Thanks to dedicated Watcher Helane Shields for her research on local sludge
control:

CONTENTS - RE:  LOCAL CONTROL
Page
1 - Federal Clean Water Act - “disposal or use of sludge is a LOCAL determination”

Title 33, Chapter 26, Subchapter IV, Sec. 1345 – Disposal or use of sewage sludge

(e) Manner of sludge disposal – 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.”

1-(a) (b)  FEDERAL REGISTER – PREAMBLE TO PART 503

FEDERAL REGISTER - VOLUME 58, No. 32 - Friday, February 19, 1993

PREAMBLE TO THE PART 503 SLUDGE RULES -- COMMENTS ON THE “LOCAL CONTROL” ISSUE:

Page 9251 - “Preserve a Local Community’s Choice of a Disposal Practice.

Although the Agency prefers local communities to use their sewage sludge for its beneficial
properties rather than simply disposing of it, EPA’s responsibility is to set standards for each
practice that are adequate to protect public health and the environment.

While the choice of a use or disposal practice is reserved to local communities by section 405(e)
of the CWA (Clean Water Act),  protection of public health and the environment, where risks are
significant, dictate stringent pollutant limits.”
-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Page 9261 - “Section 405(d)(5) also provides that nothing in the section is intended to waive more
stringent requirements in the CWA or any other law.   This means that States AND LOCAL
COMMUNITIES  remain free to impose more stringent requirements than those included in today’s
rule.

In addition, as described later in the preamble, where EPA has established requirements
applicable to sewage sludge under other statutes, compliance with regulations established under
those states also constitutes compliance with part 503.

Section 405(e) was further amended to read as follows:

The determination of the manner of disposal for 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.”
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Page 9262 - State Requirements - The information on existing State requirements summarized
below was gathered as part of EPA’s effort in developing guidance for writing sewage sludge
interim permits prior to promulgation of the part 503 standards.

Under section 510 of the CWA, States, political subdivisions of States and interstate agencies
retain the authority to adopt or enforce more stringent standards than those provided in today’s
part 503 regulations.”

(My note:   “Political subdivisions” of States include cities, towns, counties and townships.)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
Page 9263 - “In one State, the development and enforcement of controls on all methods of
sewage sludge use and disposal are delegated entirely to local agencies, as is issuance of
permits.     In other States, LOCAL AS WELL AS STATE CONTROLS  are imposed on the use and
disposal of sewage sludge.”
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - ---

Page 9325 - “Although EPA encourages the beneficial use of sewage sludge (e.g. through land
application), the selection of a sewage sludge use or disposal practice, whether land application
or some other use or disposal practice, IS A LOCAL DETERMINATION (e.g. the responsibility of the
municipality or authority responsible for the use or disposal of sewage sludge).

2 - 40 CFR Part 503 (federal sludge rules) Sec. 503.5(b) a political subdivision of a state              
may impose requirements for use or disposal of sewage sludge more stringent than part        503
rule.  
  (“political subdivisions” of a state include cities, towns, counties, townships, etc.)

40 CFR Part 503.6  “(b)  Selection of a use or disposal practice.   This part does not require athe
selection of a sewage sludge use or disposal practice.   The determination of the manner in which
sewage sludge is used or disposed is a local determination.”

2(a) – 40CFR Part 501 -- State sludge management program regulations = local law can be more
stringent

(i) Nothing in this part precludes a State or political subdivision
thereof, or interstate agency, from adopting or enforcing requirements
established by State or local law that are more stringent or more
extensive than those required in this part or in any other federal
statute or regulation.


3 - A PLAIN ENGLISH GUIDE TO THE EPA PART 503 BIOSOLIDS RULE:
http://www.epa.gov/owm/mtb/biosolids/503pe/    :

4  - Page 2 - LOCAL REGULATIONS may be more stringent than the Federal part 503              rule.

5 -   Page 12 - Exclusions from Part 503 - Part 503 does NOT include requirements for the
selection of a biosolids use or disposal practice.  The determination of the biosolids use          or
disposal practice is a LOCAL DECISION.

