Legal Update – Sewage Sludge and the Doctrine of Preemption

            This week the Pennsylvania Commonwealth Court (Commonwealth v. East Brunswick Township) used the doctrine of preemption to overturn a local ordinance that attempted to regulate the application of sewage sludge.  Sewage sludge, typically in the form of residue from wastewater treatment plants,  is a form of pasture fertilizer that farmers love.  It is nitrogen rich and often provided for free. However, for reasons related to everything from heavy metals to odor to irrational fears, sewage sludge is regulated in its application.

             The doctrine of preemption is simply stated.  When a federal or state government adopts comprehensive regulations governing a particular activity, lower governments may not adopt their own regulations because they have been “preempted.”  The doctrine is not without a strong policy rationale.  In North Carolina, solid waste disposal is a statewide issue, and the General Assembly has adopted a comprehensive set or laws and regulations applicable statewide.  It is unmanageable both for statewide regulators as well as companies working regionally or statewide in the area of solid waste if every county and municipality had its own regulations.

             The Pennsylvania Commonwealth Court agrees, quoting an earlier Pennsylvania case, Liverpool Township v. Stephens, 900 A. 2d 1030 (Pa. Cmwlth. 2006):  “Ordinance 13 not only conflicts with the Solid Waste Management Act, it also interferes with the General Assembly’s goal of a uniform and comprehensive scheme of regulation of municipal sewage treatment that leaves no room for side-by side municipal regulation . . . Balkanized regulation of the disposal of municipal sewage sludge would stand as an obstacle to the SWMA’s comprehensive regulatory scheme.” (emphasis in the opinion).

             To my knowledge, North Carolina courts have not used the term “Balkanization” to describe a problem governed simultaneously by multiple regulatory schemes, but it’s an apt term.

Comments
2 Responses to “Legal Update – Sewage Sludge and the Doctrine of Preemption”
  1. Under the Supremacy Clause of the US Constitution, federal law trumps state law.

    FEDERAL LAW SPECIFICALLY AUTHORIZES A POLITICAL SUBDIVISON OF A STATE ( County, City, Township, Parish, Town, etc.) to enact local laws more stringent than the federal sludge regulations . . .
    Attorney Chris Nidel: http://www.nidellaw.com/blog/?p=17

    40 CFR 501.1 State Sludge Management Program Regulations

    (i) Nothing in this part precludes a State or political subdivision thereof, or interstate agency, from adopting or enforcing requirements established by State or local law that are more stringent or more extensive than those required in this part or in any other federal statute or regulation.

    Then Section 503.5, recognizes that the “permitting authority” (the State) to impose further restrictions to protect health and the environment. The provision goes on to actively carve out authority for the State or any subdivision thereof (the local government) to impose additional or more stringent requirements:

    § 503.5 Additional or more stringent requirements.

    (a) On a case-by-case basis, the permitting authority may impose requirements for the use or disposal of sewage sludge in addition to or more stringent than the requirements in this part when necessary to protect

    public health and the environment from any adverse effect of a pollutant in the sewage sludge.

    (b) Nothing in this part precludes a State or political subdivision thereof or interstate agency from imposing requirements for the use or disposal of sewage sludge more stringent than the requirements in this part or from imposing additional requirements for the use or disposal of sewage sludge.

    The next section protects the right of the locality to determine methods of use and disposal of sewage sludge:

    § 503.6 Exclusions.

    (a) Treatment processes. This part does not establish requirements for processes used to treat domestic sewage or for processes used to treat sewage sludge prior to final use or disposal, except as provided in

    §503.32 and §503.33.

    (b) Selection of a use or disposal practice. This part does not require the selection of a sewage sludge use

    or disposal practice. The determination of the manner in which sewage sludge is used or disposed is a local determination.

    Thus, federal law preempts state laws which seek to withhold, rescind, abrogate, override the rights clearly granted to localities by federal sludge rules.

    Even the author of the 40 CFR Parts 501 and 503 federal sludge rules, Dr. Alan Rubin, US EPA retired, supports LOCAL CONTROL as he wrote it !!
    http://www.sludgevictims.com/documents/DR.ALANRUBIN-ENCOURAGESLOCALSLUDGERULES.doc

    Helane Shields, Alton, NH Sludge researcher since 1996 http://www.sludgevictims.com

    • Tom Terrell says:

      I appreciate this comment. The issue in the Pennsylvania case, however, dealt not with federal but with state preemption. The doctrine of preemption also applies when local jurisdictions attempt to regulate an area preempted by state law. The federal regulations cited merely allow states and political subdivisions to be more strict than federal law, but they do not prevent states from enacting comprehensive legislation of their own that would exclude local regulation.

      In the Pennsylvania case cited the local government was a township. In North Carolina, a town or township is classified as a municipal corporation. It is not a subdivision of the state. Only counties are subdivisions of the state.

About Our Firm

Fox Rothschild LLP is a national law firm with 900 attorneys practicing in 27 offices coast to coast. We’ve been serving clients for more than a century, and we’ve been climbing the ranks of the nation’s largest firms for many years, according to both The Am Law 100 and The National Law Journal.
Read More