BILL ANALYSIS �
AB 371
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 371 (Salas) - As Amended: March 19, 2013
SUBJECT : Sewage Sludge Regulation in Kern County.
SUMMARY : Provides that the Kern County Board of Supervisors may
regulate or prohibit by ordinance, in a way that is more
stringent than state or federal law and in a nondiscriminatory
manner, the land application of sewage sludge, in unincorporated
areas of the county.
EXISTING LAW :
1) Pursuant to the California Environmental Quality Act
(CEQA), requires lead agencies with the principal
responsibility for carrying out or approving a proposed
discretionary project to prepare a negative declaration,
mitigated declaration, or environmental impact report (EIR)
for this action, unless the project is exempt from CEQA
(CEQA includes various statutory exemptions, as well as
categorical exemptions in the CEQA guidelines). (Public
Resources Code �21100 et seq.).
2) Under the California Integrated Waste Management Act of
1989:
a. Requires each city or county source reduction
and recycling element to include an implementation
schedule that shows a city or county must divert 50%
of solid waste generated in the jurisdiction (Public
Resources Code � 40051). The Department of Resources
Recycling and Recovery (DRRR) is responsible to ensure
that by January 1, 2020, 75% of the solid waste
generated in California is source reduced, recycled or
composted (Public Resources Code � 41780.01).
b. Declares that it is in the public interest for
the state to authorize and require local agencies, as
subdivisions of the state, to make adequate provisions
for solid waste handling, both within their respective
jurisdictions and in response to regional needs
(Public Resource Code �40002).
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c. Authorizes a city or county to assess special
fees of a reasonable amount on the importation of
waste from outside of the county to publicly owned or
privately owned facilities (Public Resource Code
�41903).
3) Under the Porter-Cologne Water Quality Act, provides
that the State Water Resources Control Board (SWRCB) and
the nine California regional water quality control boards
(RWQCBs) are the principal state agencies with
responsibility for the coordination and control of water
quality in California (Water Code �13000 et seq.).
4) Requires the SWRCB or each RWQCB upon receipt of an
application, to prescribe general waste discharge
requirements (WDRs) for dischargers of dewatered, treated
or chemically fixed sewage sludge and other biological
solids, and specifies that their prescription shall be
considered to be ministerial (Water Code �13274).
5) Requires the general WDR to set minimum standards for
agronomic applications of sewage sludge and other
biological solids and that the use of that sludge and those
other solids as a soil amendment or fertilizer in
agriculture, forestry and surface mining reclamation and to
mitigate significant environmental impacts or potential
public health hazards, and may permit the transportation of
that sludge to more than one site (Water Code �13274).
FISCAL EFFECT : Not known.
COMMENTS :
Need for the bill. According the author, "AB 371 will address
the dumping of sewage (sludge) and the effects it has on the
health, safety and water quality in rural areas of Kern County.
This legislation will clarify the original legislative intent to
protect the rights of local communities to adopt environmental
protection standards. It is our responsibility to insure the
rural communities are protected from unfairly being targeted and
dumped on - literally. Uncontrolled dumping of sewage sludge
threatens our water and the public health of our communities.
The recent court interpretation of California law is an
unacceptable outcome for the residents of Kern County".
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Sewage Sludge . According to the US Environmental Protection
Agency (US EPA), "sewage sludge" refers to the solids separated
during the treatment of municipal wastewater. The definition
includes domestic sewage. "Biosolids" refers to treated sewage
sludge that meets the EPA pollutant and pathogen requirements
for land application and surface disposal. The most common
treatment of sewage sludge in western region of the US is by
anaerobic digestion to "Class B" pathogen reduction levels.
About 1/3 of the biosolids receive further treatment to "Class
A" pathogen reduction levels, by means such as composting, solar
air-drying, alkali treatment, thermophilic digestion,
pasteurization, or heat drying. Many small treatment plants use
methods of treatment other than anaerobic digestion, such as air
drying, aerobic digestion, or lime treatment. Under certain
conditions, these processes meet "Class B" pathogen reduction.
Public health and sewage sludge. According to a 2002, National
Research Council report entitled, Biosolids Applied to Land:
Advancing Standards and Practices, "Toxic chemicals, infectious
organisms, and endotoxins or cellular material may all be
present in biosolids. There are anecdotal reports attributing
adverse health effects to biosolids exposures, ranging from
relatively mild irritant and allergic reactions to severe and
chronic health outcomes. Odors are a common complaint about
biosolids, and greater consideration should be given to whether
odors from biosolids could have adverse health effects.
