The MuNews

HANDS OFF THAT SLUDGE

The Commonwealth Court has issued its decision on the preliminary objections filed by East Brunswick Township to the Attorney General’s lawsuit under ACRE that East Brunswick’s sludge ordinance is preempted by state statutes regulating sludge.  Commonwealth of Pennsylvania, Office of Attorney General, v. East Brunswick Township, 476 M.D. 2007 (filed August 21, 2009).

            For purposes of deciding the Township’s preliminary objections, the court had to assume that the application of sludge is a “normal farming operation,”  bringing the ordinance under ACRE and the jurisdiction of the Attorney General.  While the Court has not yet decided on the merits whether the application of sludge is a “normal farming operation,” it would appear from the tone of the Court’s opinion that proving this is a hurdle that the Attorney General will be able to clear easily. 

            The Commonwealth Court in its opinion sent a clear message that local governments cannot regulate how, when and where sludge may be used to fertilize farmland.  The East Brunswick Township ordinance established fee, bond, chemical testing, notice and signage requirements that must be satisfied in order to apply sludge to land in the township.  The Commonwealth Court found that the Township did not have the authority to adopt many, if not all, of the ordinance provisions by reason of the Solid Waste Management Act (SWMA).  A local government cannot duplicate the regulatory regime established in the SWMA, and cannot impose more stringent requirements than the SWMA.

            It remains to be seen whether East Brunswick Township will continue the fight with the Attorney General over its sludge ordinance.