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Substantive Dispute over Land Application of Biosolids Remains Unresolved

Form over substance continues to obscure the substantive issue presented in the case of the City of Los Angeles (City) vs.Kern County (County). At its core, the dispute involves the land application of biosolids. Biosolids are organic material produced during the processing and treatment of wastewater. Historically, waste by-products like biosolids were disposed of in a landfill or were incinerated. With environmental concerns on the rise, more sustainable practices have been identified to dispose of biosolids, one of which includes land application.

The dispute between the City and County over the land application of biosolids began in the early 1990s when the City began working with County farmers to utilize biosolids in land application as fertilizer for crops. After several years of successful land application, residents of the County passed a measure banning the practice. The practice was successfully portrayed as the City disposing of its waste in the County rather than keeping the waste in the City. Residents of the County overwhelmingly passed the measure and the City sued to block implementation of the measure. Years of protracted litigation between the City and County culminated in the most recent decision by the California Supreme Court (Court).

While the sustainable practice of the land application of biosolids should be the focus of the nearly decades-long litigation between the City and County, the focus of the dispute has revolved in large part around procedural and constitutional challenges. The Court’s most recent decision is the latest in this saga of form over substance.

In its recent decision, the Court reversed an appellate court decision involving the tolling of a limitations period for the City’s claims and held that the City’s claims were time barred. City of Los Angeles, et al. v. County of Kern, et al., Case No. S210150 (July 7, 2014). The County apparently raised the tolling issue because the case had previously been dismissed from federal court based, in part, on procedural grounds. City of Los Angeles v. County of Kern, 581 F.3d 841 (9th Cir. 2009), cert. denied, 560 U.S. 939 (2010).

Specifically, the tolling issue presented to the Court involved the interpretation and application a tolling provision provided for under federal law where a case dismissed from federal court must be re-filed, if at all, in state court within a certain period of time. As recognized by the Court, the federal tolling provision “has confounded courts nationally and in California” for some time.

In finding for the County on the federal tolling provision, the Court determined that the City’s claims were time barred because 28 U.S.C. § 1367(a) only provided a litigant with thirty days from the date the federal court dismisses a case to re-file in state court. The City contended that the federal tolling provision gave them substantially more time to re-file. The City did not file within the thirty days, so without more time to re-file their state court claim, the claim was time barred. Ultimately, the Court found that the federal tolling statute only provided thirty days to bring the claim. The Court’s decision on this procedural aspect is significant for litigants because it clarifies, at least in California, the operation of the federal tolling statute.

While the decision is procedurally significant, the decision’s focus left substantive issues over the land application of biosolids unaddressed. At the heart of the dispute, which may now never see the light of a courtroom, is whether the county can, through a voter approved measure, ban the land application of biosolids. The resolution of this dispute is important because the practice of the land application of biosolids is only going to increase as waste streams increase and the disposal practices become more regulated. Someday this substantive issue will need to be resolved.

Categories: Environmental Litigation