BILL ANALYSIS �
AB 371
Page 1
Date of Hearing: May 8, 2013
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
K.H. "Katcho" Achadjian, Chair
AB 371 (Salas) - As Amended: March 19, 2013
SUBJECT : Sewage sludge: Kern County.
SUMMARY : Allows the Kern County Board of Supervisors to
regulate or prohibit the land application of sewage sludge
imported from another California county in unincorporated areas
of Kern County. Specifically, this bill :
1)Allows the Kern County Board of Supervisors, upon a majority
vote, to regulate or prohibit by ordinance, in a manner more
stringent than state or federal law and in a nondiscriminatory
manner, the land application of sewage sludge imported from
another California county, in unincorporated areas of Kern
County.
2)Declares that a special law is necessary due to the unique and
special problems associated with the land application of
sewage sludge in Kern County requiring the control of sewage
sludge for the public good.
EXISTING LAW :
1)Requires, pursuant to the California Environmental Quality Act
(CEQA), 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.
2)Provides, under the California Integrated Waste Management Act
of 1989, the following:
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. 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;
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b) Declares that the responsibility for solid waste
management is a shared responsibility between the state and
local governments;
c) 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 need;
d) Authorizes a city or county to assess special fees of a
reasonable amount of waste imported from outside of the
county to publicly owned or privately owned facilities;
e) Declares that restrictions on the disposal of solid
waste that discriminate on the basis
of the place of origin of the waste are an obstacle to, and
conflict with, statewide and regional policies to ensure
adequate and appropriate capacity for solid waste disposal;
and,
f) Requires each county, city, district, or other local
governmental agency which provides solid waste handling
services to provide for services, including, but not
limited to, source reduction, recycling, composting
activities, and the collection, transfer, and disposal of
solid waste within or without the territory subject to its
solid waste handling jurisdiction.
1)Prohibits an ordinance adopted by a city or county or an
ordinance enacted by initiative by the voters of a city or
county from restricting or limiting the importation of solid
waste into a privately owned facility in that city or county
based on the place of origin, as specified.
1)Provides, under the Porter-Cologne Water Quality Act, 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.
2)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
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that their prescription shall be considered to be ministerial.
3)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.
FISCAL EFFECT : None
COMMENTS :
1)This bill authorizes the Kern County Board of Supervisors,
upon a majority vote, to regulate or prohibit by ordinance, in
a manner more stringent than state or federal law and in a
nondiscriminatory manner, the land application of sewage
sludge in unincorporated areas in the jurisdiction of the
County. This bill is author-sponsored.
According to 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."
2)Sewage sludge, also known as "biosolids," is the nutrient rich
natural by-product of wastewater treatment. According to the
California Association of Sanitation Agencies (CASA),
biosolids are highly processed and analyzed to ensure their
safety. Biosolids are generally used in one of four forms:
as a rich moist solid, dried pellet, liquid, or compost.
Biosolids are generally recycled as a soil amendment, but may
also be used as a final or alternative daily cover and
landfills. Increasingly, they may also be used as an
alternative energy source.
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Class A biosolids contain less than detectable levels of
pathogens prior to land application or public distribution.
Regulatory safeguards ensure that Class B biosolids are also
safe to use even though they may have low levels of pathogens.
Drying, sunlight, and other natural processes cause pathogens
to rapidly die off when applied to soils; essentially becoming
equivalent to Class A standards within a short period
following application. Rigorous treatment and management
practices for both Class A and Class B biosolids minimize the
possibility of attracting any carriers of pathogens.
Land applied biosolids must meet federal and state standards
for nine regulated pollutants (from arsenic to zinc).
Virtually all California biosolids fall far below the risk
based "high quality" limits for all pollutants. This is in
large part due to strict pretreatment requirements established
in the 1980s which regulate what industries can discharge to
wastewater treatment plants.
CASA notes that biosolids have many environmental benefits
including: biosolids recycling improves soil quality and crop
health and increases crop yields; improves the soil's ability
to absorb and store moisture, reducing the need to irrigate;
sequesters carbon in the soil and reduces greenhouse gas
emissions and energy consumption as compared to the production
of inorganic fertilizer; can help reclaim fire-ravaged land,
open mines, and deforested areas; can be treated for use as a
supplemental fuel source to create energy and thereby
decreasing the use of coal; and can be used as alternative
daily or final cover at landfills.
3)In 1993, the United States Environmental Protection Agency
(U.S. EPA) promulgated regulations for sewage sludge disposal
and use (the Standards for the Use or Disposal of Sewage
Sludge at Section 40 of the Code of Federal Regulations Part
503). These regulations establish numeric limits, management
practices, and operational standards to protect public health
and the environment from adverse effects of chemical and
microbiological pollutants in sewage sludge. The terms sewage
sludge and biosolids are used by U.S. EPA interchangeably, but
others often use the term biosolids to describe sewage sludge
that has had additional processing for land application. The
Part 503 regulations set national standards for use or
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disposal of sewage sludge. Regulatory options include land
application (e.g., to fertilize crops or reclaim mined lands),
landfilling or surface disposal, and incineration. States can
adopt additional or more stringent requirements for the land
application of sewage sludge.
