Environmental Law--local regulation of biosolids applications--preemption by state law
Granville County's biosolid application ordinance was preempted by state statutes and
regulations and summary judgment was granted correctly for plaintiff biosolids application
company. The state regulation is comprehensive and leaves no room for further local regulation.
N.C.G.S. § 143-211(c).
Parker, Poe, Adams & Bernstein, LLP, by John J. Butler, for
plaintiff-appellee.
Hopper & Hicks, LLP, by William L. Hopper and James C. Wrenn,
Jr., for defendant-appellant.
North Carolina Association of County Commissioners, by General
Counsel James B. Blackburn, III, amicus curiae.
STEELMAN, Judge.
Defendant, Granville County (County), appeals the trial
court's entry of summary judgment in favor of plaintiff, Granville
Farms, Inc. For the reasons discussed herein, we affirm the trial
court.
Plaintiff, Granville Farms, is a farming and biosolids
application company located in Granville County, North Carolina.
It applies biosolids to land. Biosolids, also known as residuals,
consist of the sludge generated from the treatment of domestic
sewage in wastewater treatment plants. The predominant use ofbiosolids is land application to farms for fertilizer. At the time
plaintiff instituted this lawsuit, it was applying biosolids to
lands in Granville County including, but not limited to its own
lands, pursuant to a permit issued by the North Carolina Department
of Environment and Health (DENR). On 6 October 2003, the County
adopted the Granville County Sludge and Septage Ordinance
(ordinance). This ordinance imposed an additional layer of
regulation, which required those in the business of land
application of residuals to: (1) obtain a permit from the county in
addition to the state permit; (2) pay substantial permitting fees;
(3) record a warning in the chain of title of the property that
biosolids had been applied to the land; (4) keep more extensive
records than required by state regulations; and (5) provide
additional and more detailed notice of the application of biosolids
to local authorities. On 7 November 2003, plaintiff filed this
action seeking to have the ordinance declared unlawful. Although
the complaint contained eight separate claims for relief, plaintiff
moved for summary judgment only as to its first claim , which
alleged the ordinance was preempted by the existing scheme of
comprehensive regulation by the State of North Carolina. The
County also filed a motion for summary judgment relating only to
plaintiff's first claim. The trial court granted plaintiff's
motion for summary judgment, declaring the ordinance invalid and
enjoining the County from enforcing it against plaintiff.
Granville County appeals. Summary judgment is proper when the pleadings, considered
together with depositions, answers to interrogatories, admissions
on file, and supporting affidavits show there to be no genuine
issue regarding any material fact and that a party is entitled to
judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2004). The trial court may grant a party's motion for summary
judgment in cases requiring the interpretation of ordinances and
statutes. See Craig v. County of Chatham, 356 N.C. 40, 565 S.E.2d
172 (2002). As with all matters involving the granting or denial
of summary judgment, an appellate court reviews the trial court's
decision de novo, with the evidence to be viewed in the light most
favorable to the non-movant. Stafford v. County of Bladen, 163
N.C. App. 149, 151, 592 S.E.2d 711, 713 (2004).
The sole issue before this Court is whether the ordinance was
preempted because it purports to regulate a field for which a state
or federal statute clearly shows a legislative intent to provide a
complete and integrated regulatory scheme to the exclusion of local
regulation. Accord Craig, 356 N.C. at 45, 565 S.E.2d at 176.
We first review the state rules, regulations, and permit
requirements pertaining to the land application of biosolids.
Before a person or entity can apply sludge resulting from the
operation of a treatment works to land, it must obtain a permit
issued by the state. N.C. Gen. Stat. § 143-215.1(a)(9) (2004).
The state agency responsible for issuing the permit and
promulgating the rules for such application is the North Carolina
Department of Environment and Natural Resources (DENR). TheGeneral Assembly created DENR to “administer a program of water and
air pollution control and water resource management.” N.C. Gen.
Stat. § 143-211(c) (2004). By this statute, the General Assembly
vested DENR with the authority “to administer a complete program of
water and air conservation, pollution abatement and control and to
achieve a coordinated effort of pollution abatement and control
with other jurisdictions.” Id. The legislature also gave the
North Carolina Environmental Management Commission (EMC) the
authority to adopt rules necessary to fulfill the purposes of
Article 21, which governs water and air resources. See N.C. Gen.
