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Legal Update – Sewage Sludge and the Doctrine of Preemption

By Tom Terrell on August 23, 2009
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            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.

Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.

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  • Posted in:
    Environmental and Climate
  • Blog:
    NC Legal Landscapes
  • Organization:
    Fox Rothschild LLP
  • Article: View Original Source

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