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Commonwealth v. East Brunswick Township

August 21, 2009

COMMONWEALTH OF PENNSYLVANIA, OFFICE OF ATTORNEY GENERAL, BY THOMAS W. CORBETT, JR., ATTORNEY GENERAL, PETITIONER
v.
EAST BRUNSWICK TOWNSHIP, AND EAST BRUNSWICK TOWNSHIP BOARD OF SUPERVISORS, RESPONDENTS



The opinion of the court was delivered by: Judge Leavitt

Argued: June 11, 2009

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

The Pennsylvania Attorney General, Thomas W. Corbett, Jr., has commenced an action for declaratory and injunctive relief, seeking to invalidate an ordinance of East Brunswick Township. The Attorney General challenges this ordinance, enacted in 2008 and entitled "Ordinance to Assure Local Public Health and Safety During and After Land Application of Sewage Sludges" (2008 Ordinance),*fn1 on two principal grounds. First, he contends that the 2008 Ordinance is preempted by state statutes that regulate sewage sludge and its uses in the Commonwealth. Second, he contends that the 2008 Ordinance interferes with normal agricultural operations, which violates another state law. The Township and its Board of Supervisors (collectively, Township) have filed preliminary objections in the nature of a demurrer to the Attorney General's action. At the heart of this case is whether the Township may regulate the land application of sewage sludge in tandem with the Pennsylvania Department of Environmental Protection (Department).

Background

The Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.101-6018.1003, regulates the disposal of sewage sludge throughout the Commonwealth, including the application of sewage sludge to land, and it has charged the Department with the responsibility of enforcing the statute's terms. To that end, the Department has adopted comprehensive regulations at 25 Pa. Code, Chapter 271, Subchapter J (25 Pa. Code §271.901-§271.933), which, inter alia, set standards for the land application of sewage sludge and require a permit for this activity. However, the Department may impose even more stringent standards in a particular case "when necessary to protect public health and the environment from any adverse effect of a pollutant in the sewage sludge." 25 Pa. Code §271.904.

Jeff Hill, owner of J.C. Hill Tree Farms, Inc. (Hill Farms), fertilizes his 1000-acre tree farm in the Township with sewage sludge and does so in accordance with a nutrient management plan approved by the Schuylkill County Conservation District and a permit issued by the Department. In 2006, the Township enacted a sewage sludge ordinance (2006 Ordinance) that prohibited any corporation, such as Hill Farms, from applying sewage sludge to its land, even though the corporation operated under a permit from the Department. At the request of Hill, the Attorney General reviewed the 2006 Ordinance and concluded it was invalid. Accordingly, he instituted an action to invalidate the 2006 Ordinance on several grounds, including the ground that the Township lacked authority to deprive a person of the ability to do business in the form of a corporation.

In response, the Township filed preliminary objections to have the Attorney General's petition for review dismissed. In turn, the Attorney General filed a motion for summary relief, asserting that he was entitled to judgment on the merits, even before an answer was filed. The motions were consolidated. This Court overruled the Township's preliminary objections, but it denied the Attorney General's request for summary relief. Office of Attorney General v. East Brunswick Township, 956 A.2d 1100 (Pa. Cmwlth. 2008) (East Brunswick I). Summary relief was denied because a question central to the Attorney General's theory for relief, i.e., whether the use of sewage sludge was a "normal agricultural operation," was not a pure question of law but needed to be established by evidence. Id. at 1115-1116.*fn2 This Court issued this ruling on September 23, 2008, unaware that the 2006 Ordinance had been repealed on September 4, 2008. On that same date, the Township replaced the 2006 Ordinance with the 2008 Ordinance, which is under review in this proceeding.

