Can a Maryland county enforce its own zoning rules against a business that already has a state permit to spread sewage sludge?

Plain-English summary

On behalf of the Senate Finance Committee, a Maryland state senator asked whether Baltimore County could enforce its zoning regulations on sewage sludge use, such as setback requirements and special-exception permitting, against someone who already held a state permit to use or dispose of sludge in the county, and whether a pending bill (Senate Bill 171) would change that answer. The opinion concluded that, under the law as it then stood, Baltimore County generally could enforce its sludge zoning regulations against state permit holders. It reasoned that the state's existing sludge permit program (centered on Health-Environmental Article §9-210(b)) was not comprehensive enough to preempt local zoning by "occupying the field," and that state law contained no provision expressly barring local sludge regulation, for sludge composting facilities the state law specifically deferred to county zoning. On the separate question of conflict (rather than preemption), the opinion drew a distinction: county zoning provisions addressing basic land-use separation, keeping incompatible uses out of certain zones, were generally enforceable against state permit holders, but county requirements that tried to override the specific technical terms of an already-issued state permit (a different application rate, a different setback, a different piece of required equipment) would not survive, because that would let the county effectively cancel a permission the state had granted. As for the pending Senate Bill 171, the opinion found that it did not clearly resolve the preemption question either way, and urged the General Assembly to state its intent explicitly rather than leave it to the courts.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Two developments the opinion itself did not know about were later added to the record in editor's notes on the official text: the General Assembly enacted a comprehensive sewage sludge law in 1984 (codified at NR §9-210.1, Chapters 748 and 779, Laws of Maryland 1984), and in 1986 the Court of Appeals held in Ad+Soil, Inc. v. County Comm'rs, 307 Md. 307 (1986), that the state laws summarized in this opinion neither preempted nor conflicted with a different county's sewage sludge regulations. Readers should not treat this opinion's preemption and conflict analysis as reflecting current Maryland sludge law.

Common questions

Can a Maryland county enforce its own zoning rules against a business that already has a state permit to spread sewage sludge?
According to this 1984 opinion, generally yes, at least under the law as it then stood. The Attorney General concluded that Baltimore County could enforce its sludge zoning regulations, including special-exception and location requirements, against a person who held a state permit, because the state's permit program had not occupied the field of sludge regulation.

Could the county's zoning rules ever override the specific terms of a state sludge permit?
No, according to the opinion. It distinguished between county rules addressing basic zoning concerns, like keeping sludge activities out of residential zones, which were generally enforceable, and county rules that would conflict with the specific terms of an issued state permit, such as a different application rate or setback distance, which the opinion said the county could not enforce because doing so would improperly override the state's permission.

Did state law completely take over regulation of sewage sludge, leaving no room for local rules?
The opinion said no, existing 1984 state law did not "preempt" the field, because it was not comprehensive enough and, for sludge composting facilities specifically, the statute expressly deferred to county zoning and land use requirements. The opinion noted this could change if a pending, more comprehensive bill (Senate Bill 171) were enacted, and recommended the legislature make its intent on preemption explicit either way.

Background and statutory framework

Baltimore County is a home rule charter county under Article XI-A of the Maryland Constitution, exercising express powers granted by the General Assembly under the Express Powers Act, Article 25A, §5 of the Maryland Code, including powers to regulate health and sanitation concerns and to enact zoning and planning laws. The opinion explained that county legislation of this kind must clear three hurdles: it must be authorized under the Express Powers Act, it must not fall in a field the state has preempted, and it must not conflict with state public general law under Article XI-A, §3 of the Maryland Constitution. Baltimore County had amended its zoning regulations in 1982 (Bill 46-82) to require a special exception for sludge-related activities like composting, incineration, and landspreading, with location and area requirements tied to protecting nearby residents and water supplies. Existing state law, by contrast, required a state permit for sludge collection, handling, and disposal under Health-Environmental Article §9-210(b), with a separate provision, §9-212, that expressly deferred to county zoning and land-use requirements specifically for sludge composting facilities. The opinion worked through Maryland's two-part conflict framework, first asking whether the state had preempted the field entirely (drawing on City of Baltimore v. Sitnick and County Council v. Montgomery Ass'n, Inc.), and, finding no preemption, then asking whether particular county rules directly conflicted with the state permit scheme (drawing on Mayor & City Council of Baltimore v. Stuyvesant Ins. Co. and Town of Forest Heights v. Frank).

Citations

Statutes:

• Article XI-A of the Maryland Constitution (home rule charter county authority)
• Article XI-A, §3 of the Maryland Constitution (public general law controls over conflicting local law)
• Article 25A, §5 of the Maryland Code (Express Powers Act granting charter counties enumerated powers)
• Article 25A, §5(J) of the Maryland Code (power to regulate health and offensive trades; preserves state health authority)
• Article 25A, §5(T) of the Maryland Code (power to legislate on waste disposal)
• Article 25A, §5(X) of the Maryland Code (power to legislate on zoning and planning)
• §9-210(b) of the Health-Environmental Article of the Maryland Code (state permit requirement for sewage sludge collection, handling, and disposal)
• §9-212 of the Health-Environmental Article of the Maryland Code (special permitting requirements for sludge composting facilities)
• §9-212(a)(1) of the Health-Environmental Article of the Maryland Code (public hearing requirement for composting facility permits)
• §9-212(a)(4) of the Health-Environmental Article of the Maryland Code (composting facility permit requires compliance with county zoning and county non-objection)
• COMAR 10.17.10 (implementing regulations for sewage sludge use permits)
• COMAR 10.17.10.04 (permit application information requirements)
• COMAR 10.17.10.05 (permissible sludge use methods and health/environmental findings required before permit issuance)
• Baltimore County Zoning Regulations §101 (definition of "sludge")
• Baltimore County Zoning Regulations §412A (substantive site and area requirements for sludge use)
• Baltimore County Zoning Regulations §412A.1 (stated purpose of sludge siting requirements)
• Baltimore County Zoning Regulations §412A.2.E (application rate and agricultural land requirements for landspreading)
• Baltimore County Zoning Regulations §412.2.E.3 (200-foot setback from surface water for landspreading)
• Baltimore County Zoning Regulations §§500.5 and 502 (special exception petition and hearing procedure)
• Baltimore County Zoning Regulations §502.1 (findings required before granting a special exception)
• Article III, §§42 and 49 of the Maryland Constitution (state constitutional role in election oversight, cited in preemption case law)
• Article 78A, §§56 through 67 of the Maryland Code (consolidated state-local hearing procedures for certain permits)
• Article 78A, §59 of the Maryland Code (joint state-local hearing where local government approves)
• Article 78A, §57(d) of the Maryland Code (consolidated hearing procedures do not apply to zoning special exceptions)
• Senate Bill 171 (1983 Regular Session) (proposed comprehensive sewage sludge resource recovery legislation)
• Proposed §9-1402 of the Health-Environmental Article (stated purpose of Senate Bill 171's comprehensive sludge program)
• Proposed §9-1403(c) of the Health-Environmental Article (public hearing requirements under Senate Bill 171)
• Proposed §9-1408(h) of the Health-Environmental Article (state must "consider" local zoning requirements when issuing sludge permits)
• NR §9-210.1 of the Maryland Code (later comprehensive sewage sludge statute, per editor's note)
• Chapters 748 and 779, Laws of Maryland 1984 (enacted the later comprehensive sewage sludge law, per editor's note)

