United States District Court, Middle District of Pennsylvania
June 7, 2002
SYNAGRO-WWT, INC., PLAINTIFF
RUSH TOWNSHIP, PENNSYLVANIA DEFENDANT.
The opinion of the court was delivered by: James F. Mcclure, Jr., United States District Court Judge.
M E M O R A N D U M
This case involves numerous federal and state challenges to the
validity of a municipal ordinance. Plaintiff Synagro-WWT, Inc. (Synagro)
is a company that applies sewage sludge to land sites that were formerly
used for surface mining. Defendant Rush Township, Pennsylvania has
enacted an ordinance (the Ordinance) that requires companies that apply
sewage sludge to comply with certain procedural requirements if they wish
to apply sewage sludge in Rush Township. The Ordinance also places a
partial ban on the transportation of sewage sludge within the township.
Synagro filed a complaint seeking a declaratory judgment that the
Ordinance is invalid, an injunction against the enforcement of the
ordinance, and damages. The complaint raises the following claims: (1)
the Ordinance is preempted by the federal Surface Mining Control and
Reclamation Act (Count I); (2) the Ordinance is preempted by the
Pennsylvania Surface Mining Conservation and Reclamation Act (Count II);
(3) the Ordinance violates the Due Process Clause of the United States
Constitution (Count III); (4) the Ordinance violates the Commerce Clause
of the United States Constitution (Count IV); (5) the Ordinance violates
the Equal Protection Clause of the United States Constitution (Count V);
(6) the Ordinance violates the Uniformity Clause of the Pennsylvania
Constitution (Count VI); (7) the Ordinance is preempted by three other
Pennsylvania statutes: the Nutrient Management Act, the Solid Waste
Management Act, and the Sewage Facilities Act (Count VII); (8) the
Ordinance violates the Contract Clauses of the United States and
Pennsylvania Constitutions (Count VIII); and (9) the enactment of the
Ordinance was an ultra vires action (Count IX). We have both federal
question and diversity jurisdiction. See 28 U.S.C. § 1331, 1332.
Before the court is a motion filed by Rush Township. Rush Township
requests relief in three forms. First, it seeks dismissal under Federal
Rule of Civil Procedure 12(b)(6) of every count of the complaint.
Second, it asks the court to abstain from deciding the case, as the case
presents unsettled issues of state law that may moot the need for federal
constitutional analysis. Third, it requests the court to compel Synagro
under Federal Rule of Civil Procedure 12(e) to provide a more definite
We will not abstain from the case. Rush Township's motion to dismiss
will be granted in part and denied in part; we will dismiss all counts of
the complaint except Counts IV, VII, and IX. Rush Township's motion for
more definite statement will be denied.
I. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) admits the well-pleaded
allegations of the complaint but denies their legal sufficiency.
Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740
(1976). In reviewing a motion to dismiss under 12(b)(6), the court must
accept as true all factual allegations of the complaint and draw all
reasonable inferences in the light most favorable to the plaintiff.
Board of Trustees of Bricklayers and Allied Craftsmen Local 6 of New
Jersey v. Wettlin Assoc., Inc., 237 F.3d 270, 272 (3d Cir. 2001)
(citation omitted). But "[c]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion
to dismiss." General
Motors Corp. v. New A.C. Chevrolet, 263 F.3d 296,
333 (3d Cir. 2001) (citation and internal quotation marks omitted).
"A court may dismiss a complaint only if it is clear that no relief
could be granted under any set of facts that could be proven consistent
with the allegations." Ramadan v. Chase Manhattan Corp., 229 F.3d 194,
195-96 (3d Cir. 2000) (citing Alexander v. Whitman, 114 F.3d 1392, 1398
(3d Cir. 1997)). "The issue [under Rule 12(b)(6)] is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims." Maio v. Aetna, Inc., 221 F.3d 472,
482 (3d Cir. 2000) (citations and internal quotation marks omitted).
Synagro challenges the validity of a municipal ordinance. Virtually
each of Synagro's allegations — i.e. preemption, equal protection,
substantive due process, etc. — involve almost exclusively
questions of law and present little or no need for factfinding. Synagro
asserts that regardless of the merit of its legal arguments, its claims
should be sustained at this stage as long as they properly allege the
legal theory that forms the basis for the claims. For example, it argues
that its federal preemption claim should be sustained because it alleges
that the Ordinance is preempted. This contention suggests that Synagro
misapprehends the nature of a motion to dismiss.
"Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a
dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326
(1989). "This procedure, operating on the assumption that the factual
allegations in the complaint are true, streamlines litigation by
dispensing with needless discovery and factfinding." Id. at 326-27.
"[I]f, as a matter of law it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations, a claim must be dismissed, without regard to whether it is
based on an outlandish legal theory or on a close but ultimately
unavailing one." Id. at 327 (citations and internal quotation marks
omitted). Keeping this in mind, we will dismiss any of Synagro's claims
that lack merit, but we will sustain the ones that may succeed.
We must stress that the instant motion was filed by Rush Township and
seeks only dismissal of the complaint. While Synagro has filed a motion
for summary judgment and has requested us to rule immediately on that
motion, we believe that the most logical course of action is to rule
first on Rush Township's 12(b)(6) motion. Thus, we do not have before us
at this time a request to enter judgment in favor of Synagro.
Accordingly, even though we have the ultimate responsibility to decide
the issues before us, the only two possible results with respect to each
claim are either a dismissal of the claim or a sustaining of the claim.
In the event that we sustain any of Synagro's claims, we express no
opinion at to whether Synagro will ultimately succeed. Other courts in
similar situations have proceeded similarly. See, e.g., Qwest
Communications Corp. v. The City of Berkeley, 146 F. Supp.2d 1081, 1090
(N.D. Ca. 2001) (sustaining but not adjudicating a claim for federal
II. SYNAGRO'S COMPLAINT
Synagro provides professional management of treated municipal sewage
sludge for municipal treatment plants throughout the United States.
Included in Synagro's services is the application of sewage sludge for
the reclamation of sites formerly used for surface mining. Synagro
refers to the municipal sewage sludge as "biosolids"; we will use the
An entity that wishes to apply biosolids to land sites must obtain the
consent of the landowner and register the site with the
Department of Environmental Protection (DEP). Synagro has 5 sites in
Rush Township that are permitted for mine reclamation with biosolids.
Synagro received from the DEP all of the necessary permits and approvals
required for it to apply biosolids to the sites. At the time Synagro
filed its complaint, certain sites had yet to be reclaimed.
After Synagro began biosolids application in one of its land sites,
Rush Township enacted the Land Application of Sewage Sludge Ordinance.
The Ordinance's stated purpose is "[t]o protect the health, safety and
general welfare of all township citizens and other persons by seeking to
prevent exposure to any toxic or other harmful material contained in
sewage sludge. . . ." (Ordinance, Attached to Complaint, Rec. Doc. No.
1, at § 1.1(A).) The Ordinance applies to "all current existing
permits issued or authorized by PA DEP for the land application of sewage
sludge in Rush Township." (Id. at § 10.)
The Ordinance claims to be consistent with federal and state regulation
of sewage sludge, but it sets forth additional preliminary procedural
requirements of any entity that wishes to apply sewage sludge in Rush
Township. Before sewage sludge may be applied in Rush Township, two
documents must be obtained. First, the wastewater treatment facility
that generates the sewage sludge must obtain a "Site Registration," which
is a document that confirms that the proposed site meets all federal,
state, and local regulations pertaining to the application of sewage
sludge. Second, the entity applying the sewage sludge must obtain a
"Land Application Registration," which is an authorization by Rush
Township to apply sewage sludge on agricultural lands within the
The Ordinance mandates a considerable number of procedural requirements
for obtaining a Site Registration and a Land Application Registration.
