City of Los Angeles v. County of Kern
| Decision Date | 20 November 2006 |
| Docket Number | No. CV 06-5094GAF(VBLX).,CV 06-5094GAF(VBLX). |
| Citation | 462 F.Supp.2d 1105 |
| Parties | CITY OF LOS ANGELES, et al., Plaintiffs, v. COUNTY OF KERN, et al., Defendants. |
| Court | U.S. District Court — Central District of California |
Los Angeles City Attorney's Office, Rockard J. Delgadillo, City Attorney Christopher M. Westhoff, Assistant City Attorney, Keith W. Pritsker, Deputy City Attorney, Los Angeles, CA, for Plaintiff City of Los Angeles.
Bingham McCutchen LLP, James J. Dragna, Thomas S. Hixson, Marc R. Bruner, Los Angeles, CA, Beveridge & Diamond P.C., James B. Slaughter, Gary Smith, Washington, DC, for Plaintiffs City of Los Angeles, Responsible Biosolids Management, Inc., R & G Fanucchi, Inc., and Sierra Transport, Inc.
Lewis Brisbois Bisgaard & Smith LLP, Daniel V. Hyde, Paul J. Beck, Los Angeles, CA, for Plaintiff County Sanitation District No. 2 of Los Angeles County.
Woodruff Spradlin & Smart, Bradley R. Hogin, Orange, CA, for Plaintiff Orange County Sanitation District.
Law Offices of Michael J. Lampe, Michael J. Lampe, Visalia, CA, for Plaintiffs Shaen Magan, Honey Bucket Farms, Tule Ranch/Magan Farms and Western Express, Inc.
Somach Simmons & Dunn, Roberta L. Larson, Jonathan Schutz, Sacramento, CA, for Plaintiff California Association of Sanitation Agencies.
Kern County Counsel's Office, Bernard C. Barmann, Sr., County Counsel, Bakersfield, Hogan Guiney Dick LLP, Michael M. Hogan, San Diego, CA, for Defendants County of Kern and Kern County Board of Supervisors.
Plaintiffs have filed motions for preliminary injunctions against enforcement of Measure E, a ballot initiative enacted by Defendants Kern County and Kern County Board of Supervisors (collectively "Kern") after a campaign that Included entreaties to keep "Los Angeles" sludge out of Kern County, and with a stated purpose of guarding against a "loss of confidence" in Kern County agricultural products. Measure E is Kern's third — and most stringent — attempt since 1998 to regulate the land application of sewage treatment residues called "sludge" or "biosolids," a practice in which Plaintiffs are directly or indirectly engaged. While earlier regulations limited the pathogen content of biosolids that could permissibly be applied to land, Measure E bans land application outright.
The Court concludes the outright ban is likely to impermissibly discriminate against interstate commerce because it was enacted in part for the purpose of protecting the reputation of Kern's agricultural products and specifically to exclude out-of-county biosolid commerce. Measure E is also likely to be preempted by state law because it thwarts recycling activities specifically promoted by the California Integrated Waste Management Act ("CIWMA"). It is also likely to constitute an invalid exercise of police power because it cannot reasonably be said to accommodate the regional interest in safe, cost-effective management of biosolids.
Additionally, the ban would cause Plaintiffs irreparable harm should the injunction not issue: damages would be inadequate to compensate for the government Plaintiffs' costs of procuring alternative disposal methods and also for the business that would likely be lost by the private Plaintiffs. Moreover, the public interest favors an injunction because shifting the biosolids currently applied to land in Kern County would have detrimental environmental effects, while there is no indication that the land currently in use has been harmed by the practice. In short, while applying sewage sludge to agricultural land may provoke a visceral response in lay observers, the available evidence suggests that the practice has been undertaken safely throughout the United States without any indication of detrimental environmental or health impacts, and indeed is the most environmentally sound method of managing the material.
Thus, as discussed in greater detail below, the motions are hereby GRANTED.
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 § 503.9(w). Municipalities typically dispose of sewage sludge in one of three ways, one of which is the "land application" of the sludge. "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).
Part 503 of the relevant EPA regulations differentiates between Class A and Class B sewage sludge depending on the concentration of disease causing micro-organisms (pathogens) 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 stringent than those imposed on Class A sewage sludge.