Notably, the 2008 Ordinance does not prohibit corporations, such as Hill Farms, from using sewage sludge to fertilize land, as did the 2006 Ordinance. The 2008 Ordinance does, however, establish fee, bond, chemical testing, notice and signage requirements that must be satisfied in order to apply sewage sludge to land in the Township.*fn3

Again, Jeff Hill requested the Attorney General to review the new ordinance. The Attorney General did so and then filed the instant amended petition for review.*fn4 The petition contains six counts. Each count asserts that the 2008 Ordinance is unauthorized or preempted under a different statute: (1) the Agricultural, Communities and Rural Environment (ACRE) Act, 3 Pa. C.S. §§311-318,*fn5 in Count I; (2) the Solid Waste Management Act (SWMA) in Count II; (3) the Nutrient Management Act, 3 Pa. C.S. §§501-522 in Count III; (4) the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202 in Count IV; (5) the Agricultural Area Security Law, Act of June 30, 1981, P.L. 128, as amended, 3 P.S. §§901-915 in Count V; and (6) the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701 in Count VI.

The Attorney General's petition details the benefits of using sewage sludge to improve soil quality, forest productivity and crop growth. The use of sewage sludge to reconstitute soil is a well-established agricultural practice that is encouraged by the U.S. Environmental Protection Agency. In the past ten years, the Department has approved approximately 827 farms in Pennsylvania as suitable sites for the application of sewage sludge, one of which is Hill Farms. Amended Petition for Review, ¶46.

To apply sewage sludge to land in Pennsylvania, the generator of the sludge must obtain a general permit from the Department that will allow it to make any number of land applications. 25 Pa. Code §271.902 ("Permits and direct enforceability"). Most generators in Pennsylvania are municipal wastewater treatment plants; they generate over 300,000 tons of sewage sludge each year. Amended Petition for Review, ¶¶33, 53. Other generators are haulers of sewage from residential septic tanks, and they must also obtain a permit before this type of sewage may be used as fertilizer. Amended Petition for Review, ¶54. The Department does not issue a permit until the generator demonstrates by testing that its sewage sludge meets certain quality standards. 25 Pa. Code §§271.902(a)(2).*fn6

Sewage sludge is categorized as exceptional, non-exceptional or residential, i.e., derived from on-lot septic tanks. Each category of sludge is subject to different regulatory requirements. Exceptional quality sewage sludge is that which contains low levels of "pollutants" and "pathogens." 25 Pa. Code §271.911(b)(1). The application of exceptional quality sludge to land is not regulated, except where the Department determines regulation is "needed to protect public health and the environment." 25 Pa. Code §271.911(d). However, the generator must give the Department 24-hour advance notice of its intent to apply such sludge to land. More stringent regulations apply to non-exceptional and residential septage;*fn7 these categories of sewage sludge cannot be applied until the Department reviews and approves the proposed site prior to the first application.

25 Pa. Code §271.913(g)(1) (requiring notice to the Department at least 30 days prior to the first application of sewage sludge at a particular location); Attorney General Brief, Exhibit 1, Exh. B at 2. Before any approvals are given, the Department notifies the municipality where the proposed site is located, and it also notifies the municipality of the Department's subsequent decision on site suitability. Attorney General Brief, Exhibit 1, Exh. B at 2. The Department's regulation is on-going, requiring testing and reporting from general permit holders for all categories of sludge. 25 Pa. Code §271.918 ("Recordkeeping") and §271.919 ("Reporting"). The generator's applications and reports, as well as the Department's actions thereon are public records available to municipalities such as the Township. 25 Pa. Code §271.5(a) ("Public records and confidential information").

The Attorney General contends that the real purpose of the 2008 Ordinance is to render the land application of sewage sludge so costly that it cannot take place in the Township. The generator of sewage sludge bears most, if not all, of the cost of land application. Amended Petition for Review, ¶70. Currently, the average cost to dispose of sewage sludge is $40 per wet ton and $145 per dry ton. Typically, in a single application, generators apply 22 wet tons per acre. Amended Petition for Review, ¶78. Accordingly, a 100-acre farm requires 2,200 wet tons of sewage sludge per application at a cost of $88,000. The bonding and testing requirements in the 2008 Ordinance would add $223,800 to this cost, for a total of $311,800. The 2008 Ordinance raises the cost to fertilize a 100-acre farm with 500 dry tons of sewage sludge from $72,500 to $162,000. Amended Petition for Review, ¶¶82-85. On October 3, 2008, a Republican Herald newspaper article quoted a Township Supervisor as saying "[t]he object is you make it as difficult and expensive as you can so they don't attempt it." Amended Petition for Review, Exhibit D.

