Talbot County v. Skipper

ELDRIDGE, Judge. We shall hold in this case that Maryland Code (1982, 1987 Repl.Vol., 1992 Cum.Supp.), Title 9, Subtitle 2, Part III, of the Environment Article (entitled “Sewage Sludge”), preempts a Talbot County ordinance which requires a land owner to record certain information in the county land ⁴⁸³ records before applying sewage sludge to his land in accordance with a state permit. The State of Maryland has regulated the utilization of sewage sludge for many years. 1 Section 9-231 of the Environment Article of the Maryland Code requires a person to have a “sewage sludge utilization permit” before the person may utilize sewage sludge in this State. The Maryland Department of the Environment has promulgated regulations governing sewage sludge utilization as required by § 9-230.

If an application for a state permit to utilize sewage sludge meets the requirements of the Code and these regulations, the Department issues a permit which “authorizes the permit holder to utilize sewage sludge according to the terms of the permit.” § 9-237. The Talbot County government has also been concerned about the utilization of sewage sludge. In 1988, the County Council of Talbot County amended § 19-8 of the Talbot County Code, adding the following subsection: “(]') Sewage Sludge Utilization (i) Recordation required for application of sludge. Within thirty (30) days of each land application of sewage sludge upon any Property in the County, the land owner shall cause to be recorded in the Talbot County land records a document that abstracts the State permit application.

The abstract shall identify the filing office for the full application and shall include the following information: legal owner of farm where sludge is to be applied, liber and folio of deed recordation of said farm, and date land application was begun under the referenced state permit. The County Planning Office shall furnish a recommended form. ⁴⁸⁴ (ii) Critical Area Utilization. Sewage sludge shall not be utilized in the Critical Area unless the applicant has first demonstrated to the County Planning Officer that there will be a net improvement in the water quality to the adjacent body of water, in accordance with Section 14.15.02(F) of the Chesapeake Bay Critical Area Criteria. (iii) Buffer required from residences and wells.

There shall be no utilization of sewage sludge within five hundred (500) feet of a residence or well without written permission from the owner of such residence or well. (iv) Separability. Should any subsection, provision or part of this section be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of any subsection, provision or part other than that declared to be unconstitutional or invalid.” The County Council amended subsection (j)(i) approximately six months later, changing the recordation requirement so that recordation was required only before the first sludge application, but requiring more information to be included in the filing. The new subsection provides: “(j) Sewage Sludge Utilization (i) Recordation Required for Application of Sludge.

Within thirty (30) days of the initial land application of sewage sludge under a state permit application upon any property in the County, the land owner shall cause to be recorded in the Talbot County land records a document that gives the following information: the legal owner of the land on which sludge is applied, the liber and folio of deed recordation for title to said land, the date the land application was first made under the referenced state permit, the number of the referenced state permit, the number of the state permit, the location of the subject lot or parcel of land and the location in Talbot County where the full application for the state permit and the permit itself may be examined. The County Planning Office shall furnish a recommended form for this purpose.” ⁴⁸⁵ Three Talbot County farmers individually contracted with Bio-Gro Systems, Inc., to apply sewage sludge to their land. Bio-Gro obtained for each farmer a sewage sludge utilization permit from the State of Maryland, Department of the Environment, Waste Management Administration, Sewage Sludge Permitting Division, as required by state law. BioGro made sewage sludge applications to two of the farms before the Talbot County ordinance became effective.

The farmers desired Bio-Gro to continue applying, or in one case, to begin applying, the sludge to their farmlands pursuant to their contracts, but they objected to the various requirements imposed by § 19—8(j) of the Talbot County Code. 2 The farmers and Bio-Gro Systems, Inc., filed in the Circuit Court for Talbot County a complaint for declaratory and injunctive relief against Talbot County. They claimed that the State, by enacting comprehensive legislation and regulations dealing with sewage sludge, had preempted the field of sewage sludge regulation. They also argued that the State, by enacting comprehensive legislation regarding land records, had preempted “the field of land records, including the regulation of what documents may be recorded or required to be recorded.” The plaintiffs further argued that the ordinance was in conflict with state law. In addition, they contended that Talbot County lacked the power to enact § 19~8(j), because the grant of express powers to charter counties does not include the power to enact laws affecting land records or the power to require the recordation of any document in said land records.

See Code (1957, 1990 Repl.Vol., 1992 Cum.Supp.), Art. 25A. Finally, the plaintiffs contended that the ordinance violated federal and state constitutional equal protection and due ⁴⁸⁶ process principles. The plaintiffs sought a permanent injunction barring Talbot County from enforcing § 19—8(j) and barring Talbot County from prosecuting the plaintiffs for violations of the section. 3 The plaintiffs also requested an interlocutory injunction pending trial on the merits. After a response from the defendant, the circuit court granted the interlocutory injunction.