Cases:

• County Council v. Montgomery Ass'n, Inc., 274 Md. 52, 60 (1975) (first Maryland case to find implied preemption; state occupied the field of campaign finance regulation)
• City of Baltimore v. Sitnick, 254 Md. 303, 311 (1969) (leading case on conflict and implied preemption; local minimum wage law upheld alongside state law)
• East v. Gilchrist, 296 Md. 368, 374 (1983) (same conflict-resolution rule applies to conflicts between county charter and state administrative action)
• Schultz v. Pritts, 291 Md. 1, 11 (1981) (special exception is a valid zoning mechanism)
• Turner v. Hammond, 270 Md. 41, 54 (1973) (same; special exception is part of the comprehensive zoning plan)
• Creswell v. Baltimore Aviation Service, Inc., 257 Md. 712, 719 (1970) (special exception validity)
• Aspen Hill Venture v. Montgomery County Council, 265 Md. 303 (1972) (zoning must be reasonably related to public health, safety, morals, or welfare)
• Baltimore v. Cohn, 204 Md. 523 (1954) (same)
• National Asphalt Paving Ass'n v. Prince George's County, 292 Md. 75, 79 (1981) (presumption legislature acts with knowledge of existing law; standard for finding implied preemption)
• Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 391 (1979) (municipal ordinances upheld by every reasonable intendment)
• Rossberg v. State, 111 Md. 394, 417 (1909) (ordinances permitting what state law prohibits, or vice versa, are void; additional regulation alone does not void an ordinance)
• Town of Forest Heights v. Frank, 291 Md. 331, 338 (1981) (county license is permission to engage in licensed activity; conflicting municipal prohibition invalid)
• Heubeck v. City of Baltimore, 205 Md. 203 (1954) (locality may not prohibit across the board what state law permits)
• Greene Township v. Kuhl, 379 A.2d 1383 (Pa. Commw. 1977) (state landfill permit did not eliminate need for separate local zoning permit)
• Schantz v. Rachlin, 244 A.2d 328 (N.J. Super. 1968), aff'd, 299 A.2d 18 (App. Div. 1972) (state aircraft landing strip regulation did not preclude municipal zoning as to location)
• Scheff v. Township of Maple Shade, 374 A.2d 43 (N.J. Sup. 1977) (local zoning board could not deny a variance based on a safety finding that directly contradicted the state's own safety finding)
• Mayor & City Council of Baltimore v. Stuyvesant Ins. Co., 226 Md. 379 (1961) (city could regulate conduct of state-licensed bail bondsmen where state had not regulated that conduct, but could not require a separate city license)
• Billig v. State, 157 Md. 185 (1929) (cited alongside Stuyvesant on concurrent state-local regulation)
• Exxon, Inc. v. City of Frederick, 36 Md. App. 703 (1977) (city could impose a no-exit condition on a special exception despite a state highway access permit, given the specific statutory setting)
• Buck v. Boehm, Eq. No. 27, 277 (Cir. Ct. Anne Arundel County, May 6, 1980) (circuit court held predecessor sludge composting statute unconstitutional as applied)
• Department of Health & Mental Hygiene v. Tyler, No. 85583 (Cir. Ct. Baltimore County, Nov. 12, 1975) (same)
• Ad+Soil Serv. v. Board of County Comm'rs, 596 F. Supp. 1139 (D. Md. 1984) (per editor's note, related federal case dismissed on abstention grounds)
• Ad+Soil, Inc. v. County Comm'rs, 307 Md. 307 (1986) (per editor's note, Court of Appeals later held state sludge laws neither preempted nor conflicted with a county's sludge regulations)
• Ad+Soil, Inc. v. Board of County Comm'rs, Civil Action No. N-83-4413 (D. Md., filed Dec. 22, 1983) (pending litigation noted in the opinion involving another county's sludge regulations)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LOCAL GOVERNMENT

Preemption/Conflict-Health, Environmental-Sewage Sludge Management-Counties-Zoning-Review Of County Authority To Enforce Zoning Regulations On Sludge Use.

January 31, 1984

The Honorable Thomas L. Bromwell
Senate of Maryland

On behalf of the Senate Finance Committee, you have requested our opinion on the following questions:

1. Under current law, does Baltimore County have authority to enforce County zoning regulations on sludge use against a person who has a State permit to use or dispose of sludge in the County?

2. Would Baltimore County have authority to enforce County zoning regulations on sludge use if Senate Bill 171 (as introduced at the 1983 Regular Session) were enacted by the General Assembly?

You also requested guidance on appropriate language to include in a State sludge management bill that would give local governments a role in the State permit process without giving them veto power over sludge use in their jurisdictions.

For the reasons given below, we conclude as follows:

1. Under current law, Baltimore County may generally enforce County zoning regulations on sludge use, including disposal, against persons who have State sludge use permits. With respect to sludge composting facilities, the State has specifically deferred to all County zoning requirements. With respect to other sludge-related activities, the provisions of the County zoning regulations that reflect basic zoning concerns for the separation of incompatible land uses are generally enforceable against State permittees. The provisions of the zoning regulations that impose other requirements on particular sites and uses are enforceable against State permittees if (i) either the State imposes no regulation of its own or the County regulations are technically compatible with any State regulations, and (ii) the County regulations do not effectively prohibit activity within the scope of a State permit.

2. If Senate Bill 171 were enacted as introduced, it is uncertain whether Baltimore County's zoning regulations would be preempted. Legislative clarification of this point is essential. If there is no preemption, the County regulations would, in general, continue to be enforceable to the extent that they did not conflict with State decisions. However, the area of potential conflict would be widened if Senate Bill 171 were enacted; hence, it is likely that the County's regulations would more often be unenforceable in practice.

