BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
SB 1274 S
Senator Costa B
April 26, 1999
Hearing Date: April 27, 1999 1
Food and Agriculture Codes 2
DLM:jt 7
4
SUBJECT
Agricultural Nuisance Exemption: Rendering and Collection
Centers
DESCRIPTION
This bill would declare that rendering and collection
centers are agricultural processing activities for purposes
of including their activities in the existing exemption for
agricultural activities from public and private nuisance
laws.
BACKGROUND
State law dating back to the 1870's declares that nothing
done or maintained under the express authority of statute
can be deemed a nuisance. More recently, the expanding
urban population's potential conflict with long operating
agricultural businesses resulted in the passage of "right
to farm" laws. In particular, AB 585 (Thurman) Ch. 545,
Stats. of 1981, created a general protection from nuisance
findings for those farmers, ranchers, and processors in
operation for three years without incident. This
legislation was expanded in 1992 by
AB 1190 (Hannigan) Ch. 97, Stats. of 1992, to include
agricultural processing facilities.
CHANGES TO EXISTING LAW
1. Existing law provides that no agricultural processing
activity, operation, facility, or appurtenances thereof,
that are conducted or maintained for commercial purposes,
(more)
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shall be or become a nuisance, private or public, due to
any changed condition in or about the locality after it
has been in continuous operation for more than three
years if it was not a nuisance at the time it began.
This bill would add rendering plants and collection
centers licensed under the Food and Agriculture Code to
the specified categories of agricultural processors.
2. Existing law requires every person engaged in the
business of rendering to obtain a license from the
Secretary of Food and Agriculture for each rendering
plant and collection center operated.
This bill would require:
Every person engaged in the business of rendering
to obtain a license from the Department of Food and
Agriculture for each rendering plant.
Every person engaged in the business of operating a
collection center to obtain a license from the
Department of Food and Agriculture for each collection
center operated.
3. Existing law authorizes the Secretary of Food and
Agriculture, in lieu of any civil action and in lieu of
seeking prosecution, to levy a civil penalty against a
person who violates certain of these provisions, or any
regulation adopted, in an amount not to exceed $1,000.
Before a civil penalty is levied, the person charged with
the violation shall receive notice of the nature of the
violation and shall be granted an opportunity to be
heard, which shall include the right to review evidence
and the right to present evidence on his or her own
behalf.
This bill would provide, instead, that before a civil
penalty is levied, the person charged with the violation
shall receive notice of the nature of the violation and
shall be granted the right to review the department's
evidence, and for up to 30 days following the issuance of
the notice, opportunity to present written argument and
evidence to the department as to why the civil penalty
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should not be imposed or should be reduced.
The bill would further specify that these provisions do
not require the department to conduct either a formal or
informal hearing, and that instead the department may
dispose of the matter upon review of the documentation
presented.
COMMENT
1. Stated need for bill
The author states his belief that rendering operations
and collection centers are included in the types of
agricultural related processing existing law was intended
to cover. This bill is needed, he asserts, to
specifically include rendering operations and collection
centers. "The rendering industry is a key component of
the state's waste disposal system, recycling billions of
pounds of various waste byproducts from the food and
agricultural industries into useful feed products each
year. Our dairies and poultry farms are dependent on
renderers to dispose of animals that die each day due
primarily of natural causes. Only a handful of rendering
plants are left in California to process dead stock and
only about a dozen collection centers. My bill is
limited in scope to affect only a very small, but
necessary, industry."
2. Support
The sponsors of the bill, California Grain and Feed
Association, state the bill is needed, "to clarify the
department's regulation of collection centers under the
rendering laws. These centers are drop-off locations for
animal carcasses and/or kitchen grease bound for
rendering plants. The bill gives authority to the
department to prescribe necessary equipment for
collection centers to make certain they are operated in a
way that promotes food safety and environmental quality."
The bill's other sponsor, Western United Dairymen, write
to say, "The Dairy Industry loses several hundred animals
per month throughout the state, this in addition to
livestock owned by other commodity industries. These
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animals can only be processed for non-human consumption.
By-products are used within the livestock and animal
industries for food for animals. Deaths of large animals,
in particular 1,200-pound dairy animals, require a
beneficial and health protective way to dispose of them.
Rendering is the most efficient, and for the most part,
the only acceptable legal way to move carcasses away from
human health concerns."
3. The law of nuisance and coming to the nuisance
Caveat Emptor - Let the buyer beware. Should anyone
buying a home near an existing rendering plant or
collection facility be presumed aware of its operations
and its smells before they purchase? When you purchase
the home in November the smell may not have seemed so
bad, but come summertime the smell is quite pungent.
Should you have a legal recourse? This bill expands on
the law which says, "No."
Section 3479 of the Civil Code defines a "nuisance" as
"anything which is injurious to health, or is indecent or
offensive to the senses, or an obstruction to the free
use of property, so as to interfere with the comfortable
enjoyment of life or property, or unlawfully obstructs
the free passage or use, in the customary manner, of any
body of water, street, or other public place."
