Department of Water Resources
A daily compilation of significant news articles and comment
August 14, 2007
4. Water Quality
Popular Measure E on hold for now; Kern may appeal ruling -
Judge agrees to shut down proceeding on perchlorate contamination -
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Popular Measure E on hold for now; Kern may appeal ruling
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
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,
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
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
"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
The city of
Sludge from
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
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
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
"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
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
Judge agrees to shut down proceeding on perchlorate contamination
By Jason Pesick, Staff Writer
In the latest delay to efforts to clean up water contamination around
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,
Perchlorate, used in the production of explosives, can interfere with the thyroid and may also be harmful to neurological development in fetuses.
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
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
"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,
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
Barry Groveman, a lawyer representing the West Valley Water District and the private Fontana Water Company, who are
"The amount of money being spent is ungodly and it's not achieving the desired goal," he said of
In the past month or two,
http://www.dailybulletin.com/news/ci_6617387
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