Regulation of Land Application of Biosolids in Select U.S. States

Transcription

1 The Network Eastern Region University of Maryland Francis King Carey School of Law 500 West Baltimore Street Tel (410) Memo AS OF AUGUST 17, 2017 Regulation of Land Application of Biosolids in Select U.S. States Both federal and state law allow for the use of human waste as an agricultural fertilizer. The land application of biosolids/sewage sludge/domestic septage provides considerable nutrient benefits for the soil, but also presents a range of health and environmental challenges. As a result, the regulation of human waste in agriculture is complex and technical. This memo will briefly examine the interconnected federal and state regulatory systems, with a focus on Florida, Georgia, Alabama, Mississippi, and Texas. Federal Regulation The Environmental Protection Agency (EPA) has adopted regulations that create a minimum national standard regarding the use of human waste as fertilizer. However, states may institute their own systems 1 that can be more restrictive and extensive than the EPA s baseline. 2 Since many states rely on the EPA s regulations to provide the foundation of their program, it is important to understand the basic elements of this regulatory scheme. The two main sources of human waste fertilizer, under the federal system, are sewage sludge and domestic septage. Sewage sludge is solid, semi solid, or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes but is not limited to, domestic septage; scum or solids removed in primary, secondary, or advanced wastewater treatment processes; and material derived from sewage sludge.. 3 Domestic septage is either liquid or solid material removed from a septic tank, cesspool, portable toilet, or type II marine sanitation device or similar treatment works that only receives domestic sewage. Domestic sewage is the waste and wastewater from humans and household operation. 4 The federal system creates a series of standards related to the following: nutrient load, pollutant load, pathogen load, vector control, and general location restrictions. Nutrient Load Nitrogen is one of the elements in fertilizer that plants require for growth. The federal standards limit the amount of sewage sludge and domestic septage used on agricultural land based on the amount of nitrogen required by the crops grown on that land. 5 This is an attempt to prevent excess nitrogen from leaching into the water system and creating environmental problems. 6 Pollutant load

2 There is a series of inorganic elements found in sewage sludge and domestic septage that can cause environmental and health problems. These elements include Arsenic, Cadmium, Copper, Lead, Mercury, Molybdenum, Nickel, Selenium, and Zinc. 7 The EPA has set a series of restrictions related to these chemicals including concentration limits for the sewage sludge and cumulative loading limits for agricultural land. The EPA created concentration limits for the nine identified inorganic elements. 8 If the sewage sludge has any of these elements in excess of the ceiling concentration, it cannot be applied to agricultural land. For example, the concentration limit for arsenic is 75 mg/kg of sewage sludge. If a sample of sludge had arsenic at a level of 90 mg/kg of sewage sludge, it could not be used. Cumulative pollutant loads set limits on the amount of an inorganic pollutant that can be applied to an area of land. 9 For example, a farmer cannot apply sewage sludge to his or her land if it would raise the cumulative amount of arsenic in the soil to more than 41 kg/hectare. 10 Pathogen Reduction Pathogens, including bacteria, viruses, and parasites, are present in sewage sludge and domestic septage. These pathogens present a health risk, which federal regulations address through a series of pathogen reduction techniques. For sewage sludge, there are two classes of pathogen reduction techniques: Class A and Class B. Class A pathogen reduction is the more comprehensive and creates a safer product. Class A sewage sludge can be used in most environments and is not subject to specific site restrictions. Class B pathogen reduction techniques lower pathogen levels to a lesser degree than Class A. As a result, Class B sewage sludge still has a significant pathogen load. While it can be used on agricultural lands, there are specific site restrictions which include: 1. Food crops that touch the sludge/soil mixture and are totally above the land surface shall not be harvested for 14 months after application of the sewage sludge. These crops include melons, eggplants, tomatoes, and others. 2. Food crops with harvested parts below the surface of the land shall not be harvested for either 20 or 38 months after application of sewage sludge. If the sewage sludge remained on the surface for 4 months or longer before incorporation into the soil it is the shorter time frame. If the sewage sludge is left on the surface for less than 4 months before incorporation then the 38-month waiting period applies. These crops include potatoes, onions, peanuts, and others. 3. Food crops that do not touch the ground cannot be harvested for 30 days after application. These crops include apples, corn, peaches, and others. 4. Animals shall not be grazed on the land for 30 days after application. 5. Public access to the land will be restricted for one year after application if there is high potential for public exposure or only 30 days if there is low risk for public exposure. 11 In regard to domestic septage, there are two pathogen reduction schemes. For untreated domestic septage, all of the site restrictions for Class B sewage sludge apply. 12 However, if the farm chooses to treat the domestic septage with alkali material, there is a slightly different set of restrictions; all of Class B sewage sludge crop and grazing limitations are in place but restriction of public access is no longer required. 13 Vector Attraction Reduction Sewage sludge and domestic septage can attract rodents, flies, mosquitos and other organisms capable of transporting disease. As a result, the EPA has established standards to help reduce the vector attraction of sewage sludge and domestic septage. 14 Most of these options are very technical. However, there are a few simpler techniques like incorporating the sewage sludge into the soil within 6 hours of application. 15 Page 2