In our view, Senate Bill 171 offers a valid approach for achieving your stated goal of allowing the counties to participate in the State's licensing and permitting processes without giving the counties veto power. Senate Bill 171 is apparently designed to require the State to consider local zoning, but also to allow the State to override that local zoning if it chose; thus, no county could effectively veto, by zoning, a State decision to permit sludge-related activity in that county. In addition to requiring State officials to consider local zoning, Senate Bill 171 would also give localities a voice in the State's licensing and permitting processes through the public participation requirements that the bill would build into those processes.1

Although we believe that the approach of Senate Bill 171 might achieve your objectives, we recommend that any new bill be clearer in at least two respects. First, the General Assembly should leave no open question about its intention on the matter of preemption; it should state whether or not it wishes to preclude local zoning legislation, or all local legislation, on the subject of sludge use. Second, the General Assembly should clarify the participatory role that it desires for local jurisdictions. For example, rather than leaving local officials to participate along with the general public in hearings, the General Assembly might require that State officials consult with or respond to comments by local elected or other officials before issuing any State permit.

I
Legal Background

Baltimore County is a "home rule" charter county under Article XI-A of the Maryland Constitution. As such, it may exercise those express powers granted to it by the General Assembly in Article 25A, §5 of the Maryland Code (the "Express Powers Act"). Included in the list of enumerated powers are:

(1) The power "to prevent the introduction of contagious diseases into such county; [and] to regulate . .. any and all places where offensive trades may be carried on, or which may involve or give rise to unsanitary conditions or conditions detrimental to health", §5(J);

(2) The power "[t]o enact local laws ... for the protection and promotion of public safety, health, morals, comfort and welfare, relating to . . . the disposal of wastes", §5(T); and

(3) The power "[t]o enact local laws, for the protection and promotion of public safety, health, morals, and welfare, relating to zoning and planning", §5(X).

However, the existence of State law on these topics might limit the exercise of the County's powers. First, the County might be precluded from legislating in a particular area because of preemption by the State. Preemption occurs when the General Assembly expressly denies a local government the right to legislate on a certain topic or when the General Assembly so extensively regulates an area as to "occupy the field" and thereby preclude local legislation. See County Council v. Montgomery Ass'n, Inc., 274 Md. 52, 60 (1975).

In addition, Baltimore County's authority to enact local laws under the Express Powers Act is limited by Article XI-A, §3 of the Maryland Constitution:

"All such local laws enacted by ... the Council of the Counties as hereinbefore provided, shall be subject to the same rules of interpretation as those now applicable to the Public Local Laws of this State, except that in case of any conflict between said local law and any Public General Law now or hereafter enacted the Public General Law shall control." (Emphasis added.)

This constitutional limitation clearly renders County legislation inoperative to the extent that it "conflicts [o]r is inharmonious with the provisions of the State law". City of Baltimore v. Sitnick, 254 Md. 303, 311 (1969). Cf. East v. Gilchrist, 296 Md. 368, 374 (1983) (same rule applicable to conflict between county charter and administrative actions taken pursuant to public general law).

Moreover, as to local legislation regarding potential health problems, this constitutional rule of conflict resolution is underscored by the following provision in the Express Powers Act itself:

"Nothing in this article or section contained shall be construed to affect in any manner any of the powers and duties of the Secretary of Health and Mental Hygiene or any public general laws of the State relating to the subject of health." Article 25A, §5(J).

Thus, in order for the Baltimore County legislation in question to be valid: (i) it must be authorized under the Express Powers Act, (ii) it must not be in an area preempted by the State, and (iii) it must not conflict with State public general law.2

II
Baltimore County Sludge Regulations

A. Recent Sludge Amendments

On April 7, 1982, Baltimore County enacted Bill 46-82, containing amendments to the Baltimore County Zoning Regulations ("Zoning Reg."). The effect of these amendments is (i) to allow certain activities related to sewage sludge to be conducted, by special exception only, in certain zoning districts of the County and (ii) further, to regulate those activites with respect to "location, method, and quantity".3

As amended by Bill 46-82, the County regulations define "sludge" to include the stabilized, settled solids from a sewage or nonhazardous industrial wastewater treatment tank. Zoning Reg. §101.4 They regulate the following specific sludge-related activites: co-landfilling, composting, handling in general, incineration, and landspreading.

The regulations identify the types of activities that may be conducted in the various zones and require advance approval, in the form of a special exception, for any specific project. To obtain a special exception in Baltimore County, a landowner must file a petition with the Zoning Commissioner, who holds a public hearing on the request. Zoning Reg. §§500.5 and 502.

Bill 46-82 also added to the County zoning regulations a new §412A, containing substantive requirements applicable to all sludge use in the County. Among the stated purposes of Zoning Reg. §412A is:

"to designate the location of the various disposal sites in such a manner that they will be consistent with designated land uses and will not adversely impact the health, safety, or environment of those who live or work in Baltimore County due to the presence of pathogenic organisms, parasites, heavy metals, or other materials which may have adverse effects on humans or may contaminate crops, ground-water, or surface water." Zoning Reg. §412A.1.

This section establishes specific site and area requirements for each permitted type of sludge-related activity.5 It includes minimum setbacks from residences and surface water, and it requires site plans and the filing of certain notices in the County land records. Zoning Reg. §412A also provides that the method of operation and maintenance of sludge-related facilities, as well as application rates for co-landfilling and landspreading, must be consistent with criteria established by the Baltimore County Department of Health.

B. Statutory Authority for Amendments

The County has evident authority to enact these regulations under its express power to enact local laws relating to zoning and planning. Article 25A, §5(X) of the Maryland Code. The Court of Appeals has held the special exception to be a valid zoning mechanism. Schultz v. Pritts, 291 Md. 1, 11 (1981); Turner v. Hammond, 270 Md. 41, 54 (1973); Creswell v. Baltimore Aviation Service, Inc., 257 Md. 712, 719 (1970).

Of course, the exercise of zoning and planning power is subject to constitutional and other limitations. For example, zoning regulations must be reasonably related in scope and operation to the protection of the public health, safety, morals, or general welfare, and they must apply without unnecessary discrimination. See Aspen Hill Venture v. Montgomery County Council, 265 Md. 303 (1972); Baltimore v. Cohn, 204 Md. 523 (1954).

We have no reason to doubt that the Baltimore County regulations fall within applicable legal limitations. Accordingly, we proceed on the assumption that they are a valid exercise of the County's authority, under the Express Powers Act, to enact zoning and planning regulations. Article 25A, §5(X).

Because there is authority for the Baltimore County sludge use regulations under the County's express power to zone and plan, we will not elaborate on other possible sources of authority. However, it is likely that additional authority may be found in Article 25A, §5(J) (health and nuisances) and §5(T) (waste disposal).

III
Existing State Law on Sludge Use

Existing State law on the use of sewage sludge is codified at §§9-210(b) and 9-212 of the Health-Environmental Article ("HE" Article) of the Maryland Code. Paragraph (1) of HE §9-210(b) provides:

"An individual or corporation for commercial purposes and a municipality, county, district, or institution may not engage in collection, handling, burning, storage, or transportation of sewage sludge without a permit from the Secretary [of Health and Mental Hygiene]."

