REVERSE PREEMPTION WHrN LoceI Onnnexcus BANNING

THE

LANDAppr.lceuoN oF SEwacr SluncE SuprRcgoE SrATE [.q,ws ro rHE Corurneny

PeNr II PRncrrcel CoNslosRATroNS & A LnlcerroN PmN

Denis R. O'Brien, PhD/Esq.

Denis R. O'Brien POB 1699 Blaine, WA 9823r denis@thepatentguy. net

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THs CrraN WersnAcr, 33 USC Srf+t(s)

[Locet. DrrsRr\4rNenou Sreruru (LDS)]

(e) Manner of sludge disposal

addedJ

The determination of the manner of disposal or use of sludge is a local determination, except that it shall be unlawful for any person to dispose of sludge from a publicly owned treatment works or any other treatment works treating domestic sewage for any use for which regulations have been established pursuant to subsection (d) of this section, except in accordance with such regulations. [Bold

A.

tNrnoDUCTroN

DEFTNING soME TERMS AND THE LAy oF THE I-AND

Disposing of fecal and industrial wastes is a perennial problem that, historically, one community has
always tried to pass to another. To a large extent this is still true, only the mechanism of shifting the wastes
has changed.

It used to be that fecal and industrial wastes were released into the closest river for unsolicited
delivery to neighbors downstream. The downstream communities would then have to purifr the water

it

took from the river before they could drink

it. Each community,

in turn, then discharged its sewage into the

river for the next community to worry about. When I was working as a gutter grunt for the brand new Ohio
EPA in 1969, all sorts of state and federal laws were being passed to stop this riparian felo-de-se and to clean

the rivers up. My boss and mentor, James Shea, very astutely recognized that only one law was needed: each

community should be required to put its wastewater discharge upstream of its own water intake. That way
each community would do everything possible to make its discharge as clean as possible, and the EPA would

not require Pages and pages of laws and regulations. But the federal folks didn't see it that way; they
eventually banned all pollutant discharges into navigable waterways. Hence, the sludge wars of today. Today the fecal and industrial wastes are still flowing downstream, but in a different sense: from

communities with the greatest wealth and political power to the communities with the least. Wealthy, urban communities, particularly those on the east coast of the country, simply pay sludge-haulers like Synagro to
dump the unwanted and often toxic residues of the communities'waste treatment operations on farmland in the rural communities. Part I ["Part I" herein] of the present 2-part paper discusses the legal theory that explains the federally mandated right of rural communities to refuse to allow such land-application of sludge. The
Present Part II discusses more practical considerations and a legal strategy that the boards of supervisors

of

rural localities may wish to discuss with their attorneys in order to take control of whether fecal and industrial wastes are spread on lands within the community. As with Part I, this discussion is directed at, but

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not necessarily limited to, Virginia counties. I need to emphasize that the legal strategy described here is
offered merely as a stimulus for discussing and brain-storming options that rural communities have. This, or any, course of action should not be implemented without a complete assessment of the options and possible

ramifications. The sludge field is dominated by corporations with very deep pockets and hundreds of millions of dollars at stake. They will go to extremes to protect their business model of collecting sludge

flom urban areas and dumping it on rural communities. Consequently, any plan for

civil action to assert a

Iocality's right to ban land-application of sludge should avoid a legal confrontation with the sludger's hired
legal guns. The purpose of this Part II is to propose a legal strategy by which coerced localities can ban land-

application of sludge without exposing themselves to onerous and futile court fights or uncontrollable legal
fees.

A few definitions from Part I are peculiar enough that they justifi repeating here.
Sewage sludge is defined by the US government at 4o CFR Part 5o3.9(w) as solid, semi-solid,

or

liquid residue generated during the treatment of domestic sewage in

treatment works. I use the noun

"sludge," unadorned by "sewage," to refer to imported sewage sludge specifically; that is, sewage sludge

generated in one locality and transported to a distant locality for disposal. When I use "sludge" as a verb or

participle,"sludging," I mean the act of spreading sludge on land. The term "sludgers" refers to those who promote or participate in sludging, normally for pecuniary gain. I refer to 33 U.S.C. Srl+l(e), quoted verbatim above, as the "federal local determination statute" or "LDS." As is customary in this field, I use the term "Part 5o3" to refer to the federal regulations for disposal of sewage sludge - Part 5o3 of Title 4o of the US Code of Federal Regulations.
Inasmuch as the CWA refers to "local determination," I prefer to use the term "localities" to refer to counties and municipalities. So far as I am aware in Virginia, counties are the only local government entities being sludged. In a Dillon state such as Virginia, a locality may be thought of as a political sub-division of the state that is subject to the Dillon Law.

With respect to the conflicts between sludge-producing communities and sludged communities,
they can by classified as follows:

1. 2.

Exporters - localities that resolve their sludge problems by sludging other communities. Examples:
Alexandria, Va.; Fauquier County, Va.; Washington, D.C.; NewYork, N.Y,; and, Newark, N.J.