An applicant must submit all DEP application material to Rush Township
for review and consideration. In addition, the applicant must subject
the featured land to many tests, including soil analysis and groundwater
analysis. After completing the tests, the applicant must provide Rush
Township with reports based on these tests. The applicant also must
submit documents such as a map of the surface waters on the proposed site
and a memorialization of a county-approved plan to manage surface water
and control erosion on the site.
In addition to prescribing requirements for obtaining Site Registration
and a Land Application Registration, the Ordinance regulates the
transportation of sewage sludge. For example, the Ordinance requires
that sewage sludge may be transported within Rush Township only from the
hours of 6:00 AM to dusk, Monday through Friday.
The provisions of the ordinance are enforced by the Rush Township Board
of Supervisors. An amendment to the ordinance, enacted on November 4,
1999, requires a tipping fee of $40.00 per ton of sewage sludge applied
upon any land in Rush Township.
Synagro claims that the requirements imposed by the Ordinance have,
among other things, forced it to find land sites in other Townships; it
alleges in excess of $2,560,000 in damages.
Before addressing the substance of the issues, we must decide whether
to abstain from adjudicating the case. The Supreme Court has recognized
several types of abstention. Rush Township requests that the court
abstain under the doctrines of Burford abstention, see Burford v. Sun Oil
Co., 319 U.S. 315 (1943); Pullman abstention, see Railroad Comm'n of
Tex. v. Pullman Co., 312 U.S. 496
(1941), or both.
Burford abstention is clearly inappropriate; it applies only when there
exists a "state order against an individual party that a federal-court
plaintiff seeks to enjoin." Keeley v. Loomis Fargo & Co., 183 F.3d 257,
273 n. 13 (3d Cir. 1999). Where the law at issue is a general legislative
act and not "a specific administrative order aimed at one party," id.,
Burford abstention is inapplicable.
Thus, we are left with Pullman abstention. A federal court may abstain
under Pullman when faced with a federal constitutional issue that may be
mooted by a state-court determination of state law. Rush Township argues
that because this case presents issues of state law of which a certain
resolution by a state court may moot certain avenues of federal
constitutional analysis, we should abstain from deciding the case.
Pullman abstention applies "`in cases presenting a federal
constitutional issue which might be mooted or presented in a different
posture by a state court determination of pertinent state law.'" Planned
Parenthood of Central New Jersey v. Farmer, 220 F.3d 127, 149 (3d Cir.
2000) (quoting Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 814 (1976)). "[A]bstention under Pullman is appropriate
where an unconstrued state statute is susceptible of a construction by
the state judiciary which might avoid in whole or in part the necessity
for federal constitutional adjudication, or at least materially change
the nature of the problem." Id. (citing Bellotti v. Baird, 428 U.S. 132,
147 (1976)) (internal quotation marks omitted). Where appropriate,
federal courts invoke Pullman abstention to avoid needless friction with
state policies. See Presbytery of New Jersey of the Orthodox
Presbyterian Church v. Whitman, 99 F.3d 101, 106 (3d Cir. 1996)
Before a federal court may abstain under Pullman, three "exceptional"
circumstances must be present. "First, there must be `uncertain issues
of state law underlying the federal constitutional claims.'" Farmer, 220
F.3d at 149 (quoting Whitman, 99 F.3d at 106). "Second, the state law
issues must be amenable to a state court interpretation which could
`obviate the need to adjudicate or substantially narrow the scope of the
federal constitutional claim.'" Id. at 149-150 (quoting Whitman, 99 F.3d
at 106). "Third, it must be that `an erroneous construction of state law
by the federal court would disrupt important state policies.'" Id. at
150 (quoting Whitman, 99 F.3d at 106).
Even if all three circumstances exist, the federal court retains the
discretion whether or not to abstain. The court must determine "whether
abstention is appropriate by weighing such factors as the availability of
an adequate state remedy, the length of time the litigation has been
pending, and the impact of delay on the litigants." Id. (citing Artway
v. Attorney General of New Jersey, 81 F.3d 1235, 1270 (3d Cir. 1996)).
Rush Township points out that the instant case contains many state-law
issues, such as preemption of the Ordinance by state statutes, analysis
under the Pennsylvania Constitution, and a question of whether Rush
Township had the state-given authority to enact the Ordinance. It
contends if a state court decides any of these issues in Synagro's
favor, then the Ordinance would be invalid and this court would not be
required to analyze it under the federal constitution. It argues that,
accordingly, we should abstain pending a state-court determination of the
While Rush Township is correct that a state-court adjudication of
certain issues may moot the federal constitutional issues, it has not
persuaded us that we should abstain. We note at the outset that
"the party arguing in favor of abstention bears a heavy burden of
persuasion. . . ." Capital Bonding Corp. v. New Jersey Supreme Court,
127 F. Supp.2d 582, 591 (D.N.J. 2001) (citing Chiropractic America v.
Lavecchia, 180 F.3d 99, 103 (3d Cir. 1999). Further, we emphasize that
we have diversity jurisdiction, and "Pullman abstention is `virtually
prohibited in diversity cases where the only difficulty is the unsettled
posture of state law.'" Instructional Systems, Inc. v. Computer Curriculum
Corp., 35 F.3d 813, 819 (3d Cir. 1994) (quoting Urbano v. Board of
Managers of N.J. State Prison, 415 F.2d 247, 253 (3d Cir. 1969).
Rush Township fails to meet its burden of persuasion. After vigorously
arguing that the Ordinance is not preempted by any state law and is valid
under the Pennsylvania Constitution, Rush Township cursorily contends
that because a state court might rule in Synagro's favor on one or more
issues of state law, this court should abstain and turn the matter over
to a state court. This conclusory argument is insufficient to persuade a
federal court to abstain. Because Rush Township has failed to articulate
any unsettled areas of state law (other than in the most general terms),
we do not have the authority to abstain. As the Third Circuit has put
it, "[if] no unsettled question of state law has been identified,
abstention under the Pullman doctrine is not appropriate." Schall v.
Joyce, 885 F.2d 101, 113 (3d Cir. 1989) (citations omitted). Even
assuming that Synagro's nonspecific assertions could pass for sufficient
identifications of unsettled state law, we reject the abstention request
because Rush Township fails to argue that an erroneous construction of
state law by this court would disrupt important state policies. Without
any semblance of an argument on this point, Rush Township cannot meet its
burden, and we lack the authority to abstain. Our inability to abstain
is magnified by the fact that this is a diversity case.
Even if we do have the authority to abstain from deciding the case, we
will exercise our discretion and choose not to abstain. This case has
been pending since September of 2000, and refraining from deciding the
case may be unduly harmful to Synagro, which alleges that the Ordinance
is making it prohibitively expensive to apply sewage sludge to mining
sites. Any delay due to abstention potentially could be extremely
harmful to Synagro.
Thus, we will analyze each claim before us.
