I will first comment on the four major areas affected by the proposed regulations as identified in the Brief Summary section at the beginning of the Agency Statement, which reads “The Biosolids Use Regulations (12 VAC 5-585) are to be amended to provide regulations and standards for enforcement related to local oversight of land application operations and provide requirements for land application site management practices to protect odor sensitive receptors, ensure permit compliance and address nutrient management concerns.”

1. Regulations and standards for enforcement related to local oversight of land application operations

The phrase “local oversight”, which appears only in the Brief Summary, is misleading. A complete reading of both the Agency Statement and the Proposed Text reveals no additional authority granted to localities to oversee land application of biosolids. In fact, the primary purpose appears to be to force local government compliance with the state standards with the purpose of relieving biosolids companies of the burden of challenging local ordinances in court.

The proposed process for resolving enforcement disputes between permitees and localities with an ordinance for testing/monitoring land application of sewage sludge appears to ensure that the local ordinances cannot be enforced in court.  Placing all of the power for resolution in the hands of a VDH commissioner completely dis-empowers the locality to enforce its own ordinances.       

2. Requirements for land application site management practices to protect odor sensitive receptors

The proposed regulation for an extended buffer leaves too much discretion in determining if an extended buffer is required as a condition of the permit. The extended buffer distance of 400 ft. is too small to make a difference when dealing with a pungent odor.   

3. Ensure permit compliance

There is no section/subsection in the Proposed Text on “permit compliance”, so it is somewhat difficult to determine what the VDH means in the Brief Summary when it lists “ensure permit compliance” as a substantive change. However, in the Agency Statement, it appears that this is actually again referring to the proposed changes that negate court enforcement of local ordinances.

4. Address nutrient management concerns

The VDH decision not to require a DCR-approved nutrient management plan as part of the permit process is a very troubling omission. If the purpose of spreading sludge is for soil amendment, then nutrient management is at the heart of the entire process. Failure to include such a fundamental part of the whole process leaves one to ponder if soil improvement is really why VDH wants to enable the land application of biosolids or not. It certainly “smells” of special interest influence.