Neutrals - localities that do not import or export sludge. There are a number of reasons a locality may
be neutral. For instance, the citizens of the locality may be politically motivated to fight sludgers, or its

geographical features or ease of access may not be conducive to sludging for profit. Examples: Amherst County, Va.

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Statutory sludge banners - localities that ban sludging by passing an ordinance pursuant to Sr345(e) of
the Clean WaterAct (CWA). Examples: Rappahannock County, Va.; Riverside County, California.
4.

Coerced localities - localities in which state sludging permits have been granted over the implicit or explicit objections of the locality. Examples: Amelia County, Va.;Amherst Counry, Va.;Appomattox
County, Va,; Campbell County, Va.;Louisa County, Va.

Voluntary importers - also known as fecophiles. Localities that accept sludge from other localities without objection, possibly with rejoicing. Example: Buckingham County, Va.

SB. A LITIGATIoN

PT"AN

FoR ASSERTING A LoCALITY,S FEDEML

STATUTORY RIGHT TO BAN SLUDGING WITHIN ITS BORDERS.

It is my hope and belief that in the not too distant future, as technology comes online that converts
sludge to energy in a safe and environmentally benign way, all localities

will become fecophilies. But the All

focus of this paper is the present, and the over-riding thesis is that however valuable or detrimental sludge may be, no locality should be coerced to import and land apply another community's sludge.

communities have the moral obligation to properly dispose of the sludge they create, and they have a
federally-mandated right and obligation to control how all sludge within their jurisdictions
generated and that imported from other communities

- both locally

is disposed of.

This paper does not take a position on the question ofwhether a locality may prohibit importation of sludge. Banning the importation of sludge and banning its spreading are distinct legal issues. However, they overlap considerably from a practical point of view because if sludging is banned by a locality, there is

Iittle or no pecuniary incentive for sludgers to target the locality for importation; consequently, both imporlation and spreading go away,
We all recognize that coerced localities that want to ban sludging are generally not very wealthy,

which is precisely why other people's sludge is forced down their throats. Most sludged localities have
annual budgets that are dwarfed by the operating budgets of the urban communities exporting the sludge and by the litigation budgets of sludge-haulers like Synagro and Nutri-Blend. Presumably, this is the reason
Congress passed the LDS

so that rural localities could avoid being forced

into the role of being toilets fior

urban communities. However, federal rights - including the federally-mandated right of localities to
determine for themselves how sludge is disposed of - do absolutely no good unless the locality is willing and
able to assert those rights in court.

The litigation plan proposed for consideration is set forth here briefly in five steps. Detailed discussion of the plan is provided in the succeeding sections.
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Step

r.

If desirable and politically possible, two or more localities who want to assert their federal right

to ban sludging enter into an sd hoc agreement to share costs and legal resources. One locality
is nominated as the test locality. Step

z.

The BoS of the test locality drafts an ordinance banning land application of sludge and explicitly

citing 33 U.S.C. Srl+S(e), the LDS. [I refer to such an ordinance as an "LDS ordinance." An
excellent example of such an ordinance is Ordinance 8rz, now in effect in Riverside County, Ca.,

which can be found online at: http://rivcocob.com lordslSool8rz.pdf .]

Step

3. 4.

The test locality BoS passes a resolution setting forth its intention to pass the draft LDS ordinance.

Step

The test locality immediately

as

in the next day - files a complaint in the appropriate U.S. judgment (DJ) that the locality has a federally mandated

district court seeking

a declaratory

right under the LDS and the Supremacy Clause of the U.S. Constitution to ban sludging within
its boundaries. The choice of named defendants for this suit is discussed below.
Step

5.

When the defendants have been served and have answered, the locality files for summary
judgement asserting LDS and Supremacy Clause arguments.

$ C. FAQs

"FINALLy, ANrr-sLUDcrNG QUERTES"

The foregoing plan is proposed in view of the financial constraints on coerced localities. In this section I attempt to answer some of the more obvious questions about the litigation plan and how it would

work.

r.

Why federal court?

a.

The short answer to this question is Blantonv. Amelia

'.

This was a 2oor case in which the

Virginia Supreme Court held * strictly on state law grounds and in spite of clear federal law and

multiple state and federal judicial opinions to the contrary - that Virginia counties are not permitted
to ban sludging. [See Part

I.] Consequently, given the open hostility

the Virginia Supreme Court

has shown toward the prospect of rural counties banning sludging, any Virginia localities wishing

to

assert their right to ban sludging should get as far away from state courts as they can. The sludge
issue is to the Virginia Supreme Court today what miscegenation was to the Court in the days

of

z6Va

55;54o S.E. znd 869;54o S.E.zd 869 (zoor)

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Loving v. Virginia. Avoiding state court means bringing an action in federal court based entirely on

federal law;specifically, the LDS and the Supremary Clause.

2.

What is a declaratory judgment?

a.

The US Code has a special law titled "Creation of Remedy," which is more commonly referred to
as the "declaratory

judgment statute." The statute is z8 USC $ zzor. It's easy to find online. Here is

one link: http:/lwww.law.cornell.edu/uscode/html/uscodez8/usc_sec_zg_ooo o2zor----ooo-.html.