6 -   Page 23 - EPA says “if allowed under state law, municipalities also may regulate the              
use and disposal of biosolids within their borders.”

[I disagree with EPA’s implication that  states may preempt local authority - “if                     
allowed” -  The Clean Water Act does NOT make “local determination” conditional             upon
permission from the State  . . . nor does it make “local determination” subject to  approval,
usurpation, preemption or recision by the State.}

7 -  EPA sludge office tells EPA Office of Inspector General investigation of health impacts         
from sludge is NOT an EPA responsibility, but the responsibility of NIOSH, CDC AND        LOCAL
HEALTH DEPARTMENTS.

EPA sludge office tells EPA Office of Inspector General to revise their report to include        the
following statement:

“The Agency does support beneficial reuse of biosolids, but IT IS THE                                     
RESPONSIBILITY OF LOCAL GOVERNMENT TO MAKE LOCAL DECISIONS           REGARDING USE AND
DISPOSAL OPTIONS . . . “

8 -  Nov. 2001 - EPA sludge office tells Wisconsin Sludge/Biosolids Coordinator “ . . . it is the
responsibility of LOCAL GOVERNMENT to make LOCAL DECISIONS regarding            use and
disposal options (of sewage sludge) that are consistent with the Part 503 rule.”

[Part 503.5(b) of federal sludge  rule provides that cities, towns, counties and townships          may
impose requirements for use or disposal of sewage sludge more stringent than                part 503
rule.)

9 - Federal Register - Preamble to Part 503 Sludge Rule --LOCAL COMMUNITIES  
“REMAIN FREE TO IMPOSE MORE STRINGENT REQUIREMENTS”                           

10- June  26, 2002 - Robert Bastian of US EPA agrees “IT WAS ALSO CLEARLY
STATED THAT . . . LOCAL COMMUNITIES REMAIN FREE TO IMPOSE MORE         
STRINGENT REQUIREMENTS . . . “                      

11 - National Research Council - “Biosolids Applied to Land:  Advancing Standards and
Practices” - July 2, 2002 - Page 18 - Reiteration of 1996 NRC Recommendations:
“ . . .  local units of government (should) have the necessary REGULATORY
AUTHORITY to take corrective actions  against parties who have violated rules
and guidance.”

12 – Nov. 2003 – EPA to Greg Kester, State sludge/biosolids Coordinator – “Biosolids       
management option used remains a matter of LOCAL GOVERNMENT CHOICE.”

13 – Solano County, California – January 22,  2003 – “The Reporter.com”  -- EPA Regulator Alan
Rubin says counties   have power to control sludge spreading

14 – OFFICE OF EPA INSPECTOR GENERAL   http://biosolids.policy.net/relatives/23201.pdf
 March 28, 2002 - pg. 6 – “support State and local decision-making”

15 – Dr. Rufus Chaney, USDA, sludge proponent –  July 4, 2002:  enforcement rests with LOCAL
governments       – not US EPA


16 – Water Environment Federation October 29, 2003,  letter to CBS News says “The regulations
allow each LOCAL COMMUNITY  to  make its own choices about management of biosolids “   
 
17 –  July 10,  2003 – G. Tracy Mehan, EPA Ass’t Administrator – letter  to Virginia Senator John
Warner – “The decision of which use or disposal practice to use is a local decision.   Once that
local decision is made, the biosolids must be managed to comply with EPA regulations.”

18 – 19  New York Times – Jan. 3, 2004:   – EPA won’t say sludge is “safe” – supports local control
– acknowledges need for more scientific research and no longer promotes land application over
other disposal methods   “"We are not promoting one approach over another," Ben Grumbles,
the acting assistant administrator of the agency's office of water, said of the various choices. "We
are promoting local choice. We believe the current sewage sludge regulations are adequately
protective of human health in the environment."