However, a causal association between biosolids exposures and
adverse health outcomes has not been documented. To date,
epidemiological studies have not been conducted on exposed
populations, such as biosolids appliers, farmers who use
biosolids on their fields, and communities near land application
sites".
The City of Los Angeles, Orange County Sanitation District, Los
Angeles County Sanitation District No. 2, and others send
hundreds of tons of bio-solids to Green Acres Farm, which the
City of Los Angeles owns, and the privately owned Honey Buckett
Farms in Kern County.
Kern County action on sewage sludge. In 2006, the voters of
Kern County approved Measure E to ban the importation of sewage
sludge into Kern County. It is sometimes called "the
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anti-sludge ordinance," since it bans the importation into Kern
County of sludge (sewage) from other counties. The ballot
question read, "Shall the ordinance prohibiting the land
application of bio solids in the unincorporated area of Kern
County be adopted?"
Kern county history of litigation. Following the adoption of
the Kern County sludge ban the City of Los Angeles and others
sued the county to prevent the enforcement of the ban. Los
Angeles won an injunction by the U.S. District Court for the
Central District of California to "temporarily block Kern County
from enforcing a ban on the land application of bio solids from
urban municipalities until the court rules on the merits of the
case." The case was then appealed to the Ninth Circuit Court of
Appeals, which ruled in Kern's favor in 2009. In 2010, the U.S.
Supreme Court refused to hear the case, leaving Kern's victory
in place.
In 2011, the City of Los Angeles, and others, refilled the suit
in state court, claiming that a statewide recycling law (the
California Integrated Waste Management Act (CIWMA)) limited Kern
County's right to ban the application of sewage sludge. Tulare
County Superior Court put the ban on hold once again.
The California Court of Appeals 5th district appellate court
rejected the Kern County attempt to enforce Measure E (City of
Los Angeles v. County of Kern, Cal. Ct. App., No. F063381,
2/13/13). Affirming the 2011 state court, the Fifth Appellate
District Feb. 13 2013 held that the city of Los Angeles and
other entities that ship bio-solids to Kern County farms would
likely prevail on their claims that state laws conflict with the
Kern County Ordinance, Measure E.
The appeals panel also upheld the preliminary injunction of the
California Superior Court in Tulare County thereby blocking
enforcement of Measure E, pending resolution of the lawsuit.
The issue in the state appellate court case is whether Measure E
conflicts with the CIWMA, which encourages cities and counties
to reduce the level of waste going to landfills and to recycle
wastes, and whether the ban exceeds the state law limits on the
police powers of Kern County.
''Measure E is likely to be held invalid because land
application of bio solids, which undisputedly allows solid waste
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to be disposed of through recycling instead of in landfills or
incinerators, is an activity the CIWMA seeks to promote and
Measure E purports totally to ban,'' the appellate panel said.
Other actions on bio-solids . Kern County is not alone in
regulating the application on bio-solids. Imperial County
adopted an ordinance (Measure X) similar to Kern County's
Measure E, and other ordinances that essentially bans on land
application of bio-solids have been adopted by San Joaquin
County, Stanislaus County, and Sutter County. In addition,
practical bans have been adopted in at least 14 other counties
across the state. Finally, San Luis Obispo County adopted a
restrictive permanent ordinance on March 12, 2013.
Arguments in opposition . According to the California
Association of Sanitation Agencies, " The type of ban which
Kern County has previously sought to enforce, and which could be
authorized by AB 371, is in conflict with the Integrated Waste
Management Act (IWMA), in conflict with the regional welfare
doctrine, and contrary to the overwhelming weight of scientific
evidence that land application of biosolids is a safe and
beneficial practice. This bill would circumvent the legal
process and establish a one-off rule for Kern County that has
already been rejected by the courts. "
Prior related legislation :
AB 845 (Ma) - 2012. AB 845 prohibits an ordinance enacted by a
city or county, including an ordinance enacted by initiative by
the voters of a city or county, from otherwise restricting or
limiting the importation of solid waste into a privately owned
solid waste facility in that city or county based on place of
origin. AB 845 as approved by the legislature and signed into
law, Chapter 526, Statues of 2012.
SB 926 (Florez) - 2005. AB 926 would have allowed the Kern
County Board of Supervisors to regulate or prohibit, by
ordinance, the importation of sewage sludge from another
California county for application to land within the county's
jurisdiction. AB 926 was held in the Assembly Local Government
Committee.
This bill has been double referred to the Assembly Local
Government Committee.
AB 371
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
California Association of Sanitation Agencies
Orange County Sanitation District
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965