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Legal Opinion: Delegate Chris Peace Bill HB 1364 Will Allow Industrial Sludge to be Dumped in Hanover and Va

Delegate Chris Peace has introduced a bill that purportedly will allow localities to adopt ordinances that will allow them to charge fees for testing industrial waste:

Allows localities to adopt ordinances that provide for the testing and monitoring of the land application of solid or semisolid industrial wastes. The bill requires the State Water Control Board (the Board) to adopt regulations no later than January 1, 2016, requiring persons that land-apply industrial wastes to collect a fee from the generator of the industrial wastes and remit the fee to the Department of Environmental Quality (DEQ). The fee cannot exceed the direct costs to localities of testing and monitoring the land application of industrial wastes. The bill requires the Board’s regulations to include procedures for (i) collection of the fees by DEQ, (ii) deposit of the collected fees into the Sludge Management Fund (the Fund), and (iii) disbursements from the Fund to localities for the testing and monitoring of the industrial wastes. The Department of Environmental Quality is required to establish and implement a program to train the employees of the localities who will be responsible for testing and monitoring the land application of industrial wastes. The bill specifies the minimum instructional elements of the training program.

This bill has been advertised by Peace as an effort against dumping industrial sludge in Hanover County (among other areas). What has raised suspicion with this bill is that one of the largest producers of industrial sludge is Smithfield Foods. It raises suspensions because Delegate Peace is a consultant to Smithfield Foods and any bill that would actually prevent or limit industrial sludge dumping would run counter to what one would assume benifits his employer, Smithfield.

However, a new legal opinion has stated that this seemingly innocuous bill that would allow testing costs to be passed back to the company dumping the sludge actually introduces authority for Virginia to regulate industrial sludge. And this would prevent counties from enacting ordinances preventing this toxic sludge from being dumped in a county where it can contaminate ground water.

Delegate Peace needs to withdraw this bill immediately! This is nothing but a dangerous back door that may prevent local counties from stopping this toxic sludge.

The legal opinion is below:

The Environmental Law Group, PLLC
Law and Science for the Environment
5803 Staples Mill Road, Richmond, Virginia 23228
Mail to: P.O. Box 6236
Richmond, Virginia 23230
David S. Bailey (VA & DC) Telephone: 804-433-1980
General Manager & Senior Counsel Toll Free: 888-831-0659
Tammy L. Belinsky (VA) (Associate Counsel) Facsimile: 804-433-1981
Jeter M. Watson (VA) (Of Counsel) tbelinsky@envirolawva.com

MEMORANDUM
To: Tyla Matteson
From: David S. Bailey, Esq., and Tammy L. Belinsky, Esq.
Date: February 16, 2015
Subject: Statutory Authority for Disposing Industrial Waste on Agricultural Land

Question: The Environmental Law Group, PLLC, has been asked to provide a legal
opinion on the question of whether the Virginia DEQ and the State Water Control Board
have the statutory authority to issue permits for the disposal of industrial waste
treatment residuals on privately owned agricultural lands in Virginia without the consent
and concurrent zoning of affected lands by a local government.

Answer: There is no authority granted by the legislature to the DEQ or State Water
Control Board to usurp the sole authority of local governments to regulate land uses
pursuant to Chapter 22 of the Code of Virginia, §§ 15.2-2200, et seq., which governs
land use planning, subdivision of land, and zoning. There may be authority for DEQ to
regulate such uses if allowed by local government zoning, but this question was not
evaluated and may be suspect as well absent specific statutory authority such as
granted for the land application of sewage sludge.
P Land Use, Planning & Zoning P Natural Resource Protection P Wetlands P Water Quality & Quantity P
Environmental Exposures to Mold, Pesticides & Toxic Chemicals
www.envirolawva.com
Background: In December 2014, the DEQ and State Water Control Board issued a
permit to regulate the disposal of industrial waste from the paperboard and meat
processing industries on agricultural land. The agricultural land is owned by thirdparties
and not zoned for industrial use. Citizens’ concerns included the question of
whether the Water Control Law, Virginia Code §§ 62.1- 44.2, et seq., authorized the
land application of industrial waste, as well as documented health concerns in regard to
the content of industrial wastes and the adequacy of the existing municipal sludge
(biolsolids) regulations to monitor for pollutants in industrial wastes. The citizens
supported their concerns with literature and scientific studies that document the
potential harm from exposure to waste sludge applied to agricultural land.
Municipal sludge (sludge generated from the treatment of municipal sewage) is
specifically regulated by the authority prescribed by Virginia Code § 62.1- 44.19:3.
DEQ staff did not cite this statute in response to a recent request by a citizen for the
agency’s authority for issuing permits for land disposal of industrial waste. See
Electronic email message (transmitted herewith) from Kyle Winter (DEQ) to Sharon
Logan, dated October 29, 2014. Therefore, the DEQ does not rely on the section of the
Virginia Code that expressly authorizes land disposal of municipal sludge for the
authority to issue permits for the land disposal of industrial sludge, and, indeed, the
statute speaks only to sewage sludges.
In Virginia, local governments possess the sole authority to regulate land use.
Virginia Code, §§ 15.2-2200, et seq. Using agricultural land to dispose of industrial
waste changes the land use from an agricultural to an industrial use. Only local
governments have the authority to change land use designations. Even the
characterization of the land use is within the sole authority of local governments, and so
any question as to whether disposing industrial sludge on agricultural land converts the
land use from agricultural to industrial is a matter only local governments may decide.
See Virginia Code § 15.2-2280. Code of Virginia § 62.1-44.15:3 calls for notification
from the locality that the operations of an applicant for a wastewater discharge permit
are in compliance with the locality’s planning and zoning ordinances before a permit
application can even be considered by DEQ.
House Bill 1364, and a companion senate bill, have been introduced in the
current legislative session. These bills purport to authorize local governments to create
a scheme to co-regulate (with the DEQ) land disposal of industrial waste in a manner
similar to that authorized for the co-regulation of municipal sludge disposal. The bills
fall short of providing the rigor that is prescribed the municipal-waste co-regulation
scheme, and fails to require notification from the local government that the proposed
permitted activity is in compliance with local government ordinances. More importantly,
the DEQ has cited no authority for the state to usurp the local government authority to
regulate land use.