A DJ action allows a federal court to sort out the litigants' rights even when there has been no
harm that is compensable by a money award. All that is required is an "actual controversy." Generally, the plaintiffhas to be in a situation where the defendant has violated or threatened some

right of the plaintiffs, generally a right guaranteed by the US Constitution or federal law. The plaintiff has to plead sufficient facts to show the court that the right exists and that the defendant
has interfered

with that right or that the plaintiffhas a reasonable expectation that the defendant

will interfere with that right.

In other words, in order to seek DJ against the state, there must be an actual controversy - an "injury in fact" or a threatened injury - that a declaration by the federal court can alleviate or prevent. This means that there must be a threat by a state official against some right of the locality.
Of course, that right would be the right of the locality to ban land-application of sludge pursuant to the LDS of the CWA. The threat must be tangible and not imaginary or hypothetical. That is, the

locality must take some step under the CWA that it fears the state will prohibit or reverse; hence,
the draft LDS ordinance. Of course, there are other jurisdictional issues just as in any other federal law suit. Those issues determine who the defendants of the suit should be. They are discussed below.

3.

Does a locality have standing to sue its own state in federal court?

a.

It may have "standing" but even if it does, the state is almost always immune from lawsuits
in the federal court because the rrs Amendment to the US Constitution prohibits almost
anybody from hailing states into federal court. This is one reason why Brisfo I v. Earley Part Il must be reviewed very carefully and the defendants have to be carefully chosen.

"

[See

t45 F.Suppzd 7ar (USDC WDVa, zoor)

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In Brrstol,

Virginia locality, the city of Bristol, sued the Commonwealth of Virginia and its

attorney general in the USDC for the Western District of Virginia. Bristol sought a DJ in order

to assert it's right under federal telecommunications legislation to participate in the telecommunications market in spite of a state statute barring localities from entering the telecommunications market.
Judge Jones held that political subdivisions in

Virginia have standing to sue the state in

federal court in order to challenge a state statute that is contrary to federal law. He also ruled

that even though Bristol had not yet entered the telecommunications field, it has still suffered
"an injury in fact" required for federal jurisdiction because the state statute had "the effect

of

prohibiting" the city from taking advantage of the federal telecommunications statute, and this injury could be remedied by the federal court. These are very important rulings for the
presently proposed program. However, Judge Jones found that the Commonwealth of Virginia was immune from suit in federal court under the ns Amendment's doctrine of sovereign immunity; he dismissed the
state as a defendant. Nevertheless, he held that state officials

as opposed

to the state itself

are not automatically immune from actions for injunctive relief or declaratory judgments so

long as the official has some connection with the enforcement of the state statute being objected to. Consequently, he allowed Bristol's suit against Attorney General Earley to proceed.

In the end, Judge Jones agreed with Bristol that the city's right under the federal statute
preempted the state law.

4.

Who should the locality sue, if not the state?

a.

The Bristol decision answers this question very clearly: The defendants named in the DJ

action should be state officials who are directly involved with enforcing state laws that prohibit
the locality from banning sludging under the LDS. Therefore, it is necessary to first identiff any
such laws and then name the corresponding state official as a defendant. I can see at least two such laws:

i.

First there is $r-r3.r7 of the Virginia Code - Virginia's Dillon Law. This law, according to
the Amelia decision, is why a county is not permitted to ban sludging. This is also the law

that was challenged in Brfstol - it must be challenged with respect to sludge. The state
officials responsible for enforcing this statute are the attorney general, who has plenary power to enforce Virginia's statutes, and the chief justice Va. Supreme Court, given that the

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Va. Supreme Court has already enforced this law against Amelia County and given that

in

any civil action against a locality, the Va. Supreme Court would be expected to enforce its

own previous decision.

ii,

Second, there is the Virginia sludge statute: $62l-44.19:3 of the Virginia Code. This is the revised version of $ 3z.r-164.5, which the Va. Supreme Court also applied againstAmelfc.

This statute and its regulations (the Virginia Pollution Abatement Permit Regulation) are enforced by the Attorney General, the Virginia Supreme Court, and the Director of the

Department of Environmental Quality (DEQ), David K. Paylor.

Consequently, the short answer to this question is that the defendants should include the

Virginia Attorney General, the Chief Justice of the Virginia Supreme Court, and the Director, of
DEQ in their official capacities as enforcement officials of $r-r3.r7, $62.r-44.t9:3, and applicable regulations.

Whygo to the trouble of first drafting a LDS ordinance and then passing a resolution of the localiqy's intent to pass the ordinance?

a.

There are at least two parts to this answer:

t.

The locality has to set forth its intention to ban sludging in order to create an "actual controversy" between the locality and the state in order to get int federal court. The controversy arises because in theAmeilo case the Virginia Supreme Court ignored the federal LDS and the Supremary Clause and applied Virginia's Dillon Law to prohibit any

Virginia county from banning sludging. By explicitly citing the LDS in the draft ordinance,
the locality is making it absolutely clear that (r) it has the desire, intention, and political

will to ban sludge application, and (z) it is relying on the federal statute, specifically the
Clean Water Act, more specifically the LDS. tl.