Pages 20 – 22     July – Oct. 2004 – EPA reaffirms to state sludge biosolids coordinators that it
supports local control and no longer promotes land application over other disposal methods
such as incineration or landfilling – see item (I) below  . . .

Page 23 - Sept. 30, 2004 – Email:   Dr. Alan Rubin, self described author of federal 40CFR Part 503
sludge rules reaffirms that localities are free to impose more stringent requirements over sludge
biosolids  - see item (II) below . . . .

Page 24 - – Nov. 2004 – NH Supreme Court says federal Clean Water Act permits localities to
regulate and ban land application of Class B sewage sludge – see item (III) below . . .

Page 25 - 27 California Court of Appeals rules that Congress authorized local sewage sludge
ordinances

Pages 28 -31     - REVERSE PREEMPTION – SINCE THE CONGRESS AND  FEDERAL LAW CLEARLY
SAY SLUDGE USE OR DISPOSAL IS A LOCAL OPTION, federal law trumps state law and preempts
ANY state law which attempts to prevent  communities  from enacting local ordinances when
facing the issue of being forced to serve as disposal sites for toxic/pathogenic sewage sludge
from urban and industrial sources.                        

Item (I)   
Here is the link to the National Biosolids Partnership web site, along with 4 recent letters . . . two
from Wisconsin sludge biosolids officials to US EPA and two replies from US EPA.   

http://www.biosolids.org/news.asp?id=1786
WI State Biosolids Coordinator Greg Kester 7-30-04 Letter to EPA OWM Director James Hanlon
WI DNR Secretary Scott Hassett 9-13-04 Letter to EPA Administrator Michael Leavitt
EPA OWM Director James Hanlon 9-20-04 Letter to Greg Kester
EPA Acting Assistant Administrator for Water Ben Grumbles 10-7-04 Letter to Scott Hassett

7/30/04 letter from Greg Kester, Wisconsin DNR to Jim Hanlon, US EPA –

"The policy shift that occurred at EPA in early 2000, was significant and very disconcerting to the
implementers of the regulations in the field."  (Kester  is referring to the EPA position of
"neutrality" on the use or disposal of biosolids that was adopted at US EPA internally in early 2000
when EPA discontinued promoting land spreading of sewage sludge over landfilling or
incineration.)

Kester goes on to say:  "It appears that upper management in EPA believes that no preferred
disposition alternative should be stated and is reluctant to defend its own regulations."

Kester concludes:  "  . . . as regulators believe that the Agency has officially shifted from a
confirmed position of promoting beneficial use as a sustainable environmental solution to one of
neutrality, we appeal to you to reverse that position back to promoting beneficial use.   This does
not mean that EPA or a State would mandate decisions at the local level.”


9/13/04 letter from Scott Hassett, Wisconsin to Michael Leavitt, EPA administrator:

"We are also requesting that you reissue an official statement that beneficial use of biosolids
through land application or public distribution is preferable as a sustainable environmental
solution, all other things being equal, to disposal in a landfill or incinerator combustion."

"We should be clear that we are not asking that any regulatory agency interfere with local
decisions , but that a general preference be articulated as preferred policy."


Letter 9/20/04 from EPA to Greg Kester, Wisconsin

"In the letter, you stated your concern and opinion that the Environmental Protection Agency
(EPA) should abandon a position of neutrality on the methods for biosolids use or disposal."

"EPA supports the reuse of wastewater and the beneficial reuse of biosolids as viable options
available to communities, but firmly believes that any decisions regarding those choices are local
decisions subject to meeting State regulations in addition to Federal regulations."

"The NRC report issued in July 2002 concluded that, although there is no documented scientific
evidence that the 503 regulations have failed to protect public health, further scientific work is
needed to reduce persistent uncertainty about the potential for adverse human health effects
from exposure to biosolids."


