In their opposition to Kern's motion for summary judgment, Plaintiffs also ask the Court to enter summary judgment in favor of their Commerce Clause and police power claims (though not in favor of their Equal Protection claim).

The Court agrees with Kern that Plaintiffs' Equal Protection claim fails as a matter of law. Measure E rationally furthers legitimate local interests in guarding against potential environmental harm and nuisance associated with biosolids, and Plaintiffs have failed to demonstrate that these purposes were merely pretextual. Although the campaign attacks on "Los Angeles sludge" certainly demonstrated animosity towards, the government Plaintiffs, this animosity, was directly related to the perceived harm Measure E legitimately sought to redress. In short, Plaintiffs were rationally perceived as polluters, and so a campaign including rhetoric against them does not mean Measure E's stated environmental purposes were mere pretext for something more nefarious. Moreover, Measure E advanced Kern's environmental interests by banning the perceived pollutants. Measure E is therefore not irrational, and thus survives scrutiny under the Equal Protection clause.

By contrast, Measure E faces stricter scrutiny under the Commerce Clause because of the ban's discriminatory effects against interstate commerce when viewed County-wide. In short, while the campaign attacks on "Los Angeles sludge" are compatible with Measure E's apparent legitimate purpose under Equal Protection jurisprudence, the attacks graphically expose Measure E's objective of removing Plaintiffs' operations from the County as a whole, which would force them to locate and develop alternate recycling sites, most probably in Arizona. But at the same time that Measure E is forcing Los Angeles and others out of Kern County, it allows in-county sludge producers to continue disposing of their biosolids locally, thus accomplishing its legitimate environmental purpose through impermissible means. This discriminatory effect requires the Court to subject Measure E to strict scrutiny, which it cannot withstand because Kern could easily have guarded against the perceived environmental harm with a more tailored regulation regarding the location quality, and volume of biosolids that could be applied to land. Plaintiffs therefore prevail as a matter of law on their Commerce Clause claim.

Also meritorious is Plaintiffs' CIWMA claim. Plaintiffs present' the same argument that the Court accepted in granting the preliminary injunction: that CIWMA expresses a statewide policy of promoting recycling over other disposal methods for "solid waste," which the statute defines to include biosolids. Therefore, Plaintiffs argue, a ban on land application frustrates this statutory purpose and thus is invalid because of conflict preemption, notwithstanding a savings clause that allows local regulations so long as they do not conflict with the policies expressed by the statute. Though Kern advances a barrage of arguments to the contrary, each is fairly easily rejected.

Finally, the Court cannot summarily resolve the police powers cause of action. Kern's motion against this claim is based solely on arguments that — incorrectly — contend Measure E is exempt from the "regional welfare" doctrine which limits exercises of the police power. On the other hand, Plaintiffs' motion fails because disputes remain as to the impact of their biosolids operations on the local environment and the impact of Measure E on the surrounding region.

However, because the police powers claim would involve significant expense to litigate and because Plaintiffs' Commerce Clause and CIWMA preemption claims entitle them to all the relief sought, the Court shall grant Plaintiffs' request for entry of final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

II. STATEMENT OF FACTS

The following facts are undisputed and reflect the Court's ruling on the parties' evidentiary objections.

A. OVERVIEW OF BIOSOLIDS

EPA regulations define "sewage sludge," also referred to as "biosolids," as the "solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in a treatment works." 40 C.F.R. § 503.9(w). Municipalities typically dispose of sewage sludge in one of several ways, one of which is known as "land application." "Land application" means the spraying, spreading or other placement of biosolids onto the land surface, the injection of biosolids below the surface, or the incorporation of biosolids into the soil. Id. § 503.9(h). In 2003, the EPA estimated that approximately 60 percent of sewage sludge nationwide was treated and applied to farmland; of the remaining 40 percent, 17 percent was buried in landfills, 20 percent was incinerated, and 3 percent was used as landfill or mine reclamation cover. 68 Fed.Reg. 68817 (Dec. 10, 2003). The EPA estimates that sludge is applied to approximately 0.1% of available agricultural land in the United States. (Pls'. Ex. 11 [National Research Council Report: Biosolids Applied to Land: Advancing Standards and Practices, 2002] at 311.)

The EPA regulations of biosolids are codified at 40 C.F.R. § 503 and are known commonly as the "Part 503" regulations. Part 503 differentiates between Class A and Class B sewage sludge depending on the concentration of pathogens, disease causing micro-organisms, remaining after treatment. See 40 C.F.R. § 503.32. While Class A sewage sludge is sufficiently treated to essentially eliminate pathogens, Class B sewage sludge is treated only to substantially reduce them. See id. For these reasons, the requirements for, and restrictions placed on, land application of Class B sewage sludge are more...