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[Water_news] 4. DWR'S CALIFORNIA WATER NEWS: WATER QUALITY - 8/14/07

Department of Water Resources

California Water News

A daily compilation of significant news articles and comment

 

August 14, 2007

 

4. Water Quality

 

L.A. court paves way for sludge

Popular Measure E on hold for now; Kern may appeal ruling -

Bakersfield Californian

 

Rialto water hearings put on hold

Judge agrees to shut down proceeding on perchlorate contamination -

Inland Valley Daily Bulletin

 

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L.A. court paves way for sludge

Popular Measure E on hold for now; Kern may appeal ruling

Bakersfield Californian – 8/13/07

BY GRETCHEN WENNER, Californian staff writer

 

The final ruling by U.S. District Court Judge Gary Allen Feess, for now, invalidates Kern's Measure E, which local voters overwhelmingly passed in June 2006. The measure stops use of treated sewage sludge as fertilizer on unincorporated land in Kern.

 

Feess' 55-page ruling found Kern had legitimate environmental concerns about sludge spreading. But Measure E failed scrutiny under the so-called "commerce clause" of the federal Constitution, his ruling says, because it did not apply to the whole county and therefore discriminated against Los Angeles. (Kern's incorporated cities, which are not subject to county rules, are not bound by Measure E.)

 

The ruling also agreed with sewage generators' assertions that sludge spreading falls under state solid waste policies meant to promote recycling.

 

The latest decision in Kern's decade-old legal battle isn't the end of the line, however.

 

"It's dead only if we give up," said Bernard Barmann, Kern County's top lawyer.

 

County supervisors will decide later this month whether to appeal Feess' ruling to the federal 9th Circuit Court of Appeals, Barmann said. The board will likely discuss the matter in closed session at its Aug. 28 meeting, the first date Barmann can put it on the agenda.

 

"It's too important an issue to let (the ruling) stand," Barmann said.

 

Outside lawyers helping with Kern's side, including a San Francisco firm hired by the Kern County Water Agency, will confer on what to do next, he said.

A decision by the appeals court could take two years or so to come down.

 

In the meantime, Barmann said, the Measure E sludge ban is on hold.

 

Supervisors could ask the appeals court for an injunction to halt sludge imports while the case is being decided, he said.

 

Monday's ruling didn't surprise sludge opponents, who said Feess' earlier rulings indicated he would side with the agencies on his turf.

 

"This is a judge who probably wears an L.A. Dodgers cap six days out of the week," said state Sen. Dean Florez, the Shafter Democrat who spearheaded Measure E.

"This is not the right venue for us, period," Florez said.

 

REACTION

Los Angeles officials, meanwhile, touted the ruling in a news release issued by the city shortly after 5 p.m.

 

"An adverse ruling would have dramatically increased the costs of managing biosolids and increased pollution in our environment," Cynthia M. Ruiz, president of the city's Board of Public Works, said in the release.

 

Los Angeles Mayor Antonio Villaraigosa said in the release he hoped the decision "will permit us to work together to address the best interests" of Kern and Los Angeles residents.

 

The city of Los Angeles trucks about 99 percent of its treated human and industrial sewage to a 4,700-acre site south of Bakersfield. Crops grown on the so-called Green Acres farm are mostly sold to local dairymen.

 

Sludge from Orange County, Los Angeles County and other areas is also trucked into Kern. Hundreds of thousands of tons of imported sludge are disposed of on local farmland each year.

 

Supporters of the practice call the mudlike end product "biosolids" and claim it is an environmentally friendly way to recycle waste.

Opponents, however, say sludge threatens soil and groundwater. Tens of thousands of industrial chemicals along with pharmaceutical in the domestic supply are concentrated in goo that is applied over and over again to the same patches of farmland.

 

LONG TIME COMING

Land application was promoted by the federal Environmental Protection Agency in the early 1990s after ocean dumping was outlawed in 1987. The city of Los Angeles' sludge, for one, had created an underwater desert seven miles from shore.

For a time, cities were stuck hauling sewage sludge to landfills. Disposal costs rose dramatically. After land application was standardized in 1993 it turned out to be far cheaper.

 

In 1994, locals started complaining to supervisors about smells and messes as imported sludge showed up on about 24,000 acres across Kern.

Ever since, Kern has been battling with Los Angeles and other Southland agencies over the sludge, first by imposing stricter treatment standards and more recently with the push for an all-out ban.

 

In 2004, the Kern County Water Agency pushed to get sludge-spreading operations moved to western Kern, away from valuable underground water banks.

The bid failed but ended up kick-starting what was to become last year's Measure E.

 

In the meantime, Kern has become a key player in the sludge debate nationwide as other locales fight to stem an ever-growing influx of urban sludge.

A ruling in a separate suit two years ago by a state appeals court in Fresno, for example, was an important legal decision strengthening local control over land use.