Stat. § 143-215.3(a)(1) (2004). The state regulations involved in
this case were not imposed directly by statute, but were
promulgated by two state agencies, DENR and EMC. However, it is
not necessary that state regulations preempting a county ordinance
be imposed directly by the legislature in the form of a statute as
long as the government agency imposing the regulations is
authorized to do so. See Greene v. City of Winston--Salem, 287
N.C. 66, 75, 213 S.E.2d 231, 237 (1975). Nor is it required that
this authority be vested solely in one agency. Id.
Counties enjoy the power and authority to enact ordinances and
by-laws relating to the “health, safety, or welfare of its
citizens,” N.C. Gen. Stat. § 153A-121 (2004). This power is
limited where the ordinance is inconsistent with state or federal
law. N.C. Gen. Stat. § 160A-174(b) (2004).
(See footnote 1)
Although this statuteis found in the statutes dealing with cities and towns, its
provisions are also applicable to counties. Craig, 356 N.C. at 45,
565 S.E.2d at 176. An ordinance is deemed inconsistent where it
“purports to regulate a field for which a State or federal statute
clearly shows a legislative intent to provide a complete and
integrated regulatory scheme to the exclusion of local
regulation[.]” N.C. Gen. Stat. § 160A-174(b)(5). If local
ordinances are deemed inconsistent or conflict with state or
federal laws, the ordinance will be deemed invalid. Craig, 356
N.C. at 44, 565 S.E.2d at 175. Ordinances and the laws of the
state need to be in accord to avoid confusion among the state's
citizens and to avoid dual regulation. Id.
In determining whether the General Assembly intended to
provide statewide regulation of the land application of biosolids
to the exclusion of local regulation, this Court must ascertain if
the General Assembly “has shown a clear legislative intent to
provide a 'complete and integrated regulatory scheme.'” Id. at 45,
565 S.E.2d at 176 (referring to N.C. Gen. Stat. § 160A-174(b)(5)).
Plaintiff's permit states that its activities are regulated
pursuant to “the provisions of Article 21 of Chapter 143” of the
General Statutes. The statement of purpose in Article 21 reads as
follows:
It is the purpose of this Article to create an
agency which shall administer a program ofwater and air pollution control and water
resource management. It is the intent of the
General Assembly, . . . to confer such
authority . . . as shall be necessary to
administer a complete program of water and air
conservation, pollution abatement and control
and to achieve a coordinated effort of
pollution abatement and control with other
jurisdictions.
N.C. Gen. Stat. § 143-211(c). This statement of intent to provide
a “complete program” strongly indicates the legislature intended to
create a “complete and comprehensive statute.” See e.g., Craig,
356 N.C. at 48-9, 565 S.E.2d at 178 (finding statement that
legislature intended to “promote a cooperative and coordinated
approach to animal waste management among the agencies of the
State” showed “an intention to cover the entire field of swine farm
regulation in North Carolina”); State v. Williams, 283 N.C. 550,
553-54, 196 S.E.2d 756, 758-59 (1973) (finding the statement of
purpose “to establish a uniform system of control” exhibited the
legislature's intent to preempt local regulation).
If each county were free to create its own particularized
regulations regarding land application of biosolids, the
coordinated effort which the General Assembly referred to in the
statute would fail. There can be no coordinated program if there
exists a patchwork of local regulations governing the application
of biosolids. The County's ordinance imposes a number of
additional requirements upon an entity seeking to apply biosolids
to farm lands. The state statute caps the annual fee for a permit
to dispose of biosolids on 300 or more acres of land at $1,090.00.
N.C. Gen. Stat. § 143-215.3D(a)(6) (2004). The ordinance requiresan additional permit fee of $10.00 per acre. Plaintiff applies
biosolids to 2774 acres in Granville County, which includes 515
acres of its own land. In order for plaintiff to obtain a county
permit it would have to pay a total of $27,740.00 each year. In
addition, the state regulations require the permit holder to give
general notice to the local governmental agency (i.e. county
manager, city manager, etc.) at least twenty-four hours prior to
the application to any new land application site, and such notice
need not be in writing. However, the County's ordinance requires
the permittee to give written notice within four hours after any
application of biosolids to any land in Granville County. The
County's notice requirement also requires that the permit holder's
written notice include the following information, which the state
does not:
(a) The type of sludge or septage applied.