A mere resolution to draft a LDS ordinance might be sufficient to trigger a DJ suit filed by
the Attorney General in state court if the locality is not quick enough to file its DJ suit first. However, even if the locality gets drawn into the suit as a defendant, such a resolution

would not cause harm to any private actors and, therefore, would not be sufficient to
expose the locality to a suit for damages.

Why doesn't the locality iust pass an anti-sludgrng ordinance and then enforce it? This is the same question as #5, but worth reviewing. If the locality merely passes an antia.
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sludging ordinance and then enforces it, it will invite the deep-pocket sludgers to sue the

locality in state court in behalf of the land-owner that the ordinance is enforced against. This is
a recipe for

disaster. The locality wants to keep the deep-pocket sludgers and their guns out of

this fight. The only dogs in this fight should be the locality and the state.

If the Virginia case law makes one thing elear it is this: If a locality tried to shut down a
local sludge operation, the locality would get sued in state court within a matter of minutes, and the trial court would almost have to apply Amelio. The Va. Supreme Court would almost certainly affirm the trial court, and it would be a long-shot to get the US Supreme Court to grant review. Tens of thousands of dollars in legal fees would go down the loo and all of the
coerced localities in the state would be worse offas a result of another court decision against

the anti-sludge initiative. Also, if the locality were to pass an anti-sludging ordinance pursuant to the LDS of the CWA, even if the locality didn't enforce it, the ordinance itself would likely, in view of the
Amelia case, trigger a preemptive suit by the state attorney general, who would likely sue the

locality in state court, which is what has happened to Wahkiakum County in Washington state in zon.
Of course, if the locality was quick enough, it could pass the LDS ordinance and file suit against the state in federal court before the attorney general files in state court. However,
passing such
BoS's

a ordinance would

be a lot more complicated than passing a resolution of the

intent to pass the ordinance. Procedures for passing the ordinance may well require

public hearings and prolonged public comment. Consequently, the sludgers and local sludgefarmers would know that an ordinance is in the works and they would have time to file for a DJ themselves in state court, maybe even before the locality has had a chance to pass the

ordinance. By being defendants in the litigation, the locality would have far less control of the
issues being litigated and, potentially, of the costs. As noted above, litigating this issue

in

Virginia state court would be worse than futile. It would be a disaster.

T.

Why the rush to the courthouse the day after passing the resolution?

a.

This plan proposes a highly coordinated sequence of steps that are planned out carefully and implemented quickly: drafting the LDS ordinance, passing a resolution to adopt the ordinance, and filing the DJ lawsuit in federal court. While these steps would normally be

implemented serfatfm over a period of weeks or months, there would be significant tactical

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advantage to having every thing coordinated to be implemented in a matter of a few days.

goes

It

without saying, perhaps, that if a BoS is not

roo%o

behind banning sludging, a highly

coordinated approach like the one proposed here may not be possible. The point in moving as quickly as possible once the pieces are in place is to reduce

litigation costs to the locality. The locality wants to be the party that files for DJ. The locality
wants to restrict the issues to be litigated to just the legal relationship between the locality, the
state, and the federal statute. The locality wants to block participation in the litigation by the

deep-pocket sludgers and their guns. These objectives are possible only if the locality is the

plaintiffand in order to be the plaintiffit must be first to the courthouse.

Say,

for instance, that before the locality filed its federal DJ lawsuit the sludgers got wind

that the locality had resolved to pass the LDS ordinance. The Attorney General or sludgers might be able to file their own DJ action in state court first. Consequently, by dragging their
feet, the locality would substantially lose control of the lawsuit and the issues to be litigated.

While the locality might be successful in getting the suit removed to the federal court on the
basis of a pure federal law defense, the locality would nevertheless then be in the unenviable

position of being a defendant. Furthermore, there would be an expensive fight over which court
the suit belongs in, and even if the locality were able to prevail on the removal, there would

likely be an appeal.

8.

What's with the adhoc consortium of localities?

a.

Coerced localities contemplating legal action must budget for not just the

initial

proceedings in the trial court, but also for at least one level of appeal, which will almost

certainly be taken regardless of the outcome in the trial court.

Consequently, multiple coerced localities should consider forming anad hoc alliance in order to pool resources, including legal counsel. This is what the Missouri municipalities did in the Nixon v. Mrssouri Municipal League case in order to challenge Missouri's denial ofwhat they felt was their federal right to enter the telecommunications market. That case went to the U.S.
Supreme Court, so in the end the combined resources were necessary. [See Part I.]

While existing statewide associations like the Local Government Attorneys of Virginia might be one way to pool resources, any statewide association of localities would likely have a conflict if it represents both exporting localities and coerced localities; consequently, an ad hoc
association may be most desirable, or even legally necessary.

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g.

Appomattox County got slammed with legal fees in their anti-sludge fiasco in the USDC. We're willing to pay our own legal fees even if the declaratory iudgment suit fails, but we don't want to be payrng some sludge-farmers'lawyers. Will this plan prevent that?

a.