Count I: Preemption by the Surface Mining Control and
Synagro's position is that the Ordinance is preempted by the federal
Surface Mining Control and Reclamation Act ("SMCRA"),
30 U.S.C. § 1201-1328.
Federal law may preempt state law in one of three ways: (1) express
preemption, which arises when there is an explicit federal statutory
command that state law be displaced; (2) field preemption, which results
when federal law so thoroughly occupies a legislative field as to make
reasonable the inference that Congress left no room for the states to
supplement it; and (3) conflict preemption, which arises when a state law
makes it impossible to comply with both state and federal law or when
state law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress. The St. Thomas-St. John
Hotel & Tourism Assoc., Inc, v. Government of the U.S. Virgin Islands,
218 F.3d 232, 238 (3d Cir. 2000). "By referring to these three
we should not be taken to mean that they are rigidly
distinct. Indeed, field pre-emption may be understood as a species of
conflict pre-emption: A state law that falls within a pre-empted field
conflicts with Congress' intent (either express or plainly implied) to
exclude state regulation." English v. General Electric Co., 496 U.S. 72,
79 (1990). "[F]or the purposes of the Supremacy Clause, the
constitutionality of local ordinances is analyzed in the same way as that
of statewide laws." Hillsborough County, Florida v. Automated Medical
Laboratories, Inc., 471 U.S. 707, 713 (1985).
In 1977, Congress enacted SMCRA. One of SMCRA's stated purposes is "to
establish a nationwide program to protect society and the environment
from the adverse effects of surface coal mining operations."
30 U.S.C. § 1202(a). Among other things, the statute seeks to
"assure that adequate procedures are undertaken to reclaim surface areas
as contemporaneously as possible with the surface coal mining
operations." 30 U.S.C. § 1202(e).
SMCRA established the Office of Surface Mining Reclamation and
Enforcement (OSM) as a subdivision of the Department of the Interior.
30 U.S.C. § 1211(a). The Secretary of the Interior executes programs
for controlling surface coal mining. 30 U.S.C. § 1211(c).
SMCRA's regulatory and enforcement provisions are set forth in
Subchapter V of the statute. 30 U.S.C. § 1251-1279. Any person or
company seeking to engage in surface coal mining operations must first
secure a permit. 30 U.S.C. § 1256. The permit must require the
surface coal mining operation to satisfy certain environmental protection
performance standards. 30 U.S.C. § 1265-66. Permit holders who
violate any permit condition or who violate any other provision of
Subchapter V may be assessed with civil penalties. 30 U.S.C. § 1268
In addition to setting forth the provisions for federal enforcement of
SMCRA, the statute provides that states may "assume exclusive
jurisdiction over the regulation of surface coal mining and reclamation
operations" on nonfederal lands within the state. 30 U.S.C. § 1253(a).
The Supreme Court has characterized this feature of SMCRA as "a program
of cooperative federalism that allows the States, within limits
established by federal minimum standards, to enact and administer their
own regulatory programs, structured to meet their own particular needs."
Hodel v. Virginia Surface Mining and Reclamation Assoc., Inc.,
452 U.S. 264, 289 (1981). To achieve this regulatory authority, a state
must submit to the Secretary a proposed program "which demonstrates that
such State has the capability of carrying out the provisions of [SMCRA]
and meeting its purposes. . . ." Id. The proposed state program must
contain state laws that provide for the regulation of surface coal mining
and reclamation operations in accordance with the requirements of SMCRA.
30 U.S.C. § 1253(a)(1). The state scheme must also feature "rules
and regulations consistent with regulations issued by the Secretary
pursuant to [SMCRA]." 30 U.S.C. § 1253(a)(7).
Any changes contemplated by the state to its federally-approved program
must be submitted for approval to the OSM Director.
30 C.F.R. § 732.17(g). The OSM Director must review the proposed
changes with reference to the criteria set forth in 30 C.F.R. § 732.15
for the approval or disapproval of the original state program. See
30 C.F.R. § 732.17(h)(10).
On July 31, 1982, the Secretary approved the Pennsylvania regulatory
program for surface coal mining and reclamation
Pennsylvania program is presented in the Pennsylvania Surface Mining
Conservation and Reclamation Act ("PaSMCRA"), 52 P.S. §§
1396.1-1396.31, and its accompanying regulations, 25 Pa. Code §§
86.1-86.242. PaSMCRA is enforced by the Pennsylvania Department of
Environmental Resources (the Department). 52 P.S. § 1396.4(c).
Pennsylvania's plan is similar to SMCRA in that it imposes strict permit
requirements for surface mining activities. 52 P.S. § 1396.4(a). It
also requires that a plan for reclamation of lands disturbed by mining be
approved by the Department. See 52 P.S. 1396.4(2).
Synagro's first argument is that because SMCRA did not provide for any
local ordinances regulating surface mining, it expressly preempts Rush
Township's Ordinance, which was enacted by Rush Township and not the
state of Pennsylvania. In the sections dealing with state programs,
SMCRA speaks in terms of the state having exclusive regulatory
jurisdiction. The Secretary approves a state plan that contains state
laws, and only that plan is valid. Synagro points out that SMCRA does
not explicitly allow for local ordinances in addition to the state plan,
and it notes that even if the federal statute did allow for this
possibility, the Secretary was required to approve the Ordinance, which
regulates sewage sludge disposal, a surface mining activity.
We agree that SMCRA does not comment on the role of local government in
legislating surface mining activities, and we realize that the Secretary
did not approve the Ordinance. We cannot agree, however, that the
Ordinance is preempted by SMCRA.
The Supreme Court analyzed a similar preemption question in Wisconsin
Public Intervenor v. Mortier, 501 U.S. 597 (1991). The issue in Mortier
was whether the Federal Insecticide, Fungicide, and Rodenticide Act
(FIRFA), 7 U.S.C. § 136 et seq., preempted municipal regulation of
pesticide use. Section 136v(a) of FIRFA states that "[a] State may
regulate the sale or use of any federally registered pesticide or device
in the State, but only if and to the extent the regulation does not
permit any sale or use prohibited by this subchapter." Id. Respondent
Mortier argued that because § 136v(a) gave regulatory authority only
to states and not to municipalities, the municipalities were not at all
permitted to regulate pesticide use. The Court found that the statute's
language was "wholly inadequate to convey an express preemptive intent on
its own . . . [and that] mere silence, in this context, cannot suffice to
establish a clear and manifest purpose to pre-empt local authority."
Mortier, 501 U.S. at 607 (citations and internal quotation marks
omitted). The Court found that the federal statute did not exclude the
possibility of allowing local regulation and that the question of whether
to allow local regulation must be answered by the states themselves:
Properly read, the statutory language tilts in favor
of local regulation. The principle is well settled
that local governmental units area created as
convenient agencies for exercising such of the
governmental powers of the State as may be entrusted
to them . . . in [its] absolute discretion. The
exclusion of political subdivisions cannot be inferred
from the express authorization to the "State[s]
because political subdivisions are components of the
very entity the statute empowers. Indeed, the more
plausible reading of FIRFA's authorization to the
States leaves the allocation of regulatory authority
to the "absolute discretion" of the States
themselves, including the option of leaving local
regulation of pesticides in the hands of local
Id. at 607-608. Courts that have departed from Mortier generally were
analyzing similar grants of regulatory authority to states, but these
courts recognized that the federal statutes that they were analyzing
contained independent references to rulemaking by a state's political
subdivisions, while FIRFA did not. Thus, the courts held, because
Congress referred to political subdivisions in other instances throughout
the statute, it intentionally omitted any reference to municipalities
when it gave states regulatory authority. See, e.g., R. Mayer of Atlanta
v. City of Atlanta, 158 F.3d 538, 545-546 (11th Cir 1998).
