Thursday, December 28, 2006

Enforcement Action Against Composter Goes Forward

Coconino County v. Antco, Inc., 2006 Ariz. App. LEXIS 158 (Ariz. Ct. App December 19, 2006).

The Twidwells owned 20 acres in Coconino County and leased five acres to Antco for composting septage and restaurant grease. Under scrutiny by the county, Antco attempted to take advantage of Ariz. Rev. Stat. section 11-830(A)(3) that restricted local regulation of land used for 'agricultural composting'. Antco notified the county that its activities now constituted agricultural composting. The county filed a complaint and this appeal followed dueling motions for summary judgment.

The trial court dismissed the county's petition on the basis of the doctrine of primary jurisdiction in deference to the Arizona Department of Environmental Quality (ADEQ).

The court dispensed with an exhaustion of remedies argument that figured in some of Antco's briefs by observing that because there was an existing agreement between ADEQ and the county that empowered it to initiate enforcement actions, exhaustion was not relevant.

In considering Antco's argument on the doctrine of primary jurisdiction, the court found no precedent anywhere in which the doctrine had been applied to prevent a governmental unit from exercising its public health enforcement power.

With respect to possible preemption, the court held that the trial court was remiss in applying the doctrine of primary jurisdiction when the facts of the case called for a preemption inquiry.


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