3 For domestic septage, there are three options to reduce the vector attraction of this fertilizer. The user can inject the septage into the soil, incorporate it into the soil within 6 hours of application, or alter the ph of the septage for a certain period. 16 General Location Restrictions The EPA has also established general location restrictions for the placement of sewage sludge fertilizer. 1. It shall not applied to the land in a way that is likely to adversely affect a threatened or endangered species. 2. It shall not be applied to flooded, frozen, or snow covered areas so that it enters wetlands or others waters of the United States, except as provided by permit. 3. It shall not be applied to agricultural land that is 10 meters or less from waters of the United States, unless otherwise permitted by the permitting authority. 17 While states may institute their own systems, they must be at least as protective as the EPA standards, outlined above. State Regulation This section of the memo will compare the state regulatory systems of Florida, Georgia, Alabama, Mississippi, and Texas. Since the EPA creates a regulatory baseline, there are many similarities between the programs. For example, all of these states have adopted the pollutant load standards put forth by the EPA. However, there are areas where states differ in regulatory language and standards. The areas where differences are most pronounced are nutrient loading, set back requirements, runoff reduction standards, and general application restrictions. The memo describes each state for each of these variables. Nutrient Loading Florida s regulatory language is slightly different from the federal system. Rather than sewage sludge and domestic septage, Florida deals with biosolids. Biosolids are the solid, semisolid, or liquid residue generated during the treatment of domestic wastewater in a domestic wastewater treatment facility.... However, this definition is subject to a series of technical exclusions. While the federal regulations only address the nitrogen level of lands subject to biosolid fertilization, Florida s regime looks at both nitrogen and phosphorus. Florida requires sites that apply biosolids as fertilizer to develop Nutrient Management plans. 18 These plans require sites to take into account the potential for phosphorus movement, the current nitrogen load in the soil, and the recommended nitrogen and phosphorus demand for the crops grown on the land. 19 Florida is the only state in this sample set that addresses phosphorus loads. Setback Requirements Each state in this sample set has setback requirements for the use and storage of sewage sludge/domestic septage/biosolids. These requirements dictate specific minimum buffer zones from certain markers, generally related to water safety and public exposure. Federal regulations do not require setback measures; this is a regulatory tool specifically developed by the states. Florida has the following setback requirements: Page 3

