11/13/14

News from three ongoing biosolids court cases - in Washington state, California, and Pennsylvania.

Dept. of Ecology v. Wahkiakum County, WA

In the first week of November, the Washington state Appeals Court overturned a ban on the use of Class B biosolids that had been imposed by Wahkiakum County (see coverage by Wahkiakum County Eagle, WA Dept. of Ecology, and Capital Press).  This case has been closely watched by those involved in biosolids management around the continent.  The Northwest Biosolids Management Association (NBMA) reported:

"Following the oral argument held July 1, 2014, the Court was tasked with determining whether the County’s Class B biosolids and septage ban irreconcilably conflicted with the state law….  The Court’s published opinion outlines their comprehensive review of both sides, with resounding support to uphold the duty assigned to Ecology by the legislature to safely manage and regulate biosolids in the State…. The Court also highlighted State Supreme Court cases that support their decision to uphold the current [state] biosolids regulatory framework. Ecology and the amici supporting them were adamant about the effect one ban could have in other counties across the state and nation.  The Court agreed, stating that ‘if local governments have the power to ban land application of biosolids, land application of biosolids could be banned throughout the state, clearly thwarting the legislature’s purpose of recycling biosolids through land application rather than landfill disposal or incineration.  The County’s ordinance thwarts the express purpose of the legislature and, thus, is irreconcilable with state law and unconstitutional.’”

The Wahkiakum County ordinance banned land application of Class B biosolids while allowing Class A biosolids use and landfill disposal of either one.  It was passed by the County in 2011 over concerns about surface water quality and traces of heavy metals and chemicals in biosolids (concerns that apply to Class A biosolids as well).  The Washington Department of Ecology (DOE) sued the County, and a Cowlitz County judge upheld the ordinance.  DOE appealed last winter, and the November 2014 judgment was the result.

According to the National Law Journal, “James Slaughter, a principal at Washington’s Beveridge & Diamond who represented several amicus groups in the case,… said the ruling provides an additional precedent in a long line of preemption challenges across the country over the use of biosolids.  ‘The litigation is not frequent, because it [biosolids recycling] is largely a very successful practice.  It benefits all communities that generate sewage sludge and it provides farmers with a bulk organic fertilizer they like…. However, there have been a number of states where these clashes have arisen, and the trend is very much in favor of preemption of local biosolids bans.’’ 

According to several media accounts, Wahkiakum County plans to appeal to the Washington state Supreme Court.  A TDN Online article quoted Daniel Bigelow, attorney for the County, as saying “What we’re talking about here is how much additional regulation local government can put on something that’s already been regulated by the state,” Bigelow said. “The general idea behind county government is that for local issues — and the local ecology is particularly a local issue — there should be local people making local laws. We feel this is legitimately one of those, but the state doesn’t think so.” 

The Superior Court’s decision was based on the fact that the state legislature expressly stated that “to the maximum extent possible, biosolids should be used,” Slaughter told the National Law Journal.

In New England, where local political power lies more in the hands of municipalities rather than counties, there are dozens of municipal ordinances banning or severely restricting biosolids land application - especially in New Hampshire.  There is a long precedent for local control in this region.  In addition, legislatures have not been as clear, perhaps, in their intent to require that biosolids be recycled when possible. 

However, some state solid waste management laws and plans, such as Vermont's, do set clear goals for recycling biosolids, indicating some level of legislative intent.  It is uncertain whether or not such goals and related statements would provide enough basis for a case arguing that the state biosolids management program preempts a local ban.  To date, those affected by local bans have generally declined spending the money and time required to challenge a local ban. 

Los Angeles et al. v. Kern County, CA

Meanwhile, the ongoing Kern County litigation in southern California, where the County has banned importation and land application of biosolids (Class A and Class B), also involves state preemption arguments (see recent TV coverage of L. A.'s biosolids program).  However, so far, the California courts have not addressed the substantive issues of the case.  But that will change next year, as the City of Los Angeles, Responsible Biosolids Management Inc., and others (the Plaintiffs) have asked the Superior Court, County of Tulare, to permanently end any possible enforcement of the Kern County ban known as “Measure E.”  Court battles over Measure E have been ongoing since shortly after Measure E – a voter referendum - passed on June 6, 2006.  To date, Measure E has not been enforced, because of a preliminary injunction obtained by the Plaintiffs.  

The Plaintiff’s current brief begins “The time has come to issue a permanent injunction against Kern County Measure E, a discriminatory local voter initiative that bans a critical recycling practice, land application of biosolids.  The Court of Appeal resolved the merits of this action in February 2013 when it affirmed this Court’s rulings that Measure E was likely preempted and exceeded the County’s police powers.  Five federal and state trial and appellate judges agree that Measure E is illegal and the Plaintiffs ask that this Court apply its prior analysis – ratified by the Court of Appeal – to issue a permanent injunction.”

In summer 2014, the State Supreme Court dismissed the case, stating that the Plaintiffs (City of Los Angeles and others) had not filed their original state court action in a timely fashion.  This was Kern County’s only victory to date.  However, the Supreme Court did not address any substantive issues.  This means that the arguments previously put forth in earlier stages of this case by the Tulare County Superior Court and the Appeal Court have not been superseded by the State Supreme Court.  Therefore, the Plaintiffs are hopeful that the same arguments that won the preliminary injunction will prevail in the future, resulting in a permanent injunction against Measure E.  A hearing in Tulare County Superior Court is scheduled for January 15, 2015.  The Plaintiffs and other biosolids management professionals hope that this will be the last step in defeating the Kern County ban.

Gilbert v. Synagro (Pennsylvania)

Meanwhile, a Pennsylvania court battle over biosolids use also continues.  Next year, the Pennsylvania Supreme Court will hear that case, Gilbert v. Synagro, and will likely address questions about whether or not the state's Right to Farm law applies to biosolids land application.  As noted in a press release from Beveridge & Diamond, the law firm employed in these various biosolids cases, many other states have Right to Farm laws, so the Pennsylvania case is also of great interest to biosolids management programs nationwide.

The PA Supreme Court has addressed biosolids issues before - in a case that involved state preemption of a local ordinance. In November 2003, it found that a New Jersey biosolids management company, Hydropress, had standing in filing suit against a Township because of the Township's restrictive biosolids ordinance and local biosolids tax.  The state Supreme Court found that two sections of the local Ordinance were preempted by state laws and regulations and ordered the Township not to enforce them.  However, the Court said the remaining provisions could be enforced.

That opinion, however, was held by barely a majority of the Court and was accompanied by two minority opinions: one justice felt that Hydropress did not have standing in the case at all and that the case should have been dismissed without any consideration of the substantive issues.  But, on the other extreme, three justices (including the Chief Justice) felt that the lower courts were correct in annulling the local ordinance in its entirety, stating that those courts “correctly recognized that the pervasive state regulation in this specialized area, embodied in and authorized by the Solid Waste Management Act…, indicates clear legislative intention to preempt the field from local regulation."  These three justices, who supported Hydropress in that case, continue on the Court today, which means they have some knowledge and acceptance of the appropriateness of biosolids recycling to soils.

NEBRA continues to track these landmark biosolids legal battles.  To date, biosolids recycling has generally fared well in the legal courts, if not always in the courts of public opinion.