Federal and State Sludge Laws Do Not Preempt All Local Regulations

Thayer v. Town of Tilton
Thayer v. Town of Tilton
No. 2003-421
Tuesday, November 30, 2004
In Thayer v. Town of Tilton , the Supreme Court held, in relevant part, that the State regulatory scheme did not preempt all municipal regulation of sludge.

The relevant facts are the following. The plaintiff, Nathaniel Thayer, entered into an agreement with a company, Bio Gro, to stockpile and spread municipal sewage waste biosolids ("sludge") on his property. In June 1997, Bio Gro filed a permit application with the Department of Environmental Services (DES) to spread Class B sludge on the site and indicated "no other permits or approvals [were] required."  On August 5, 1997, DES informed Bio Gro that a site permit was unnecessary; however, the project could not commence until additional issues were addressed. On August 29, 1997, counsel for the Town of Tilton informed Bio Gro that the project must comply with the town's zoning ordinances, site plan regulations and RSA 155-E:5. On September 25, 1997, the Board of Selectmen adopted an ordinance regulating the use of sludge, essentially permitting only Class A sludge. Thereafter, Bio Gro sought approval from the Board of Adjustment ("ZBA") and planning board, and, in October 1997, the land use boards approved the project subject to compliance with all local, State, and federal regulations, including the new sludge ordinance.

On appeal, the plaintiff argued that federal and State laws preempt the Town's sludge ordinance. "It is well settled that towns cannot regulate a field that has been preempted by the State."   JTR Colebrook v. Town of Colebrook, 149 N.H. 767 (2003). Municipal legislation is "preempted if it expressly contradicts State law or if it runs counter to the legislative intent underlying the statutory scheme."   Id. Where the Legislature has enacted a comprehensive and detailed regulatory scheme, Courts infer an intent to preempt an entire field. Id. Absent a clear manifestation of legislative intent to preempt a field, a municipality may promulgate an ordinance-so long as it does not conflict with State legislation and is not unreasonable.

The Board of Selectmen adopted the sludge ordinance pursuant to RSA 147:1, I. The statute provides that town's health officers may "make regulations for the prevention and removal of nuisances, and such other regulations relating to the public health as in their judgment the health and safety of the people require."

The Court concluded that neither federal nor State law preempted local regulation. Under the federal Clean Water Act, states and their political subdivisions are allowed to adopt more stringent regulations than under federal law. Moreover, the DES regulations governing sludge states: "Nothing in these rules shall be construed to modify . . . the powers conferred upon local authorities by health and land use enabling statutes, provided however that . . . the requirements of these rules shall be considered as minimum."  N.H. Admin. Rules, Env-Ws 801.02(e).

Consequently, the Court held that the State regulatory scheme is "not so comprehensive and detailed as to suggest a legislative intent to preempt all municipal regulation of sludge."