The owner of a business that spreads sludge from wastewater treatment plants on fields in Kings County has taken a beating in court over a lawsuit that claimed the county could not exempt an ordinance regulating sewage sludge disposal from environmental review. In upholding a decision by Kings County Superior Court Judge Peter Schultz, the Fifth District Court of Appeal ruled that Shaen Magan failed to present any evidence to support his claim that the ordinance was not categorically exempt from the California Environmental Quality Act (CEQA). In the opening of her opinion, Justice Rebecca Wiseman wrote, "Let us get this straight: We have a party whose business it is to dump sewage sludge generated in Southern California on agricultural property located in the San Joaquin Valley. His complaint is that the Board of Supervisors violated environmental laws when it took regulatory action phasing out and ultimately prohibiting this practice. Astoundingly, he alleges there was a reasonable possibility that the Board's decision to prohibit the spread of sewage sludge would have an adverse environmental impact. He reasons that, among other things, not spreading sewage sludge degrades agricultural land. We, like the trial court, do not buy it." After a year of hearings, the county in January 2001 adopted the ordinance regulating sewage sludge application to land. The Board of Supervisors cited studies that found sludge, because it contains heavy metals, pathogens and other pollutants, threatened human and environmental health and that federal regulations were inadequate (see CP&DR Environment Watch, July 2000). The county determined the ordinance was categorically exempt from environmental review under CEQA Guideline § 15308 because it was a regulatory action to protect the environment. Magan filed suit. He had a permit to dispose of sludge on 1,800 acres in Kings County owned by the Orange County Sanitation District, and he also had contracts with the Los Angeles County Sanitation District and the cities of Goleta and Santa Barbara to apply sludge to other properties in Kings County. Judge Schultz rejected Magan's CEQA claims. On appeal, Magan argued there was no substantial evidence in the record demonstrating that the county had considered the ordinance's environmental impact, and there was enough evidence of a potential impact to block the ordinance from receiving a categorical exemption. The unanimous three-judge appellate panel, however, ruled that county did not need to present substantial evidence before declaring the exemption. "Contrary to appellant's assertions, the county was not required to conduct an environmental analysis under CEQA after determining the ordinance was categorically exempt," Justice Wiseman wrote. "Once the agency determines that the project falls within the exempted class, no additional environmental analysis is required. … [T]he county only has the burden to demonstrate substantial evidence that the ordinance fell within the exempt category of projects. This the county has done." As for potential environmental impacts, Magan argued that the ordinance would shift sludge disposal to other jurisdictions, cause sludge generators to employ additional treatment that could harm the environment, and degrade Kings County farmland. The court ruled that Magan "has failed to support his claims with any evidence in the record. The claims are based entirely on speculation. Opinions which state ‘nothing more than "it is reasonable to assume" that something "potentially … may occur" do not constitute substantial evidence' necessary to invoke an exception to a categorical exemption." Wiseman cited Apartment Assn. of Greater Los Angeles v. City of Los Angeles, (2001) 90 Cal.App.4th 1162, (see CP&DR Legal Digest, September 2001). The court also rejected Magan's argument that he did not have time to establish a record of evidence. The Case: Magan v. County of Kings, No. F039802, 03 C.D.O.S. 548. Filed December 12, 2002. Ordered published January 13, 2003. The Lawyers: For Magan: David Doyle, Doyle, Penner, Bradley & Armstrong, (559) 261-9321. For the county: Peter Moock, county counsel's office, (559) 582-3211.