Liverpool Tp. v. Stephens

900 A.2d 1030

LIVERPOOL TOWNSHIP, Appellant v. Dean STEPHENS.

Commonwealth Court of Pennsylvania.

Argued April 5, 2006.

Decided June 19, 2006.

P. Richard Wagner, Harrisburg, for appellant.

James H. Turner, Harrisburg, for appellee.

BEFORE: COLINS, President Judge, McGINLEY, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge LEAVITT.

Liverpool Township appeals a decision of the Court of Common Pleas of the 41st Judicial District (Perry County Branch) (trial court) enjoining the enforcement of a township ordinance that regulates the application of processed municipal sewage to agricultural land. The trial court found that this ordinance conflicted with a state law that regulates this activity and, thus, was preempted. Accordingly, the owner of the farmland, Dean Stephens, was found to have done all that was required in order to fertilize his fields lawfully by obtaining a permit from the state. We affirm.

In 1993, the Township adopted Ordinance 13 pursuant to Section 708 of The Second Class Township Code.¹ It made it unlawful "for any person to use or continue to use their land or any other land as a storage, transfer, collection, processing or disposal site of solid waste or residual waste unless such person shall have a permit ...." LIVERPOOL TWP., PA., ORDINANCE NO. 13, art. III(1) (1993) (Ordinance 13) (emphasis added). The application of processed municipal waste, i.e., fertilizer, to farmland is considered the "disposal ... of solid waste" and, as such, is regulated by Ordinance 13. To qualify for a "disposal" permit under Ordinance 13, the landowner must agree not to spread the fertilizer "within five hundred (500) yards of any dwelling, church, school, or any other building or buildings which from time to time are utilized for human occupancy or residency." ORDINANCE 13, Article V(1).

On December 17, 2003, the Township filed an action to enjoin Stephens from fertilizing his fields with processed municipal sewage until he obtained an appropriate permit from the Township. The Township instituted this action because Stephens had fertilized his fields on several occasions in 2003 without the benefit of a Township permit.² This was not disputed by Stephens, but he contended that he did not need a Township permit because he had a permit from the Pennsylvania Department of Environmental Protection (DEP) and was in compliance with the terms thereof. Stephens argued that Ordinance 13 was preempted by the Solid Waste Management Act (SWMA)³ and its implementing regulations. Stephens then filed a motion for summary judgment requesting the trial court to enjoin the enforcement of Ordinance 13 or, alternatively, to direct the Township to issue Stephens a permit with terms consistent with those in his DEP permit. On February 10, 2005, the trial court granted Stephens' motion, holding that Ordinance 13 was preempted by the SWMA. The Township appealed.⁴

The Township presents two principal arguments for our consideration. First, the Township contends that Ordinance 13 is not preempted by the SWMA.⁵ Second, it contends that it was authorized to set up its own permitting system by The Second Class Township Code.⁶

The impact of the SWMA upon the ability of local government to regulate in the area of solid waste has been a persistent subject of litigation and was most recently addressed by our Supreme Court in Hydropress Environmental Services, Inc. v. Township of Upper Mount Bethel, County of Northampton, 575 Pa. 479, 836 A.2d 912 (2003). At issue in Hydropress was an ordinance entitled "Ordinance for Agricultural Utilization or Other Land Application of Biosolids, Sludge, Septage or Other Waste Materials," which had been found preempted in its entirety by this Court. The Supreme Court affirmed in part and reversed in part in a plurality opinion. Six justices agreed that two provisions in the ordinance should be enjoined.⁷ The first provision regulated the roads entering a waste disposal site, and the second required landowners to obtain permits for processing waste. However, the justices did not agree upon the legal basis for striking these provisions. Three believed that those two provisions were preempted by the SWMA; indeed, they believed that the entire ordinance was preempted. The other three justices believed that the township simply lacked the statutory authority to enact the two provisions in question. Notably, the six justices agreed that the township lacked the authority to duplicate DEP's waste disposal permit system.⁸ As in Hydropress, the permit required under Ordinance 13 duplicates that required by DEP under the SWMA.