Letter dated October 7, 2004, EPA Benjamin Grumbles to Scott Hassett, Wis DNR:

"The Part 503 regulations outline the use and disposal practices that publicly owned treatment
works may select in their management of biosolids:  land application - land filling or surface
disposal - and incineration.    Based on the technical and scientific record, and as explained in
the response to Greg Kester's letter, EPA believes that the 40 CFR Part 503 regulations are
protective of public health and the environment."

[Please note Mr. Grumbles is referring to ALL THREE 40 CFR Part 503 disposal options:  (1) Land
application – (2) landfilling or surface disposal; and/or (3)  Incineration. ]

"As to the request that EPA should issue a statement favoring the beneficial reuse of biosolids
over other uses, we do not believe that EPA should be involved in determining the biosolids
management options most suitable for a particular community."    "Just as EPA does not require
or expressly recommend that communities treat their wastewater to reuse standards and reuse it,
or require particular technologies of municipal or industrial permittees to meet the National
Pollutant Discharge Elimination System permit limits, we do not require or expressly recommend
that communities choose beneficial reuse of biosolids."

"EPA supports the reuse of wastewater and the beneficial reuse of biosolids as viable options
available to communities, but firmly believes that any decisions regarding those choices are local
decisions subject to meeting State regulations in addition to Federal regulations."

Here are some points that should be made to state regulators -- particularly those in states such
as Maine, Florida, Pennsylvania and Virginia where the  waste industry has sued localities and
encourages officials to preempt unwilling communities and bully them  into being disposal sites
for toxic/pathogenic sludge from urban and industrial sources:

The US EPA has very specifically stated its “neutrality” and does NOT favor land spreading of
sewage sludge biosolids over other disposal options such as surface disposal, land filling and/or
incineration.

The US EPA supports the right of LOCAL communities to make decisions as to the use or disposal
of sewage sludge biosolids within their boundaries.

(3)  The US EPA is finally acknowledging the National Research Council findings in 2002  which say
there is persistent uncertainty about potential for adverse health effects from sludge spreading
and a great deal more scientific research is needed before sludge can be pronounced “safe”.     
This is in stark contrast to claims by the waste industry and some state officials that studies "
prove" land spreading of sewage sludge biosolids poses no risks to human health and the
environment.


EPA REAFFIRMS TO STATE SLUDGE COORDINATORS THAT IT SUPPORTS LOCAL CONTROL AND NO
LONGER PROMOTES LAND APPLICATION OVER OTHER SLUDGE DISPOSAL METHODS

item (II):

----- Original Message -----
From: <Rubin.Alan@epamail.epa.gov>
To: "US Composting Council Compost Discussion List" <compost@compostingcouncil.org>
Sent: Thursday, September 30, 2004 3:43 PM
Subject: RE: [USCC] Suggestion on Modifying Part 503 Standards toAccomodateComposts

Frank:
Composters and State/Local regulatory authorities are free to impose
more stringent requirements on biosolids, biosolids processing/treatment
such as composting, and finished biosolids composts.  Less stringent
measures are considered not to be in compliance with the part 503
Standards and is not allowed.

As I said before, any amendments to the part 503 Standards must be done
by EPA in Notice and comment rulemaking.

Cheers

Alan B. Rubin, Ph.D., Senior Scientist
Biosolids Team
Office of Science and Technology
U.S. Environmental Protection Agency
Washington, DC 20460
Ph: 202-566-1125
Fax: 202-566-1139
http://epa.gov/waterscience/

DR. ALAN RUBIN, SELF-DESCRIBED AUTHOR OF THE US EPA 40 CFR PART 503 SLUDGE
REGULATIONS SAYS LOCAL AUTHORITIES ARE FREE TO IMPOSE MORE STRINGENT
REQUIREMENTS ON SLUDGE BIOSOLIDS


item (III)
******************************************************************************************
NH Court Rules Against Dumping of Most Infectious Sludge

NEW HAMPSHIRE SUPREME COURT - CITING FEDERAL CLEAN WATER ACT - NO PREEMPTION -
UPHOLDS LOCAL CONTROL OVER SLUDGE SPREADING - TOWN CAN BAN CLASS B       12/3/2004

