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Tuesday, Jul 22 2014 10:16 AM

DA's office files civil complaint against Benz Sanitation

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Kern County's District Attorney office filed a civil suit against Benz Sanitation, Inc. on July 7 on grounds of violating regulations for dumping of solid waste without a permit.

According to court documents, the DA filed the suit after an investigation on March 6 and March 10, 2014, found solid waste being deposited on property east of Benz Sanitation's Tehachapi recycling facility on North Dennison Road.

The Tehachapi News received copies of the document by anonymous U.S. postal mail on July 15, July 16 and July 18. The three copies were signed by the deputy district attorney assigned to the case but did not bear any markings indicating they were copies filed with the court; the three envelopes were different in size and style of addressing.

Kern County's Environmental Health division responded to complaints and, in the process of its investigation, “observed a deposit of unknown solid waste consisting of concrete-like material that was whitish to greyish in color,” according to the court documents. The material ranged from block to gravel in size.
Environmental Health's investigation revealed that the substance was drilling mud from a production well in Kern County that showed high levels of barium, according to the case document. More than 2,000 tons, over 1 19 truck loads, was deposited on to the property, according to the filings.

Solid waste includes “garbage, rubbish, paper, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, vegetable or animal solid and semi-solid wastes and other discarded solid and semisolid wastes,” as defined by the Kern County’s code of ordinances.

The property does not have a permit to receive or operate as a solid waste facility, which violates the California Public Resources Code, according to the DA’s complaint.

Diane Oglesby, a spokeswoman for Benz, told the Tehachapi News that the company has not yet received an official notice.

“At this time Benz has not been served with the civil complaint,” Oglesby said by email on July 18.

Oglesby said Benz Sanitation was unaware of the court document or the forthcoming litigation. She added that it was “odd that this unofficial (no case number or court stamp) reached the news with such speed.”

She added that due to the county’s Environmental Health’s director Matt Constantine being out of contact, more information could not garnered.

“In light of the fact that Benz has not been served and our counsel is unable to reach county staff as well,  we will provide more information next week at the soonest possible opportunity,” Oglesby said.

She added that Benz had been working with Kern County Environmental Health staff on mitigation efforts regarding the drilling mud, and had been in contact with its director.

“I think it is important to note that the drilling mud associated with the installation of fiber optic cable was independently tested and verified as non-hazardous,” Oglesby said.”The chemist’s analysis was provided to the County of Kern along with our paid invoice and a list of the various tests that were performed.”

The land where the mud was deposited is seperate from that associated with Tehachapi Recycling Center, and had been used for weed abatement and pothill filling, she said.

“We were mitigating/ addressing concerns from our local enforcement agency and we thought we were on the road to getting the matter resolved without court filings,” Oglesby said in her emails to Tehachapi News.

She added that the focus on Benz and not the drilling mud’s hauler in the court document was of concern as well.

“CWW (Southern CA Waste Water) routinely hauls this product for land application and I am uncertain until I talk to the Director as to why we were there only “focus” named in the complaint,” Oglesby said. “These loads come with manifests that we shared with the county. We are looking into the interpretation of ‘solid waste’ given that we did not recognize back in the spring that this would be characterized as ‘solid waste.’”

The DA's office has asked that the court place a permanent injunction on Benz Sanitation and immediately stop it from receiving all solid waste on the property unless the company obtains a valid permit for the site.

Under California law, all waste must be disposed of at a valid disposal site, something that is handled by Kern County.

Other requests include:
• That Benz provide a written remediation plan that includes removal of all solid waste from the site.
• Benz must provide documents describing daily tonnage leaving the property, outgoing waste transport locations, and manifests of all the removed waste.
• All waste will be disposed of at a facility approved by Environmental Health, with whom Benz Sanitation must coordinate with.
• Benz would have to conduct lab testing of the waste removed from the property, as well as the native soil under and around the disposed waste.
• Pay $2,500 in penalties for every act of unfair competition.
• Allow Kern County to recoup legal costs related to the civil suit.

John T. Mitchell, the deputy district attorney who filed the complaint, said he could not comment about the case on July 16 beyond what was in the court document.
Mitchell further noted at that time that the DA's office had not yet received its own notice from the court for court date, and said it was strange for a copy to be sent out.

"Once we receive notice from the court, we will then serve Benz," said Mitchell, clarifying it would be the two parties named as defendants served.
Once Benz Sanitation and Tehachapi Recycling are served, they will have 30 days to respond, Mitchell said.

"We're seeking penalties, restorative costs and recovery of costs," said Mitchell.

Tehachapi City Manager Greg Garrett said on July 16 that he was unaware of the lawsuit filed by the DA's office.

“I am aware and was made aware by Kern County Environmental Health back in March of a potential violation, but that is something that Kern County is responsible for,” Garrett said.

Garrett said the property identified in the court document is within the city of Tehachapi's limits.

“Kern County has been giving us information all along but it did not rise to any level of urgency with them or us, but I knew they were working with Benz Sanitation to get it cleaned up,” Garrett said.

The first court date, an order to show cause, is set for 8:30 a.m on Oct. 22 at the Kern County Superior Court, Division 11, 1415 Truxton Ave. in Bakersfield. A case management conference is scheduled for 8:30 a.m. on Jan. 5, 2015. From there, a future court or trial date will be set.

This is not the first time Benz Sanitation has been placed in the spotlight.

In 2012, criminal fraud charges were brought against Paul Benz, Sr., after a lengthy investigation determined that Benz Sanitation was importing solid waste from Los Angeles County and dumping it in Kern County landfills.

The Ridgecrest Police Department acted as the lead agency during the investigation.

The trash brought in from Los Angeles County went to the recycling facility. Benz Sanitation was supposed to sort out recyclables and transport solid waste back to L.A. County.

While Benz Sanitation does not pay any fees for dumping solid waste it picks up from its customers in Kern County or Los Angeles County, it had to pay a fee for trash brought in from out-of-county areas. Benz pled no contest to charges against him. In an interview with the Tehachapi News after the case was settled, his son Paul Benz Jr., general manager of Benz Sanitation, said his father had done nothing wrong and had accepted the plea to end the matter.

As part of the plea bargain, Paul Benz Sr. agreed to three years of felony probation and that the company pay $2.375 million in restitution to the county and the city of Ridgecrest.

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