Consistent with Mortier, we find that SMCRA does not preempt local
regulation in the area of surface mining. SMCRA gives states with
federally approved programs exclusive regulatory jurisdiction over
surface mining. A municipality is a political subdivision of a state; we
see no reason why a state plan may not delegate authority to a
municipality or allow consistent municipal regulations. To be sure,
SMCRA does not expressly confer any regulatory authority on
municipalities. But it does not undermine its own silence by
independently referring to municipalities at any other point in the
Next, Synagro argues that by enacting SMCRA and its expansive
regulations, Congress preempted the field of surface mining such that the
Rush ordinance has no force. We disagree. Field preemption is a
doctrine whereby Congress regulates an area so fully that any state or
local law should be given no force. That is not the case here. While
Congress passed SMCRA to legislate the area of surface mining, it had a
stated goal of allowing the states to have exclusive jurisdiction over
their own lands. "We have encountered nothing in [SMCRA] or [its]
legislative history which leads us to believe that anything other than
the ordinary meaning of the word `exclusive' was intended by the enactors
of the SMCRA." See Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 497
(3d Cir. 1987). Congress approved Pennsylvania's state program and must
approve any amendments to the program, but it is Pennsylvania that now has
regulatory jurisdiction over surface mining within the state's borders.
Congress has very little to do with Pennsylvania's surface mining laws
now that the PaSMCRA has been approved. After a state plan is approved,
the relevant law becomes the approved state plan rather than SMCRA. When
the Secretary approved Pennsylvania's plan as set forth in PaSMCRA, the
issue of the preemption of local law ceased to be within the province of
the federal Supremacy Clause and became a concern of Pennsylvania state
law. It is conceivable that the federal government may approve a state
regulatory plan allowing for local ordinances consistent with the state
plan. In fact, § 17.1 of PaSMCRA, while preempting local legislation
of surface mining, allows for certain local ordinances that were already
in existence when PaSMCRA was approved:
Except with respect to ordinances adopted pursuant
to the act of July 31, 1968 (P.L. 805, No. 247), known
as the "Pennsylvania Municipalities Planning Code,"
all local ordinances and enactments purporting to
regulate surface mining are hereby superseded. The
Commonwealth by this enactment hereby preempts the
regulation of surface mining as herein defined.
52 P.S. 1396.17a (emphasis added). See Miller & Son Paving, Inc. v.
Wrightstown Township, 451 A.2d 1002, 1005 (Pa. 1982) (interpreting
PaSMCRA to preserve local zoning ordinances in existence on the effective
date of PaSMCRA). The Secretary adopted PaSMCRA with this explicit
reference to local ordinances. SMCRA, then, does not preempt the field of
Synagro also claims that SMCRA preempts the Rush ordinance because the
ordinance conflicts with the federal statute. Synagro's argument is that
the ordinance imposes on entities involved with sewage sludge certain
requirements beyond those approved by the Secretary when PASMCRA was
enacted. As with Synagro's claim of field preemption, the correct
starting point is PaSMCRA, because after Pennsylvania's state program has
been federally approved, the federal statute ceased to have a direct
effect on Pennsylvania surface mining. See Haydo, 830 F.2d at 497
("Congress recognized that `because of the diversity in terrain,
climate, biologic, chemical, and other physical conditions in areas
subject to mining operations, primary governmental responsibility for
developing, authorizing, issuing, and enforcing regulations for surface
mining and reclamation operations subject to this chapter should rest
with the states.'") (quoting 30 U.S.C. § 1201(f)). Thus, no conflict
Count II: Preemption by PaSMCRA
Synagro argues that the Ordinance, a local law, is preempted by
PaSMCRA, a state statute. In Mars Medical Services, Inc. v. Township of
Adams, 740 A.2d 193 (Pa. 1999), the Pennsylvania Supreme Court, quoting
its own opinion in an earlier case, set forth the "well-established" law
of state preemption of local legislation. We will quote that passage in
There are statutes which expressly provide that
nothing contained therein should be construed as
prohibiting municipalities from adopting appropriate
ordinances, not inconsistent with the provisions of
the act or the rules and regulations adopted
thereunder, as might be deemed necessary to promote
the purpose of the legislation. On the other hand,
there are statutes which expressly provide that
municipal legislation in regard to the subject covered
by the State act is forbidden. Then there is a third
class of statutes which, regulating some industry or
occupation, are silent as to whether municipalities
are or are not permitted to enact supplementary
legislation or to impinge in any manner upon the field
entered upon by the State; in such cases the question
whether municipal action is permissible must be
determined by an analysis of the provisions of the act
itself in order to ascertain the probable intention of
the legislature in that regard. It is of course
self-evident that a municipal ordinance cannot be
sustained to the extent that it is contradictory to,
or inconsistent with, a state statute. But, generally
speaking it has long been the established general
rule, in determining whether a conflict exists between
a general and local law, that where the legislature
has assumed to regulate a given course of conduct by
prohibitory enactments, a municipal corporation with
subordinate power to act in the matter may make such
additional regulations in aid and furtherance of the
purpose of the general law as may seem appropriate to
the necessities of the particular locality and which
are not in themselves unreasonable.
Id. at 195 (quoting Western Pennsylvania Restaurant Ass'n v. Pittsburgh,
77 A.2d 616, 619-20 (1951)) (internal quotation marks and internal
Other Pennsylvania courts have listed pertinent questions to consider
when determining whether local legislation is preempted. The questions
(1) Does the ordinance conflict with the state law,
either because of conflicting policies or operational
effect, that is, does the ordinance forbid what the
legislature has permitted? (2) Was the state
law intended expressly or impliedly to be exclusive in
the field? (3) Does the subject matter reflect a need
for uniformity? (4) Is the state scheme so pervasive
or comprehensive that it precludes coexistence of
municipal regulation? (5) Does the ordinance stand as
an obstacle to the accomplishment and execution of the
full purposes and objectives of the legislature?
705 A.2d 947, 949-50 (Pa.Cmwlth. 1998) (citing Duff v. Township of
Northampton, 532 A.2d 500, 505 (Pa.Cmwlth. 1987)). The Pennsylvania
Supreme Court in Mars noted that as of October 28, 1999, it had found
that Pennsylvania preempted the field in only three areas: alcoholic
beverages, anthracite strip mining, and banking. Mars, 740 A.2d at 195
(citing Council of Middletown Township v. Benham, 523 A.2d 311, 313-14
Synagro argues that § 17a of PaSMCRA, which states that all local
ordinances purporting to regulate surface mining are superseded, leads to
the conclusion that the Ordinance is preempted. For Synagro's argument
to succeed, the application of sewage sludge to mine sites must fall
under PaSMCRA's definition of "surface mining." PaSMCRA, as encoded in
52 P.S. § 1396.3, sets forth what does and what does not constitute
"surface coal mining activities" and "surface mining activities" under
"Surface coal mining activities" shall mean, for the
purposes of section 4.6, activities whereby coal is
extracted from the earth, from waste or stockpiles or
from pits or banks by removing the strata or material
which overlies or is above or between the coal or by
otherwise exposing and retrieving the coal from the
surface. The term shall include, but not be limited
to, strip and auger mining and all surface activity
connected with surface mining including exploration,
site preparation, construction and activities related
thereto. The term shall also include all activities
in which the land surface has been disturbed as a
result of, or incidental to, surface mining operations
of the operator, including those related to private
ways and roads appurtenant to the area, land
excavations, workings, refuse banks, spoil banks, culm
banks, tailings, repair areas, storage areas,
processing areas, shipping areas, and areas where
facilities, equipment, machines, tools or other
materials or property which result from or are used in
surface mining activities are situated.