"So many other rural areas all over the country don't have the money to afford this kind of fight," said Caroline Snyder, professor emeritus at New York's Rochester Institute of Technology and founder of Citizens for Sludge-Free Land.

 

It's a worthwhile fight, Snyder said, that will help other municipalities "in every state" faced with similar problems.#

http://www.bakersfield.com/102/story/212212.html

 

Rialto water hearings put on hold

Judge agrees to shut down proceeding on perchlorate contamination

Inland Valley Daily Bulletin – 8/14/07

By Jason Pesick, Staff Writer

 

In the latest delay to efforts to clean up water contamination around Rialto, a Los Angeles County Superior Court judge halted next week's state water board hearings on the matter.

 

The hearings were supposed to determine whether three companies should be held responsible for perchlorate in the area's drinking water.

 

On Monday, Judge Dzintra Janavs issued a temporary stay to prevent the hearings from moving forward after the companies involved, Emhart Industries - affiliated with Black & Decker - Goodrich and Pyro Spectaculars, filed two suits and asked the judge to shut down the hearings before the State Water Resources Control Board.

 

"They're trying to keep the state board or any agency whatsoever from enforcing the water code," said Scott Sommer, Rialto's lead attorney in the perchlorate battles.

Perchlorate, used in the production of explosives, can interfere with the thyroid and may also be harmful to neurological development in fetuses. Rialto officials have estimated the cost of cleaning up the perchlorate flowing through the city's drinking water at $300 million. Perchlorate is cleaned out of the water before it is served to residents.

 

The companies filed motions in the state board proceedings requesting that the state board remove itself and the staff of the Riverside-based Santa Ana Regional Water Quality Control Board from the process, which would essentially kill the hearings.

 

On Saturday, the hearing officer for those proceedings, Tam Doduc, denied those requests. In response, as expected on Monday morning, Emhart and Goodrich showed up in court and dumped pages upon pages of material before Janavs, who had not been involved in the issue. Janavs stayed the hearings and scheduled an Aug. 31 court hearing to review the merits of the suits.

 

The suits claimed that the companies' due process rights were being violated during the water board proceedings and that the state board did not follow the proper procedures in taking the case from the Santa Ana Board, which was originally supposed to hear the case.

 

One of Goodrich's concerns involved ex parte - or off the record - communications between the state board and the staff of the Santa Ana board, said Goodrich spokesman Patrick Palmer. The staff of the Santa Ana board was going to act as the prosecutor in the hearings. The state board also has a financial interest in the outcome of the hearings because it handed out grants to clean perchlorate out of drinking water in the area, Palmer said.

 

Emhart raised similar concerns, including an entire list of what its attorneys said were inappropriate ex parte communications. Bob Wyatt, one of Emhart's lawyers, said one of the most troubling incidents was when Gerard Thibeault, the executive officer of the Santa Ana board, gave a presentation to the state board about the perchlorate problem in Rialto.

 

"It's like a lawyer coming in and talking to a judge about a case before it's going to be heard," Wyatt said.

The case should be decided in a fair and neutral forum, he said.

 

Sommer, Rialto's lawyer, said he was told the state board plans to fight the suits.

 

Bill Rukeyser, spokesman for the board, said the board's lawyers are still discussing how to move forward.

 

"The state water board is disappointed with today's order from the court. The board is fully prepared to fulfill its role to ensure neutral and fair hearings," he said.

On Saturday, when she denied the companies' motions that the state board recuse itself and disqualify the regional board staff, Doduc, the state board's hearing officer and chairwoman, wrote that all ex parte communications have been disclosed and that none of them show any appearance of bias. The companies disagreed, and asked the court to overrule her.

 

Sommer said Monday's stay will only delay the hearings by a few weeks and that the companies will eventually run out of delaying tactics. They were bound to raise these issues at some point. To shut the process down on every front, he said Wyatt has argued that state regulatory agencies, like the state and regional water boards, are not the proper venue for this case, while also arguing that the federal courts are not the proper venue. A federal trial on the issue is tentatively scheduled for October 2008.

 

The state hearings and other attempts to pursue suspected polluters have already been delayed numerous times, and it has been 10 years since the perchlorate was discovered. On July 31, Goodrich sued Rialto, accusing the city of not pursuing all of the parties it says Rialto should try to hold responsible for the contamination.

Barry Groveman, a lawyer representing the West Valley Water District and the private Fontana Water Company, who are Rialto's neighbors, used Monday's setback in court as another example of why he believes Rialto should join his clients and invite the U.S. Environmental Protection Agency to declare the area a Superfund site.

"The amount of money being spent is ungodly and it's not achieving the desired goal," he said of Rialto's strategy, which city officials estimate has cost $15 million in legal and investigative fees.

 

In the past month or two, Rialto has asked the EPA to get more involved but does not want to turn the area into a Superfund site, Sommer said. #

http://www.dailybulletin.com/news/ci_6617387

 

 

 

 

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