WEF Supports California Agencies in Biosolids Suit

On June 2, the Water Environment Federation (WEF) filed a friend of the court brief in the Kern County, Calif., biosolids litigation that has attracted national attention (City of Los Angeles et al v. Kern County, 509 F. Supp. 2d 865 (C.D. Cal. 2007).

The brief was filed with the U.S. Court of Appeals for the Ninth Circuit and supports the position of three Southern California public agencies that operate land application programs in Kern County and that are asking the court to maintain a district court judge's ruling that allows these programs to continue.

The WEF brief documents the scientific, technical, and regulatory foundation for the safety of land application. It was prepared with the assistance of a diverse work group of WEF members that included a range of academic disciplines and professional experience related to wastewater treatment, biosolids management, and protection of public health and the environment. Led by Richard D. Kuchenrither, Ph.D., a past president of WEF and past chair of the WEF Residuals and Biosolids Committee, the work group utilized a consensus process similar to the one utilized for the production of WEF Technical Practice Updates.

WEF has a long-standing position in support of biosolids recycling, including support for land application as one of several management options available to public agencies under the U.S. Environmental Protection Agency's 40 CFR Part 503 regulation. WEF's Position Statement, Guidance for Regulatory Officials on Biosolids Recycling, adopted in 1996, supports beneficial use programs and state primacy in permitting local biosolids programs based on EPA or more stringent state standards. Preparation of the brief was approved by the WEF Board of Trustees following recommendations from both the WEF Residuals and Biosolids Committee and the Board of Directors of the California Water Environment Association.

The outcome of the Kern County case has the potential to affect biosolids programs in every state, because this will be the first appellate decision on whether biosolids bans are legal under the U.S. Constitution. WEF has members who are responsible for managing biosolids programs across the country and prepared the brief to provide a review of the current science and state of practice regarding land application.

The Kern County Case
The litigation involves the validity of a local ballot initiative in Kern County, Calif., which passed in early 2006, and banned land application of biosolids. In November 2006, three southern California agencies that operate land application programs in Kern County obtained a preliminary injunction from the U.S. District Court in Los Angeles preventing the measure from taking effect. This was followed by a permanent injunction issued in September 2007.

The federal judge rejected the ban on constitutional grounds and also rejected claims about biosolids safety made by Kern County. The judge's opinion said, in part: "The available evidence suggests that the [land application of biosolids] 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." City of Los Angeles v. Kern County, 462 F. Supp. 2d 1105 (C.D. Cal 2006).

The land application programs in question are operated by the city of Los Angeles and Los Angeles and Orange counties and their contractors on two large farms -- Green Acres Farm, owned by the city of Los Angeles, and Tule Ranch, which is owned by private farmers. Two of the three agencies involved -- Los Angeles and Orange County -- are Platinum-certified under a National Biosolids Partnership program. The city of Los Angeles also has made a significant capital investment in purchasing the Green Acres farm and for plant improvements necessary to produce Class A, exceptional quality biosolids as required by Kern's prior biosolids ordinance.

The ban was passed by large margins of Kern County voters, including cities such as Bakersfield, but because it was a county measure, it did not apply to the incorporated cities in the county such as Bakersfield. The city of Bakersfield and other Kern County municipalities continued to land apply biosolids within their own city limits and in close proximity to thousands of residents. The court found that this was discriminatory and helped prove that Measure E was unconstitutional.

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