Paragraph (2) of that subsection authorizes the Secretary to adopt regulations relating to permissible uses and methods of collection, handling, burning, storage, and transportation of sewage sludge.

One specific type of sludge-related activity, sludge composting facilities, is covered by HE §9-212. That section requires that the Department of Health and Mental Hygiene hold a public hearing before a permit is granted under §9-210 for a sludge composting facility. HE §9-212(a)(1). Also, the Department may not issue a permit for such a facility unless (i) the proposed facility "has complied with all county zoning and land use requirements", and (ii) the county legislative body has affirmatively stated that it "does not oppose the issue of the permit". HE §9-212(a)(4).6

Implementing regulations are codified at COMAR 10.17.10. These regulations define relevant terms, set forth the procedures for obtaining the required permit, and specify permissible methods of sewage sludge use. Permissible methods include incorporation into the soil of agricultural land and other land application, trenching and covering, mixed refuse disposal, incineration, and composting and distribution of sewage sludge compost. COMAR 10.17.10.05.

An application for a permit must be accompanied by sufficient information to enable the Department to determine if the proposed activity will be consistent with Maryland laws and regulations for the protection of public health and safety. The Department may require the applicant to submit complete engineering reports, plans, and specifications, as well as plans for routine monitoring of sludge, groundwater, air, and compost quality. COMAR 10.17.10.04.

Before issuing a permit for "projects involving land utilization or disposal" of sewage sludge or for composting and distribution of sewage sludge compost, the Department must determine that this activity will not result in a public health hazard, deleterious effects on environmental health, or a health nuisance. In addition, sewage sludge compost must meet guidelines for the destruction of primary pathogenic organisms and heavy metal limitations. COMAR 10.17.10.05.

Even more detailed operational requirements are imposed by the Department of Health and Mental Hygiene, on a case-by-case basis, as conditions for State permits. For example, permittees who use sludge in agronomic projects are subject to the following, as part of "a stabilization process ... to reduce pathogenic organisms to acceptable levels":

"For lands to which sludge has been applied, public access shall be controlled for at least 12 months and grazing by animals whose products are consumed by humans is prohibited for at least 1 month. Crops for direct human consumption must not be grown for a period of three years." Department of Health and Mental Hygiene, Procedural Aspects of Sludge Utilization on Land 2 (undated).

IV
State Preemption

The Baltimore County zoning regulations on sludge use would be totally invalid if the State has preempted the field of sludge use regulation. We conclude, however, that the State has not.

A. Introduction

In general, preemption occurs when the General Assembly expressly prohibits local legislation in a field, or "when the legislature ... so forcibly expresses] its intent to occupy a specific field of regulation that the acceptance of the doctrine of pre-emption by occupation is compelled". City of Baltimore v. Sitnick, 254 Md. 303, 323 (1969). See County Council v. Montgomery Association, Inc., 274 Md. 52 (1975). See also 67 Opinions of the Attorney General 307, 312 (1982). In our opinion, existing State law does not preempt local legislation in the field of sludge use, either expressly or by implication.

The current Health-Environmental Article contains no express prohibition on local legislation with respect to sludge use. In fact, HE §9-212(a)(4) specifically acknowledges, and defers to, county zoning and land use requirements for sludge composting facilities.

Thus, it is clear that (i) the State has not preempted the zoning and land use regulation of sludge composting facilities at all, and (ii) for any preemption to exist with respect to other local regulation of sludge composting facilities or with respect to any regulation of other sludge-related activities, that preemption must be implied.

B. Sitnick

City of Baltimore v. Sitnick, 254 Md. 303 (1969), was the first Maryland case to discuss the doctrine of implied preemption by occupation. That case involved a challenge to a Baltimore City minimum wage law that predated a similar State law. The City ordinance set the hourly minimum wage at $1.25, while the State's minimum wage was $1.00. The City ordinance also covered certain employers who were exempted from the State law. In deciding the case, the Court of Appeals considered but rejected the doctrine of implied preemption.

In Sitnick, the Court distinguished a New York case, in which a local minimum wage law was invalidated because state law was said to have preempted the field. The Maryland Court of Appeals found it significant that the New York state law itself, unlike the Maryland state law, contained a specific mechanism for adjusting the minimum wage to adapt to local conditions. The Court saw the local adjustment provision in New York's law as an important indication of that state's intent to occupy the field. The absence of a comparable provision in the Maryland statute suggested a contrary intent.

The Court also found the chronology of the State and local enactments significant in rejecting the implied preemption theory. The fact that the State law followed the local law and did not mention or repeal the local law argued against a State intent to occupy the field. As the Court said, "[t]here is a presumption of statutory construction that the Legislature acts with the knowledge of existing laws on the subject matter under consideration". Sitnick, 254 Md. at 322. See also National Asphalt Paving Ass'n v. Prince George's County, 292 Md. 75, 79 (1981).

C. Montgomery Ass'n

In County Council v. Montgomery Ass'n, Inc., 274 Md. 52 (1975), the Court of Appeals for the first time invalidated a local law on the basis of implied preemption. A county ordinance regulating the campaign finance practices of county officers was struck down because the Court found that the State had completely occupied the field by adoption of the State Election Code.

In reaching this decision, the Court found it significant that there were specific provisions in the Maryland Constitution giving the State responsibility for oversight of the electoral process. Montgomery Ass'n, 274 Md. at 60 (citing Article III, §§42 and 49 of the Maryland Constitution).

Another, particularly important factor in the Court's decision was the comprehensiveness of the Election Code. The Court observed that State law provided for a system of "pervasive State administrative control" and concluded that this was a "compelling indication that the General Assembly . . . intended that the conduct and regulation of elections be strictly a State function". Montgomery Ass'n, 274 Md. at 62.

Yet another factor relied on by the Court was the fact that, in addition to the overall regulation of the election process, the General Assembly had adopted detailed legislation in the same area covered by the County ordinance. If the County ordinance were upheld, the result would be a confusing dual system of regulation. The Court concluded that the General Assembly could not have intended to allow local legislation in the field "which would inevitably lead to utter confusion". Montgomery Ass'n, 274 Md. at 64.

D. Analysis

It seems clear from the cases that more than comprehensive State legislation in a field is necessary to support application of the implied preemption doctrine. There was a comprehensive State minimum wage law in the Sitnick case, but local law in the same field was still upheld. The Court in Montgomery Ass'n specifically found its action to be consistent with the Sitnick ruling. It was able to distinguish the Sitnick case, because that case dealt with an area of the law in which local control had traditionally been allowed and, as previously noted, the local law preceded the State law.

