KERN COUNTY COURT DECISION ON SLUDGE BAN
from Helene Shields
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Am I nuts, or something? I see this as a huge victory for Kern County -- and localities
around the country who have been hauled into court for enacting local sludge control
ordinances . . . . . . this decision clearly iterates Congress' intent that there be local control
-- and that local ordinances do not violate the "commerce clause" . . . . . furthermore, I have
been arguing for years with EPA types (Walker, Rubin, Bastian) that "local determination" -
means what it says . . . they have been insisting for years that I am wrong and that it refers
only to the right of the POTW/generator to determine the manner of disposal . . . . and not to
any rights of the receiving community . . . . I have already shot off the portion of the
decision resolving this issue to my EPA "good buddies" . . . .
[1]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).)
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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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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.)
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.[1] 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].)
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[1]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).)
"
].) 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”].) "
"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.) "