Because Hydropress is a plurality decision, it is not dispositive of the preemption issue raised in this case. We must look, then, to the 5-part test long followed by this Court for evaluating whether an ordinance has been preempted by state law. That test is as follows:

(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?

Duff v. Township of Northampton, 110 Pa.Cmwlth. 277, 532 A.2d 500, 505 (1987). If the answer to one of these questions is affirmative, then the local ordinance will be found preempted by the state law.

To apply Duff to this appeal, we begin with a review of the SWMA. Section 104(6) of the SWMA gives DEP the duty to regulate the storage, collection, transportation, processing, treatment and disposal of solid waste. 35 P.S. § 6018.104(6). Disposal of solid waste includes, specifically, the application of sewage sludge on agricultural land, and such disposal activities are regulated to protect the air, water and public health of citizens. Regulations adopted by the Environmental Quality Board have established the standards for a DEP permit to apply sewage sludge to agricultural land. Among them are standards establishing setbacks and buffers. See 25 Pa Code § 271.915(c)⁹ and 275.202.¹⁰ Relevant here is Section 271.915(c)(3), which provides that sewage sludge may not be applied to agricultural land that is within 300 feet from an occupied dwelling. 25 Pa.Code § 271.915(c)(3).¹¹ In addition, Section 275.202(5) states that sewage sludge may not be applied closer than within 50 feet of a property line, unless otherwise approved by DEP. 25 Pa.Code § 275.202(5).¹²

Ordinance 13 also regulates the application of sewage sludge to agricultural land, including where and how this activity will be conducted. It prohibits the application of sewage sludge within 500 yards of a dwelling, church, school, or any other building that from "time to time" is used for human occupancy or residency. ORDINANCE 13, Article V(1). Further, Ordinance 13 requires a landowner, such as Stephens, who wishes to apply sewage sludge to agricultural land to apply for a permit from the Township. A permit will not issue unless the landowner satisfies the Township's standards. ORDINANCE 13, Article IV(2).

Ordinance 13 conflicts with the SWMA regulatory scheme. Under the SWMA, sludge may not be applied within 50 feet of a property line or within 300 feet of an occupied building. 25 Pa.Code §§ 271.915(c)(3), 275.202(5). This latter requirement affects, presumably, buildings on and off the property being fertilized. By contrast, Ordinance 13 allows the application of sludge on farmland up to the property line so long as it is not applied within 500 yards of a building occupied "from time to time."¹³ There is a significant difference between 500 yards and 300 feet of a building, and between 50 feet and 0 feet of a boundary line. There is a difference between a building occupied from "time to time," as it is expressed in Ordinance 13, and one actually occupied, as it is stated in the SWMA. These differences cannot be reconciled.

The fact that the General Assembly has enacted a statewide regulatory scheme relating to the disposal of waste does not, in itself, preclude a township from also regulating in that area. As our Supreme Court has explained

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.

Western Pennsylvania Restaurant Ass'n v. City of Pittsburgh, 366 Pa. 374, 381, 77 A.2d 616, 620 (1951) (citation omitted). Nevertheless, "if the general tenor of the statute indicates an intention on the part of the legislature that it should not be supplemented by municipal bodies, that intention must be given effect and the attempted local legislation held invalid." Id.

The goal of the SWMA is to protect the "public health, safety and welfare." Section 102(4) of the SWMA, 35 P.S. § 6018.102(4).¹⁴ The Township claims that Ordinance 13 is allowed because the SWMA does not prohibit supplemental regulation by municipalities and, further, is authorized expressly by Section 2101 of The Second Class Township Code. This Court's holding in Sunny Farms, Ltd. v. North Codorus Township, 81 Pa.Cmwlth. 371, 474 A.2d 56 (1984), the Township contends, supports the concept of a supplemental municipal regulatory regime with respect to the application of municipal sewer sludge to farmland.

We begin with a consideration of Sunny Farms. In that case, Sunny Farms sought to construct a hazardous waste dump on 325 acres of land in violation of the township's setback requirement that a hazardous dump be sited 500 yards from...