ELR Citation: ELR 20467
No(s). 94-0002-C (W.D. Va. Jul 18, 1994)

The magistrate judge holds that the Federal Water Pollution Control Act (FWPCA) does not preempt an amendment to a county ordinance that prohibits the application of sewage sludge on agricultural lands. The magistrate judge first holds that the FWPCA does not expressly preempt the amendment. FWPCA §§405(e) and 510 grant to states or localities the authority to make determinations concerning the manner of disposal or use of sludge and the right to pass substantive standards and limitations regarding the discharge, control, or abatement of pollution, so long as the standards are no less stringent than federal law. Turning to plaintiffs' argument that the amendment conflicts with a national policy regarding the use and disposal of sludge, the magistrate judge notes that the U.S. Environmental Protection Agency's (EPA's) regulations adopted Congress' intent to permit states and localities to regulate the manner of sludge disposal or use. Although EPA expressed a preference for utilizing sludge instead of disposing of it, the Agency also recognized that all states and localities will not follow the preference because the choice of disposal or use practices is reserved to local communities. The magistrate judge holds that the county's choice to prohibit one form of sludge disposal or use but not all forms was a proper exercise of its authority under federal law and does not conflict with the policy of the FWPCA as effectuated by the regulations.

Counsel for Plaintiff
Suzanne M. Perka, J. Randall Minchew
Hazel & Thomas
107 N. Kent St., 4th Fl., P.O. Box 2740, Winchester VA 22601
(703) 665-0050

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