This is a very important court ruling as it specifically cites the federal Clean Water Act as
authorizing local control over land spreading of sewage sludge biosolids :
"Under the federal Clean Water Act, the Environmental Protection Agency has the authority to
approve state sludge management programs. 33 U.S.C. § 1345 (2000); 40 C.F.R. § 501.1(b). States
must meet the minimum requirements set forth under the federal regulations to gain approval. 40
C.F.R. § 501.1(c). The regulations provide that:
Nothing in this part precludes a State or political subdivision thereof . . . from adopting or
enforcing requirements established by State or local law that are more stringent or more
extensive than those required in this part or in any other federal statute or regulation."
http://www.courts.state.nh.us/supreme/opinions/2004/thaye134.htm
http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Belknap
No. 2003-421
Nathaniel S. Thayer
v.
Town of Tilton
Argued: May 19, 2004
Opinion Issued: November 30, 2004




TO READ THE 104 PAGE DECISION:  http://www.courtinfo.ca.gov/cgi-bin/opinions.cgi

Date Posted        Docket #/
File Format        Description            
Apr 01 2005        F043095
[PDF] [DOC]        Co. Sanitation Dist. v. CA Assn. of Sanitation Agencies 4/1/05 CA5           
-------------------------------------------------------------------------------------------------------------------------


COUNTY SANITATION DISTRICT NO. 2 OF LOS ANGELES COUNTY et al.,

Plaintiffs, Cross-defendants and Appellants,

CALIFORNIA ASSOCIATION OF SANITATION AGENCIES et al.,

Plaintiffs and Appellants,

         v.

COUNTY OF KERN,

Defendant, Cross-complainant and Appellant;

KERN COUNTY BOARD OF SUPERVISORS,

Defendant and Appellant;

ARVIN-EDISON WATER STORAGE DISTRICT et al.,

Interveners and Respondents.
    
F043095

(Super. Ct. No. 189564)








OPINION         


PAGE 67
 Congress Authorized Local Sewage Sludge Ordinances
 Congress has not been silent on the issue of local regulation of the land application of sewage
sludge.  Specifically, the Clean Water Act authorizes some degree of local control over the use
and disposal of sewage sludge so long as federal regulatory standards are met:
“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.”  (33 U.S.C.A. § 1345(e).)
 The regulations of the EPA reiterate this aspect of local control:

“Nothing in this part precludes a State or political subdivision thereof … from imposing
requirements for the use or disposal of sewage sludge more stringent than the requirements in
this part or from imposing additional requirements for the use or disposal of sewage sludge.”  (40
C.F.R. § 503.5(b) (2005).)

“Where state or local government action is specifically authorized by Congress, it is not subject
to the Commerce Clause even if it interferes with interstate commerce.  Southern Pacific Co. v.
Arizona, 325 U.S. 761, 769 … (1945).”  (Ibid.)  As the United States Supreme Court has noted,
however, “for a state regulation to be removed from the reach of the dormant Commerce Clause,
congressional intent must be unmistakably clear.”  (South-Central Timber Dev. v. Wunnicke (1984)
467 U.S. 82, 91.)

Page 68 - It is unmistakably clear that Congress intended “the manner of disposal or use of
sludge [to be] a local determination” so long as minimum federal standards were met.  (33 U.S.C.A.
§ 1345(e).)  It is equally clear that the restriction in Ordinance G‑6638—that only sewage sludge
meeting the heightened treatment standards can be applied to land in Kern County—reflects a
local determination of the manner of disposal or use of sewage sludge.(73)  Thus, the heightened
treatment standards are the type of local regulation expressly authorized by the Clean Water Act.  
(Cf. Welch, supra, 888 F.Supp. at p. 760 [ordinance banning the land application of sewage sludge
permissible under Clean Water Act].)  Because Congress authorized a local ban on the land
application of sewage sludge (Welch, supra, at pp. 757-758), one can strongly infer that Congress
also authorized local governments to impose a lesser burden on commerce such as the
heightened treatment standards in provision 8.05.040(A) of Ordinance G‑6638.  (See Posadas de
Puerto Rico Assoc. v. Tourism Co. (1986) 478 U.S. 328, 345-346 [the greater power to ban an
activity necessarily includes the lesser power to impose conditions on the activity].)