"Surface mining activities" shall mean the extraction
of coal from the earth or from waste or stock piles or
from pits or banks by removing the strata or material
which overlies or is above or between them or
otherwise exposing and retrieving them from the
surface, including, but not limited to, strip, auger
mining, dredging, quarrying and leaching, and all
surface activity connected with surface or underground
mining, including, but not limited to, exploration,
site preparation, entry, tunnel, drift, slope, shaft
and borehole drilling and construction and activities
related thereto, but not including those portions of
mining operations carried out beneath the surface by
means of shafts, tunnels or other underground mine
openings. "Surface mining activities" shall not
include any of the following:
(1) Extraction of coal or coal refuse removal
pursuant to a government-financed reclamation
contract for the purposes of section 4.8.
(2) Extraction of coal as an incidental part of
Federal, State or local government-financed highway
construction pursuant to regulations promulgated by
the Environmental Quality Board.
(3) The reclamation of abandoned mine lands not
involving extraction of coal or excess spoil
disposal under a written agreement with the property
owner and approved by the department.
(4) Activities not considered to be surface mining
as determined by the United States Office of Surface
Mining, Reclamation and Enforcement and set forth in
Id. (emphasis added). The definition of "surface coal mining activities"
or "surface mining activities" indicates that the dumping of sewage
sludge for reclamation purposes is not a surface mining activity and thus
does not fall within PaSMCRA's preemption clause. Synagro offers a
conclusory argument that because PaSMCRA preempts ordinances that
regulate mining activity, the Ordinance is preempted, as regulates mining
activities. Synagro does not, however, state how the Ordinance regulates
mining activities. The only conclusion we can draw is that Synagro
asserts that applying sewage sludge is equivalent to a mining activity.
This is not the case. Because the Ordinance does not regulate surface
mining, it is unaffected by PaSMCRA's preemption clause.
Synagro's only other argument in support of preemption is that because
the Ordinance introduces a level of regulation of mining permits above
and beyond that required by the DEP, it is preempted. It cites the case
of Pennsylvania Coal Co. v. Township of Comenaugh, 612 A.2d 1090
(Pa.Cmwlth. 1992). In Comenaugh, the owners and lessees of land on which
surface mining operations were conducted sought a declaratory judgment on
the validity of a zoning ordinance that regulated surface mining
operations. The Court of Common Pleas dismissed the plaintiffs'
complaint. The Commonwealth Court reversed the decision, finding that
because the ordinance regulated the operation of surface coal mining in
the township, it was preempted by PaSMCRA. Id. at 1093-94. Synagro's
argument, that the Ordinance is invalid because it adds regulation not
required by the DEP, is unclear, and we fail to see how it relates to the
Comenaugh case. Comenaugh found simply that because the local ordinance
regulated surface mining, it was preempted. Any application of Comenaugh
to the instant case would occur only if the Rush Township Ordinance
regulated surface mining. We found that it does not. Thus, Comenaugh is
inapplicable, and Synagro's argument is without merit.
Because the Ordinance does not regulate surface mining, it is not
preempted by PaSMCRA.
Count III: Substantive Due Process
Synagro alleges that the Ordinance violates the Due Process Clause of
the Fourteenth Amendment in that it is "manifestly arbitrary, capricious
and irrational, and was not enacted for the purpose of promoting health,
safety, morals or the general welfare of the community." (Complaint at
Synagro does not dispute that because the Ordinance neither creates a
suspect classification nor a infringes on a fundamental right, it is
subject to review under the "rational basis" standard. Under this
standard of review, we "inquire only to see if [the Ordinance] is a
rational means of achieving a legitimate [government] interest."
Alexander v. Whitman, 114 F.3d 1392, 1406 (3d Cir. 1997).
When subjecting a state or local law to rational basis review, "`a
court . . . is not entitled to second guess the legislature on the
factual assumptions or policy considerations underlying the statute.'"
Id. (quoting Sammon v. New Jersey Bd. of Med. Examiners, 66 F.3d 639, 645
(3d Cir. 1995)". "The only inquiry permitted `is whether the legislature
have believed that the predicted reaction would occur or
that the desired end would be served.'" Id. (quoting Sammon, 66 F.3d at
645). "It is up to the person challenging the statute to `convince the
court that the legislative facts on which the classification [of the
statute] is apparently based could not reasonably be conceived as true by
the governmental decisionmaker.'" Id. (quoting Sammon, 66 F.3d at 646).
"A statute `withstands a substantive due process challenge if the state
identifies a legitimate state interest that the legislature rationally
could conclude was served by the statute.'" Id. (quoting Sammon, 66 F.3d
Rush Township defends the Ordinance on the grounds that it was enacted
in order "to protect the health, safety and general welfare of all
township citizens and other persons by seeking to prevent exposure to any
toxic or other harmful material contained in sewage sludge . . ."
(Defendant's Brief, Rec. Doc. No. 10, at 12.) Synagro argues that because
it pleaded that the Ordinance is not rationally related to any legitimate
government interest, the federal notice pleading requirements are
satisfied and the claim should be sustained.
Synagro's "pleadings" are merely unsupported legal conclusions that we
are not bound to accept. In any event, the Ordinance must survive
rational basis review because Rush rationally might have believed that
the Ordinance would serve to protect its citizens from the dangers of
sewage sludge. Certainly, Rush Township rationally could conclude that
an Ordinance monitoring the safety of sewage sludge would serve the
interest of protecting its citizens from the harmful effects of sewage
sludge. Notwithstanding Synagro's argument that the claim should survive
because it contains the requisite elements of a substantive due process
challenge, we are entitled at the 12(b)(6) stage to dismiss a substantive
due process claim when the legislative body offers a rational basis for
its action. Alexander, 114 F.3d at 1406 (dismissing at the 12(b)(6) stage
a substantive due process claim when the State offered a rational basis
for a wrongful death statute). Because Rush Township provides a rational
basis for its actions, the Ordinance withstands substantive-due-process
Count IV: Commerce Clause
Synagro alleges that the Ordinance in two ways violates the Commerce
Clause of the United States Constitution. First, Synagro argues that the
monitoring of the times when biosolids may be transported extends to
biosolids carriers that are just passing through the state, thus
affecting interstate commerce. Second, Synagro contends that the
$40-per-ton fee places an undue burden on interstate commerce.
The Commerce Clause of the United States Constitution provides that
"Congress shall have Power . . . to regulate Commerce . . . among the
several States." U.S. Const. art. I, § 8. "While the Commerce Clause
explicitly confers power to Congress, it has been interpreted to contain
an implied limitation on the power of the States to interfere with or
impose burdens on interstate commerce." Oxford Assoc., HPC v. Waste
System Auth. of Eastern Montgomery County, 271 F.3d 140, 146 (3d Cir.
2001) (quoting Tolchin v. Supreme Court of the State of New Jersey,
111 F.3d 1099, 1106 (3d Cir. 1997); Western & Southern Life Ins. Co. v.
State Bd. of Equalization of California, 451 U.S. 648, 652 (1981)).
"This implied limitation is often referred to as the `dormant Commerce
The dormant Commerce Clause "`prohibits economic protectionism
— that is, regulatory measures designed to benefit in-state
economic interests by burdening out-of-state competitors.'" Tolchin, 111
F.3d at 1106 (quoting (New Energy Co. of
Indiana v. Limbach, 486 U.S. 269, 273 (1988)).
"The courts have developed a two-tier[ed] analysis to determine if an
action violates the dormant Commerce Clause." Cloverland-Green Spring
Dairies v. Pennsylvania Milk Marketing Board, 138 F. Supp.2d 593, 604
(M.D.Pa. 2001). First, a court must determine whether the ordinance
discriminates against interstate commerce. Second, the court must
determine whether the ordinance imposes a burden on interstate commerce
that is clearly excessive in relation to the putative local benefits.