Section 3480 defines a "public nuisance" as "one which
affects at the same time an entire community or
neighborhood, or any considerable number of persons,
although the extent of the annoyance or damage inflicted
upon individuals may be unequal."
In the policy determination of whether an enterprise
should be excused from nuisance laws, as against those
new neighbors who have "come to the nuisance," Dean
Prosser framed the debate quite well. "The question
frequently arises, whether the plaintiff assumes the risk
and is barred from recovery by the fact that he has 'come
to the nuisance' by purchasing land and moving in next to
it after it is already in existence or operation. The
prevailing rule is that in the absence of prescriptive
right, the defendant cannot condemn the surrounding
premises to endure the nuisance, and that the purchaser
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is entitled to reasonable use and enjoyment of his land
to the same extent as any owner, so long as he buys in
good faith and not for the sole purpose of a vexatious
lawsuit.... There are cases, however, which have held
that the plaintiff is barred by his voluntary choice of a
place to live, particularly where the defendant's
activity is one in which the public has a major interest;
and the safer and more accurate statement would appear to
be that 'coming to the nuisance' is merely one factor,
although clearly not the most important one, to be
weighed in the scale along with the other elements which
bears upon the question of reasonable use." Prosser,
Handbook on the Law of Torts, 4th Ed. at 611.
In California, we have such a prescriptive right to which
the Dean refers, section 3482.6 of the Civil Code, which
places restrictions on the ability to declare
agricultural activities to be nuisances. This "right to
farm" statute
provides that, if an agricultural processing activity,
operation, facility, or appurtenance thereto has existed
for more than three years and it was not a nuisance when
it started operation, and it continues to be conducted in
a manner consistent with the customs and standards of the
locality, it cannot be declared a nuisance because of
changed conditions in the area (i.e. because houses have
been built near the plant).
4. Are rendering and collection centers "agricultural
processes?"
The Food and Agriculture Code defines "rendering" as the
conversion of packinghouse waste, dead animal carcasses,
and kitchen grease into industrial fats and oils inedible
for human consumption and other products inedible for
human consumption. "Collection center" means a receiving
area for the temporary storage of animal carcasses,
packinghouse waste or other products before
transportation to a licensed rendering plant. While
these activities have an obvious relationship to
agriculture, they also relate to industrial activities,
particularly in the collection and conversion of
non-consumable kitchen grease.
The author argues that these facilities are indeed
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agricultural, as the predominant component of their
"product" is from farm and ranching related processing.
In addition, he points out, the product derived from
rendering is also agricultural, (such as chicken feed).
He further asserts that the enforcement of rendering laws
is conducted by the Meat and Poultry Inspection Branch of
the USDA as a form of meat processing.
In reviewing the legislative history of this section of
law, the supporters of
AB 1109 (Hannigan) included Heinz USA, Beatrice/Hunt
Wesson and Campbell Soup, as well as the Wine Institute
and frozen food processors. The food processing
activities of these companies seem at least as
"industrial" as processing dead animals and used kitchen
grease into chicken feed.
5. Prior related legislation: a question of retroactive
or prospective application
In 1992, AB 1190 (Hannigan) Ch. 97, Stats. of 1992,
expanded the existing protection from nuisance laws for
farmland and farming operations, to cover agricultural
processing activities as well. The bill provided a date
certain of January 1, 1993 for these protections to
begin. SB 1274 would use the same date and would,
therefore, cover activities of rendering facilities and
collection centers which were in place as of January 1,
1993.
SHOULD RETROACTIVE APPLICATION BE GIVEN TO THE ACTIVITIES
OF RENDERING PLANTS AND COLLECTION CENTERS?
SHOULD THE BILL BE PROSPECTIVE ONLY, SINCE "COLLECTION
CENTERS" WOULD BE A SEPARATELY LICENSED ACTIVITY ONLY
WITH THE PASSAGE OF THIS BILL?
6. 30-day statute of limitations for informal appeal
process
The bill allows a person charged with violation of this
section to challenge the decision through an informal
process within 30 days following issuance of notice of
violation before a fine is levied. The bill expressly
declares that the Administrative Procedures Act does not
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apply to these pre-fine appeals. Existing law also
allows a challenge, but does not place a statute of
limitations upon the party's time for challenging the
decision.
The limitations period under the Administrative
Procedures Act is 30 days. For many state agencies, the
period is prescribed in statute, such as in other
sections of the Food and Agriculture Code (30 days to
contest commodity marketing program assessment); CCP
706.075 (90 days for withholding order for taxes) Labor
Code ALRB (30 days) Worker's Compensation (45 days).
However, these limitation periods are for challenges to
some actual harm. This bill would allow a person to
present their side of a story before a fine is imposed.
There seem to be no due process issues raised with the
bill's proposed 30-day limitation period.
Support: California Poultry Industry Federation;
California Cattlemen's Association; California Farm
Bureau Federation; Pacific Egg and Poultry
Association
Opposition:None Known
HISTORY
Source: Western United Dairymen and California Grain and
Feed Association
Related Pending Legislation: None Known
Prior Legislation: AB 1190 (Hannigan) Ch. 97, Stats. of
1992
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