(b) The source of the sludge or septage land
applied, including the address of the
generator and the name and telephone number of
the contact person for the generator.
(c) The fields or other areas to which the
sludge or septage were applied.
(d) The volume of sludge or septage applied.
Craig points out that the problem with conflicting regulations is
that it is possible an entity engaging in business in more than one
county in North Carolina could conceivably have to conform to the
regulations established by the state as well as those established
by various counties. Craig, 356 N.C. at 48, 565 S.E.2d at 178
(“Ultimately, such [businesses] could be forced to adapt to
differing, even conflicting, regulations. Any such dual regulation
would present an excessive burden on [such businesses]”) Id. Further, the effect of the County's substantial fees and additional
regulations will be to drive this type of operation from Granville
County into adjoining counties. This was clearly not contemplated
by the General Assembly's comprehensive regulation of the land
application of residuals.
The County next contends the reference in N.C. Gen. Stat. §
143-211(c) to a “complete program” at the beginning of the sentence
is qualified by other language referencing the achievement of “a
coordinated effort of pollution abatement and control with other
jurisdictions.” (emphasis added). The County asserts “other
jurisdictions” means other counties and municipalities within the
state. We disagree. Neither of these phrases can be read in
isolation to garner the intent of the legislature, but must be read
in their totality. It is more logical that achieving “a
coordinated effort” with “other jurisdictions” refers to other
state or federal agencies because these agencies are charged with
the regulation of pollution. Even assuming arguendo that “other
jurisdictions” refers to counties and municipalities, when read in
context with the intent to create a “complete program” and a
“coordinated effort,” it strongly indicates the General Assembly
intended DENR to be the agency in charge of efforts to safeguard
the environment.
Further, a careful reading of Article 21 reveals that the
General Assembly provided for two specific areas where local
government would be allowed to regulate in the environmental area.
Significantly, both of the local government exceptions requirecertification and approval of the local regulation by the EMC. See
N.C. Gen. Stat. § 143-215.3(a)(14) (2004) (allowing local
governments to administer and enforce wastewater pretreatment
programs only if certified by the EMC); N.C. Gen. Stat. § 143-
215.112(a) (2004) (allowing local air pollution programs only if
reviewed and certified by the EMC). To aid in statutory
construction, the maxim
expressio unius est exclusio alterius
applies. Morrison v. Sears, Roebuck & Co., 319 N.C. 298, 303, 354
S.E.2d 495, 498 (1987). This means that the express mention of
specific exceptions in a statute implies the exclusion of all
others.
Id.
The fact that the General Assembly provided in
Article 21 for certain specific local government pollution control
programs, but only if those specific programs were certified by the
EMC, demonstrates the “complete program” of pollution control the
legislature called for in Article 21 did not intend for local
governments to enact their own uncertified ordinances for
regulation of land application activities.
We conclude N.C. Gen. Stat. § 143-211(c) evidences an intent
to create a complete and integrated regulatory scheme to the
exclusion of local regulation.
In addition to the legislature's express statement of purpose
and the provisions reflecting its intent to create an agency to
expressly oversee water and resource conversation and the abatement
of pollution, we also review “the breadth and scope of the
applicable general statutes in determining whether the overallregulatory scheme was designed to be preemptive.” Craig, 356 N.C.
at 49, 565 S.E.2d at 178.
EMC established rules listing the requirements necessary to
secure a permit for the land application of residuals. 15A
N.C.A.C. 2H.0205(d)(6) (2005). Those requirements include
submission of a soil scientist's recommendations for application
rates, an agronomist's evaluation concerning cover crops and their
ability to accept proposed application rates, information on nearby
wells, and a soil evaluation by a soil scientist. DENR is then
authorized to “issue a permit containing such conditions as are
necessary to effectuate the purposes of Article 21, Chapter 143,
N.C. General Statutes.” 15A N.C.A.C. 2H.0209(b)(1).