If properly drafted and pled, such a suit for DJ would virrually eliminate any threat of
sanctions, damages, or other awards of fees that plagued Appomattox. First of all, as noted in Part I, the USDC did not award any sanctions or legal fees against

Appomattox. That is a myth that some counties have used to convince themselves that they do
not want to assert their right to ban sludging. The court explicitly held that as a political subdivision, Appomattox could not be held liable for damages.
Second, the state cannot be awarded litigation costs on the basis of a suit that names only state officials acting in their official capacities as defendants.

Third, without private parties in the case there are no issues of damages, even if a locality
were not immune, All that is being asked of the court is to sort out the state-federal law conflict and to enjoin the state officials from interfering with the locality's rights under the LDS.
Because this is an issue between the locality and the state, it would not seem that the sludge

companies or other private parties could force their way into the suit. But even if they did, there would be no grounds for them seeking damages on the basis of a locality resolution to
pass an ordinance

that it has not passed in fact.

case, please refer

With respect to the Appomattox

to Part I, which explains the vital

difference between a county tryrng to regulate sludging, as Appomattox did, and a county

banning sludging. The Appomattox ordinance in suit, which was actually enforced against the
sludge farmers unlike the present plan, was so far out in left field that the USDC and the 4'h

Circuit Court ofAppeals both went ballistic. With respect to the present plan, a locality would
be seen by the court as tryrng to do everything it can to ascertain its rights prior to passing such
a ban, thus avoiding

unjustifiable harm to farmers.

With respect to the possibility of sludge companies or sludge-farmers forcing their way into
the DJ action against the state, it should be noted that in Bristol Judge Jones permitted a private trade group, The Virginia Telecommunications IndustryAssociation, to intervene as a party defendant in Bristol's suit against Virginia. I have not seen the motion seeking leave to intervene nor Judge Jones' order and so I cannot comment on how or whether Bristol effects the

rights of sludgers to iump into a declaratory judgement action between a locality and the state
over an LDS ordinance. However, in Brisfol the outcome determined whether the city was

going to be a player in a specific market, hence an argument could be made that the other
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players in that market should have an say in those proceedings. In the present situation, the

contest is not about whether the local government is going to compete in a market place; consequently, the outcome of the suit would not affect the level of competition in any market
place.

ro. What about coerced localities that are already getting sludged?

a.

Localities in which sludge permits have been allowed and in which sludging operations are already under way may well be legally distinct fiom localities in which sludging has never been carried out and no permits have been granted. Any sludged locality that pursues a DJ lawsuit as proposed here should carefully consider this issue.
As a first point to consider, any legal action that is taken by a locality or localities should be

preemptive rather than reactive. A locality is in a far stronger position if it files suit before any
sludgers have applied for a state permit to sludge the locality, as opposed to filing suit after an

application for a sludging permit has been filed or after sludging has begun.
Preemptive action is advisable because there are significant advantages to being the plaintiff,
such as being able to control the forum, the legal issues, and, to some extent, the costs.

Consequently, as noted above, the locality should not simply pass a banning ordinance and

then sit back and wait to be sued. As of the date of this paper, I am aware of no Virginia sludge
cases

in which sludge litigation was initiated by a locality - in other words, there are no cases in

which a locality has affirmatively asserted its federally mandated right to determine how sludge
is disposed of.

Of course, in many instances, Iocalities who want to ban sludging are already being sludged. In such cases, in order to keep the issues focused on the locality's rights under federal
law, the suit should not be seen as trylng to block any specific sludge operation or permit. No specific sludge operation, farmer, or sludge permit should even be mentioned in the complaint.

If a locality that is being sludged has not made a record of its objections to specific state
sludging permits within the locality's jurisdiction, it possibly waives its right to later challenge
those permits even if a federal court rules that localities have a federal right to ban sludging.

While there appears to be no case law on the issue, it might be surprising if a federal court would allow a locality - and by extension, all sludged localities - to ban the sludging on-going
operations for which a state sludging permit has previously been grantd, particularly for permits that have been issued without any objections from the county.

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The legal and practical problem here is that if all sludged localities were allowed to suddenly enjoin existing, permitted sludging operations, the exporting communities would suddenly be left with no means of disposal and no time to find alternatives. In such a scenario the "balance of the harms" would likely lie with the exporting communities. With respect to contracts between the sludgers and the sludge-farmers, there could also be issues of the locality

interfering with the sludging contract. However, one would hope that, should a federal court
agree that localities have a

right to ban sludging, any such waiver or any such contract issues

would not apply to blocking renewal of permits after the banning legislation was passed. This is
wide-open legal territory and nobody knows what would happen.

In summary, it seems to me that it is important that coerced localities make a public record
of their objections to being sludged, both in general and with respect to specific applications for sludging permits. Although I am aware of no case law on the issue, I have concerns as to

whether localities that do not formerly object to sludging permits may waive their rights to ban
sludging under the LDS. In this light, coerced localities may want to consider a standing policy of making a record of their objections pursuant to the LDS with respect to each and every

permit application in their respective localities. It may be advisable to pass a general resolution to this effect even if the locality does not wish to challenge the state in court.

u.

