BILL ANALYSIS �
AB 371
Page 1
ASSEMBLY THIRD READING
AB 371 (Salas)
As Amended March 19, 2013
Majority vote
ENVIRONMENTAL SAFETY 5-0 LOCAL
GOVERNMENT 6-0
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|Ayes:|Alejo, Dahle, Donnelly, |Ayes:|Achadjian, Levine, Alejo, |
| |Stone, Ting | |Gordon, Melendez, Mullin |
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|-----+--------------------------+-----+--------------------------|
|Nays:|Bloom, Lowenthal | | |
| | | | |
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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)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
Section 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 Section 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 Section
40002).
c) Authorizes a city or county to assess special fees of a
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reasonable amount on the importation of waste from outside
of the county to publicly owned or privately owned
facilities (Public Resource Code Section 41903).
2)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 (Water
Code Section 13000 et seq.).
3)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 Section 13274).
4)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 Section 13274).
FISCAL EFFECT : None
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."
Sewage sludge . According to the US Environmental Protection
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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 reduce pathogens.
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."
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
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
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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 February 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.
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
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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. "
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965
FN: 0000541