High court refuses to review L.A.'s petition in Kern County dumping case
June 2, 2010 -- Louis Sahagun
http://latimesblogs.latimes.com/lanow/2010/06/high-court-rejects-las-petition-over-dumping-of-waste-in-kern-county.html
The U.S. Supreme Court has refused to review a Los Angeles petition that claimed a voter-approved ban on dumping processed human waste in Kern County violated federal interstate commerce laws.
The Supreme Court declined review Tuesday without comment, letting stand a previous 9th U.S. Circuit Court of Appeals decision that the operations were not protected by federal interstate commerce laws because they involved transfers of a commodity – bio-solids -- from one portion of the state to another.
Now the case will return to U.S. District Judge Gary Feess in Los Angeles, and he must decide whether to retain jurisdiction over remaining state-level claims against the ban, or turn them over to a state court.
Those claims include that the ban known as Measure E exceeds its own policing powers by exerting control over another government entity, and is preempted by state recycling regulations.
Kern County wants the 4-year-old case resolved in state court, which would force Los Angeles to decide whether it wants to start the legal briefing process all over again. Los Angeles, however, would prefer that Feess retain jurisdiction and reaffirm his earlier ruling that the ban impedes interstate commerce.
If Kern County prevails, Los Angeles will have to haul 500,000 tons of sludge a year hundreds of miles to landfills in Arizona at an estimated cost of $4 million, according to the city’s petition.
Another view:
http://www.bakersfield.com/opinion/editorials/x1008890595/Sludge-ruling-is-a-breath-of-fresh-air-for-Kern
--------------------------------
A commenter left this website for our readers, http://sludgevictims.com/
1 comment:
The Kern County sludge control ordinance complies with both California law and federal sludge laws:
Water Code Section 13274, Subdivision i gives California counties the
right to regulate sewage sludge:
(i) Nothing in this section restricts the authority of a local
government agency to regulate the application of sewage sludge and other biological solids to land within the jurisdiction of that agency, including, but not limited to, the planning authority of the Delta Protection Commission, the resource management plan of which is required to be implemented by local government general plans.
(Amended (as amended by Stats. 1996, Ch. 124) by Stats. 1998, Ch. 485, Sec.162. Effective January 1, 1999. See same-numbered section added by Stats. 1997, Ch. 814.) Last Affected Bill - (AB 2803)
*************************************************************************************************************************
FEDERAL LAWS:
Federal Clean Water Act - “disposal or use of sludge is a LOCAL determination”
Title 33, Chapter 26, Subchapter IV, Sec. 1345 – Disposal or use of sewage sludge
40 CFR (Code of Federal Regulations) part 501.1 State Sludge Management Program Regulations
(i) Nothing in this part precludes a State or political subdivision thereof, or interstate agency, from adopting or enforcing requirements established by State or local law that are more stringent or more extensive than those required in this part or in any other federal statute or regulation.
Then 40 CFR Section 503.5, recognizes that the “permitting authority” (the State) to impose further restrictions to protect health and the environment. The provision goes on to actively carve out authority for the State or any subdivision thereof (the local government) to impose additional or more stringent requirements:
§ 503.5 Additional or more stringent requirements.
(a) On a case-by-case basis, the permitting authority may impose requirements for the use or disposal of sewage sludge in addition to or more stringent than the requirements in this part when necessary to protect public health and the environment from any adverse effect of a pollutant in the sewage sludge.
(b) Nothing in this part precludes a State or political subdivision thereof or interstate agency from
imposing requirements for the use or disposal of sewage sludge more stringent than the requirements in this part or from imposing additional requirements for the use or disposal of sewage sludge. (comment: a "political subdivision" of a state is a town, county, city, burrough, parish, township, etc.)
For more information on the rights of communities to enact local sludge rules more stringent than federal sludge rules:
http://www.nidellaw.com/blog/?p=17 and http://sludgevictims.com/local-determination.html
The New Hampshire Supreme Court upheld local sludge control as being authorized by federal law, and ruled that the Town of Tilton, NH could ban the land application of Class B sewage sludge. http://www.courts.state.nh.us/supreme/opinions/2004/thaye134.htm
Helane Shields
hshields@worldpath.net
Post a Comment