COURTS SAY SLUDGE USE OR DISPOSAL IS A LOCAL DETERMINATION
NH Court Rules Against Dumping of Most Infectious Sludge
NEW HAMPSHIRE SUPREME COURT - CITING FEDERAL CLEAN WATER ACT - NO PREEMPTION - UPHOLDS
LOCAL CONTROL OVER SLUDGE SPREADING - TOWN CAN BAN CLASS B 12/3/2004
This is a very important court ruling as it specifically cites the federal Clean Water Act as authorizing local control over land spreading of
sewage sludge biosolids :
"Under the federal Clean Water Act, the Environmental Protection Agency has the authority to approve
state sludge management programs. 33 U.S.C. § 1345 (2000); 40 C.F.R. § 501.1(b). States must meet the
minimum requirements set forth under the federal regulations to gain approval. 40 C.F.R. § 501.1(c). The
regulations provide that:
Nothing in this part precludes a State or political subdivision thereof . . . 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."
http://www.courts.state.nh.us/supreme/opinions/2004/thaye134.htm
http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Belknap
No. 2003-421
Nathaniel S. Thayer
v.
Town of Tilton
Argued: May 19, 2004
Opinion Issued: November 30, 2004
TO READ THE 104 PAGE DECISION: http://www.courtinfo.ca.gov/cgi-bin/opinions.cgi
Date Posted Docket #/
File Format Description
Apr 01 2005 F043095
[PDF] [DOC] Co. Sanitation Dist. v. CA Assn. of Sanitation Agencies 4/1/05 CA5
-------------------------------------------------------------------------------------------------------------------------
COUNTY SANITATION DISTRICT NO. 2 OF LOS ANGELES COUNTY et al.,
Plaintiffs, Cross-defendants and Appellants,
CALIFORNIA ASSOCIATION OF SANITATION AGENCIES et al.,
Plaintiffs and Appellants,
v.
COUNTY OF KERN,
Defendant, Cross-complainant and Appellant;
KERN COUNTY BOARD OF SUPERVISORS,
Defendant and Appellant;
ARVIN-EDISON WATER STORAGE DISTRICT et al.,
Interveners and Respondents.
F043095
(Super. Ct. No. 189564)
OPINION
PAGE 67
Congress Authorized Local Sewage Sludge Ordinances
Congress has not been silent on the issue of local regulation of the land application of
sewage sludge. Specifically, the Clean Water Act authorizes some degree of local control over
the use and disposal of sewage sludge so long as federal regulatory standards are met:
“The determination of the manner of disposal or use of sludge is a local determination, except
that it shall be unlawful for any person to dispose of sludge from a publicly owned treatment
works or any other treatment works treating domestic sewage for any use for which regulations
have been established pursuant to subsection (d) of this section, except in accordance with
such regulations.” (33 U.S.C.A. § 1345(e).)
The regulations of the EPA reiterate this aspect of local control:
“Nothing in this part precludes a State or political subdivision thereof … 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.” (40 C.F.R. § 503.5(b) (2005).)
“Where state or local government action is specifically authorized by Congress, it is not subject to the
Commerce Clause even if it interferes with interstate commerce. Southern Pacific Co. v. Arizona, 325 U.S.
761, 769 … (1945).” (Ibid.) As the United States Supreme Court has noted, however, “for a state regulation
to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably
clear.” (South-Central Timber Dev. v. Wunnicke (1984) 467 U.S. 82, 91.)
Page 68 -
It is unmistakably clear that Congress intended “the manner of disposal or use of sludge [to be] a local
determination” so long as minimum federal standards were met. (33 U.S.C.A. § 1345(e).) It is equally clear
that the restriction in Ordinance G‑6638—that only sewage sludge meeting the heightened treatment
standards can be applied to land in Kern County—reflects a local determination of the manner of disposal
or use of sewage sludge.(73) Thus, the heightened treatment standards are the type of local regulation
expressly authorized by the Clean Water Act. (Cf. Welch, supra, 888 F.Supp. at p. 760 [ordinance banning
the land application of sewage sludge permissible under Clean Water Act].) Because Congress authorized
a local ban on the land application of sewage sludge (Welch, supra, at pp. 757-758), one can strongly infer
that Congress also authorized local governments to impose a lesser burden on commerce such as the
heightened treatment standards in provision 8.05.040(A) of Ordinance G‑6638. (See Posadas de Puerto
Rico Assoc. v. Tourism Co. (1986) 478 U.S. 328, 345-346 [the greater power to ban an activity necessarily
includes the lesser power to impose conditions on the activity].)
[73]Plaintiffs argue the statutory phrase “local determination” refers only to the decisions made by a
wastewater treatment agency and excludes ordinances adopted by land use agencies such as County. We
reject this statutory construction because, among other things, it cannot be reconciled with the EPA’s
regulation concerning local imposition of requirements for the use or disposal of sewage sludge. (See 40 C.
