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Welch v. Board of Supervisors of Rappahannock County

ELR Citation: 26 ELR 20171
Nos. No. 94-002-C, 888 F. Supp. 753/(W.D. Va., 05/24/1995) aff'g magistrate decision

The court holds that the Federal Water Pollution Control Act (FWPCA) does not preempt a county ordinance banning land application of sewage sludge on agricultural lands. Plaintiff farmers challenged the ordinance because they would like to apply sewage sludge to their land. The court first holds that the FWPCA does not preempt the ordinance. Notwithstanding any regulatory preference for land application, the U.S. Environmental Protection Agency's (EPA's) final rules under the Act leave the ultimate determination regarding sewage sludge disposal to states and localities. The court rejects the farmers' claim that EPA's regulations indicate that more stringent standards for disposal only may be imposed on a case-by-case basis, because the regulations clearly distinguish between more stringent generally applicable laws enacted by states and more stringent exceptions when required in a particular case. Moreover, the county has not passed a complete ban on sewage sludge within its boundaries, but rather has banned one of three possible methods of use or disposal. Therefore, regardless of EPA's general preference for land application, the ordinance does not conflict with the federal standard for use or disposal of sewage sludge. In addition, EPA has merely established a preference for land application, which is vastly different from legislation forcing states and localities to permit land application. The court also holds that EPA's regulations do not preempt the ordinance. There is no express intention in EPA's regulations that indicates that the regulations preempt state and local laws. The court also holds that the ordinance does not violate the Commerce Clause of the U.S. Constitution. The county's belief that the land application of sewage sludge poses health and safety risks is rational, and the farmers failed to show that the ordinance in some way impedes the free flow of a good or service in the interstate market. The ordinance does not ban sewage sludge in the county, but rather merely bans land application as a possible method of its use or disposal. The simple denial of a commercial benefit does not necessarily rise to the level of a Commerce Clause violation. Even if the impact the farmers have shown can be characterized as a burden on interstate commerce, it is de minimis at best and insufficient as a matter of law.

Counsel for Plaintiffs
Michael S. Dingman
Hazel & Thomas
3110 Fairview Park Dr., Ste. 1400, Falls Church VA 22042
(703) 641-4200

Counsel for Defendant
George H. Gilliam
Gilliam, Scott & Kroner
418 E. Water St., P.O. Box 2737, Charlottesville VA 22902
(804) 296-2161