BNA - April 27, 2010

Municipal water authorities are calling on the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the Ninth Circuit that they say could set a precedent that allows communities to bar disposal of biosolids that are transported in from other jurisdictions (City of Los Angeles v. County of Kern, U.S., No. 09-1111, briefs filed 4/16/10).

In friend-of-the-court briefs filed April 16, the National Association of Clean Water Agencies, the Water Environment Federation, the Metropolitan Water Reclamation District of Greater Chicago, and several other districts sided with the city of Los Angeles in the city's challenge of the circuit court decision.

They said it could pose problems for water authorities throughout the country when disposing of treated domestic sewage sludge, also known as biosolids.

At issue was a ruling of the Ninth Circuit in September 2009 in a lawsuit filed by Los Angeles challenging a Kern County ballot initiative approved by voters in June 2006 that barred land disposal of biosolids that come from outside the county.

The Ninth Circuit held that Los Angeles lacked standing to sue under dormant aspects of the commerce clause of the U.S. Constitution, which limits the power of states and local governments to regulate interstate commerce.

The commerce clause protects interstate commerce, and the city's interest is in shipping waste within one state, not between states.
Because the injury claimed by Los Angeles and other parties objecting to the Kern County ban “is not even marginally related to the interests the [Commerce] Clause seeks to safeguard, they lack prudential standing to bring their federal constitutional claim.”

The ruling overturned a lower court decision that struck down Kern County's ban on the spreading of biosolids in unincorporated areas in the county. The U.S. District Court for the Central District of California said Measure E violated the Constitution's dormant commerce clause by discriminating against interstate commerce (City of Los Angeles v. Kern County, , C.D. Cal., No. CV 06-5094, 8/10/07).

The lower court said the ban clearly targeted only out-of-county biosolids. The voter initiative also conflicted with the California Integrated Waste Management Act, which requires local agencies to recycle solid wastes, including biosolids, the district court said.
Los Angeles, the Orange County Sanitation District, the Los Angeles County Sanitation District No. 2, and others sued Kern County in 2006 to overturn the initiative, claiming that state laws governing land application preempt the ordinance and that it illegally interfered with intrastate and interstate commerce.

Water Agencies Object to Ruling
The Ninth Circuit ruling could force Southern California wastewater agencies, which send hundreds of tons of biosolids daily to farm land in unincorporated areas of Kern County, to haul the sewage sludge out of state.

In March, the city of Los Angeles, which had challenged the ban, asked the Supreme Court to overturn the Kern County initiative. (51 DEN A-13, 3/18/10)

In its friend-of-the-court brief, NACWA and others said that like the petitioners, their members “stand to suffer from the Ninth Circuit's substantial narrowing of the Commerce Clause to insulate from federal judicial review in-state discriminatory and burdensome measures like Kern County's Measure E.”

Joining NACWA in its brief were the Water Environment Federation, the North East Biosolids and Residuals Association, and the Northwest Biosolids Management Association.

Biosolids Program Disruptions
“Exempting discriminatory bans on out-of-jurisdiction biosolids from federal judicial review will encourage more bans, frustrate federal intent, and lead to significant disruption on a national scale of biosolids management programs,” they said.
Another brief supporting Los Angeles was filed the same day by the Metropolitan Water Reclamation District of Greater Chicago; the Metro Wastewater Reclamation District (Denver Metro); King County, Wash.; the Metropolitan St. Louis Sewer District, and the Milwaukee Metropolitan Sewerage District. These sewer districts cited the need “to protect land application from discriminatory local ordinances.”

The districts argued the Ninth Circuit erred in holding that biosolids recycling operations and the fertilizer it produces do not involve articles in interstate commerce simply because the biosolids do not cross state lines.

These districts conduct biosolids operations similar to those of the petitioners and said they would be adversely affected if access to the protections of the commerce clause was denied “based on an exceedingly narrow view of prudential standing.”

The Ninth Circuit ruling “threatens expensive disruptions to biosolids management and cost increases for tax and rate payers,” they said.

‘Dramatic Effects' Feared
Keith Jones, an attorney for NACWA, told BNA that barring the spreading of biosolids not generated in the same county “would set a bad precedent” throughout the country.

“Municipalities would have no place to dispose of their waste material,” he said. “This could have very dramatic effects.”

Many NACWA members transport biosolids across state lines, he said, but in large states, such as California, they are often transported within the state.

“Similar bans tried across county lines have been defeated in the lower courts,” Jones said. “So far, no other [biosolids ban] case has been brought before the Supreme Court.”

The Metropolitan Water Reclamation District of Greater Chicago recycles an average of 170,000 dry tons of biosolids annually, making its program one of the largest of its kind in the country. Its biosolids are recycled on numerous farms in Illinois in as many as 12 different counties in any given year. On average, the district's brief said, approximately 1.5 million bushels of corn are produced annually using biosolids from the water district.

Denver Metro recycles biosolids at its own 52,000-acre farm in Arapahoe and Elbert counties, Colo., located about 60 miles from the treatment facility. Currently, Denver Metro has a waiting list of local farmers requesting biosolids.

Denver Dispute Resolved
According to the brief, shortly after Denver Metro acquired the majority of the land for its farm, Elbert County issued a cease-and-desist order to stop applying biosolids to the farm. The matter was resolved with the local government that issued the order prior to a federal court challenge being filed.

“If local governments are permitted to ban application of Denver Metro's biosolids without concern for violating the Commerce Clause, Denver Metro may have to undertake extremely expensive alternatives, including landfilling and transporting its biosolids much farther distances,” the brief said.

Jimmy Slaughter, with the law firm Beveridge and Diamond and one of the attorneys representing Los Angeles County, said the filing of the briefs by these large water districts underscores the concerns of large cities and rural areas with bans challenging land applications.