BILL ANALYSIS �
AB 371
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 371
AUTHOR: Salas
AMENDED: June 4, 2014
FISCAL: Yes HEARING DATE: June 18, 2014
URGENCY: No CONSULTANT: Rachel Machi
Wagoner
SUBJECT : SEWAGE SLUDGE: KERN COUNTY
SUMMARY :
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 (PRC)
�40051). The Department of Resources Recycling and
Recovery (CalRecycle) is responsible to ensure that by
January 1, 2020, 75% of the solid waste generated in
California is source reduced, recycled, or composted. (PRC
�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. (PRC �40002).
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. (PRC �41903).
2) Under the Porter-Cologne Water Quality Act, provides that
the State Water Resources Control Board (SWRCB) and the nine
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California regional water quality control boards (regional
boards) are the principal state agencies with responsibility
for the coordination and control of water quality in
California. (Water Code �13000 et seq.).
3) Requires SWRCB or a regional board, 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. (WC �13274).
4) Requires the general WDR to set minimum standards for
agronomic applications of sewage sludge and other biological
solids. WDRs require that the use of sludge and those other
solids in agriculture, forestry, and surface mining
reclamation must mitigate significant environmental impacts
or potential public health hazards. (WC �13274).
This bill :
1) From January 1, 2015, to December 31, 2016, inclusive,
provides that SWRCB shall require, for the pathogens and
endotoxins as specified, additional testing two times per
year on the effects of sewage sludge or other biological
solids to occur on properties in unincorporated areas of
Kern County where sewage sludge or other biological solids
are imported from another California county.
2) Authorizes SWRCB to identify additional pathogens,
endotoxins, and other hazards for testing pursuant to this
subdivision based on the potential for groundwater
contamination and potential to adversely affect human health
originating in sewage sludge or other biological solids.
3) Requires SWRCB to review the testing conducted pursuant to
this subdivision and submit a report after each test
conducted pursuant to this section containing the results of
the test to the Assembly Committee on Environmental Safety
and Toxic Materials, the Senate Committee on Environmental
Quality, and the Kern County Board of Supervisors.
COMMENTS :
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1) Need for the Bill . According the author, "AB 371 will fill
gaps in government testing of sewage sludge being dumped in
Kern County. This bill will fill the gaps that exist in our
testing, and let science shape our approach to finding a
solution that will hopefully lead to discontinuing the
dumping of harmful sewage sludge in Kern County. The new
testing requirement 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. It is our
responsibility to insure that 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."
2) 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
US EPA pollutant and pathogen requirements for land
application and surface disposal. The most common treatment
of sewage sludge in the western region of the US is by
anaerobic digestion to "Class B" pathogen reduction levels.
About a third 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.
3) 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
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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 Bucket Farms in Kern County.
4) 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.
Kern County voters, with the passage of Measure E in 2006,
approved the ban on the import of the wastewater byproduct,
biosolids. The City of Los Angeles, along with other
affected Southern California counties and agencies, filed a
federal lawsuit which was dismissed in November 2010.
On January 18, 2011, Kern County enforced the Measure E
ordinance. The ordinance is effective January 19, 2011 and
affected parties are required to discontinue land
application by July 19, 2011.
In light of the action of Measure E, the City of Los Angeles
along with other plaintiffs on January 26, 2011 filed a
complaint against the Kern County biosolids initiative and
filed a motion seeking a preliminary injunction on April 22,
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2011 to continue biosolids land application in Kern County
pending the outcome of the case.
On June 9, 2011, the Tulare County Superior Court granted
plaintiffs, Southern California biosolids generators,
contractors, haulers and farmers a preliminary injunction
against enforcement of the ban while the case is heard.
On September 7, 2011, the Court rejected Kern's legal
challenges to the sufficiency of Plaintiffs' allegations
that Measure E violates the federal Commerce Clause.
On September 8, 2011, Kern filed a notice of appeal of the
preliminary injunction ruling.