Plaintiffs are local government entities, private businesses, and individuals that apply biosolids to land in Kern County. The government Plaintiffs — City of Los Angeles ("the City"), Orange County Sanitation District ("OCSD"), and County Sanitation District No. 2 of Los Angeles ("LACSD") — generate biosolids, some portion of which is transported to Kern County and applied to land there by the private Plaintiffs.
Since 1994, the City has applied its biosolids to a 4,700 acre piece of land near Bakersfield called "Green Acres," which it purchased in 1999. Green Acres is a functioning farm that mainly grows crops used for animal feed. (Minamide Decl. ¶ ¶ 20, 23, 27; Johnson Decl. ¶ 7.) The City's Green Acres program is administered by Plaintiff Responsible Biosolids Management, Inc. ("RBM"), which has been under contract with the City since 1996. (Stockton Decl. ¶ 8.) RBM subcontracts some amount of the hauling responsibilities to Plaintiff Sierra Transport, Inc. (Lutrel Decl. ¶ 4.) Plaintiff R & G Fanucchi, Inc. performs the farming at Green Acres and has contracted with Los Angeles since 2003 to land apply a minimum of 200,000 tons of biosolids there each year. (Fannuchi Decl. ¶ 3.)
OCSD and LACSD ship biosolids to a 4,000 acre site near the Kern and King County border known as "Tule Ranch" (also called "Honeybucket Farms"), which comprises 44% of the 9,000 total acres Kern has permitted for Class A biosolids application, and is owned by Plaintiff Shaen Magan (Magan OCSD Decl. ¶ ¶ 1, 6.) Plaintiff Western Express — which is owned by the Magan family — ships the biosolids to Tule Ranch. (Magan Decl. ¶ 4.)
Plaintiff California Association of Sanitation Agencies is an organization that represents local entities engaged in waste management.
Kern began regulating land application of biosolids in 1998, when it required that the biosolids meet the standards set forth in the Code of Federal Regulations for Class A and Class B biosolids. County Sanitation Dist. No. 2 of L.A. County v. County of Kern, 127 Cal.App.4th 1544, 1568, 27 Cal.Rptr.3d 28 (Ct.App.2005) ("County Sanitation").
In 1999, Kern strengthened its prior regulations by adopting an ordinance that phased out the land application of Class B biosolids over a three-year period. And after the three-year phase-out, the 1999 ordinance allowed only "exceptional quality" ("EQ") biosolids, which meet the pathogen reduction requirements of Class A biosolids and contain very low levels of other pollutants, like heavy metals. Id. at 1568 n. 34, 27 Cal.Rptr.3d 28; 40 C.F.R. 503.13(b)(3).
After mounting an ultimately unsuccessful challenge to the 1999 ordinance, the City invested over $15 million to upgrade its sewage treatment facilities to meet Kern's new requirements. (Minamide Decl. ¶ 22.) LACSD also invested in new facilities (Stahl Decl. ¶ 13), and OCSD incurred additional costs as well (see Ghirelli Decl. ¶ ¶ 5-6).
On July 11, 2006, Kern declared that voters in the June 6, 2006 election had adopted the ballot initiative known as Measure E. (Compl. Ex A [Measure E] at 33.) Measure E prohibits the land application of all biosolids in the unincorporated areas of Kern County due to what it describes as "numerous serious unresolved issues about the safety, environmental effect, and propriety" of the practice, even when the biosolids are applied in conformance with federal and state regulation. (Id. §§ 8.05.10; 8.05.020; 8.050.40(A).)
Violations of the ordinance constitute misdemeanors punishable by fines and imprisonment. (Id. § 8.05.060.) Although Measure E became effective upon adoption on July 21, 2006, it gave preexisting permit holders six months to discontinue land application of biosolids. (Id. § 8.05.040(A).) Existing permit holders thus may continue to land apply biosolids until at least January 21, 2007. Additionally, Plaintiffs City of Los Angeles and RBN have received discretionary extensions from Kern Officials that enable them to continue land application until April 21, 2007.
The purpose of a preliminary injunction is to preserve the status quo pending resolution of plaintiffs' substantive claims. In the Ninth Circuit, preliminary injunctive relief is appropriate "where plaintiffs demonstrate either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that...
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