The Township has filed preliminary objections in the nature of a demurrer to each count in the Attorney General's amended petition for review. The Township contends that its 2008 Ordinance is fully consistent with Pennsylvania law, pointing out that the standards and terms in the 2008 Ordinance are the same as those used in the SWMA.*fn8 The Township also asserts that because the 2008 Ordinance protects the Township residents "from exposure to sewage sludge," it is public health and welfare legislation expressly authorized by the Second Class Township Code and by the SWMA.

Preliminary Objections

¶17. Finally, the Township contends it is in the best position to assure compliance with the Department's regulations. It can respond quickly to a violation, whereas the Department may, or may not, respond with equal alacrity. The Township requests the Court to dismiss the amended petition for review.

In addition, the parties have each filed a motion to strike. The Township has moved to strike exhibits attached to the Attorney General's brief, and the Attorney General has moved to strike the Township's reply brief.

Motions to Strike

We begin with the Township's motion to strike exhibits attached to the Attorney General's brief filed in opposition to the Township's preliminary objections. These exhibits include, as Exhibit 1, an affidavit of Dennis C. Wilson, water program specialist with the Department, together with certain forms used in the Department's sewage sludge program. Exhibit 2 consists of an adjudication of the Pennsylvania Environmental Hearing Board issued in Douglass Township v. Commonwealth, EHB Docket No. 2007-154-L (April 16, 2009). The Township asserts that because these exhibits were not attached to the amended petition for review, they must be stricken. In addition, Exhibit 2, the adjudication of the Environmental Hearing Board, should be stricken because it has no precedential value. The Attorney General replies that the materials in Exhibit 1 are merely illustrative of the factual averments in its amended petition for review and that Exhibit 2, an administrative agency adjudication, may be considered by this Court, even though it is not binding.

We deny the Township's motion to strike. Writings must be attached to a pleading where the writing is the basis of the action, such as an action to enforce a written contract. PA. R.C.P. No. 1019(i); Feigley v. Department of Corrections, 872 A.2d 189, 195 (Pa. Cmwlth. 2005).*fn9 The exhibits attached to the Attorney General's brief are illustrative and provided for the convenience of the Court. In no way do they amend the pleading or constitute the basis for the action.

The Attorney General has filed a motion to strike the Township's reply brief as untimely. The Attorney General filed its brief in opposition to preliminary objections on May 1, 2009. Under PA. R.A.P. 2185(a), which is applicable to original jurisdiction proceedings as provided in PA. R.A.P. 106, the Township's reply brief was due no later than May 18, 2009.*fn10 The Township did not file its reply brief until May 21, 2009, which was untimely. Accordingly, the Township's reply brief must be stricken from the record.

We turn, next, to the Township's preliminary objections.

Standards for Demurrer

A demurrer tests the legal sufficiency of a complaint. Insurance Adjustment Bureau, Inc. v. Allstate Insurance Company, 588 Pa. 470, 480, 905 A.2d 462, 468 (2006). When ruling on preliminary objections in the nature of a demurrer, this Court must accept as true every well-pleaded material fact set forth in the complaint as well as all inferences reasonably deducible therefrom, but we are not required to accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations or expressions of opinion. Bundy v. Beard, 924 A.2d 723, 725 n.2 (Pa. Cmwlth. 2007). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible, and any doubt should be resolved in favor of overruling the demurrer. Id.

The principal legal question in ruling on the Township's demurrer is whether the 2008 Ordinance is preempted, as asserted by the Attorney General, or not, as asserted by the Township. In evaluating whether the 2008 Ordinance is preempted by state law, this Court applies the following 5-part test:

(1) Does the [2008 Ordinance] conflict with the state law, either because of conflicting policies or operational effect, that is, does the [2008 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 ...


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