State Law v. Counties
The Choice: dump sludge as a fertilizer or put it in a highly permitted landfill.
"When the sewage sludge is not used to condition the soil or to fertilize crops or
vegetation grown on land, the sewage sludge is not being land applied. It is being
disposed on the land. In that case, the requirements in the subpart on surface
disposal in the final part 503 regulation must be met." (FR. 58, p. 9330 - 40 CFR 257
et al.1)
When EPA came out with its part 503 open sludge dumping sludge policy which
was based on perceived exclusions in the environmental laws, was self-permitting
and only included management practices -- a county could have easily have
banned sludge use. However, once state solid waste statutes were revised to
comply with part 503, EPA's open dumping policy became state law. Virginia shows
us how this works.
In 1999, AMELIA COUNTY, VA. "An Ordinance Banning the Placement of Biosolids
on Any Land in the County."  When adopting this ordinance, the Board of
Supervisors, exercising its police powers, concluded that "the spreading,
placement or disposal of human waste sludge or industrial sludge on land in
Amelia County . . . constitute[s] a nuisance and further . . . constitute[s] a hazard to
the health, safety and general welfare of the inhabitants of said county and . . .
constitute[s] a danger of pollution of the waters of the county."
Virginia Court Opinions

                       OPINION BY JUSTICE LEROY R. HASSELL, SR.

                            Record No. 000277   January 12, 2001



Thomas V. Warren, Judge

I     In this appeal, we consider whether ordinances enacted by a county's board of
supervisors contravene Code  1-13.17, which prohibits the enactment of
ordinances that are inconsistent with the laws of this Commonwealth.

It is true, as the County asserts, that we held in Dail that the provisions of a
challenged ordinance were not invalid because that ordinance purportedly
conflicted with the "best management practices promulgated by the State Forester"
did not have "the force and effect of law."  Id. at 585, 528 S.E.2d at 451.  Unlike
the State Forester's best management practices that we considered in Dail, the
provisions of Code  32.1-164.5, as well as the Biosolids Use Regulations,
constitute enforceable laws of this Commonwealth.

The General Assembly has also directed that the State Board of Health, with the
assistance of the Departments of Environmental Quality and Conservation and
Recreation, promulgate the requirements and procedures for the issuance
and amendment of permits.  Code  32.1-164.5(C) also enumerates, among other
things, certain requirements and conditions which must be contained in the
regulations that govern the land application of biosolids in this Commonwealth.  

The County's ordinances are inconsistent with Code  32.1-164.5 and the
Biosolids Use Regulations because the ordinances forbid certain plaintiffs from
using biosolids on their farmland even though those plaintiffs have obtained
licenses to use biosolids pursuant to the statutory and regulatory scheme
established by the General Assembly.

For the reasons stated above, we will enter a declaration that the County's
ordinances, enacted pursuant to the County's police power and zoning power, are
void and unenforceable because both ordinances are inconsistent with Code 32.1-
164.5 and the Biosolids Use Regulations promulgated pursuant to that statute.  
We will also reverse the judgment of the circuit court and enter a final judgment on
behalf of the plaintiffs.

Mr. Oliveira read a sentence of Kings County’s ordinance “There is scientific
evidence demonstrating the clear potential for adverse impacts; therefore, the
continuation of this practice will unreasonably and unnecessarily jeopardize the
public health, safety, welfare, and environment of Kings County.”

Mr. Oliveira stated that another disparity was lack of information, he heard one of the
reasons Kings County passed the ordinance was because they are highly urbanized;
however, Kings County has more farmland per capita than any other county in the
State of California. He stated that Del Monte’s policy in California is they will not grow
any produce on any ground that has ever had bio sludge of any type. He stated that
Kings County did not ban sludge, they banned the use of Class B and Class A, and
they allow EQ. (p.7)
According to a Nevada Newspaper Mohave (County), Arizona did ban sludge use.
Nevada -- April 2, 2004

Reid, a member of the Senate Committee on Environment and Public Works,
contacted U.S. Environmental Protection Agency Administrator Mike Leavitt,
expressing strong concerns over the application of the municipal sewage sludge.

"The application of sludge has given rise to nuisance pests and health concerns
among my constituents.
The same sludge product was banned from Mohave
(County), Arizona due to health problems and concerns
," Reid wrote, in a letter
dated Feb. 6. He mentioned a
Cornell Waste Management Institute study that
identified more than 35 sites where neighbors in Mohave County, Ariz., reported

Reid gave Leavitt a list of questions about application of bio-solids including
protection from airborne pathogens, water runoff and infiltration, a lack of information
about pollutants in bio-solids and regulations protecting workers and neighbors from
flies and pets attracted to the sludge.
Apparently, 20 Arizona counties banning sludge was creating a problem for the state.
On March 31, 2004, the EPA Region 9 approved ADEQ's Biosolids/Sewage Sludge
Management program for implementation in Arizona, except in Indian Country. As of
March 31, 2004, ADEQ serves as the sewage sludge program and enforcement
authority in Arizona. The EPA maintains an oversight role.
While it seems that Arizona has never had an EPA approved solid waste
management plan under 40 CFR 256, it quickly changed its solid waste rules to more
closely correspond to 40 CFR 503. (EPA removed
Chromium because it had no
legitimate risk studies it wanted to present in court)
Arizona does restrict the ceiling concentration of Chromium .@. 3000.0 ppm for
sludge as a fertilizer. R18-9-1005. Pollutant Concentrations Table 1.
Yet, in a surface disposal site 503 subpart C, only Chromium..@  600 ppm is allowed.
Table 1 of § 503.23)
0 to less than 25 meters from the surface disposal property line only  200 ppm of
chromium is allowed.(Table 2)
Apparently, the Governor and Attorney General didn't read that part before they sent
letters to EPA.
Letter from the Governor
Program description for biosolids/sewage sludge management
The Department expanded the rules to more closely
correspond to 40 CFR 503, Subpart B; to incorporate by reference 40 CFR 503,
Subpart C (A.A.C.
R18-9-A905(A)(9)); and to prohibit the incineration of biosolids in the State of
Department staff has been operating a biosolids management program for disposal
by land application since 1984 and created rules for land application of biosolids in
Attorney General's statement regarding authorities for Biosolids/sewage sludge

The owner or operator of the surface disposal site and the preparer of sludge for
diposal in a surface disposal site must ensure that the 40 CFR 503, Subpart C
requirements are met and also apply for and obtain an APP for the site. If the owner
or operator of the surface disposal site or the preparer of sewage sludge for disposal
in a surface disposal site criminally violates the treatment requirements in
R18-9-l002(E)(1), the violator would be subject to penalties under A.R.S. 49- 263.02.
Additionally, if a surface disposal activity (including both disposal and preparation for
disposal) violated any applicable biosolids requirements of 40 CFR 503 Subpart C
included in an APP permit, the permittee would be subject to the criminal penalty
provisions of A.R.S. § 49-263. Because the Department commits to including the
requirements of 40 CFR 503, Subpart C in APPs for individuals involved with surface
disposal activity, the potential penalties associated with these provisions match the
federal levels.

G. Subsection F of this section does not prevent the director from taking an
appropriate enforcement action to address the release of a hazardous substance,
pollutant or contaminant or the violation of a permit condition before or as an
element of an approved remedial or response action, settlement agreement or
consent decree. (p.14)

MOA regarding the Biosolids/Sewage Sludge Management Program

Statutory authority at A.R.S. 49-255 et seq.  and the rules at A.A.C. R18-9-1001 et
seq. (effective Jan. 5, 2003) for the Biosolids/Sewage Sludge Management Program