Talbot County then answered the complaint, disputing each one of the plaintiffs’ contentions. The case was tried upon an agreed statement of facts. Thereafter, the circuit court entered the following order: “... it is ... DECLARED that § 19—8(j) of the Talbot County Code is unconstitutional and otherwise invalid because it is pre-empted by existing state law governing sludge application and is pre-empted by existing state law governing land records; “IT IS ORDERED that Plaintiffs’ request for permanent injunctive relief be and is hereby GRANTED and that Defendant Talbot County is permanently enjoined from enforcing § 19—8(j) of the Talbot County Code and from criminally charging and/or prosecuting Plaintiffs for violating § 19—8(j) of the Talbot County Code; and “IT IS FURTHER ORDERED that Plaintiffs’ request for an award of damages, including reasonable attorneys’ fees, be and is hereby denied.” The County noted an appeal to the Court of Special Appeals.

Before any proceedings in the Court of Special Appeals, the farmers and Bio-Gro filed in this Court a petition for a writ of certiorari which we granted, 322 Md. 132 , 586 A.2d 14 (1991). In this Court, Talbot County concedes that §§ 19-8(j)(ii) and (j)(iii) of the Talbot County Code conflict with ⁴⁸⁷ state law and are thereby preempted. 4 The County contends, however, that the circuit court erred in its determination that § 19—8(j)(i) is preempted by state law. The farmers and Bio-Gro maintain that the circuit court correctly found preemption. As alternate grounds for affirmance, the farmers and Bio-Gro argue that the County had no power to enact § 19—8(j)(i) under the Express Powers Act (Art. 25A), and furthermore that the ordinance was not a “local law” within the meaning of Article XI-A of the Maryland Constitution and the principles set forth in McCrory Corp. v. Fowler, 319 Md. 12 , 570 A.2d 834 (1990).

The farmers and Bio-Gro also reiterate the equal protection and due process arguments made in the circuit court. Under our decisions, state law may preempt local law in one of three ways: 1) preemption by conflict, 5 2) ⁴⁸⁸ express preemption, 6 or 3) implied preemption. 7 The farmers and Bio-Gro argue that § 19-8(j)(i) both is in direct conflict with state law and has been impliedly preempted by state law. Because, in our view, state law governing sewage sludge utilization has impliedly preempted § 19—8(j)(i), we shall not address the argument that it is in conflict with state law. Moreover, we need not and do not reach the other grounds for § 19-8(j)(i)’s invalidity urged by the farmers and Bio-Gro.

Generally, state law preempts by implication local law where the local law “deal[s] with an area in which the [State] Legislature has acted with such force that an intent by the State to occupy the entire field must be implied,” County Council v. Montgomery Ass’n, 274 Md. 52, 59 , 333 A.2d 596, 600 (1975). There is no particular formula for determining whether the General Assembly intended to preempt an entire area, Howard County v. Pepco, 319 Md. 511, 523 , 573 A.2d 821, 828 (1990), and several factors have been considered in our cases. See, e.g., Board v. Harker, 316 Md. 683, 698 , 561 A.2d 219, 226-227 (1989); National Asphalt v. Prince Geo’s Co., 292 Md. 75, 78-80 , 437 A.2d 651, 653-654 (1981); Rockville Grosvenor, Inc. v. Mont. Co., 289 Md. 74, 92-93 , 422 A.2d 353, 363 (1980); County Council v. Montgomery Ass’n, supra, 274 Md. at 60-64 , 333 A.2d at 601-603 .

Nevertheless, we have stated that “ ‘[t]he primary indicia of a legislative purpose to preempt an entire field of law is the comprehensiveness with which the General Assembly has legislated in the field.’ ” Howard County v. Pepco, supra, 319 Md. at 523, 573 A.2d at 828 , quoting Board v. Harker, supra, 316 Md. at 696-697 , 561 A.2d at 226 . See Ad + Soil, Inc. v. County Comm’rs, 307 Md. 307, 328 , 513 A.2d 893, 904 (1986); National Asphalt v. Prince Geo’s ⁴⁸⁹ Co., supra, 292 Md. at 78-79 , 437 A.2d at 653 ; County Council v. Montgomery Ass’n, supra, 274 Md. at 61 , 333 A.2d at 601 . The General Assembly, in §§ 9-230 through 9-249 of the Environment Article, has enacted a very comprehensive scheme regulating all aspects of sewage sludge utilization in Maryland. Section 9-230 directs the Department of the Environment to adopt regulations governing utilization of sewage sludge, requires Department of Agriculture approval of certain regulations, and contains numerous subsections detailing the considerations which the Department must address when drafting its regulations.

For example, the Department must consider alternative utilization methods, disease control, advertising requirements for public hearings and public informational meetings, performance bonds, insurance and security requirements, notification procedures, and standards for transporting sludge. § 9-230(b). In addition, subsection (c) requires the Department to consider issues such as methods for calculating loading rates, what crops may be grown on the land to which sewage sludge has been applied, nearby surface and ground water, nearby land uses, nearby sensitive areas such as wetlands, appropriate land for application and appropriate composition of sludge to be used, special requirements for tobacco producing land, and buffer areas to separate the land for sludge application from homes or other property.