Id. (citing C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383,
In determining whether the ordinance discriminates against interstate
commerce, discrimination is defined as the "`differential treatment of
in-state and out-of-state economic interests that benefits the former and
burdens the latter.'" Id. (quoting Harvey & Harvey, Inc. v. County of
Mercer Pennsylvania, 68 F.3d 788
, 797 (3d Cir. 1995)).
If a state law discriminates against interstate commerce "`either on
its face or in practical effect,'" id. (quoting Maine v. Taylor,
477 U.S. 131, 138 (1986)), then the law "`is per se invalid, save in a
narrow class of cases in which the municipality can demonstrate, under
rigorous scrutiny, that it has no other means to advance a legitimate
local interest.'" Id. (quoting C & A Carbone, Inc., 511 U.S. at 392.
"If a statute only indirectly affects interstate commerce and
regulates evenhandedly," Tolchin, 111 F.3d at 1106-1107, the second step
of the commerce clause analysis requires application of a "balancing test
whereby the statute will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local
benefits." Harvey & Harvey, 68 F.3d at 797 (citing Pike v. Bruce Church
Inc., 397 U.S. 137, 142 (1970)).
The parties seem to agree that the correct standard to apply is that
the Ordinance will be upheld unless the burden imposed on interstate
commerce is clearly excessive in relation to the local benefits. Rush
Township argues that even though the Ordinance "has an incidental effect
on interstate commerce" (Defendant's Brief, Rec. Doc. No. 10, at 15), it
should be upheld because the burden on interstate commerce is slight
compared to the local benefits, which include protecting the safety of
Rush Township citizens by testing sewage sludge for land application.
Synagro argues that its claim should be sustained because it has properly
pleaded the elements of a dormant Commerce Clause violation, i.e., that
the Ordinance unfairly discriminates against interstate commerce.
Because at this stage of the proceedings we are not in the position to
judge either the Ordinance's effect on interstate commerce or the extent
of the local benefits of the Ordinance, we will sustain the claim in
order to have the aid later on of a more fully developed record. See
Camden County Board of Chosen Freeholders, 123 F. Supp.2d 245, 255
(D.N.J. 2000) (denying a motion to dismiss a dormant Commerce Clause
claim where the effects on commerce and the local benefits of the law
were yet unclear).
Count V: Equal Protection
Synagro asserts a claim under the Equal Protection Clause of the
Fourteenth Amendment. Its allegations are as follows: (1) the
Ordinance's $40-per-ton fee treats appliers of biosolids differently than
it treats similarly situated entities that apply organic materials other
than biosolids; (2) the Ordinance's partial ban on the
biosolids treats transporters of biosolids differently than it treats
similarly situated entities that transport other materials. Synagro
contends that the Ordinance is not rationally related to a legitimate
The Equal Protection Clause of the Fourteenth Amendment "announces a
fundamental principle: the State must govern impartially, and directs
that all persons similarly circumstanced shall be treated alike."
Alexander, 114 F.3d at 1406-1407 (citations and internal quotation marks
"However, The clause does not require that things which are different
in fact be treated in law as though they are the same." Id. at 1407
(citation omitted). "Accordingly, `the Fourteenth Amendment permits the
States a wide scope of discretion in enacting laws which affect some
groups of citizens differently than others.'" Id. (quoting McGowan v.
Maryland, 366 U.S. 420, 425 (1961)).
Because the Ordinance "neither proceeds along suspect lines nor
infringes fundamental constitutional rights," id. (citation and internal
quotation marks omitted), it "must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification." Id. (citation
and internal quotation marks omitted).
Rush Township asserts that the reason for the classification based on
appliers and transporters of sewage sludge is that sewage sludge, as
distinguished from other organic materials and fertilizers, contains
heavy metals, industrial residues, and potentially dangerous organic
chemicals. Synagro contends that because it properly alleged that the
Ordinance treats sewage sludge entities differently than it treats other
entities, its claim must be sustained. Similarly, Synagro argues that
Rush Township's proffered justification is an insufficient basis at the
12(b)(6) stage for the court to uphold the Ordinance.
Synagro's arguments are misplaced, and Rush Township provides us with a
reason to uphold the Ordinance. Synagro's allegations are simply legal
conclusions without any factual support. In any event, the
rational-basis standard commands that the Ordinance must be upheld if
there is any reasonably conceivable state of facts that could provide a
rational basis for the classification. "`The burden is on the one
attacking the legislative arrangement to negative every conceivable basis
which might support it, whether or not the basis has a foundation in the
record.'" Id. at 1408 (quoting Heller v. Doe, 509 U.S. 312, 320-21
(1993)). A court may, on a 12(b)(6) motion, reject an equal protection
claim if the court finds the legislative body's purported reason for the
classification to be valid and the plaintiff fails to undermine the basis
for the classification. See id. The difference in safety between sewage
sludge and other types of waste is a sound, rational basis for creating
the classification, and Synagro makes no attempt to discredit it.
Accordingly, the Ordinance survives Synagro's equal protection
Count VI: Uniformity Clause
Synagro argues that the Ordinance violates the Uniformity Clause of the
Pennsylvania Constitution in that (1) the $40-per-ton fee is an arbitrary
and unreasonable distinction between transporters of biosolids and other
transporters of organic materials; (2) the $40-per-ton fee is not
rationally related to any legitimate government interest; and (3) the
$40-per-ton fee is not applied uniformly upon similar kinds of businesses
The Uniformity Clause of the Pennsylvania Constitution provides that
"[a]ll taxes shall be uniform, upon the same class of subjects, within
the territorial limits of the authority levying the tax, and shall be
levied and collected under the general laws." Pa. Const. art. VIII,
§ 1. "To be uniform, a tax must `operate alike on the classes of
things or property subject to it.'" Parsowith v. Commonwealth Dep't.
Revenue, 723 A.2d 659, 663 (Pa. 1999) (quoting Commonwealth v. Overholt &
Co., 200 A. 849, 853 (Pa. 1938)). We note that for the purposes of
analysis under the Uniformity Clause, Rush Township does not dispute that
the $40-per-ton "fee" may be classified as a "tax" that is subject to
Uniformity Clause scrutiny.
"When challenging a taxing statute, it is the taxpayer's burden to
demonstrate that a classification is unreasonable, in that it is not
rationally related to any legitimate state purpose." Id. (citing Leonard
v. Thornburgh, 489 A.2d 1349, 1352 (Pa. 1985)).
"[A] tax enactment will not be invalidated unless it clearly,
palpably, and plainly violates the Constitution." Wilson Partners, L.P.
v. Commonwealth Bd. of Finance and Revenue, 737 A.2d 1215, 1220 (Pa.
1999) (citations and internal quotation marks omitted). The Uniformity
Clause does not require absolute equality and perfect uniformity in
taxation, and any doubts as to the constitutionality of the statute are
to be resolved in favor of upholding the statute. Parsowith, 723 A.2d at
663-64 (citing Leonard, 489 A.2d at 1352).
"The analysis under the uniformity clause of the Pennsylvania
Constitution is generally the same as that under the equal protection
clause of the United States Constitution." Wilson Partners, 737 A.2d at
1220 n. 11 (citing Leonard, 489 A.2d at 1349).
In seeking dismissal of Synagro's claim under the Uniformity Clause,
Rush Township asserts that (1) the purpose of the $40-per-ton fee is to
protect the health, safety, and welfare of Rush Township's citizens by
financing the testing of sewage sludge for safety; and (2) the
$40-per-ton fee is imposed uniformly on all companies that dispose of
sewage sludge in Rush Township.
