HJR 118/SJR 117: Commission on the Future of Virginia’s Environment

May 28, 2002
Richmond

Chairman Bolling began the meeting by announcing the adoption of a work plan derived from the public hearing held by the commission on April 29, 2002. Both the May 28 and the June 18 meeting were dedicated to the issue of the land application of biosolids. The purpose of the May 28 meeting of the commission was to provide education and background on this issue.

Definition of Biosolids

The Virginia Department of Health defines biosolids as a sewage sludge that has received an established treatment for required pathogen control and is treated or managed to reduce vector attraction to a satisfactory level and contains acceptable levels of pollutants, such that it is acceptable for use for land application, marketing or distribution in accordance with 12 VAC 5-585.

Senate Bill 618

Senate Bill 618 was referred to the commission by the Senate Committee on Agriculture, Conservation and Natural Resources during the 2002 Session of the General Assembly. If enacted, SB 618 would grant localities the authority to ban the land application of sewage sludge (biosolids) within its boundaries.

A representative from the Northumberland County Board of Supervisors presented the bill to the committee on behalf of its patron, Senator Creigh Deeds. The county supervisor characterized SB 618 as "simple in nature and broad in scope" and emphasized the need for clarification in state law so localities will know exactly what authority they have in this area. He asserted that the bill would provide such clarity and prevent further "regulation" of this issue by the court system. He also questioned the ability of the Department of Health to effectively oversee the land application of biosolids statewide with only two full-time employees assigned to the statewide program.

State Laws

Staff then provided a review of state laws relating to the land application of biosolids. Any sewage treatment facility that land-applies sewage sludge must obtain a permit from the Virginia Department of Environmental Quality (DEQ), while anyone contracting with a sewage treatment plant to land-apply sewage sludge must obtain a permit from the Virginia Department of Health (VDH). The VDH has promulgated regulations dealing with the land application, marketing and distribution of sewage sludge pursuant to statutory authority.

The Virginia Right to Farm Act prohibits local ordinances from requiring a special use permit for agricultural practices in areas zoned for agriculture. The act specifically excludes, however, the land application of sewage sludge from the agricultural practices it protects from such local regulation. Similar language is also found in the zoning statutes of the local government title.

In Blanton v. Amelia County (2001), the Virginia Supreme Court held that a local ordinance prohibiting the land application of sewage sludge was invalid due to its inconsistency with state law. State law, the court held, expressly authorizes the land application of biosolids conditioned upon the issuance of a permit. In response to a question from the commission, staff explained that the court’s decision in Blanton was limited to consideration of that particular ordinance and that the court did not offer examples of local ordinances that would be permissible. Staff then provided a brief analysis of other states’ biosolids programs.

EPA Presentation

History of EPA Involvement

The EPA began an extensive research and development program studying sewage sludge land application in the 1960s. Both the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA) emphasize the recycling or reuse of waste materials whenever possible to divert such material away from landfills or to prevent them from being destroyed in a manner that creates pollution in other areas, such as incineration. In the late 1970s EPA worked with states to develop guidelines for land application pursuant to the Part 257 rule under RCRA and CWA. During this period, states were at the forefront in issuing permits and tracking individual projects. In the early 1990s, due in part to activity in the courts, EPA developed more comprehensive sewage sludge standards under 40 CFR Part 503. Currently, EPA is in the process of developing a comprehensive biosolids data management system (BDMS) to track biosolids’ quantity, quality and practices.

Health Studies

In the 1970s a study of farm families land-applying class B biosolids showed no adverse health effects. Currently, EPA is in the process of studying dioxin and radiation levels in sewage sludge. So far, problems in these areas appear to be site-specific and formal guidance should be issued by the end of the calendar year. Studies on the potential health concerns related to odors and bioaerosols are being coordinated with the Center for Disease Control (CDC) and the National Institute for Occupational Safety and Health (NIOSH). Also, the National Academy of Sciences is currently reviewing the scientific methods used in formulating the Part 503 standards 10 years ago.

Rule 503

40 CFR 503 addresses use and disposal of sewage sludge. Today over half of the sewage sludge produced is land-applied. EPA standards are minimum requirements and it is not unusual for states to implement stricter standards. The federal rules are self-implementing; therefore no federal permit is required to land-apply. Nothing in Part 503 directs local facilities to incinerate or land-apply, which leaves the method of sludge disposal a state or local option. Part 503 standards include sludge quality requirements concentrating on nine heavy metals and field loading limits (at agronomic rates), vector attraction reduction requirements, management practices dealing with nitrogen levels, and record-keeping requirements. The federal rules distinguish between class A (pathogens reduced to below detectable levels using specified methods) and class B (significant reduction of pathogens combined with site restrictions) biosolids. Pasteurization, heat drying and composting are treatment methods used to reduce pathogen levels.

Other States

A two-year moratorium on land application of biosolids was lifted in New York after a series of studies was conducted. A number of counties in California have restrictions or bans on land application. New York City and Boston both export sludge to Colorado, where tipping fees are assessed. The EPA representative was not aware of any states that have imposed a ban on this process.

EPA Policy

The current EPA position is that if applied in accordance with minimum 503 requirements, biosolids can be safely applied. EPA views the states as having the lead in the implementation of land application procedures.

