The regulation of sewage sludge, and in particular, land application of this mixture of human and industrial waste, is highly controversial throughout the country, especially in Virginia, Pennsylvania, Ohio, New Hampshire, and California. If you are like many of us that live in the city or the suburbs, you probably have not heard of this steaming debate. However, for those that have had their lives impacted by the strong stench associated with sewage sludge or believe that they or their children have been sickened by this practice, the controversy is both palpable and serious. Of the many avenues for debate, one that has gotten much of the legal attention is whether local governments, townships, and municipalities have the right to regulate this practice within its political boundaries. It would seem to make complete sense that the communities impacted and their collective sense of smell should be deferred to on disposal methods and restrictions, as well as the ultimate question of whether such wastes should be land applied at all.
It is worth a short note about the general framework of the regulation of sewage sludge disposal. Sewage sludge is a waste, and also carries with it several hazards, thus making it a “hazardous waste.” However, federal law has written sewage sludge out of the standard hazardous waste regulation (much like coal fly ash) and regulates the disposal of sewage sludge in 40 C.F.R. Part 503, “Standards for the Use and Disposal of Sewage Sludge.” These regulations were passed pursuant to the federal Clean Water Act. In addition to the federal regulations, many states have their own set of regulations that arguably create more stringent standards, such as testing, fees, and buffers.
These regulations created the framework for a new industry to evolve that makes its money, and a lot of money, by contracting with municipal sewage treatment plants to haul of their sewage sludge wastes on one end and applying these wastes on farms, forests, and practically any land that they can find to dispose of this material, all through a state issued permit. As a potentially foreseeable result of the spreading of this complex, odorous, mixture of human and industrial waste, people started to complain. The first complaints are about the foul and offensive odors typically associated with sewage. More serious complaints of health issues often follow. These typically involve respiratory issues such as respiratory infections, aggravated asthma, pneumonia, as well as staph infections, hives, headaches, and nausea. These complaints lead to local political pressure. This pressure has, in some instances, led to the passage of local laws and ordinances that range from placing further restrictions on the land disposal methods to complete bans on land application within the town or county. Therein lies the controversy.
To the casual observer, it may seem that if this practice is so offensive and carries with it all the risks that people claim, that the local government should simply restrict or stop it. In fact, that is what one of the leading experts on the issue once asked me, “why doesn’t the local government simply outlaw it?” The answer lies in the twisted, and arguably incorrect, interpretation of the law that has largely dominated the debate. This is, of course, the result of highly paid argument by industry. The industry has argued, with some success, that because the Clean Water Act and the pursuant 503 Sludge Rule provides a regulatory framework for the disposal of sewage sludge, that local governments are prohibited from further regulation or restriction. While this argument has many facets, it fundamentally amounts to an argument that federal law preempts local regulation. Basically, that because the federal government thought it was important enough to regulate (whatever the reason) that the local governments can have no say in how this is handled, despite the impact it has locally on its citizens.
This argument defies logic in face of the practical situation and strips the local government of its inherent ability to protect the safety, health, and well-being of its citizens. Not only does it defy logic, but it has two legal flaws as well. First, the argument against local (county, municipality, township, etc.) regulation also would apply to preempt regulation at the state level. However, we know that some states already impose more stringent regulation on sewage sludge disposal, and the industry has not been successful challenging regulation at the state level.
The second flaw, and the intended discussion, is that federal law does not prohibit regulation by local governments or limit the power to restrict to state governments. Rather, there is one provision in 40 CFR Part 501 and two provisions in 40 CFR Part 503 where local regulation is not only contemplated, but the use and disposal of sewage sludge is federally designated to be a local issue.
First, the federal regulation outlining the state sludge management programs, 40 CFR Part 501.1(i), specifically preserves the right of local governments to impose more stringent regulations than those defined at the federal or state level:
40 CFR 501.1 State Sludge Management Program Regulations
(i) Nothing in this part precludes a State or political subdivision thereof, or interstate agency, from adopting or enforcing requirements established by State or local law that are more stringent or more extensive than those required in this part or in any other federal statute or regulation.