On February 13, 2013, in a detailed 34-page opinion, the
California Court of Appeal in Fresno upheld the preliminary
injunction, thereby allowing biosolids land application to
continue pending the outcome of the case. The Court held
that the Measure E ban likely conflicted with state law
recycling mandates. The Court also ruled that Measure E
likely exceeded Kern County's authority because the ban on
land application did not accommodate the needs of Southland
communities to manage biosolids. The Court further observed
that Kern County had presented no evidence of harm to the
environment or public safety from continued land application
of biosolids.
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Kern petitioned the California Supreme Court to review the
matter.
On June 26, 2013, the California Supreme Court agreed to
take up one of the issues in the litigation: the
interpretation of the federal statute that tolls the statute
of limitations for state claims while they are being
litigated in federal court. The Supreme Court stated the
issue to be addressed as follows: "Does 28 U.S.C. Section
1367(d) require a party to re-file its state law claims
within 30 days of their dismissal from a federal action in
which they had been presented, or does it instead suspend
the running of the limitations period during the pendency of
the claims in federal court and for 30 days after their
dismissal?" The Court did not consider the more substantive
issues worthy of review.
5) Other Actions on Bio-Solids . Kern County is not alone in
regulating the application on biosolids. Imperial County
adopted an ordinance (Measure X) similar to Kern County's
Measure E. 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.
6) Assessing the Risk Associated With Sewer Sludge . The
language in the bill does not address whether or not
biosolids should be allowed to be imported from one county
to another.
Rather, this bill appears to attempt to establish sound
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scientific evaluation of sewer sludge and aims to determine
if potential harm is caused by the land application practice
of biosolids.
However, the limited application of this legislation to only
imported biosolids to unincorporated areas appears to limit
that evaluation to biosolids that come from outside of Kern
County.
If the goal is to conduct sound scientific review of
biosolid land application then the review should be of all
biosolids used in land application (not just imported to
unincorporated areas) and if the goal is to determine if
land application of biosolids presents a risk to human
health or the environment then environmental testing, like
groundwater testing, should be done to evaluate that risk.
An amendment is needed to strike language "unincorporated" and
"imported" in that reference to testing biosolids and sewer
sludge on properties in unincorporated areas of Kern County
that are imported from another California county.
Additionally, an amendment is needed to require the regional
board to conduct monitoring of groundwater beneath and/or
downgradient of the biological solids application site for
the specified pathogens and endotoxins in order to determine
if the pathogens and endotoxins are contaminated
groundwater.
7) Arguments in Support . The Western Growers asserted that
"groundwater contamination is already an issue in Kern
County and with increasingly limited water supplies,
protection of local aquifers is of the utmost importance.
Federal and state regulations on biosolid applications have
not been updated in over 20 years?.. The reasonable amount
of testing proposed in AB 371 provides assurance that sewage
sludge land applications will not exacerbate existing
groundwater contamination problems."
8) Arguments in Opposition . According to the San Francisco
Public Utilities Commission, "AB 371 would establish
unnecessary and excessive testing of biosolids used in land
applications in Kern County. Biosolids are already tested
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and monitored by the sanitation agencies which produce them?
Most troubling to the San Francisco Public Utilities
Commission (SFPUC) is the precedent this bill sets for
entities that wish to land-apply biosolids in other counties
in California."
9) Prior related legislation . AB 845 (Ma), Chapter 526,
Statutes of 2012, 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.
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.
SOURCE : Author
SUPPORT : California Farm Bureau Federation
California League of Conservation Voters
Californians Against Waste
Center on Race, Poverty and the Environment
Environmental Working Group
Paramount Farming
Western Growers Association
OPPOSITION : California Association of Sanitation Agencies
Carpinteria Sanitary District
City of Burlingame Wastewater Treatment Facility
City of Corona
City of Los Angeles
North San Mateo County Sanitation District, Daly
City
Dublin San Ramon Services District
East Bay Municipal Utility District
El Dorado Irrigation District
Elsinore Valley Municipal Water District
JSH International
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Las Gallinas Valley Sanitary District
Las Virgenes, Triunfo Joint Powers Authority
Los Angeles County Sanitation Districts
North San Mateo County Sanitation District
Ojai Valley Sanitary District
Orange County Sanitation District
Sacramento Regional County Sanitation District
San Francisco Public Utilities Commission
Southern California Alliance of Publicly Owned
Treatment Works
Synagro Technologies, Inc.