4 1. Biosolids shall not be applied within 300 feet of a private drinking water well or 500 feet from a public drinking water supply well. 2. Biosolids shall not be applied within 1000 feet of any Class I Water Body, Outstanding Florida Water or Outstanding National Resource Water. Biosolids shall not be applied within 200 feet of any other surface water, unless the biosolids are injected into the soil, in which case the setback is reduced to 100 feet. All setbacks must be vegetated. These requirements do not apply to waters owned entirely by one person (other than the state), irrigation canals, or drainage canals. 3. Biosolids shall not be applied within 200 feet of visible subsurface fractures, solution cavities, sinkholes, excavation core holes, abandoned wells or any other natural or man-made conduits that could allow direct contamination of ground water. 4. Biosolids shall not be stored or stockpiled within 1320 feet of a building occupied by the public. 5. Certain categories of biosolids shall not be applied within 300 feet of buildings occupied by the public, or 100 feet if the biosolid is injected into the ground or written permission is obtained from the building owner. 6. Certain categories of biosolids shall not be applied within 75 feet from a property line. 20 Alabama has the following general setback requirements. Septage may be applied: 1. At least 500 feet from the nearest public or private drinking water well, surface water, wetland, marsh or base flood At least 300 feet from the nearest residence, restaurant, retail food service operation, school, institution, or public contact place. 3. At least 100 feet from water supply lines. 4. At least 75 feet from property boundaries. 5. When there is a minimum separation of 24 inches between soil surface and the wet season water table, refusal layer, 22 or bedrock. 6. At least 3000 feet from evidence of subsurface fractures, solution cavities, sinkholes, excavation bore holes, abandoned wells, or any other natural or manmade conduits that could allow direct access to groundwater. 23 Georgia has the following setback requirements for domestic septage: 1. Shall not be applied within 500 feet of a well (does not differentiate between public and private water sources like Florida). 2. No land application within 300 feet of a residence or facility or land frequently used by the general public. 3. No application within 300 feet of the normal water level of any impoundment, tributary, stream, or other body of water considered a water of the state. 4. No application within 300 feet of a sinkhole, marsh, wetland, or coastal waters. 5. Vegetated buffer strips of at least 50 feet are required along streams and drainage ditches within or adjacent to the disposal site. 24 Mississippi has the following setback requirements for biosolids/sewage sludge: 1. At least 3000 feet from any inhabited building unless the applicant can justify otherwise At least 0.5 mile from the banks of any section of river, stream, lake, or reservoir, or coastal water classified for recreation or shellfish harvesting. 3. At least 250 feet from any other river, stream, lake, reservoir, or coastal water. 4. At least 0.5 mile from any licensed school, licensed day-care center, licensed hospital, or licensed nursing home. 5. At least 1000 feet from any church. 6. At least 1000 feet from any residential area. Page 4

5 7. At least 200 feet from a property line unless adequate onsite screening is available, in which case the buffer is 100 feet. 26 Texas has the following setback requirements for sewage sludge: 1. At least 200 feet from surface water if the sludge is not incorporated into the soil, and this buffer zone must be vegetated. At least 33 feet of vegetated buffer zone if the sludge is incorporated into the soil. 2. At least 150 feet from a private well. 3. At least 500 feet from a public water supply well, intake, spring, or similar source, public water treatment plant, or public water supply elevated or ground storage tank. 4. At least 200 feet from a solution channel, 27 sinkhole, or other conduit of ground water. 5. At least 750 feet from a school, institution, business, or occupied residential structure. 6. At least 50 feet from a public right of way and property boundaries. 7. At least 10 feet from irrigation conveyance canals. 28 Runoff Reduction Several of the states in the sample also have regulations to help prevent runoff of biosolids/sewage sludge/domestic septage. Again, federal regulations do not dictate specific runoff reduction standards; these specific interventions are a state creation. Florida has the following requirements in place: 1. Biosolids shall not be applied at sites during rain events that cause ponding or sheet flow, when ponding exists, or when surface soils are saturated. 2. Biosolids cannot be applied to land with a gradient over 8%. If the land gradient is over 3% there are specific injection and incorporation requirements. 3. Biosolids shall not be applied to land with frequent and very frequent flooding frequencies. 4. Biosolids shall not be applied on land with a flooding duration class of long or very long. 29 Alabama restricts the application of septage to land with a gradient of 12% or less. 30 Alabama also prohibits the application of septage to bare soil except immediately preceding the sowing or planting of a new crop of vegetative coverage. 31 Mississippi has increased setback requirements when the application site is upgradient from certain water sources: 1. At least 0.5 mile from any public water supply intake structure in a surface water body. If the runoff from the site would enter the water body upgradient of the intake, the distance is ten miles. 2. At least 1000 feet from any existing public water supply well. The distance is 0.5 miles if the site is hydraulically upgradient of any public water supply well. 32 Texas tries to address runoff by requiring that: 1. Sewage sludge must be applied uniformly over the surface of the land. 2. Sewage sludge may not be applied to areas where permeable surface soils are less than two feet thick. 3. Sewage sludge may not be applied during rainstorms or during periods in which surface soils are water-saturated, and when pooling of water is evident on the land application site. Page 5