Analysis: There is no express authority in the Code of Virginia for the DEQ or the
State Water Control Board to authorize land application of industrial waste onto lands
not zoned industrial, and not where industrial waste disposal is not an integral part of
the industrial operation on its own land. The authority to classify and regulate land use
has been conferred only to local governments by the legislature. Therefore, even
matters of land use classification that are inherent to a proposal to dispose of industrial
waste on agricultural land can only be decided by local governments. This issue should
not be confused with the authority of DEQ, if any, to regulate such uses under the
Water Control Law, if the proper zoning is in place.

Permits issued by the DEQ and State Water Control Board for the disposal of
industrial wastes, without specific and independent statutory authority, on lands that are
zoned as agricultural interfere with the local governments’ sole authority to regulate
land use, and potentially violate local zoning ordinances.
House Bill 1364, and its senate counterpart, would merely incorporate a coregulation
scheme between the DEQ and local government. This bill does not
overcome the inherent conflict created by the agency’s usurpation of local authority to
regulate land uses. Furthermore, the proposed legislation fails to mirror the scheme
already existing in the Code for the co-regulation of municipal sewage treatment sludge,
and therefore seems to provide even less protection for industrial waste, an inherently
dangerous material, than provided for conditioned sewage waste.

About Tom White

Tom is a US Navy Veteran, owns an Insurance Agency and is currently an IT Manager for a Virginia Distributor. He has been published in American Thinker, currently writes for the Richmond Examiner as well as Virginia Right! Blog.Tom lives in Hanover County, Va and is involved in politics at every level and is a Recovering Republican who has finally had enough of the War on Conservatives in progress with the Leadership of the GOP on a National Level.

3 Responses to “Legal Opinion: Delegate Chris Peace Bill HB 1364 Will Allow Industrial Sludge to be Dumped in Hanover and Va”

  1. Robert Shannon says:

    Del Peace has taken a page from our Congress in that his bill essentially transfers authority that previously didn’t exist to a State agency, much like Congress has ceded authority to the E.P.A for example that allows members of Congress to say when constituents complain that ” hey I don’t have any control over that–it’s the E.P.A you should be yelling at” Very convenient manner in which they side step their obligations and duties when it serves them to do so. Many of these agencies at the Federal and State level are now used in this manner. The Dept. of Education comes to mind since it is so often cited as the boogeyman who brings so many dictates to localities who then repeat the same claim ” it’s the Dept. of Education making us do this” , always tongue in cheek because they do not want to give up the money that often accompanies these mandates they claim they oppose.

    Peace is doing what legislators beholden to corporate donors do–if you can’t get it through the front door—-bring it in the back.

    Here is a practical remedy for this. Some years back I heard Peace refer to himself as a “small farmer” If that is the case then ask him to dump this stuff on his “small farm”–see what he has to say about that idea.

    Bob Shannon

  2. Carolyn
    Twitter:
    says:

    Review what Agenda 21 is all about. Isn’t time for Mr. Peace to go. Stand up and vote him out.

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  1. […] have heard this charge and I asked Chris about it and he said this was simply not true.  There is another side to the Q but it remains an open question – a respected environmental lawyer that I know versus the […]


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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