In response, Synagro argues that because it has adequately pleaded the
elements of a claim under the Uniformity Clause, its claim should be
sustained. Synagro points out that it asserts that (1) the tax makes an
arbitrary and unreasonable distinction between different transporters of
organic material; that (2) the tax is not rationally related to any
legitimate government interest; and that (3) the tax is not uniformly
applied. According to Synagro, these "facts," which may be proven true
during discovery, are sufficient in the face of a 12(b)(6) challenge.
Further, Synagro argues that the tax is levied only on companies that
apply biosolids in order to condition the soil or fertilize the crops, and
not on all companies that dispose of sewage sludge.
Synagro has not met its burden to demonstrate that any alleged
classification is unreasonable and not rationally related to any
legitimate state purpose. Its unsupported legal conclusions relating to
the lack of uniformity of the Ordinance are insufficient to survive a
12(b)(6) motion, and a court may not in these circumstances second-guess
Rush Township's purported reasons for enacting the law. When analyzing
laws under the rational basis standard of the federal Equal Protection
Clause — an analysis that is equivalent to the instant analysis
under Pennsylvania Uniformity Clause — the Supreme Court has stated
that "`[a] statutory discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it.'" Jimenez v.
Weinberger, 417 U.S. 628, 633 (1974) (quoting McGowan, 366 U.S. at 426).
Rush Township's reason for charging a fee to only the sewage sludge
companies as opposed to all companies dealing with organic material,
i.e., to finance testing to protect its citizens from the danger of
sewage sludge, is a reasonably conceived and acceptable justification for
the classification. Even assuming that it is a "tax," the fee is
rationally related to the legitimate township interest of protecting its
citizens from the harmful effects of sewage sludge. Further, as Rush
Township asserts, the Ordinance indicates that the fee is applied
uniformly, as the amendment to the Ordinance states that "there is hereby
imposed a FORTY AND NO/100 ($40.00) DOLLARS per ton tipping fee for each
ton of biosolids applied on any land within Rush Township pursuant to
this ordinance." (Amendment to Ordinance at § 8.1.) The fee is
uniform, as it is levied on every company that applies sewage sludge on
Rush Township. In short, there is no violation of the Uniformity
Count VII: Preemption by other state statutes
Synagro alleges that the Ordinance is preempted by at least one of the
following three Pennsylvania statutes: The Nutrient Management Act, 3
P.S. § 1701 et seq., The Sewage Facilities Act, 35 P.S. § 750.1
et seq., and the Solid Waste Management Act, 35 P.S. § 6018.101 et
1. Nutrient Management Act (NMA)
The NMA is a statute with a stated purpose of "[e]stablishing
criteria, nutrient management planning requirements[,] and an
implementation schedule for the application of nutrient management
measures on certain agricultural operations which generate or utilize
animal manure." 3 P.S. § 1702. With respect to preemption by the
Nutrient Management Act (NMA), each side argues its position in extremely
conclusory terms. Synagro contends that because it alleges that the NMA
as a matter of law preempts the Ordinance, its claim should be
sustained. According to Synagro, the application of sewage sludge is
regulated under this statute. See 3 P.S. § 1703. Both Synagro and
Rush Township point to the following clause, which comments on the NMA's
This act and its provisions are of Statewide concern
and occupy the whole field of regulation regarding
nutrient management to the exclusion of all local
regulations. Upon adoption of the regulations
authorized by section 4, no ordinance or regulation of
any political subdivision or home rule municipality
may prohibit or in any way regulate practices related
to the storage, handling or land application of animal
manure or nutrients or to the construction, location
or operation of facilities used for storage of animal
manure or nutrients or practices otherwise regulated
by this act if the municipal ordinance or regulation
is in conflict with this act and the regulations
promulgated thereunder. Nothing in this act shall
prevent a political subdivision or home rule
municipality from adopting and enforcing ordinances or
regulations which are consistent with and no more
stringent than the requirements of this act and the
regulations promulgated under this act, provided,
however, that no penalty shall be assessed under any
such local ordinance or regulation for any violation
for which a penalty has been assessed under this act.
3 P.S. § 1717. Essentially, this clause states that while a
municipality is prohibited from enacting regulation of animal manure that
is inconsistent with the NMA, it may enact an ordinance that is
consistent with the state statute. Synagro alleges
that because the
Ordinance regulates the storage, handling, and land application of sewage
sludge (which is regulated by the NMA), it is preempted by the NMA. Rush
Township states in conclusory terms that because the Ordinance is
consistent with the NMA, there is no preemption, and Synagro's claim
should be dismissed. Rush Township points to no other provisions of
either the Ordinance or the NMA, and it fails to offer anything other
than a rudimentary assertion that the Ordinance is consistent with the
NMA. These statements do not sustain Rush Township's burden to show that
Synagro has not stated a claim. Accordingly, this claim will be
2. Solid Waste Management Act (SWMA)
The SWMA is a statute that was enacted to establish and maintain a
cooperative State and local program of planning and technical and
financial assistance for comprehensive solid waste management. In part
by requiring permits for the operation of municipal waste processing and
disposal systems, it purportedly protects the public health, safety and
welfare from the short and long term dangers of transportation,
processing, treatment, storage, and disposal of all wastes. 24 Summ. Pa.
Jur.2d Environmental Law § 4:7 (2001). Synagro states that because
it alleges that the SWMA preempts the Ordinance, its claim should be
sustained. In its brief, it contends that because the SWMA grants the
DEP and not municipalities the power to regulate solid waste management,
it preempts local regulation. Rush Township's primary argument is that
because the SWMA does not expressly preempt local regulation, local
regulation is allowed. At this stage of the proceedings, and based on
Rush Township's insufficient arguments, we are not convinced that
Synagro's claim is totally without merit. Thus, this claim will be
3. Sewage Facilities Act (SFA)
The purpose of the SFA is "[t]o protect the public health, safety and
welfare of its citizens through the development and implementation of
plans for the sanitary disposal of sewage waste." 35 P.S. § 750.3.
The SFA requires municipalities to submit to Pennsylvania's Department of
Environmental Resources an officially adopted plan for sewage services
for areas within its jurisdiction. After approval, the municipality is
responsible for carrying out the plan. 35 P.S. § 750.5. In support
of its preemption argument, Synagro cites the case of Greater Greensburg
Sewage Auth. v. Hempfield Twp., 291 A.2d 318 (Pa. Cmwlth. 1972), in which
the Pennsylvania Commonwealth Court held that the SFA preempted an
ordinance that regulated a sewage treatment plant and required the sewage
authority to obtain a license prior to the disposal of the sludge
resulting from the operation of the treatment plant. According to the
court the SFA "resulted in a limited preemption of the field of
regulation of sewage facility operations, including the disposal of the
`sludge' from such operations." Id. at 321. Rush Township does little
to discredit Synagro's preemption argument. It simply cites a case
— albeit one decided by the Pennsylvania Supreme Court — that
held that the enactment of the SFA was not an indication that the General
Assembly preempted the sewage field. See Council of Middletown Twp.,
Delaware County v. Benham, 523 A.2d 311, 313 (Pa. 1987). While Benham
may support Rush Township's arguments in a general sense, the challenged
regulation in Benham was a zoning ordinance, id. at 312, while Rush
Township's ordinance regulates the application of sewage sludge to mine
sites. If Rush Township wished for the court to dismiss the preemption
claim at this stage, it should have tailored its arguments to the statute
in question. Rush Township fails
to show that Synagro has not asserted a valid preemption claim.
