Last week we posed the following facts and invited you to comment on how you think the case should have come out.
A business owner was planning to buy property and use it to spread septage (a “land application”). He went to the local town council to acquire the appropriate permits before he closed on the property. The town had no laws regulating septage and it referred him to the state Department of Environmental Protection (“DEP”). He submitted his application to DEP and went ahead and closed on the property. DEP approved the application under the requirements of state law. The town then passed a 180 day moratorium on spreading septage while it considered passing septage regulations. The town passed three ordinances outlawing land applications of septage, even though state law allowed such applications and DEP had already approved the business owner’s application. The town then contracted with a septage disposal company to dispose of the town’s septage. The business owner sued the town arguing that it could not pass an ordinance that conflicted with state law.
Will the business owner win?
Here is what the Supreme Court of Maine ruled:
The Court found against the business owner. It ruled that under state law both DEP and local municipalities were given a role in approving permits for septage disposal. It further found that state law require municipalities to arrange for disposal of sepatage and other wastes but it did not dictate how that disposal should be carried out. The Court noted that there were a number of ways besides land application to dispose of septage. In the words of the Court:
“Other portions of the DEP regulations, however, permit different disposal methods, including the composting of dewatered septage . . . and the addition of septage to wastewater treatment facilities . . . . The Town[‘s] . . .ban on land application may have the effect of making septage disposal within the Town more difficult and expensive, but it does not frustrate the purposes of [state law] because the ordinance still permits septage disposal within the Town by other methods.”
Smith v. Town of Pittston, 820 A.2d 1200 (Me. 2003)
As you can see, even where state law seems to allow a septage disposal method, local municipalities can still throw a monkey wrench into your plans. What do you think about the Court’s resolution? Check back next week for a new puzzle in Septage Law 101.
Richard Brener is General Counsel for Clear Choice Wastewater Treatment, LLC, the leader in environmentally-friendly and cost-effective solutions for the treatment of septage, grease, and other wastes. If you would like more information please visit www.ccwt.info or contact us at firstname.lastname@example.org or (877)-770-2618.
This feature is presented for discussion and entertainment purposes only. It is not legal advice and should not be relied on as such. If you have a legal question, please contact an attorney in your jurisdiction.