LA sludge case ‘about risks to Kern County,’ lawyer tells court

VISALIA — After nearly a decade of court battles, the legal fight between the City of Los Angeles and the County of Kern over the land application of biosolids — treated sewage sludge — finally went to trial Tuesday.

(Article by Casey Christie, republished from http://www.bakersfield.com/News/2016/04/26/LA-sludge-case-about-risks-to-Kern-County-lawyer-tells-court.html)

Los Angeles’ challenge of Measure E, Kern County’s 2006 voter-approved ban on farming with biosolids in unincorporated areas, has faced dueling motions and rulings at nearly every level of court in the nation.

Now, for the first time, a judge is hearing evidence, witness examination and debate in a full trial. Tulare County Superior Court Judge Lloyd Hicks is presiding over the case, which is expected to run as long as two weeks.

Attorney Brian Condon, speaking for the County of Kern, argued in his opening statement that the case isn’t about how Los Angeles-owned Green Acres Farm is meeting the current regulations that cover biosolids.

“It’s about the risks to Kern County from chemicals that aren’t covered by current rules,” he said.

Testimony will show, he said, that a host of questionable chemicals, including flame retardants, have been found in soil samples in the area.

Kern County voters, Condon argued, shouldn’t have to wait until someone is harmed by those chemicals before they can block Los Angeles from spreading biosolids on Kern County land.

Los Angeles’ attorneys spent their time Tuesday calling a string of witnesses, mostly Green Acres operators, biosolids handlers and city officials, to paint the picture that Los Angeles is operating within the law and recycling much of the city’s sewage solids in a beneficial manner by growing dairy feed crops in Kern County.

Condon and attorney Jonathan Hughes tried to poke holes in that picture and show Los Angeles was trying to do the minimum amount of work and testing to ensure biosolids were safe to spread on farmland.

City of Los Angeles attorney Mike Lampe started the day by questioning Kern County Public Health Services Director Matt Constantine about his role in enforcing county regulations on Green Acres Farm, the 4,700-acre Los Angeles-owned property where most of LA’s biosolids are disposed of.

“Has the Kern County Environmental Health Division… ever made a determination that the flies and odors came from Green Acres Farm?” Lampe asked.

“No,” Constantine said.

Lampe asked Constantine why Kern County Environmental Health Services, in 2011, stopped enforcing a 2003 ordinance that requires Los Angeles to apply only exceptional quality biosolids.

“After consulting with county counsel, I made the decision not to regulate the facility — not to enforce the 2003 AEQ ordinance,” Constantine said. “I did not believe not enforcing the ordinance would create an imminent health risk.”

Did he tell the Kern County Board of Supervisors that he had stopped enforcing the ordinance?

“I don’t remember notifying the board,” Constantine said.

On cross-examination, Condon worked hard to show Lampe was playing games with the facts and that other agencies are regulating impacts from Green Acres,

He asked Constantine about the impact that Measure E had on the 2003 ordinance.

“It repealed it,” Constantine said.

Constantine, prompted further by Condon, explained that the county stopped enforcement of the 2003 ordinance after a federal court dismissed Los Angeles’ case against Measure E several years ago.

Measure E has since been frozen by judge Hicks, who ordered Los Angeles to operate under the 2003 ordinance.

Next up was Rob Fanucchi of Kern County, who farms Green Acres Farm for Los Angeles.

Given a choice of manure or biosolids, he told Lampe, he would prefer to use biosolids.

“If things are planted at the same time, Green Acres Farm can out-produce some of the other areas I farm around there,” Fanucchi said.

Condon asked if Fanucchi knows where the irrigation water goes after it nourishes the crops.

“I don’t know how far down it goes,” he said.

Then Condon asked Fanucchi why he doesn’t use biosolids on his personal farmland, where he has almond and pistachio orchards.

“Because I don’t know if the haulers would allow it — for food quality,” Fanucchi said.

The most heated exchanges of the day came in the afternoon when Lampe called Diane Gilbert-Jones, regulatory liason for the City of Los Angeles Bureau of Sanitation, to the stand.

He went over, in detail, the reports, tests and filings Green Acres completes to comply with San Joaquin Valley Regional Water Quality Control Board and other regulatory agencies’ rules.

Then he asked, in a rapid-fire series of short questions, whether anyone has asked for additional testing of the soils, crops or water for either regulated substances or what the County of Kern calls “constituents of emerging concern.”

“No,” Gilbert-Jones said to each question.

Condon jumped in quickly to cross-examine.

“Does the City of Los Angeles monitor the groundwater at Green Acres Farms?”

“No,” Gilbert-Jones said, saying Los Angeles is not required to do so.

Condon also pushed hard on “constituents of emerging concern” — chemicals and substances that could be in biosolids but are not regulated.

He asked her if the City of Los Angeles has any plans to use constituents of concern as a control point in the treatment of biosolids — even though audits of operations called for that action.

“Not that I’m aware of,” Gilbert-Jones said.

She said regulations do not require Los Angeles to test for or treat for those chemicals and substances and — while they monitor studies on the materials — the city isn’t likely to do anything to control them unless regulations change.

Read more at: http://www.bakersfield.com/News/2016/04/26/LA-sludge-case-about-risks-to-Kern-County-lawyer-tells-court.html