[73]Plaintiffs argue the statutory phrase “local determination” refers only to the decisions made
by a wastewater treatment agency and excludes ordinances adopted by land use agencies such
as County.  We reject this statutory construction because, among other things, it cannot be
reconciled with the EPA’s regulation concerning local imposition of requirements for the use or
disposal of sewage sludge.  (See 40 C.F.R. § 503.5(b) (2005).)
Page 70:    In this context, discrimination means “differential treatment of in-state and out-of-state
economic interests that benefits the former and burdens the latter.”  (Ibid.)
 Ordinance G‑6638 does not on its face discriminate against interstate commerce, because its
provisions apply to the land application of all sewage sludge regardless of its geographical
origin.  (See Goldfarb, Sewage Sludge, supra, 26 B.C. Envtl. Aff. L.Rev. at p. 722 [“local ordinance
upheld in Welch banned all land application of sewage sludge, not just sewage sludge generated
out-of-state”].)  

Page 71:  Therefore, the correct comparison is between the impact of the ordinance on sewage
sludge generated outside the jurisdictional authority of County and the impact on sewage sludge
generated within that area.  

Page 73:  .  Because Congress has specifically and unmistakably authorized nondiscriminatory
local ordinances like Ordinance G‑6638, our analysis of the dormant commerce clause need not
consider “whether the ordinance imposes a burden on interstate commerce that is ‘clearly
excessive in relation to the putative local benefits,’ Pike v. Bruce Church, Inc., 397 U.S. 137, 142
… (1970).”  (C & A Carbone, Inc. v. Clarkstown, supra, 511 U.S. at p. 390.)  Application of the Pike
test is inappropriate in this case because the enactment of the Clean Water Act reflects a
determination by Congress that local regulation is appropriate, which necessarily implies that
localities have a legitimate purpose in regulating the use and disposal of sewage sludge within
their jurisdictional boundaries and that the local benefits from such a regulation outweigh any
nondiscriminatory burdens on interstate commerce that might result.


Page 74 – April 30, 2007 – US Supreme Court
http://www.supremecourtus.gov/opinions/06pdf/05-1345.pdf

United Haulers Association v. Oneida-Herkimer Solid Waste
Management Authority

CHIEF JUSTICE ROBERTS delivered the opinion of the
Court, except as to Part II–D.

e-page 3

"It is not the office of the Commerce Clause to control the voters’ decision in this regard.  The
Court is particularly hesitant to interfere here because waste disposal is typically and traditionally
a function of local government exercising its police power. Nothing in the Commerce Clause
vests the responsibility vests the responsibility for such a policy judgment with the Federal
Judiciary. "

e-page 15

“We should be particularly hesitant to interfere with the
Counties’ efforts under the guise of the Commerce Clause
because “[w]aste disposal is both typically and traditionally
a local government function.” 261 F. 3d, at 264 (case
below) (Calabresi, J., concurring); see USA Recycling, Inc.
v. Town of Babylon, 66 F. 3d 1272, 1275 (CA2 1995) (“For
ninety years, it has been settled law that garbage collection
and disposal is a core function of local government in
the United States”); M. Melosi, Garbage in the Cities:
Refuse, Reform, and the Environment, 1880–1980, pp.
153–155 (1981). Congress itself has recognized local government
’s vital role in waste management, making clear
that “collection and disposal of solid wastes should continue
to be primarily the function of State, regional, and
local agencies.” Resource Conservation and Recovery Act
of 1976, 90 Stat. 2797, 42 U. S. C. §6901(a)(4).  “

e-page 18

The Counties’ ordinances are exercises of the police
power in an effort to address waste disposal, a typical and
traditional concern of local government.