It is clear to everyone that sludge is making people sick and is potentially a health disaster. Should those issues be raised in the suit for declaratory iudgment?

a.

No. The pleaded facts should be simple and uncontested so that discovery, trials, and evidentiary proceedings are avoided or minimized. The pleaded facts would be, essentially: r) the locality has passed a resolution expressing its intent to ban land-application of sludge pursuant to 33 USC S r:+S(e) of the CWA; z) on the basis of Elontonv Amelic, Attorney
General's opinion zooz Va. AG 67,69, the locality has a justified expectation that the state

officials will interfere with the locality's federal right to determine how sludge is disposed of;
and 3) such interference

will deprive the citizens of the locality their right to federally mandated

local determination of how sludge is disposed ofwithin the locality's borders. Judging from the existing case law, it would be unwise and unnecessary for a locality to
argue initially that sludge is a heath

risk. Such an argument would divert the court's attention

away from the essential legal arguments. The only point the court needs to consider is that the

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LDS gives the locality the right and the obligation to determine how sludge is disposed of

irrespective of any considerations of safety issues. This is not to say that safety issues are not important, of course they are. And it is not to
say

that given enough resources a locality couldn't present compelling arguments that, for

instance, Iand application of sludge pollutes ground water, produces health threatening
aerosols, and puts people's lives at

risk. But the cost of making such arguments and supporting

them with expert testimony would be prohibitive, and so far such arguments have been to little avail in Virginia courts. More importantly, they are not central, or even germane, to the issue of the locality's rights to ban sludging under the LDS. The LDS does not say that the disposal of
sludge is a local determination only if sludge is toxic or dangerous. It says that control of the disposal of sludge is a local function

- period.

However, having said that, it should be noted that should the Commerce Clause of the U.S.

Constitution be raised as a defense [see below], the locality should be prepared to set forth
evidence, including documentary evidence and affidavits, to establish that the locality's

concerns regarding detrimental effects of sludging are not "illusory."

12. Is there a possible cause of action by private citizens of localities?

a.

This question is outside the scope of the present paper, but I at least want to briefly raise

this possibility as an alternative approach to the plan set out above.

The foregoing discussion is based on the interpretation of the LDS that the clause "[t]he

determination of the manner of disposal or use of sludge is a local determination" means that
the locality (and only the locality) has the right to determine whether or not sludge will be land-applied within the locality's borders. The obvious question is: Does this also mean that localities have an obligation under the LDS to make that determination? I do not see how the
clause could be read in one way by not in the other.

Assuming then for the sake of argument that the locality has an obligation under the LDS

to make a call - thumbs up or thumbs down - on whether sludge can be land applied, does the failure or the refusal of the locality to make that call give the citizens of the locality grounds for
suing the BoS? To generalize: If a federal law requires local governments to take some affirmative action for the benefit of or to protect its citizens, but the local government fails or refuses to take that

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action, can the citizens drag the local government into federal court to force the locality to take the mandated action? The reason for bringing this up is that it suggests an alternative way to get these issues
before a federal

court. I know for

a fact that there is at least one counry in Virginia that is

opposed to sludging, but its BoS is too frightened by the Appomattox situation to assert it's

rights under the LDS. I am sure many counties are in this dilemma. However, it might be
possible for private citizens within such counties to push their BoS to make a decision by

filing

their own DJ action in federal court naming their BoS as the defendant. The suit would,
essentially, ask the court to interpret the LDS and to rule on what rights and obligations the

locality has under the LDS to determine how sludge is disposed of. The end result would be
essentially the same as if the locality sued the state, but far more easily obtained. Of course,

if

the federal court were to rule that the BoS has the right and the obligation to make the disposal

determination, the BoS may decide to allow land-application. Consequently, the citizens would want to have a very good indication of where their BoS is on the issue belore initiating DJ

litigation.

D.

Soug COUNTER-ARGUMENTS AND

DEFENSES

THAT SHOULD

BE

ANTICIPATED

In this section I discuss some counter-arguments and defenses that might be raised should the plan
described above be put into effect. These arguments are based on arguments raised previous Virginia sludge
cases.

r.

Blantonv Amelia controls the issue of whether Virginia localities can ban sludging.
This argument is essentially that the Va. Supreme Court's decision in Amelia controls what counties can and cannot do with respect to regulating and banning sludging. Amelia was decided

entirely and exclusively on state law. The opinion held that Amelia County was prohibited by the

Dillon Rule from banning sludging because the state had sludge statutes and regulations in place.
There is absolutely no question thatAmelia would have to be dealt with head-on in any DJ

action of the type contemplated here. In fact, theAme/ia decision and the Va. Supreme Court's
enforcement of the Dillon Rule is one of the arguments as to why there is an actual controversy and,
hence, why the federal court would have jurisdiction to render the declaratory judgment. See above.

The response to theAmelia argument is straight forward. First, the Va. Supreme Court's law does not control federal courts, least of all on matterc of

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federal law, such as the LDS. At present, the controlling case law on this issue is Judge Michael's
1995

decisioninWelchv. Board of Supervisors discussed in Part I and, briefly, below.