In California, the beneficial reuse of treated municipal
sewage sludge (a.k.a. biosolids) generally must comply with
the California Water Code in addition to meeting the
requirements specified in Part 503 in Title 40 of the Code of
Federal Regulations.
In July 2004, the State Water Resources Control Board adopted
Water Quality Order No. 2004-12-DWQ (General Order), and
certified a supporting statewide Programmatic Environmental
Impact Report (PEIR). The General Order incorporates the
minimum standards established by the Part 503 Rule and expands
upon them to fulfill obligations to the California Water Code.
However, since California does not have delegated authority
to implement the Part 503 Rule, the General Order does not
replace the Part 503 Rule. The General Order also does not
preempt or supersede the authority of local agencies to
prohibit, restrict, or control the use of biosolids subject to
their jurisdiction, as allowed by law.
4)The California Integrated Waste Management Act (CIWMA) of 1989
[AB 939, (Sher)] established a new direction for waste
management in California with the creation of the Integrated
Waste Management Board, and set up a new mandate for local
jurisdictions to meet diversion goals. AB 939 mandated that
local jurisdictions meet solid waste diversion goals of 25% by
1995 and 50% by 2000. Each jurisdiction was required to
create an Integrated Waste Management Plan that looked at
recycling programs, purchasing of recycled products, and waste
minimization.
When the Legislature enacted the CIWMA in 1989, the City of
Los Angeles adopted a policy of beneficially reusing 100% of
its biosolids, and in 1994, it began a program of applying
biosolids as fertilizer at Green Acres Farm, a 4,700-acre farm
in the unincorporated area of Kern County. The city purchased
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the farm in 1999 for almost $10 million. When Kern County
adopted regulations restricting land application to Class A
biosolids, Los Angeles spent about $15 million to upgrade its
sewage treatment plants to enable them to process biosolids to
the required quality level. Currently, about 75% of the
biosolids generated by Los Angeles' sewage treatment plants
are applied at Green Acres Farm.
5)In 2006, Kern County voters supported Measure E (Keep Kern
Clean Ordinance), a ballot measure that banned application of
sewage sludge (used as an agricultural fertilizer) to land in
unincorporated Kern County. Measure E would have had the
effect of preventing the City of Los Angeles and others
(including Kern County itself) from continuing to apply
biosolids in unincorporated areas as a means of disposing of
sewage sludge on farms they either own or contract with in
Kern County. Litigation has been proceeding through federal
and state courts for more than six years.
6)A recent decision issued by the Fifth Appellate District in
City of Los Angeles v. County of Kern on February 13, 2013,
and published on March 12, 2013, upheld the preliminary
injunction preventing Kern County from enforcing the
initiative ordinance banning the land application of biosolids
in the county known as Measure E. The published opinion
agreed with both the district court and the superior court
that a preliminary injunction was appropriate and that the
plaintiffs were reasonably likely to succeed on two of their
contentions: (1) that Measure E is preempted by the California
Integrated Waste Management Act (Pub. Resources Code 40000 et
seq.) and (2) that Measure E conflicted with a state
constitutional principle known as the regional welfare
doctrine and therefore exceeded Kern County's authority.
The March 2013 published opinion in City of Los Angeles v.
County of Kern discusses the issue of preemption by the CIWMA.
The opinion states that "in section 40053 [of the CIWMA], the
Legislature made it clear that, although local government was
still authorized to make its own regulations on land use and
solid waste management facilities, these regulations would be
valid only if reasonable and consistent with the CIWMA and its
policies:
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This division, or any rules or regulations adopted
pursuant thereto, is not a limitation on the power of a city,
county, or district to impose and enforce reasonable land use
conditions or restrictions on solid waste management
facilities in order to prevent or mitigate potential
nuisances, if the conditions or restrictions do not conflict
with or impose lesser requirements than the policies,
standards, and requirements of this division and all
regulations adopted pursuant to this division.
"Under state law preemption principles, a county is authorized
to make ordinances only if they are 'not in conflict with
general laws?.' We agree with plaintiffs that they are likely
to prevail on their claim that the CIWMA preempts Measure E.
Section 40051 [of CIWMA] requires local agencies like Kern
County and the City of Los Angeles to "[p]romote" and
"[m]aximize" recycling. An ordinance of one local government
that prohibits, within its jurisdiction, the employment by
another local government of a major, widely accepted,
comprehensively regulated form of recycling is not consistent
with this mandate."