Applying the implied preemption doctrine here, we find that the existing State law governing sludge use fails the primary test for preemption. Far from establishing a comprehensive program of regulation, existing law merely requires a State permit to engage in any sewage sludge-related activity and generally authorizes the Secretary of Health and Mental Hygiene to adopt regulations for sludge-related activites. These provisions do not, in our view, demonstrate an intent by the General Assembly to occupy the field. See National Asphalt Paving Ass'n v. Prince George's County, 292 Md. 75, 78-79 (1981).7 Since existing State law does not pass this primary test, we see no need to consider other factors before concluding that the State has not at this point preempted the field of sewage sludge use regulation.

V.
Potential Conflict Between Current State Law and Baltimore County Regulations

We next examine whether any portions of the Baltimore County sludge regulations conflict with current State law. To the extent of any conflict, the County legislation must yield. Article XI-A, §3 of the Maryland Constitution.

A. Background

There is no inevitable conflict between a local law and a public general law simply because both the State and the local governments have legislated in the same area.

The Court of Appeals has recognized that one of the purposes of home rule is to afford local governments some measure of control over their own affairs. In furtherance of this purpose, the Court has applied the rule of construction that, "when municipal ordinances are enacted in pursuance of competent authority, they should be upheld by every reasonable intendment, and reasonable doubts as to the validity of an ordinance should be resolved in its favor". Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 391 (1979). If both the State and a home rule subdivision have legislated as to some subject matter, the Court examines the "functional interplay" between the two to determine if they may be given concurrent effect. City of Baltimore v. Sitnick, 254 Md. 303, 312 (1969).

An oft-quoted principle of decision applied to such questions is as follows:

"[O]rdinances which assume directly or indirectly to permit acts or occupations which the [public general laws] prohibit, or to prohibit acts permitted by [public general law] or constitution, are under the familiar rule for validity of ordinances uniformly declared to be null and void. Additional regulation by the ordinance does not render it void." Rossberg v. State, 111 Md. 394, 417 (1909).

Compare also City of Baltimore v. Sitnick, 254 Md. at 317 ("[A] political subdivision may not prohibit what the State by general public law has permitted, but it may prohibit what the State has not expressly permitted") (emphasis in original) with Town of Forest Heights v. Frank, 291 Md. 331, 338 (1981) ("[T]he Sitnick court reiterated the rule that 'a political subdivision may not prohibit what the State by general public law has permitted'".8 See also 67 Opinions of the Attorney General at 313-14.

Except in simple cases, mere invocation of this or similar formulas does not yield a reasoned answer. "The difficulty lies not in a statement of the principles, but in their application." Rathkopf & Rathkopf, The Law of Zoning and Planning §31.01, at 31-2 (4th ed. 1983) ("Rathkopf"). Both the purposes and the effects of the Baltimore County sludge regulations, which present far from a simple case, must be carefully examined to understand their "functional interplay" with the State's regulatory scheme.

B. The County's Partial Prohibition of Sludge Use

The County zoning regulations permit sludge-related uses in certain zones, but only if a special exception is granted. This commonplace form of zoning regulation prohibits sludge-related uses altogether from all other zones in the County. If a person obtains a State permit for a sludge-related use at a site in one of these other zones, may the County prohibition nonetheless be given effect? We think that it may.

Certainly, a locality, in direct contravention of a State decision to permit an activity, may not prohibit that activity across the board. See Heubeck v. City of Baltimore, 205 Md. 203 (1954) (State law permitted eviction of certain tenants; local ordinance prohibiting eviction of those tenants is impermissible).

In Town of Forest Heights v. Frank, 291 Md. 331 (1981), one of the most recent decisions on conflict, the Court of Appeals viewed a county licensing requirement as permission for the licensee to engage in the licensed activity. Thus, when the county licensed Tillie Frank to operate a fortunetelling parlor within a municipality, a municipal ordinance flatly prohibiting fortunetelling was in conflict with the county license and could not be given effect.9

Baltimore County's special exception procedure for sludge-related uses and its ancillary regulations are not analogous to the town ordinance in Frank, because they do not purport to prohibit the use of sewage sludge in Baltimore County.10 So long as they are not administered so as to achieve such a prohibition in practice, they do not run directly afoul of Frank.

The problem actually presented by this aspect of the County regulations may be highlighted by a hypothetical version of Frank. Assume that the State licensed Tillie Frank to operate a fortunetelling parlor in an area of a county zoned for residential use only. Does the grant of this license mean that the county may not enforce its land use regulation against Tillie Frank's business establishment in that zone?

In our view, such a result is not compelled by Frank and would be inconsistent with the rationale of City of Baltimore v. Sitnick, which the Court in Frank treated approvingly. One aspect of Sitnick involved the application of minimum wage laws to taverns: the State law exempted taverns, the City ordinance covered them. A tavern owner argued that the State exemption was intended "to free those businesses in the excluded categories from any regulation, and it meant this privilege to extend to freedom from regulation by local law". 254 Md. at 324. The Court rejected this argument: "[T]he State exemption amounts to no regulation at all and accordingly leaves the field open for regulation at the local level." Id.

With respect to sludge-related activity, there is "no [State] regulation at all" as to the separation, through zoning, of incompatible land uses. That is, neither the statute, the implementing regulations, nor the Department's permit process takes account of basic zoning concerns, the allocation of particular uses to some zones and their prohibition from others. The State's regulatory scheme simply does not involve this consideration. In this situation, local regulation is generally permissible:

"Where state policy is to permit the particular use, as consistent with the public welfare, the local legislative body can nevertheless regulate its location when the restriction is based upon sound zoning principles not involving the same considerations implicit in the state legislation." Rathkopf §31.03 at 31-7.

See, e.g., Greene Township v. Kuhl, 379 A.2d 1383 (Pa. Commw. 1977) (issuance of state permit for construction of sanitary landfill did not preclude need for local zoning permit as well). See also Schantz v. Rachlin, 244 A.2d 328 (N.J. Super. 1968), aff'd, 299 A.2d 18 (App. Div. 1972) (state regulation of aircraft landing strips does not preclude municipal zoning as to location of landing strips).

Of course, zoning may not serve simply as a vehicle for county disagreement with a State decision that sludge use be permitted. In Scheff v. Township of Maple Shade, 374 A.2d 43 (N.J. Sup. 1977), the New Jersey Department of Labor and Industry, acting pursuant to statutory authorization, had adopted regulations and standards relating to the storage, handling, and use of liquid propane gas ("LPG"). Based on an engineer's inspection and detailed specifications, the Department approved a site in Maple Shade as safe for LPG storage. Under the town's zoning regulations, LPG storage was not allowed without a variance. The town zoning board denied the variance on the ground that the proposed storage was unsafe. The court struck down the board's denial as in direct conflict with state law, because the board's action was based on a finding that flatly contradicted the state's finding. In doing so, the court stated:

"Although the township's concern for the possible hazard attendant to the storage of LPG is understandable, its actions based thereon cannot be implemented when based solely upon a finding in direct conflict to determinations made pursuant to State law." 374 A.2d at 47.