6 4. Sewage sludge may not be applied to areas having topographical slopes in excess of 8.0%. 33 General Application Standards Each state has general application standards that prohibit application of biosolids/sewage sludge/domestic septage in certain places and under certain conditions. These standards are often specific to the environmental features of the state. For example, Florida prohibits certain biosolids in the Lake Okeechobee, Caloosahatchee River, and St. Lucia River watersheds. 34 Given the state-specific nature of these restrictions, they are too extensive to list in detail. However, the memo will highlight a few unique standards from Alabama. Alabama prohibits the use of sewage sludge as fertilizer, and only allows domestic septage. 35 However, the use of septage as fertilizer is discouraged. Alabama regulations state that septage should be used as fertilizer when other disposal options, such as landfill and incineration, are not feasible because of distance, access, or other limitations. 36 Alabama also requires all domestic septage to be lime stabilized prior to application. 37 Federal regulations do not require this procedure. Page 6

7 1 See 40 C.F.R (allowing states to create their own state sludge management programs and establishing standards for the establishment of these programs). 2 See 40 C.F.R (i) (allowing states to adopt or enforce sludge management standards that are more stringent and extensive than federal baseline standards); see also 40 C.FR (allowing states to create more stringent and additional requirements on the use and disposal of sewage sludge) C.F.R (w) C.F.R (f),(g) 5 See 40 C.F.R (b)(defining agronomic rate as the application rate of sludge that provides the nitrogen needed by the crop, while minimizing the nitrogen that passes below the rootzone and into the ground water); see also 40 C.F.R (requiring that sewage sludge be applied to agricultural land at or below the agronomic rate); see also 40 C.F.R (c)( establishing the maximum annual application rate of domestic septage based on the nitrogen needs of crops or vegetation grown on the land.) 6 Id C.F.R C.F.R (b)(1) C.F.R (f)(defining cumulative pollutant loading rate); see also 40 C.FR (b)(2)(setting the cumulative pollutant 10 Id. loading rates). 11 See 40 C.F.R (b)(5)(providing list of site restrictions for Class B sewage sludge) C.F.R (c) 13 Id. 14 See 40 C.F.R (providing the vector attraction reduction requirements) C.F.R (b)(10) C.F.R (a)(5), (b)(9,10,12) C.F.R Fla. Admin. Code Ann. R Id. 20 Fla. Admin. Code Ann. R (8). 21 Ala. Admin. Code (4) (A base flood is a a flood that has a one-percent (1%) or greater chance of recurring in any year, or a flood of a magnitude equaled or exceeded once in 100 years on the average over a significantly long period. ) 22 Ala. Admin. Code (30) (A refusal layer is a layer of highly compacted soil, boulders, rock, or other compacted material, below the soil surface, that is difficult or impossible to penetrate with soil boring equipment, such as a hand auger. ) 23 Ala. Admin. Code (2),(5). 24 Ga. Comp. R. & Regs (7). 25 Miss. Admin. Code 11-4:1.8(D). 26 Miss. Admin. Code 11-4: A solution channel is an elongated void within a rock, which has been enlarged by the solution action of moving ground water on the rock itself. Solution channels are most commonly associated with carbonate rocks. 28 Tex. Admin. Code tit. 30, Fla. Admin. Code Ann. R (11). 30 Ala. Admin. Code (2),(5) 31 Ala. Admin. Code Miss. Admin. Code 11-4: Tex. Admin. Code tit. 30, Fla. Admin. Code Ann. R Page 7

8 35 Ala. Admin. Code Ala. Admin. Code (4) 37 Ala. Admin. Code (1)(e) Page 8