Then Section 503.5, recognizes that the “permitting authority” (the State) to impose further restrictions to protect health and the environment. The provision goes on to actively carve out authority for the State or any subdivision thereof (the local government) to impose additional or more stringent requirements:
§ 503.5 Additional or more stringent requirements.
(a) On a case-by-case basis, the permitting authority may impose requirements for the use or disposal of
sewage sludge in addition to or more stringent than the requirements in this part when necessary to protect
public health and the environment from any adverse effect of a pollutant in the sewage sludge.
(b) Nothing in this part precludes a State or political subdivision thereof or interstate agency from
imposing requirements for the use or disposal of sewage sludge more stringent than the requirements in
this part or from imposing additional requirements for the use or disposal of sewage sludge.
The next section protects the right of the locality to determine methods of use and disposal of sewage sludge:
§ 503.6 Exclusions.
(a) Treatment processes. This part does not establish requirements for processes used to treat domestic
sewage or for processes used to treat sewage sludge prior to final use or disposal, except as provided in
§503.32 and §503.33.
(b) Selection of a use or disposal practice. This part does not require the selection of a sewage sludge use
or disposal practice. The determination of the manner in which sewage sludge is used or disposed is a local
determination.
This is consistent with the sludge regulation enabling legislation found in the Clean Water Act:
Title 33, Chapter 26, Subchapter IV, Sec. 1345 – Disposal or use of sewage sludge
(e) Manner of sludge disposal – The determination of the manner of disposal or use of sludge is a local determination, except that it shall be unlawful for any person to dispose of sludge from a publicly owned treatment works or any other treatment works treating domestic sewage for any use for which regulations have been established pursuant to subsection (d) of this section, except in accordance with such regulations.
There it is, the federal law that the industry argues prohibits local governments from regulating or prohibiting sewage sludge disposal. Something does not seem quite right. And in fact, if you ask Rick Stevens, the leading EPA regulator in the “biosolids” program:
From:
To: “Helane Shields”
Sent: Friday, April 04, 2008 9:09 AM
Subject: Re: to Rick Stevens – Ohio – local jurisdiction
Hi Helane,
I was referring mostly to the fact that use or disposal options are
local decisions. Also, Ohio is a designated state, meaning they regulate and enforce (or are supposed to) Part 503 standards, plus any additional state regulations, as if they were EPA.
If there are state or local issues that we can’t resolve, then we involve and work through the regional office in EPA Region 5. However, as EPA representatives, we act on behalf, and in the concern, of US citizens to deal with their issues and problems. As public servants the public is our constituency. When the public has a local concern, with site-specific facts and characteristics, we will investigate the issue (as we are in Ohio) and hopefully resolve all issues to everyone’s satisfaction.
Thanks,
Rick Stevens
202-566-1135
202-566-1139 fax
stevens.rick@epa.gov “
And from another email
—– Original Message —–
From:
To: “Helane Shields”
Cc: “Chris Moody”
Sent: Sunday, September 28, 2008 12:41 PM
Subject: Re: to Rick Stevens,US EPA and Jacob Howdyshell, OEPA – federal law provides for local control = more stringent sludge rules than federal sludge rules
Ms. Shields,
The operative word in your message is “can.”
Nothing in either Part 501 or Part 503 require more stringent rules.
There is no basis for your statement that compliance remains unresolved.
Rick Stevens U.S. Environmental Protection Agency Office of Water
202-566-1135
202-566-1140 fax
stevens.rick@epa.gov
So, EPA’s own recognize that, while local governments are not required to regulate the use and disposal of sewage sludge, under the federal sludge laws it is required that the ultimate determination on both use and disposal is reserved to the local government, and NOT left solely to the State.
This does not answer other legal challenges that local regulations or bans may face, brought under other constitutional theories, such as the “dormant commerce clause.” However, it does rebut much of the position heralded by the sewage sludge industry and gives an outline of what role the local governments were intended to have under the federal sewage sludge regulatory program.
Finally, it is worth noting that any state statute or regulation that purports to remove the power of local governments within this context (for example, arguments made under various “Dillon Law” theories) bring the state law in direct conflict with federal law, and the Supremacy Clause of the Constitution.