http://www.law.cornell.edu/uscode/search/display.html?
terms=sludge&url=/uscode/html/uscode42/usc_sec_42_00006903----000-.html

Federal law – the US Code – Resource Recovery & Conservation Act (RCRA) defines sewage
sludge as a “solid waste” :


US CODE: TITLE 42,6903. DEFINITIONS
TITLE 42 - THE PUBLIC HEALTH AND WELFARE/CHAPTER 82 - SOLID WASTE DISPOSAL/SUBCHAPTER
I - GENERAL PROVISIONS                   
§ 6903. Definitions
As used in this chapter:                 


(26A) The term “sludge” means any solid, semisolid or liquid waste generated from a municipal,
commercial, or industrial wastewater treatment plant, water supply treatment plant, or air
pollution control facility or any other such waste having similar characteristics and effects.

(27) The term “solid waste” means any garbage, refuse, sludge from a waste treatment plant,
water supply treatment plant, or air pollution control facility and other discarded material,
including solid, liquid, semisolid, or contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations, and from community activities . . .

****************************************************************





Pages 28 -31     - REVERSE PREEMPTION – SINCE THE CONGRESS AND  FEDERAL LAW CLEARLY
SAY SLUDGE USE OR DISPOSAL IS A LOCAL OPTION, federal law trumps state law and preempts
ANY state law which attempts to prevent  communities  from enacting local ordinances when
facing the issue of being forced to serve as disposal sites for toxic/pathogenic sewage sludge
from urban and industrial sources.                        




Sent: Wednesday, January 05, 2005 4:53 PM
Subject: SUPREMACY CLAUSE FEDERAL LAW TRUMPS STATE LAW - SEARCH TERM:   FEDERAL
LAWS  SUPREMACY CLAUSE  STATE LAWS


http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/preemption.htm

http://www.lectlaw.com/def2/s105.htm

http://www.carreonandassociates.com/articles/supremacy-law.htm


According to LectLaw, Under the Supremacy Clause, everyone must follow federal law in the face
of conflicting state law. It has long been established that "a state statute is void to the extent that
it actually conflicts with a valid federal statute" and that a conflict will be found either where
compliance with both federal and state law is impossible or where the state law stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
Edgar v. Mite Corp., 457 U.S. 624, 631 (1982). Similarly, we have held that "otherwise valid state
laws or court orders cannot stand in the way of a federal court's remedial scheme if the action is
essential to enforce the scheme."

Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). This
is critical because "a federal district court's exercise of discretion to enjoin state political bodies
raises serious questions regarding the legitimacy of its authority." If Congress expressly
provides for exclusive federal dominion or if it expressly provides for concurrent federal-state
jurisdiction, the task of the Court is simplified, though, of course, there may still be doubtful areas
in which interpretation will be necessary.

http://www.thebestlinks.com/Preemption_of_state_and_local_laws_in_the_United_States.html

Preemption of state and local laws in the United States
From TheBestLinks.com
In the United States federal statutes can limit the state's powers by invalidating conflicting state
and local laws. One way that this can be achieved is by Congress passing a law, preempting state
or local law. State powers can also be limited by the Supremacy Clause.
Article VI, section 2 of the United States Constitution states: 'This Constitution, and the Laws of
the United States which shall be made in Pursuance there of: and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the supreme Law of the Land; and
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary not withstanding.' This clause is commonly referred to as the 'Supremacy Clause.'
The Supremacy Clause says that federal law is the 'Supreme Law of the Land.' This means that if a
state or local law is in conflict with a federal statute, the federal statute will preempt the state or
local law.
Two situations where preemption claims might arise: express preemption and implied preemption.
Express preemption occurs where Congress says within the statute 'we hereby preempt.' Here,
federal laws are explicitly precluding state and local regulations.
Implied preemption has, within itself, three sub-categories: conflicts preemption, preemption
because state law impedes the achievement of a federal objective, and preemption because
federal law occupies the field.
Conflicts preemption is where it is impossible to comply with both the federal statute and the
state or local law. In this situation, the federal statute must be followed. It is, however,
appropriate to have two laws, one federal and one state, that differ. The federal law, in this case,
may be a minimum standard, while the state enacts a law to be more strict. State law, therefore,
would not be preempted. Preemption would only occur if the federal and state laws were mutually
exclusive.
The second type of implied preemption is preemption because state law impedes the
achievement of a federal objective. This type of preemption occurs when a state or local law
interferes with a goal or objective Congress was trying to attain with a federal statute. The
purpose of each law must be determined and compared to each other. If both laws are trying to
achieve the same goal, federal law will preempt the state or local regulation.
The final type of implied preemption is preemption because federal law occupies the field. In this
situation, one must look at Congress's intent, and whether the federal law was meant to be
exclusive in that area. The most common examples are in areas of foreign policy and immigration.