DEQ Presentation

VPDES Permit

The director of the Virginia Department of Environmental Quality explained the department’s role in the sewage sludge regulatory scheme. DEQ requires a Virginia Pollutant Discharge Elimination System (VPDES) permit for any sewage treatment works land-applying sewage sludge. Land application is by far the most utilized method of sludge disposal pursuant to VPDES permits (as opposed to landfilling or incineration). The plant owner (sludge generator) is responsible for the quality of the sludge to be land-applied unless he contracts with a land applicator.

Environmental Protections

Regulations provide sludge quality standards and soil monitoring requirements for pathogens, metals, vector attraction, nutrients, etc. Groundwater monitoring is required in locations where sludge is applied more than once every three years. Sludge quality data is made available to owners of the land where the sludge will be applied, and notice is given to adjoining land owners. Other environmental protections include buffer requirements (minimum distances from occupied dwellings, wells, springs, property lines, roadways), slope restrictions (must be less than 15 degrees), pH management requirements and storage requirements. Such conditions are consistent with EPA standards. In response to a question from the commission, the director explained that large wastewater treatment plants (those treating over 1 million gallons of water a day, of which there are 90–100 in Virginia) are required to provide annual quality reports to DEQ, whereas smaller facilities are only required to keep records on-site to be available for periodic inspections.

DEQ Policy

When properly applied and managed, biosolids provide essential plant nutrients, enhance moisture retention, improve soil fertility and productivity, reduce soil erosion and runoff, and save diminishing landfill space.

VDH Presentation

The director of the Office of Environmental Health Services at the VDH described that agency’s role in the land application of biosolids.

Biosolids Facts

• 50 percent of biosolids generated in Virginia are land-applied, while the rest are either incinerated (20 percent) or landfilled (30 percent).
• 50 percent of all biosolids applied to land in Virginia comes from out of state.
• Since 1997, VDH has approved more than 100 permits covering 300,000 acres, many of which are currently due for re-issuance.
• Over 40,000 acres receive biosolids annually.
• 42 counties contain permitted sites.
• There are nine contractors currently land-applying biosolids in Virginia.
• Biosolids contain nutrient-rich organic material such as nitrogen and phosphorous, dry solids consisting mostly of paper and hair fibers, trace elements from sewage, including very low levels of toxic chemicals, and millions of microorganisms per gram.

Biosolids Program

VDH quality control measures include monitoring of trace elements and vector attraction and verification of the treatment process. The biosolids program staff consists of one scientist and two full-time engineers who visit generators both in and out of state. VDH receives monthly reports on biosolids quality from generators, through the contractors. In addition to the federal requirements of 40 CFR Part 503, VDH’s biosolids use regulations also require the contractor (land applicator) to obtain a permit for each site. The permit application must include a land owner/farmer agreement setting forth management practices and nutrient management plans in some instances. Once issued, each permit is valid for five years.

During the permit approval process, VDH staff inspects each site. After land application, staff visits are limited to investigating complaints (approximately two per month) and routine inspections of approximately 12 sites per year. Most land application sites only receive biosolids approximately once every three years. For in-state generators of biosolids, VDH relies heavily on information obtained from DEQ. For out-of-state generators (e.g., New York, New Jersey), VDH staff visits those facilities to ensure compliance with Virginia’s quality standards.

Notification and Public Comment

Once VDH approves a permit application, VDH staff notifies other state agencies (DCR, Agriculture and Consumer Services, and DEQ), the county administrator, and the county board chairman. VDH then holds a public information meeting, which is advertised in local newspapers. The contractor and farmer are often present, in addition to VDH staff, to answer questions from the public regarding the proposed use of biosolids. The most common complaints from the public are related to odor and truck traffic.

Setbacks and Buffers

Biosolids must be applied at least 100 feet from drinking water wells and 200 feet from occupied dwellings (see Table 1). Other setbacks are site-specific, depending on slope and other conditions. Setbacks from streams are at minimum 35 feet. When local ordinances are more strict than the state regulations, VDH works with the locality in establishing setback and buffer requirements. Commission members questioned the enforceability of more stringent local ordinances in light of the Blanton case. The department is considering a petition submitted by biosolids contractors with regard to posting, notification of surrounding land owners, advance notification to local governments, and identification of contractor resources to ensure ability to deal with any problems resulting from a land application. Contractors have requested agency review of these issues as typical standards being enacted by some localities.

Fee Collection

VDH is in the process of finalizing regulations that would impose a $2.50 fee per dry ton of land-applied biosolids. These regulations stem from HB 2827 (2001), which allows the department to collect this fee and reimburse localities for their testing and monitoring costs.

Local Governments

The commission was slated to hear from representatives of Spotsylvania, Rappahannock and Henrico Counties, the Hampton Roads Sanitation District and Alexandria Sanitation Authority, but time only allowed for the first presenter, while the others were asked to speak at the June 18 meeting. Accordingly, a review of the Spotsylvania County presentation will be included in the summary of the June 18 meeting with the other local government presentations.

Chairman:

The Hon. William T. Bolling

For information, contact:

Jeffrey S. Gore
Division of Legislative Services

THE RECORD

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