LOCAL CONTROL SLUDGE ORDINANCE LAWSUIT

Congress Authorized Local Sewage Sludge Ordinances -- AS DOES PART 503

COUNTY SANITATION DISTRICT NO. 2 OF LOS ANGELES COUNTY et al., v. COUNTY OF KERN, CA.

excerpt furnished by Helene Shields
EXCERPTS FROM LA, et al  v. KERN CTY. --  LAWSUIT – COURT UPHELD KERN’S RIGHT TO LOCAL CONTROL
OVER SLUDGE SPREADING . . . . .

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          
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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. ァ 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