Count VIII: Contracts Clauses
Synagro raises claims under the Contracts Clauses of the United States
Constitution and the Pennsylvania Constitution. It challenges § 10
of the Ordinance, which states that the provisions of the Ordinance apply
to all existing permits issued or authorized by the Pennsylvania DEP.
According to Synagro, this provision is unreasonable and unduly
interferes with the vested rights of parties undertaking existing
permitted mine reclamation projects.
The Contracts Clause of the United States Constitution provides that
"[n]o state shall enter into any . . . Law impairing the Obligation of
Contracts." U.S.C. Const. Art 1, § 10. Similarly, the Contracts
Clause of the Pennsylvania Constitution provides that "[n]o . . . law
impairing the obligation of contracts . . . shall be passed."
Pa. Const. art. I, § 17. The two Contract Clauses are analyzed
identically. First National Bank of Pennsylvania v. Flanagan,
528 A.2d 134, 135 n. 1 (Pa. 1987). Accordingly, we will refer to
Synagro's claims as falling under the "Contracts Clauses."
"In order to prove a violation of [the Contracts Clauses], a plaintiff
must demonstrate that a change in state law has operated as a substantial
impairment of a contractual relationship." Transport Workers Union of
America, Local 290 v. Southeastern Pennsylvania Transportation
Authority, 145 F.3d 619, 621 (3d Cir. 1998) (citations and internal
quotation marks omitted). "Contract Clause analysis requires three
threshold inquiries: (1) whether there is a contractual relationship; (2)
whether a change in a law has impaired that contractual relationship; and
(3) whether the impairment is substantial." Id. (citing General Motors
Corp. v. Romein, 503 U.S. 181, 186 (1992)). "If it is determined that a
substantial impairment of a contractual relationship has occurred, the
court must further inquire whether the law at issue has a legitimate and
important public purpose and whether the adjustment of the rights of the
parties to the contractual relationship was reasonable and appropriate in
light of that purpose." Id. (citing Energy Reserves Group, Inc. v.
Kansas Power & Light Co., 459 U.S. 400, 412-13 (1983)).
"If the impaired contractual relationship is between private parties,
the court will defer to the legislative judgment concerning the
importance of the public purpose and the manner in which that purpose is
being pursued." Id. (citing Energy Reserves Group, Inc. v. Kansas Power
& Light Co., 459 U.S. 400, 412-13 (1983)). In other words, "unless the
State is itself a contracting party, courts should properly defer to
legislative judgment as to the necessity and reasonableness of a
particular measure." Keystone Bituminous Coal Assoc. v. DeBenedictis,
480 U.S. 470, 505 (1987) (citations and internal quotation marks
omitted); see also Transport Workers Union, 145 F.3d at 621-22 (citing
United States Trust Co. v. New Jersey, 431 U.S. 1, 26 (1977)).
The complaint alleges that "[c]ompliance with the Ordinance would
create unreasonable and onerous delay and expense, upset contractual
relations between municipal sludge generators and Synagro, as well as
compromise the ability of the mine operator to satisfy permit obligations
to timely reclaim the site in accordance with the approved reclamation
plan." (Complaint at § 125.) Synagro argues that because it alleged
the elements of a Contracts Clause
claim, its claim should be sustained.
Rush Township asserts that the Ordinance was passed to protect the health
and safety of its citizens from the dangers of sewage sludge, and it
contends that any possible substantial impairment of Synagro's rights is
reasonable. Synagro argues that the court is not entitled to accept Rush
Township's purported reason and that discovery should be taken to
discover the true purpose behind the statute.
What Rush Township points out — and what Synagro fails to address
— is that because Rush Township is not a party to the allegedly
impaired contracts, we "should properly defer to legislative judgment as
to the necessity and reasonableness of a particular measure."
DeBenedictis, 480 U.S. at 505. Rush Township claims that the Ordinance
was enacted to protect the health and safety of its citizens, and in
light of the fact that the purportedly impaired contracts involve only
private parties, we are compelled to defer to Rush Township's asserted
justification. Even if Synagro's contractual obligations are
substantially impaired, the Ordinance must survive challenges under the
Contracts Clauses because it has a legitimate and important public
purpose. Accordingly, Synagro's claims under the Contract Clauses will be
Count IX: Ultra Vires
Synagro's final claim is that the Ordinance is an Ultra Vires Action.
According to Synagro, the $40-per-ton "fee" on the dumping of sewage
sludge is in reality a tax that Rush Township, as a second-class Township
in Pennsylvania, lacked the authority to pass. In its brief seeking
dismissal of the claim, Rush Township states that it enacted the
Ordinance under (1) its power to adopt safety regulations; (2) its power
to charge business licensing fees; and (3) its power to charge reasonable
fees for the collection, removal, and disposal of solid waste. Nowhere
does it address Synagro's theory that the fee is in actuality a
prohibited tax. Although Synagro's allegations are essentially legal
conclusions that we need not accept, Rush Township has not at this point
in the proceedings sustained its burden to show that the claim is without
merit. Thus, the ultra vires claim will stand for the moment.
More Definite Statement
Rush Township also has filed a 12(e) motion for more definite
statement. In the complaint, Synagro describes itself as a "successor in
interest" to a company called Wheelabrator Water Technologies, and it
states that its "predecessor" was the Bio Gro division of that company.
(Complaint at ¶ 5.) Rush Township seeks to have Synagro file a statement
that clarifies the legal relationship between Synagro and the Bio Gro
Division of Wheelabrator.
A motion for under Rule 12(e) for a more definite statement "will be
granted only if a pleading is so vague or ambiguous that the opposing
party cannot reasonably be required to make a responsive pleading." SEC
v. Saltzman, 126 F. Supp.2d 660, 668 (E.D.Pa. 2000) (citations and
internal quotation marks omitted).
"Motions for a more definite statement are generally disfavored, and
should [be granted only] if a pleading is unintelligible, making it
virtually impossible for the opposing party to craft a responsive
pleading." Sabugo-Reyes v. Travelers Indemnity Co. of Illinois, No.
CIV.A. 99-5755, 2000 WL 62627, at *3 (E.D.Pa. January 14, 2000) (citing
Frazier v. SEPTA, 868 F. Supp. 757, 763 (E.D.Pa. 1994)).
The complaint provides enough detail for Rush Township to file a
responsive pleading; indeed, in its motion to dismiss, Rush Township
satisfactorily attacks every one of Synagro's claims without the benefit
of the legal relationship between Synagro and the Bio Gro Division of
Rush Township may garner any other required information
through the discovery process. Its motion for more definite statement
will be denied.
Rush Township's motion to dismiss will be granted in part and denied in
part, and its motion for more definite statement will be denied.
Synagro's remaining claims are that the Ordinance violates the Commerce
Clause, that the Ordinance is preempted by the NMA, the SWMA, and the
SFA, and that the enactment of the Ordinance was an ultra vires action.
An appropriate order follows.
O R D E R
For the reasons stated in the accompanying memorandum,
IT IS ORDERED THAT:
1. Defendant Rush Township, Pennsylvania's motion to dismiss and for a
more definite statement (Rec. Doc. No. 4) is granted in part and denied
1.1. Counts I, II, III, V, VI, and VIII are dismissed.
1.2. Counts IV, VII, and IX remain.
2. Synagro's remaining claims are that the Ordinance violates the
Commerce Clause; that the Ordinance is preempted by the Nutrient
Management Act, the Solid Waste Management Act, and the Sewage Facilities
Act; and that the enactment of the Ordinance was an ultra vires action.
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