Second, Amelia was decided entirely and exclusively on state

law.

Even ifAmelio was properly

decided on state law, and it almost certainly was, state law does not control federal law. In other words, the Virginia Dillon law does not have precedence over the federal LDS, and the reason for

that is the Supremacy Clause of the U.S. Constitution - Article VI, cl. z - which states that the Constitution and the laws of the U.S. are the supreme law of the land. Full stop.

When the LDS refers to "localities," that term includes states; therefore, in a Dillon state like Virginia, it is the state statutes and regulations that set forth the manner in which localities can dispose of sludge. One possible defense the state could have in response to the locality's LDS claim is that the
federal statute refers to a "local determination" and under the Dillion Rule the state is the only "local" agent that can make such a determination. If the term "local" is interpreted to include both localities and the state, then this would be quite a strong counter-argument. There could be little or no doubt that Congress intended "local determination" to mean a determination by a locality. The more nuanced question is whether or not "local determination" clso includes a determination by a

state. Certainly, the state would argue in the affirmative and the locality would have to assert, and win, the argument that what Congress meant to exclude the state. In my opinion, this counter-argument fails on the basis of what is called rules of statutory construction - these are the rules that judges and lawyers apply to figure out what a law is supposed to mean. One of those rules is that Congress says what it intends to say, so when it says "local"

it

means "local" as distinct from "state." If Congress had intended to include the state, it would have said "a local or state determination."

Another rule of statutory construction is that when Congress uses a term one way in a statute
intends that the term has the same meaning throughout the statute unless otherwise indicated.

it

Another, more relavant, way to express this rule is that when Congress uses two different terms in
the same act, those two terms are intended by Congress to refer to two separate things throughout the act.

According to the above rules of statutory construction, in order to resolve this question, one
needs to review the CWA to see whether "state" and "local" are used interchangeably to mean the
same thing, or whether they are used to express distinct meanings. If they are used to express

distinct meanings, then $r345(e), the LDS, would be interpreted

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as

applylng to localities only.

Part ll

Fortunately, you don't have to look too far, especially if you have a searchable digital copy of the CWA, to see that Congress clearly and consistently distinguished state from local throughout the

Act. Here are a few quick examples:

"Nothing in this sub-section shall affect the Administrator's authority under sections r3r7 and r3r9 of this title, affect State and local authority under sections ryZ (bX+) and r37o of
this title . . ." 33 USC gr34z(m).

"Not later than r8 months after October ro, 2ooo, after consultation and in cooperation with appropriate Federal, State, tribal, and local officials (including local health officials) . . ." 33 USC Srf+6(aXr)
"The Administrator may make grants to States and local governments . . ." 33 USC

Sry6(bXr).
Also see:33 USC Srr+6(bXz)(A); lr USC 9r346(bXz)(eXii); tr USC 5rs6(bXz)(AXiii); USC $r3a6(bXzXAXiv); rt USC Srr+6(bXz)(B); and,33 USC Srr+6(bXzXC).

Again and again in this chapter of the CWA, and in its subchapters, Congress has distinguished state

from local. There can be no doubt that Congress'intent in putting 5.1+l(e) in the CWA is to assure
localities that the power to determine how sludge will be disposed within their borders is theirs - a power exclusive of the state. And that makes sense, too, because it is absurd to think that some bureaucrats in Richmond should be making a determination as to whether the people of Campbell County are going to live with, smell, have their roads covered by, and have their health adversely affected by sewage imported from NewJersey. If the people of Campbell County want the New
Jersey sewage spread on the farmlands of their county

- or if they don't - that is clearly a decision for

the people of Campbell County to make.

J.

Part 5o3 preempts a localiqy's federal right to ban sludging.

lnWelchv. Rapahannock3 the sludgers argued that the federal sludge regulations - Part

5o3

preempts local ordinances and any perceived right localities have to ban sludging. This preemption argument was soundly shot down by USDC judge Harry Michael. In his ruling that Rappahannock County has the right to ban land-application of sludge, Judge Michael dispensed with the sludgers'

preemption argument this way:

Regulations generally do not preempt state and local laws absent an express statement by the it intends to do so. Such an express intention cannot be found in the EPA's regulations. Particularly considering the savings clauses found in both the Act, 33 U.S.C. S
agency that

Welchv. Bosrd. of Supervisors, 888 F.Supp. 753. (USDC WDVa,

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1995)

Part ll

B45k), and the EPA's regulations, 4o C.F.R.

Supervisors, 888 F.Supp. 7j3,758.

application of sewage sludge is insufficient to preempt the Ordinan

S 5o3.5(b), the EPA's preference for land ce. Welch v. Board

of

It would be a rather absurd proposition to assert,

as the sludgers have done,

that federal regulations (Part

5o3) preempt federal law (the LDS). However, the sludgers have tried this type argument in the past when

they were desperate and if they were to be allowed into the case they might try it again, presumably with the
same effect.

4.