C. The County's Additional Regulation of Sludge-Related Activity

A more difficult problem is presented by those provisions of the County regulations that do not relate to the separation of incompatible land uses. These provisions, for example, "[n]o landspreading shall be permitted within a minimum of 200' of any surface water" [Zoning Reg. §412.2.E.3], involve substantially the same health and environmental considerations as are involved in the State permit process.

As far as we are aware, no Maryland case has explored the conflict implications of such cumulative regulatory schemes. The conflict cases do provide some limited guidance, however.

1. Relevant Case Law

In Mayor & City Council of Baltimore v. Stuyvesant Ins. Co., 226 Md. 379 (1961), the Court of Appeals upheld the general authority of Baltimore City to regulate the conduct of all bail bondsmen, including those who were also licensed by the State. For example, the City prohibited bondsmen from "procuring or suggesting the employment of any attorney in a criminal case". 226 Md. at 384. The State itself had issued no regulations whatever governing the conduct of its licensees. Thus, the Court readily concluded that there was no conflict as to the City regulations. See also Billig v. State, 157 Md. 185 (1929). Similarly, the Court in Stuyvesant found no conflict in the City's licensure of those classes of bondsmen who were not licensed by the State. 226 Md. at 390. At the same time, however, the Court held invalid the City's attempt to require a City license of bail bondsmen already licensed by the State. The Court reasoned that the City "attempts to prohibit what [State law] permits, unless a [City] license is first obtained and all of its provisions are complied with". 226 Md. at 389.

City of Baltimore v. Sitnick also involved an issue of cumulative regulation. The City required a minimum wage of $1.25 an hour; the State, only $1.00 an hour. The Court held that "the purported conflicts properly lend themselves to the characterization of supplementation of the State law, rather than irreconcilable differences". 254 Md. at 323-24. The Court quoted with approval the following explanation of the "functional interplay" between the local and State requirements:

"'[T]he city ordinance does not conflict with the state law, because the ordinance seeks to accomplish precisely the same purpose as does the state law, namely, to prohibit the payment of substandard wages. The higher cost of and more severe substandard housing problems in the city justify additional city regulations by setting a higher minimum wage, in the same way as additional limitations were permitted in Stuyvesant, Billig and Rossberg on the basis that the state and city might act concurrently on the subject matter.'" 254 Md. at 321 (quoting Moser, County Home Rule, Sharing the State's Legislative Power with Maryland Counties, 28 Md. L. Rev. 327, 350 n. 79 (1968)).

Finally, Town of Forest Heights v. Frank apparently reflects a somewhat restrictive view of permissible local regulation. Of course, the Court in Frank had before it an easier case: a local, flat prohibition that wholly frustrated the licensed activity. But we think that the Court's reasoning would apply as well if the Forest Heights regulation had amounted to a partial, rather than a total, prohibition of the permitted activity. Suppose that the license had specifically authorized Tillie Frank to operate her fortunetelling parlor between the hours of 9:00 A.M. and midnight. There is little doubt that, under the Court's reasoning, a Forest Heights ordinance forbidding fortunetelling after 10:00 P.M. would be invalid, because it would conflict with the grant in the license.11

2. Conflict Analysis

To generalize, and, we acknowledge, extrapolate, from these cases, we conclude that a locality may regulate a State-licensed private activity if (i) either the State imposes no regulations of its own or the local regulations are technically compatible with any State regulations, and (ii) the local regulations do not effectively prohibit activity within the scope of the State license.12

In this Opinion, we cannot attempt to examine the application of these guidelines to all aspects of the County sludge use regulations. Indeed, whether a particular provision within the regulations creates an impermissible conflict can only be determined on a case-by-case basis, because such a determination requires a comparison of the County regulation to a particular State permit.

However, we hope that the following examples, and the explanation that follows, will clarify our view of the applicable legal principles:

(1) If a State permit is silent about the enclosure of a site for sludge-related activity, the County may require fencing of the site.

(2) If a State permit requires a four-foot fence around the site, the County may require that a six-foot fence be erected instead.

(3) If a State permit specifies the rate at which sludge may be applied to a site, the County may not require that sludge be applied at a different rate.

(4) If a State permit allows sludge to be spread within 150 feet of a stream, the County may not enforce its 200-foot setback requirement.

(5) If a State permit specifies that a particular brand of calibration device shall be used to control the rate of sludge spreading, the County may not require that a different brand be used.

The differences among these examples reflect, in our view, the boundary between permissible supplementation and impermissible conflict. Examples (1) and (2) are examples of the County imposing additional requirements that are entirely compatible with the purposes, terms, and scope of the State permit. Examples (3) and (4) are examples of County efforts to deprive a sludge user of the full use to which he or she is entitled under the State permit, be it rate of application or land area; the County may not defeat the State's grant of permission in this way. Example (5) illustrates a direct conflict in technical requirements; the permittee cannot practically use both pieces of equipment, and the State requirement therefore prevails.

We do not pretend that the guidelines outlined above answer all questions. However, until the courts clarify the application of the conflict doctrine to a problem of this kind, they reflect our best effort to synthesize and apply the law.13

VI
Future Legislation (S.B. 171)

The ambiguities of existing law can, of course, be most readily corrected by the General Assembly. Senate Bill 171, introduced in the 1983 Regular Session, would have replaced HE §9-210(b) with a comprehensive regulatory scheme for sewage sludge resource recovery.14

To answer your question of whether Baltimore County would have authority under Senate Bill 171 to enforce County zoning regulations on sludge use, we must engage in the same analysis we have just described in connection with current State law. That is, we must first decide whether Senate Bill 171 would preempt the field of sewage sludge use regulation; if not, we must examine whether there would be a conflict between the County and State legislation.

A. Preemption

There is not language in Senate Bill 171 that would expressly preempt local jurisdictions from regulating sewage sludge-related activities, whether by zoning or otherwise. In fact, the only reference in the bill to local regulation is found in proposed §9-1408(h), which provides:

"In issuing or renewing a sewage sludge utilization permit, the Department [of Health and Mental Hygiene] shall consider local zoning requirements."

Rather than precluding local regulation of sludge-related activities, this section specifically acknowledges the potential existence of such local regulation. However, proposed §9-1408(h) makes it clear that, while local zoning requirements must be "considered", they nevertheless may be overridden by the Department when it issues or denies a sewage sludge use permit.