http://en.wikipedia.org/wiki/Preemption_(law)
Preemption (law)
From Wikipedia, the free encyclopedia
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This article is about the power of federal law in the United States
In the legal system of the United States, preemption generally refers to the displacing effect that
federal law will have on a conflicting or inconsistent state law. The Supremacy Clause (Article VI,
section 2) of the United States Constitution states that the Constitution and other federal laws are
the "supreme Law of the Land". Thus, when there is a conflict between a state law and federal
law, the federal law trumps--or "preempts"--the state law. The term is also sometimes used to
refer to the displacing effect state laws might have on ordinances enacted by municipalities.

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http://www.steefel.com/clients/news/detail.aspx?id=064da945-eb9d-4439-b5b9-05fded467e3e
March 2, 2005
Federal Law Trumps State For Arbitrators

A Panel Sides With Stock Exchanges Over Ethics Rules

By Donna Domino

THE DAILY JOURNAL - Two national stock exchanges scored a significant victory Tuesday in their
fight against California's strict new ethics rules for arbitrators after a federal appeals panel found
the rules are pre-empted by federal laws.

The unanimous ruling by a panel of the 9th U.S. Circuit Court of Appeals upheld a decision by U.S.
District Judge Saundra B. Armstrong of Oakland regarding the pre-emption issue. While the 9th
Circuit's ruling derailed the ethics rules in securities cases, the rules remain intact for other
kinds of disputes. Credit Suisse First Boston Corp. v. Grunwald, 03-15695.
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http://www.law.com/jsp/article.jsp?id=1147856730768
2nd Circuit: Federal Statute Trumps State on Peer Review Records
Mark Hamblett
New York Law Journal
May 18, 2006
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A federal statute requires the release of a medical facility's peer review records despite state law
shielding their confidentiality, the 2nd U.S. Circuit Court of Appeals has ruled.
Clearing the way for the release of peer review records sought for investigations into the deaths
of two mentally ill patients at state-administered hospitals, the circuit said the plain language of
the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. §§10801-10851,
trumps state law.
http://www.graydon.com/index.cfm/fuseaction/news_events.newsletter_detail/object_id/b919ddfb-
3a3c-42ea-ae4a-8a1d08ad976f
E-Commerce News
Downloader Pays $750 Per Song; Federal Law Trumps Minnesota Wireless Statute
January 31, 2006
FEDERAL LAW TRUMPS MINNESOTA WIRELESS STATUTE
A state law designed to protect consumers from changes in wireless contracts is preempted by
the 1934 Federal Communications Act (ironic considering that in 1934 no one could have even
imagined the concept of "wireless"), according to a federal appellate court sitting in Minnesota.  
The court determined that the state law was preempted because it had a direct impact on the
rates that providers may charge subscribers.
Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state
law. It has long been established that "a state statute is void to the extent that it actually conflicts
with a valid federal statute".    Federal law clearly gives localities the right to regulate the use or
disposal of sewage sludge in their communities.  By what authority do states enact laws which
usurp and preempt the ‘local control’ rights granted by Congress to local communities?