7)It should be noted that several cities in Kern County,
including Bakersfield, Taft, Wasco and Delano continue to
apply biosolids to farmland in incorporated areas, which are
unaffected by Measure E. The March 2013 published opinion
notes that "61 percent of Kern County's voters live in
incorporated areas, including 44 percent in Bakersfield alone,
and that "[t]his means that over three-fifths of the
decision-makers tolerate local disposition of locally
generated biosolids, but have prevented out-of-county
recyclers from engaging in precisely the same activity by
banning the operation of any biosolid recycling facilities in
the unincorporated areas of the County."
Additionally the opinion states that "If we held that Kern
County is empowered to ban land application of biosolids, we
would necessarily be implying that all counties and cities are
empowered to do the same?.Kern County asks us to adopt a
position that would authorize all local governments to say
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'not here'?.The CIWMA announces statewide goals and means to
achieve them. Kern County claims an entitlement to ban those
means and thwart the achievement of those goals for others so
long as it is complying with its own obligation to reduce the
flow waste it collects itself."
The Committee may wish to consider the implications of
allowing one jurisdiction to ban another's sludge and the
precedent that this may set for other jurisdictions to come to
the Legislature and request the same treatment.
8)The regional welfare doctrine limits a local agency's power to
regulate if a particular enactment has an effect outside the
enacting local agency's bounds. Local agencies must consider
the general welfare of the entire affected area and not just
the jurisdiction when adopting regulations.
The March 12, 2013 published opinion also discusses the
regional welfare doctrine, as follows: "The California
Constitution imposes on the police power of local governments
a limitation requiring local enactments not to conflict with
the general welfare or the public welfare. The basic
principle is that 'a local land use ordinance falls within the
authority of the police power if it is reasonably related to
the public welfare'?.In the present case, our discussion of
the balance of hardships above illuminates the question of
reasonable accommodation of the region's welfare?.In light of
the CIWMA's mandate that all local governments reduce the
stream of solid waste going to landfills and incinerators, it
is likely that an ordinance by which one local government
obstructs others' efforts by banning a major form of recycling
within its jurisdiction fails to accommodate the regional
welfare. If it were upheld, then every jurisdiction would be
authorized to make a similar enactment, thus preventing
California as a whole from recycling its biosolids without
imposing them on other states."
9)This is not the first legislative attempt at regulation or
prohibition of biosolids by ordinance. AB 845 (Ma), Chapter
526, Statutes of 2012, prohibits an ordinance enacted by a
city or county, including an ordinance enacted by initiative
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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. SB 926 (Florez, 2005) 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. SB 926 was held in the Assembly Local
Government Committee.
SB 1956 (Polanco, 2000) would have prohibited a local
government from enacting, maintaining, or enforcing an
ordinance, regulation, or resolution that prescribes standards
in addition to, or more restrictive than, specified federal
regulations or the State Water Resources Control Board's WDR
for biosolids land application, except under limited
conditions. SB 1956 was sponsored by Los Angeles and the Los
Angeles County Sanitation District. The bill was never heard
in the first policy committee.
10)On April 22, 2013, Kern County filed a Petition for Review in
the California Supreme Court of the decision issued by the
Fifth Appellate District in City of Los Angeles v. County of
Kern. In its Petition for Review, Kern requests that the
Supreme Court examine three specific issues: first, a
procedural issue pertaining to tolling of a statute of
limitations period when state law claims are pending in
federal court; second, whether the California Integrated Waste
Management Act preempts land application bans such as Kern's
Measure E; and, third, whether California's "regional welfare
doctrine" is a valid basis for invalidating these types of
land application bans and local waste ordinances.
The Committee may wish to consider whether this bill is
premature, given that litigation regarding Measure E is still
ongoing.
11)Support arguments : Supporters argue that cities and counties
must retain their authority to protect local environmental
health and that sewage sludge can contain dangerous metals and
other toxic substances that would contaminate crops and water
tables if spread on agricultural lands.
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Opposition arguments : Opponents argue that AB 371 seeks to
circumvent multiple court rulings against Kern County, that
the type of ban Kern County has sought to enforce conflicts
with the CIWMA and the regional welfare doctrine, and ignores
the overwhelming weight of scientific evidence that the land
application of biosolids is a safe and beneficial practice.
12)This bill was heard by the Environmental Safety and Toxic
Materials Committee on April 2, 2013, and passed with a 5-0
vote.
REGISTERED SUPPORT / OPPOSITION :
Support
Kern County Board of Supervisors
Mike Maggard, Supervisor, 3rd District, Kern County
Tilo Cortez, Jr., Mayor Pro-Tem, City of Wasco
Opposition
Antonio Villaraigosa, Mayor, City of Los Angeles
California Association of Sanitation Agencies
California Water Environment Association
Cities of Los Angeles, Livermore, Palo Alto, Thousand Oaks
Dublin San Ramon Services District
El Dorado Irrigation District
Goleta Sanitary District
North San Mateo County Sanitation District
Orange County Sanitation District
Rancho California Water District
Sacramento Regional County Sanitation District
San Francisco Public Utilities Commission
South Orange County Wastewater Authority
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958