Because §9-1408(h) does not embody a clear statement of express preemption, we next consider whether there would be implied preemption under the language of Senate Bill 171, as introduced.

As was stated in Part IV above, the Maryland Court of Appeals has considered a number of factors to be significant in determining whether implied preemption exists in a particular situation. The basic criterion is that there exists comprehensive State legislation in a field. This criterion is certainly satisfied with Senate Bill 171. In addition to the permit program authorized by existing law, this bill provides for a Sewage Sludge Utilization Fund; a system for issuance of generators' licenses, including the payment of fees; and a bond requirement for all sewage sludge users. It imposes specific requirements applicable to license and permit holders, such as recordkeeping, monitoring, and sampling. The bill also provides a right of entry and inspection by representatives of the Secretary of Health and Mental Hygiene, as well as detailed permit application procedures and public hearing requirements. Finally, the bill provides an elaborate enforcement mechanism, including injunctive relief and both civil and criminal penalties.

In short, the bill addresses all aspects of sewage sludge generation, use, and disposal, and it does so in detail. The comprehensiveness of the bill is stated in proposed §9-1402:

"The purpose of this subtitle is to initiate a comprehensive, efficient, and workable program for the regulation and management of the generation and utilization of sewage sludge in this State."15

Also, Senate Bill 171, if passed but not deemed preemptive, could lead to a confusing and inefficient dual regulatory system. For example, under Baltimore County's zoning requlations, there must be a public hearing on each application for a special exception. Senate Bill 171 would also provide an opportunity for a public hearing on each sewage sludge use permit. Given the controversial nature of sludge-related projects, a State hearing would be almost a certainty. Two public hearings would place a substantial burden, in terms of both finances and time, on a person wishing to engage in sludge-related activity.16

In addition to the dual hearing requirements, there would likely be duplication in fact finding. Senate Bill 171 would require the Secretary of Health and Mental Hygiene to consider local factors, such as the character of an affected area and nearby land uses, when adopting regulations for sludge management.17 The bill would also require the Department of Health and Mental Hygiene to determine, before issuing a sewage sludge use permit, that there was no undue risk to the environment or to public health, safety, or welfare. These are similar to the findings that the Baltimore County Zoning Commissioner must make before granting a special exception. See Zoning Reg. §502.1. Since conflict principles would preclude the County from reaching conclusions that contradict the State's on the same facts, the County's decisionmaking role would largely duplicate the State's.

Despite these powerful indications of implied preemption, there are also some legitimate arguments against such a conclusion. The Sitnick and Montgomery Ass'n cases identify other pertinent factors, such as a long tradition of State regulation, a constitutional mandate for State supervision, and the chronology of State and local enactments.

One obvious argument against preemption is that Senate Bill 171 would be enacted later in time than the Baltimore County (and other, comparable) zoning regulations governing sewage sludge use. The likely question a court would ask is why the State law did not expressly preempt existing local law, if that was the General Assembly's intent. In Sitnick, the Court found a similar chronology to be a persuasive argument against implied preemption. Applying the same reasoning, the Court in Montgomery Ass'n cited the fact that State law preceded local law in the same area as a justification for preemption.

Other factors considered significant by the Court in prior preemption cases are absent in this situation. There is neither a long tradition of State regulation in the area nor a constitutional mandate for State supervision. To the contrary, the first statutory requirement to obtain a State permit for sewage sludge disposal was not enacted until 1974.

We simply cannot predict with confidence how a court would resolve the question of implied preemption. We therefore strongly urge the General Assembly to eliminate the uncertainty by a clear legislative expression of its intent, one way or the other.18

B. Conflict

Having concluded that Senate Bill 171, as introduced, would not clearly preempt the field of sludge use regulation, we move on to the question of whether the bill would pose such facial conflict with the Baltimore County sludge use regulations that the County's legislation would be wholly invalid.

While we see great potential for conflict in the application of both laws to particular cases, we believe that Senate Bill 171 would leave room for some exercise of County authority. As we have pointed out, Senate Bill 171 contains a provision (proposed §9-1408(h)) requiring the Department of Health and Mental Hygiene to "consider" local zoning requirements in issuing or renewing a sewage sludge use permit. It is also likely that the County zoning regulations, to the extent that they require consideration of local factors not considered in the State process embodied in Senate Bill 171, would be valid. Nevertheless, to the extent that conflict would exist, the County legislation would be inoperative.

VII
Conclusion

In summary, it is our opinion that:

1. Under current law, Baltimore County may generally enforce County zoning regulations on sludge use, including disposal, against persons who have State permits. With respect to sludge composting facilities, the State has specifically deferred to all County zoning requirements. With respect to other sludge-related activities, provisions of the County zoning regulations that reflect basic zoning concerns for the separation of incompatible land uses are generally enforceable against State permittees. Other provisions of the zoning regulations that impose requirements on particular sites and uses are enforceable against State permittees if (i) either the State imposes no regulation of its own or the County regulations are technically compatible with any State regulations, and (ii) the County regulations do not effectively prohibit activity within the scope of a State permit.19

2. If Senate Bill 171 were enacted as introduced, it is uncertain whether Baltimore County zoning regulations would be preempted. Legislative clarification of this point is essential. If there is no preemption, the County regulations would, in general, continue to be enforceable to the extent that they did not conflict with State decisions. However, the area of potential conflict would be widened if Senate Bill 171 were enacted; hence, it is likely that the County's regulations would more often be unenforceable in practice.

Stephen H. Sachs, Attorney General

Jack Schwartz
Assistant Attorney General

Ann Marie DeBiase
Assistant Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: Since the issuance of this Opinion, the General Assembly has enacted a comprehensive provision on sewage sludge regulation, codified at NR §9-210.1. See Chapters 748 and 779, Laws of Maryland 1984.

The case referred to in note 19 was dismissed by the federal court on abstention grounds. Ad+Soil Serv. v. Board of County Comm'rs, 596 F. Supp. 1139 (D. Md. 1984). Subsequently, the Maryland Court of Appeals held that the State laws summarized in Part III of this Opinion neither preempted nor conflicted with Queen Anne's County's regulation of sewage sludge. Ad+Soil, Inc. v. County Comm'rs, 307 Md. 307 (1986).

1 Senate Bill 171 would require notice and an opportunity for public hearing (i) for a sewage sludge generator's permit, (ii) for any application to spread sewage sludge on marginal land, and (iii) before construction of any permanent facility designed to receive sewage sludge. Proposed §9-1403(c) of the Health-Environmental Article of the Maryland Code.

2 As one commentator has observed: "Although some cases have confused conflict and preemption, they are distinct concepts." Comment, State and Local Legislative Powers: An Analysis of the Conflict and Preemption Doctrines in Maryland, 8 U. Balt. L. Rev. 300, 312 (1979). We treat these two concepts separately and distinctly in this Opinion.

