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

Biosolids Subcommittee

August 28, 2002
Richmond

In its first meeting, the Biosolids Subcommittee of the Commission on the Future of Virginia's Environment received a presentation from staff on the National Research Council Report, pending biosolids litigation and local ordinances, and an update on biosolids use regulations from the Department of Health. In addition, the chairman distributed a draft of biosolids legislation for consideration of the members and the public.

Staff Presentation

In the summer of 2000, the Environmental Protection Agency (EPA) requested that the National Research Council (NRC) of the National Academy of Sciences study the land application of biosolids and evaluate the methods used by the EPA to assess risks from chemical pollutants and pathogens. The EPA requested that the study assess the science that supports its sewage sludge regulations under the Federal Clean Water Act (Rule 503). The NRC completed its study in May of 2002 and issued its findings and recommendations in July. The overarching findings of the 266 page report state:

There is no documented scientific evidence that the Part 503 rule has failed to protect public health. However, additional scientific work is needed to reduce the persistent uncertainty about the potential for adverse human health effects from exposure to biosolids. There have been anecdotal allegations of disease, and many scientific advances have occurred since the Part 503 rule was promulgated. To assure the public and to protect public health, there is a critical need to update the scientific basis of the rule to (1) ensure that the chemical and pathogen standards are supported by current scientific data and risk-assessment methods, (2) demonstrate effective enforcement of Part 503 rule, and (3) validate the effectiveness of biosolids-management practices.

The EPA is scheduled to respond to the NRC report by June 2003 and to make any recommendations by December 2003.

Biosolids litigation is currently pending in the Circuit Court of Spotsylvania County and in the U.S. District Court for the Western District of Virginia. The Spotsylvania lawsuit was filed by biosolids contractors challenging a county ordinance that requires a special use permit to land-apply biosolids. This case is currently in the pleading phase, and a trial date is expected to be set before the end of the year. The case in federal court was filed by a group of farmers in Appomattox County who are challenging an ordinance that requires rezoning of an area already zoned for agricultural uses to a new designation of intensive farming overlay district. The judge partially granted the plaintiffs' motion for a preliminary injunction, which effectively suspended the enforcement of the county ordinance pending the outcome of the case.

Biosolids ordinances in Buckingham, Louisa and Hanover Counties were presented as examples of county efforts to craft ordinances in conjunction with the biosolids contractor industry. All three ordinances address issues such as notification to the county, sign posting and penalties for violations. Other issues addressed include requirements that the contractor post a bond or present proof of insurance, time of application restrictions, approved truck routes, and odor provisions.

Biosolids Use Regulations

The Virginia Department of Health (VDH) has issued 100 current permits for the land application of biosolids. Forty-two counties contain permitted sites; more than 300,000 acres are permitted in Virginia; and more than 40,000 acres annually receive biosolids. VDH's Biosolids Use Regulations Advisory Committee (BURAC) is currently considering several rulemaking proposals. In response to HB 2827 (2000) BURAC is in the process of proposing recommendations to VDH for testing and monitoring fees and reimbursements to localities. On April 26, 2002, the Board of Health approved a $2.50 per dry ton fee. This has recently been revised to include a maximum of $4.00 per ton for which VDA can reimburse localities for their expenses. Based on a petition from the contractor industry, BURAC is also considering recommending rule changes to include a financial responsibility or insurance requirement and standards for notification, signage and spill cleanup. VDH is also in the process of revising its field storage regulations.

Biosolids Legislation Draft

The chairman distributed a draft of biosolids legislation amending § 32.1-164.5 of the Code and adding §§ 32.1-164.6 and 32.1-164.7. The draft, based on testimony from previous commission meetings and input from members, attempts to accomplish the following:

1. create standard complaint and investigation procedures;
2. provide flexibility to local governments to enact reasonable special site-specific conditions;
3. require proof of financial responsibility from biosolids contractors;
4. create a program to train and certify applicators;
5. allow localities to order abatement of application in cases of violations; and
6. require VDH to review the NRC report and EPA's response in evaluating its regulations.

The chairman explained that this was offered as a starting point, and that the commission would accept written comments from the public on the bill draft for one month.

The subcommittee is meeting again on October 7, 2002, to consider public comments and assess the draft legislation prior to making any recommendations to the full commission, which meets again on October 15.

Chairman:

The Hon. William T. Bolling

For information, contact:

Jeffrey S. Gore
Division of Legislative Services

THE RECORD