The LDS gr"es cities like NewYork and Newark a federal right to make the determination that their sludge will be dumped in Virginia's counties. As bizarre as this argument looks at first glance, it is even more bizarre on second. And yet I
have actually heard a county attorney raise

it. Essentially,

what the argument says is that the "local

determination" phrase of the LDS means that because it's New York City's sludge, New York City
gets to make the "local determination" as to whether or not Bedford County, Va. has to accept the sludge and spread

it on Bedford County's land, and Bedford County

has no say in the

matter. In my

opinion such an argument is, on its face, so a priori whacko that most federal judges would likely
sanction any attorney who asserted it in court.

5.

An LDS ordinance banning the land-application of sludge imported from outside Virginia would be a violation of the Commerce Clause.
This argument was also raised in Rappahannock, and shot down by Magistrate Judge Crigler and
Judge

Michael. Judge Michael pointed out that

so long as the concerns of the county in banning

sludging were not illusory and because the sludgers could show no adverse effect on interstate commerce, per se, then the Commerce Clause was no obstacle to the county's ban.
Although the risks of the land application of sewage sludge may be disputed in the scientific community, there clearly is at least a rational basis for believing that the Ordinance [sludge ban] will protect the health and safety of those within the County. Given the County's rational belief that the land application of sewage sludge poses health and safety risks, it is beyond question that a complete ban furthers the purpose of protecting against those risks. Welchv. Board of Supen'isors, 888 F.Supp. 753,7jg.

$E. Sutvruenv
Given the limited options that coerced localities have to fight the flood of sludge they are deluged by, is clear that filing a suit for DJ against state actors in federal court is the only practical way, if not the only possible way, for a locality to assert its right to ban sludging without exposing itself to sanctions and

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damages. In closing let me briefly summarize the advantages of filing a DJ in federal court.

1.

As the

plaintiffthe locality

has greater control over the issues and can restrict the

litigation to

federal law and Supremacy Clause issues, and, likely, restrict the defendants to state omcials.

A DJ action taken against the state can virttrally eliminate any exposure to sanctions or damages.
The only costs to the locality would be its own legal costs, and these can be anticipated, even
appeals are required.

if

3.

The locality need not pass an ordinance in order to seek DJ. The fear many localities have is that just by passing an ordinance they may expose themselves to damages and sanctions. See comments on theAppomattox myth in Part

I.

One of the greatest advantages of a DJ action is that the locality

is seeking a ruling on its right to pass an ordinance before the ordinance is actually passed. In the
absence

ofan actual ordinance, there could be no allegations by the sludgers that they have been

damaged, and, hence, no grounds for seeking damages against the locality. This is the purpose any declaratory judgment shove.

of

- to eliminate a threat of a lawsuit for damages before push comes to

4.

The locality chooses whom to sue. By restricting the defendants to state actors, the locality further

minimizes any possibility of incurring sanctions or damages. Even if sludgers are able to force their
way into the suit as defendants, it would be virrually impossible for the sludgers to obtain sanctions or damages within a DJ suit. All the locality is asking for in a DJ suit is a ruling on the locality's rights under a federal law vis o vis state law. Because this is a contest between the state and the

locality over the effect of a federal law, it is likely the federal court would not allow the private actors

- sludge-haulers and sludge-farmers - to ioin the DJ suit as defendants.

As for the state actor

defendants, normally a state is not be permitted to seek sanctions against its own sub-division.

5'

If the DJ motion for judgment is properly drafted to address only legal/constitutional issues of

preemption and the Supremary Clause, then a ruling for the locality would apply to all localities

within the court's jurisdiction. That ruling would be seriously considered - and most likely applied

by the other federal courts in

Virginia. If the state were to appeal such a decision to the 4th Circuit

Court of Appeals and the decision was upheld, the decision would apply to the entire 4'h Circuit

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Maryland, North Carolina, South Carolina, and West Virginia, and including, of course, all Virginia localities.

6.

An injunction could be sought as a part of the DJ suit. The injunction would not ask the court to
ban land application of sludge, but, rather, would ask the court to enjoin the state Attorney General,

the DEQ, and the ChiefJustice of the Virginia Supreme Court from: (r) enfiorcing the

Amelisdecision against any ordinance the locality may pass banning land application, (z) allowing
any sludge permits in violation of any ordinance the locality may pass banning land application, and
(3) enforcing any state laws that would interfere with the locality's ban on land-application sludge.

of

The foregoing discussion is offered to raise a few practical factors to consider. Clearly, there are a

plethora of additional factors that would need to be taken into account by each locality, not the least of which are political factors. For instance, the foregoing plan may not be possible where a BoS is split as to banning land-application of sludge or where one BoS member is taking bribes from the sludgers as Detroit councilwoman Monica Conyers was taking bribes from Synagro's VP James R. Rosendall, Jr. It is not likely that one approach will fit all situations. It may be helpful to consult with Rappahannock County, which has already drafted and defended a successful anti-sludge ordinance. It might also be helpful to consult with the city of Bristol as to their successful experience in filing a federal declaratory iudgement action against the opinion in Bristol is very helpful as to what such a suit should look like, who the parties stare.
Judge Jones'

may be or may not be, and other litigation details'

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