1/31/17
Virginia Court Upholds State Biosolids Regulations
In December, there was another major legal victory for biosolids recycling. The Richmond, Virginia, Circuit Court upheld the new VA Department of Environmental Quality Biosolids Regulations against a legal challenge brought by the Potomac and Shenandoah Riverkeeper organizations. This decision comes shortly after a court in California struck down the Kern County voter initiated ban on biosolids use.
The Riverkeeper groups challenged the state biosolids regulations, which were updated through a lengthy process from 2008 to 2013. On January 1, 2008, VA DEQ and the Water Control Board took over responsibility for biosolids regulation from the VA Department of Health. VA DEQ and the Water Control Board convened two advisory groups: a Technical Advisory Committee (TAC) and an expert panel, both of which held numerous public meetings. The result were substantive amendments to the biosolids regulations, which became effective in September, 2013.
According to the Circuit Court's decision, the Riverkeeper petitioners brought their legal action because they believe that "(1) the amendments to the Regulations violate the Board's duties under Virginia Code... to 'ensure' that sewage sludge is regulated safely for human health and the environment, and to prevent the escape, flow, or discharge of sewage sludge into
state waters in a manner that would cause 'pollution'... and (2) the Board did not have substantial evidence to support its determination that the regulations fulfilled its statutory obligation under Va. Code...."
In reviewing the petitioners' claims, the Circuit Court found clear and convincing evidence in the records of numerous meetings and deliberations that the state agencies had done a thorough job in developing the amended regulations. And the Court found that "the record reflects substantial evidence supporting the Board's decision to approve the amended Regulations." The Court's decision addressed both the technical questions that were matters of law and substantive, technical questions regarding the safety of regulated biosolids utilization.
As the Court's decision notes, "the Board was aided by the report of the Expert Panel, which found that 'no evidence or literature verified a causal link between biosolids and illness,' and 'as long as biosolids are applied in conformance with all state and federal law and regulations, there is no scientific evidence of any toxic effect to soil organisms, plants grown in treated soils, or to humans (via acute effects or bio-accumulation pathways) from inorganic trace elements (including heavy metals) found at the current concentrations in biosolids.'
Further regarding the Expert Panel, the Court noted: “The Expert Panel was comprised of twenty one experts from diverse backgrounds.... The Expert Panel was aided by presentations of the DEQ and Department of Conservation and Recreation, and was provided with relevant background information including a bibliography of over sixty pertinent sources.… The Expert Panel met a total of twelve times before presenting a Final Report to the Governor and General Assembly on December 22, 2008.... The Expert Panel concluded that land application is a viable reuse of biosolids that has been shown to be protective of the environment when applicable law and regulations are followed." The Court also took note of the extensive TAC work and credited it in upholding the Regulation.
Ultimately the Court credited DEQ conclusions that “the Regulations are designed to manage the land application of biosolids in a manner that prevents runoff into surface waters and groundwater; that biosolids do not contribute to local nitrogen and phosphorus allocation any more than other well-managed agricultural operations; that organic matter in the biosolids helps to build and stabilize the soil thereby reducing erosion and runoff in the long term, that established buffer, setback, and slope restrictions were protective of state waters and karst topography; and that land application could occur under established conditions without negative environmental impact.”
As noted in the Times Virginian, "opposing the suit and joining the Commonwealth as intervenor-respondents were the Virginia Association of Municipal Wastewater Agencies (VAMWA), Virginia Biosolids Council (VBC), Virginia Farm Bureau Federation and the Virginia Agribusiness Council."