The state permit issued to plaintiff covers all aspects of the
land application of residuals. It contains extensive rules and
requirements which the permittee must comply with in order to
retain a valid permit. Both the source of the biosolids and the
land application site are subject to preapproval by DENR in the
permit, and no unapproved sources or sites may be used. The permit
contains detailed rules on how land application is to be performed,
including requirements for a certified operator and application at
agronomic rates. It contains detailed requirements regarding the
notice and reporting that must be made to state and local
governments. It also requires a permittee to maintain extensive
records of land application events and to test both the source
material and soil on which it has been applied. The permit
provides for buffer zones and prohibits nuisance conditions. Itfurther contains extensive and detailed requirements on how the
land may be used after the residuals have been applied. For
example, virtually all farming activities are prohibited for thirty
days following application, and then activities are gradually
allowed depending on conditions until thirty-eight months have
passed, at which time all restrictions on use of the land are
lifted. The permit authorizes inspection of the property where
residuals have been applied and requires the permittee to keep a
detailed log regarding its own monitoring activities. To ensure
compliance with the requirements of the permit, the permittee is
further required to have landowner agreements with each receiving
site landowner, prohibiting the landowner from using land on which
residuals have been applied in a manner inconsistent with the
permit.
We conclude from the foregoing that the statute, coupled with
the permit requirements set forth in the applicable regulations,
are so comprehensive in scope that they were intended to comprise
a “complete and integrated regulatory scheme” on a statewide basis,
thus leaving no room for further local regulation.
The County further contends there is language in the permit
which specifically contemplates the enactment of local ordinances.
The portions of the permit cited by the County states:
The issuance of this permit does not preclude
the Permittee from complying with any and all
statutes, rules, regulations, or ordinances
that may be imposed by other government
agencies (i.e., local, state, and federal)
which have jurisdiction, including, but not
limited to, applicable river buffer rules in
15A N.C.A.C. 2B .0200, soil erosion andsedimentation control requirements in 15A
N.C.A.C. Chapter 4 and under the Division's
General Permit NCG010000, and any requirements
pertaining to wetlands under 15A N.C.A.C. 2B
.0200 and 15A N.C.A.C. .0500.
The fact the permit states that it “does not preclude”
compliance with the rules of local governments “which have
jurisdiction” does not necessarily provide jurisdiction to a local
government to enact regulations that duplicate and conflict with a
comprehensive state regulatory scheme. The permit lists several
specific types of regulations applying to river buffers,
sedimentation control, and wetlands. There is no reference to the
regulation of land application activities. While the list set
forth in the permit is not exclusive, the general statement that
other laws may apply must be interpreted in accordance with the
rule of statutory construction known as ejusdem generis. That is,
the “'meaning of the general words will ordinarily be presumed to
be, and construed as . . . including only things of the same kind,
character and nature as those specifically enumerated.'” Knight v.
Town of Knightdale, 164 N.C. App. 766, 769, 596 S.E.2d 881, 884
(2004) (quoting State v. Lee, 277 N.C. 242, 244, 176 S.E. 2d 772,
774 (1970)). By listing the type of other governmental rules that
may apply, it demonstrates that DENR envisioned compliance with
rules issued pursuant to programs that do not specifically regulate
land application, but generally apply to all land disturbing
activities. The type of laws mentioned in the permit which may
govern a permittee's conduct are of a type of regulation separate
and distinct from that provided by Article 21 and the permitsissued thereunder. The ordinance at issue is not that type of
regulation. It only applies to the disposal of residuals, which is
the type of activity already regulated by Article 21 and the permit
issued to Granville Farms. Therefore, under the doctrine of
ejusdem generis, the ordinance cannot be included in the permit's
general reference to other laws since it is not the type of
regulation listed after the general reference.
The County also points to the provision in the permit
regarding landowner agreements as contemplating local involvement,
because it authorizes local officials, as well as state officials
to inspect the land application site prior to, during, and after
any biosolids have been applied and to take soil and water samples.
The County contends its ordinance does not regulate the land
application of biosolids, but only serves to monitor the
application of biosolids pursuant to a state permit. This
assertion is contradicted by the County's own regulatory provisions
which impose substantial fees for obtaining a permit, contain
provisions for filings with the register of deeds, and contain
extensive notice requirements. Further, the County's ordinance is
duplicative, in that the provisions of the permit already provide
that the local government may monitor land application of
biosolids. It is therefore unnecessary for the County to enact a
separate ordinance.
Because the state regulation of the land application of
residuals is comprehensive, constituting a complete and integrated
regulatory scheme, the County does not have authority to enact
ordinances that also purport to specifically regulate that conduct.
This assignment of error is without merit. AFFIRMED.
Judges CALABRIA and GEER concur.
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