F.R. § 503.5(b) (2005).)
Page 70:
In this context, discrimination means “differential treatment of in-state and out-of-state economic interests that benefits
the former and burdens the latter.” (Ibid.)
Ordinance G‑6638 does not on its face discriminate against interstate commerce, because its provisions apply to
the land application of all sewage sludge regardless of its geographical origin. (See Goldfarb, Sewage Sludge, supra,
26 B.C. Envtl. Aff. L.Rev. at p. 722 [“local ordinance upheld in Welch banned all land application of sewage sludge, not
just sewage sludge generated out-of-state”].)
Page 71:
Therefore, the correct comparison is between the impact of the ordinance on sewage sludge generated outside the
jurisdictional authority of County and the impact on sewage sludge generated within that area.
Page 73: .
Because Congress has specifically and unmistakably authorized nondiscriminatory local ordinances like Ordinance
G‑6638, our analysis of the dormant commerce clause need not consider “whether the ordinance imposes a burden on
interstate commerce that is ‘clearly excessive in relation to the putative local benefits,’ Pike v. Bruce Church, Inc., 397 U.
S. 137, 142 … (1970).” (C & A Carbone, Inc. v. Clarkstown, supra, 511 U.S. at p. 390.) Application of the Pike test is
inappropriate in this case because the enactment of the Clean Water Act reflects a determination by Congress
that local regulation is appropriate, which necessarily implies that localities have a legitimate purpose in
regulating the use and disposal of sewage sludge within their jurisdictional boundaries and that the local
benefits from such a regulation outweigh any nondiscriminatory burdens on interstate commerce that might
result.
Page 74 – April 30, 2007 – US Supreme Court
http://www.supremecourtus.gov/opinions/06pdf/05-1345.pdf
United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court, except as to Part II–D.
e-page 3
"It is not the office of the Commerce Clause to control the voters’ decision in this regard. The Court is
particularly hesitant to interfere here because waste disposal is typically and traditionally a function
of local government exercising its police power. Nothing in the Commerce Clause vests the
responsibility for such a policy judgment with the Federal Judiciary. "
e-page 15
“We should be particularly hesitant to interfere with the
Counties’ efforts under the guise of the Commerce Clause
because “[w]aste disposal is both typically and traditionally
a local government function.” 261 F. 3d, at 264 (case
below) (Calabresi, J., concurring); see USA Recycling, Inc.
v. Town of Babylon, 66 F. 3d 1272, 1275 (CA2 1995) (“For
ninety years, it has been settled law that garbage collection
and disposal is a core function of local government in
the United States”); M. Melosi, Garbage in the Cities:
Refuse, Reform, and the Environment, 1880–1980, pp.
153–155 (1981). Congress itself has recognized local government
’s vital role in waste management, making clear
that “collection and disposal of solid wastes should continue
to be primarily the function of State, regional, and
local agencies.” Resource Conservation and Recovery Act
of 1976, 90 Stat. 2797, 42 U. S. C. §6901(a)(4). “
e-page 18
The Counties’ ordinances are exercises of the police
power in an effort to address waste disposal, a typical and
traditional concern of local government.
http://www.law.cornell.edu/uscode/search/display.html?
terms=sludge&url=/uscode/html/uscode42/usc_sec_42_00006903----000-.html
Federal law – the US Code – Resource Recovery & Conservation Act (RCRA) defines sewage sludge as a
“solid waste” :
US CODE: TITLE 42,6903. DEFINITIONS
TITLE 42 - THE PUBLIC HEALTH AND WELFARE/CHAPTER 82 - SOLID WASTE DISPOSAL/SUBCHAPTER I -
GENERAL PROVISIONS
§ 6903. Definitions
As used in this chapter:
(26A) The term “sludge” means any solid, semisolid or liquid waste generated from a municipal, commercial, or
industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility or any other such
waste having similar characteristics and effects.
(27) The term “solid waste” means any garbage, refuse, sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from
community activities . . .
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+42USC6903
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- the Ninth Circuit Court of Appeals restated the case that sludge is a pollutant under the CWA which
must be disposed of safely;
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GORDON PAUL COOPER, Defendant-Appellant.
No. 97-50296
- the Washington District Federal Court ruling which found that the EPA had/has no credible science,
except for a few pot studies, to support the 95 percentile limits for chromium -- therefore, EPA
arbitrarily removed it from the beneficial use section of part 503 policy; and
(Leather Industries of America, Inc. v. EPA. Nos. 93-1187, 93-1376, 93-1404, and 93-1555 - 40 Federal Reporter, 3d
Series p. 392
- the Fifth Circuit Court of Appeals found there was no scientific evidence to show that sludge was
safe, only scientific opinions and, there were just as many scientific opinions against its use.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
173 F.3d 1192; 1999 U.S. App. LEXIS 6335; 48 ERC (BNA) 1477; 99 Cal. Daily Op. Service 2623; 29 ELR 21044