3 Because Baltimore County's zoning regulations, like most other local zoning ordinances in Maryland, specifically list permitted uses in the various zoning districts and impliedly forbid all unlisted uses, sewage sludge-related activites are prohibited from those County zoning districts (primarily, the residential districts) where they are not listed as special exception uses.

4 Section 9-210(b) of the Health-Environmental Article regulates only activity with respect to sewage sludge, while the Baltimore County Zoning Regulations also apply to activity with respect to the sludge resulting from nonhazardous industrial wastewater treatment. The discussions in this Opinion relates only to the area where both the State and County have acted and about which you inquire, i.e., sewage sludge use.

5 For example, handling in general and landspreading may not take place on slopes greater than 15 percent, except that a stricter limitation may apply to landspreading if the Zoning Commissioner or County Health Officer so determines. In the case of landspreading, the regulations require that a sediment control plan, prepared by a professional engineer, be approved by the local soil conservation district. In addition, application rates on agricultural land must be consistent with long-term food crop productivity of the soil and must not exceed the published guidelines of the Agronomy Department of the University of Maryland. See Zoning Reg. §412A.2.E.

6 Two Circuit Courts have held the predecessor of HE §9-212(a)(4) to be unconstitutional, to the extent that it confers on county governing bodies unbounded discretion to forbid an otherwise lawful activity. See Buck v. Boehm, Eq. No. 27, 277 (Cir. Ct. Anne Arundel County, May 6, 1980); Department of Health & Mental Hygiene v. Tyler, No. 85583 (Cir. Ct. Baltimore County, Nov. 12, 1975).

7 To be sure, the implementing regulations, codified at COMAR 10.17.10, are somewhat more detailed. They specify the procedures for obtaining a permit and state broad criteria to be used by the Department in issuing permits. Moreover, as discussed in Part III above, individual permits commonly contain extensive and detailed requirements. But we are unaware of any Maryland case that finds implied preemption on the basis of regulatory or administrative implementaton of a statute, where the statute itself does not meet the criteria for implied preemption. For purposes of conflict analysis, however, the level of detail in the implementation of the State statute is certainly relevant to a consideration of potential conflict between State and local law. See Part V below.

8 See note 9 below.

9 Although the conflict at issue in Frank involved a county ordinance and a municipal ordinance, the Court applied the principles of conflict resolution previously developed in cases of conflict between State law and local enactments. See 291 Md. at 337-38.

An ambiguity in Frank involves the question of how explicit the State permission must be. In Sitnick, the Court of Appeals stated that a political subdivision "may prohibit what the State has not expressly permitted". Sitnick, 254 Md. at 317 (emphasis in original). The Court in Frank suggested that such express permission might not be required as a rule. Frank, 291 Md. at 338. On the other hand, it held that the particular county licenses at issue did "expressly permit each licensee to engage in the practice of fortunetelling at a specified location". Id. (emphasis added).

10 The Court of Appeals has explained the nature of the special exception as "part of the comprehensive zoning plan sharing the presumption that as such it is in the interest of the general welfare and therefore valid". Turner v. Hammond, 270 Md. 41, 54 (1973).

11 To pursue the hypothetical, Forest Heights might well have authority to enforce a more comprehensive ordinance generally prohibiting the conduct of any business after 10:00 P.M. Just as a State-permitted activity is, in our view, subject to reasonable land use regulation [see Part V B above], so it is subject to other reasonable, generally applicable exercises of local police powers.

12 We do not address whether local regulation of a State-licensed, privately-operated facility is permissible if that facility is operated to "achieve a public purpose". See 63 Opinions of the Attorney General 377, 398-99 (1978).

13 One Maryland case seems to reach a conclusion inconsistent with our analysis. In Exxon, Inc. v. City of Frederick, 36 Md. App. 703 (1977), a service station owner received a permit from the State allowing access both to and from a State highway. The City, in turn, granted a special exception for the use on the condition that there be no exit onto the State highway. The Court of Special Appeals found no conflict between the two requirements.

On the surface, it appears that the City was prohibiting what the State had specifically permitted and, therefore, the City's condition must be invalid. However, the State statute authorizing the permitting of access points to State highways specifically precludes the State from denying all access to a State highway for abutting landowners. Thus, while the State can designate points of ingress from and egress onto a State highway, it cannot deny ingress or egress altogether. The Court found that the statute did not preclude the exercise of concurrent powers by the City. The Court also specifically held that those concurrent powers included the right to deny access to the State highway in furtherance of local zoning power. We think that this decision, tied as it is to a unique statutory setting, is not controlling in other contexts.

14 Although the title of Senate Bill 171 indicated that one of the purposes of the bill was to "repeal[] certain provisions relating to a sludge composting facility" (presumably, some or all of the provisions of HE §9-212), the body of the bill contained no repealer. Therefore, HE §9-212 would have continued to exist after the adoption of Senate Bill 171. As discussed in Part III above, HE §9-212(a)(4) specifically defers to county zoning and land use requirements for sludge composting facilities.

15 The preamble to Senate Bill 171 also contains language that might lead to the conclusion that the General Assembly intended to preempt local legislation. The preamble includes the following recitals:

"WHEREAS, An orderly and systematic regional approach is necessary to manage sewage sludge as a statewide concern; and

WHEREAS, The State should take an active role in research, testing, public education, uniformity of rules and regulations, and long-term planning concerning the generation and management of sewage sludge; and

WHEREAS, a centralized, efficient sewage sludge management program is needed...."

16 Under Article 78A, §§56 through 67 of the Maryland Code, consolidated hearing procedures are available to persons who are engaged in certain projects that require permits from both State and local agencies. See Article 78A, §59 (if local government approves, a joint State-local hearing is conducted). However, these procedures are inapplicable to "an application for a . . . zoning special exception". Article 78A, §57(d).

17 Presumably, the regulations adopted by the Secretary would also provide for consideration of these factors as a part of the decisionmaking process on particular sewage sludge permits.

18 Because local jurisdictions may derive authority to regulate sludge-related activities through express powers other than the power to plan and zone [see Part II above], any language intended to preempt local regulatory authority should cover more than just local zoning regulations.

19 We note that issues of preemption and conflict have been raised in a recent civil action, filed in federal court, involving certain sewage sludge regulations of another county. Ad+Soil, Inc. v. Board of County Comm'rs, Civil Action No. N-83-4413 (D. Md., filed Dec. 22, 1983). However, given the other issues in the case and the vagaries of litigation, we cannot predict whether any of the matters treated in this Opinion will ultimately be addressed by the Court in Ad+Soil.