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The “yuck” factor may make it easier for local governments to ban the spreading of treated sewage sludge on farmland, but overcoming constitutional roadblocks just got tougher. For the first time, a federal judge in California relied on the dormant commerce clause, which bars states and municipalities from discriminating in interstate commerce, to strike down a Kern County, Calif., voter-approved ban trucking Los Angeles sewage sludge to a 4,700-acre farm in the county. “There were a lot of people watching this case,” said Chris Westoff, Los Angeles assistant city attorney, who is overseeing the litigation. “If we had lost, it would have had an extremely negative impact. Kern County was attempting to target Los Angeles and biosolids coming from outside their county. But Bakersfield, Shafter and Taft all apply biosolids,” he said, referring to cities in Kern County. And the issue of putting biosolids, treated human sewage, on farmland has spawned some local bans in other parts of the United States, followed by litigation. Several Pennsylvania townships have stripped corporations of rights to spread biosolids as part of a novel litigation tactic. That provoked the state in 2005 to strip local government of the jurisdiction to pass such bans, resulting in eight challenges by Pennsylvania and five dismissals on procedural grounds so far, according to Tom Linzey, executive director of Community Environmental Legal Defense Fund in Chambersburg, Pa. Linzey’s group has written the model ordinance used by several townships. He expects the next Pennsylvania challenge to be filed in October against East Brunswick Township, which passed a law in 2006 declaring that corporations sending sludge to the township had no constitutional rights to ship material within the community. A ‘fringe movement’ “There has been a fringe movement to attack corporate charters and corporate rights to do business based on local legislation, but it appears to be patently illegal and unconstitutional,” said James Slaughter of Beveridge & Diamond in Washington. “We have been litigating this around the country,” he said. “Where we have had luck before has been on state pre-emption grounds. None of the courts has reached the dormant commerce clause grounds before.” Slaughter represents Los Angeles in the Kern County case and in 2003 successfully represented Synagro-WWT Inc. in a suit against Rush Township, Pa., that resulted in a ruling that the local ordinance was partially pre-empted by state law. Synagro-WWT Inc. v. Rush Township, 299 F. Supp. 2d 410 (M.D. Pa. 2003). In the California case, an Aug. 10 ruling by U.S. District Judge Gary Feess of the Central District of California held that the initiative unfairly discriminated against Los Angeles, which ships its biosolids to Green Acres, a 4,700-acre farm Los Angeles owns in Kern County. Feess also ruled that the initiative conflicts with California’s Integrated Waste Management Act, which mandates local agency recycling of solid waste. Los Angeles v. Kern County, 2007 WL 2326825. Discounting ballot measure? The county filed an appeal to the 9th U.S. Circuit Court of Appeals last week. “We think the judge is reaching to get there,” said Bernard C. Barmann, county counsel for Kern County, in Bakersfield. “We have the largest underground water-storage facility in the world here and some of the most productive farmland. It is a real concern to the marketability of crops if there is a problem,” Barmann said. “He felt the sludge was a recycling program. He discounts the ballot measure.” Barmann argued that, although bacteria may be removed from biosolids, it may contain pharmaceuticals and chemicals dumped into the waste stream. “What is in it that is not treated out, this is an unknown,” he said. Slaughter said use of biosolids occurs in thousands of communities across the U.S. and is welcomed by farmers and local governments that understand it is good fertilizer. There are 16,000 publicly owned sewage-treatment facilities around the county and about half apply biosolids to farmland, he said. Use of biosolids on farmland began after the U.S. Environmental Protection Agency banned ocean dumping of sewage sludge. It is estimated that 60% of the biosolids are sprayed on farmland, 17% buried in landfills, 20% burned and 3% used for mine reclamation. The most highly treated is class A, which eliminates pathogens and limits trace metals. Regulations place no restriction on human handling. It is class A material that is trucked from Los Angeles to Kern County.

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