Subject :

WHAT THE FEDERAL REGISTER SAYS ABOUT LOCAL CONTROL

Date : Date : Fri, 14 Jun 2002 18:30:54 -0400
THIS email I received today from Mr. Robert Bastian, EPA Office of Water (sludge office)
-- with copy to Dr. Alan Rubin who prides himself on being the author of the 40 CFR Part 503 sludge rules --
confirms what I have been saying all along .....

that it was always the intent of the EPA and Congress at the time the 40 CFR Part 503 sludge rules were enacted that

LOCAL COMMUNITIES HAVE THE RIGHT TO IMPOSE LOCAL REQUIREMENTS
FOR THE USE OR DISPOSAL OF SEWAGE SLUDGE
WHICH ARE MORE STRINGENT THAN the federal sludge rules.



----- Original Message ----- From: Bastian.Robert@epamail.epa.gov ;

Helane,
This is a follow-up to my 6/11/02 response to your e-mail of the same date that had your message below attached.
As you have pointed out below, the preamble of the Part 503 rule does use the term "Local Community"
both ways -- in some places to refer to the "POTW" or "generators" of sewage sludge (biosolids) and in other places to refer to a local authority that may choose to impose more stringent requirements than those included in the Part 503 rule under its own authority. It was clearly the intent of the section dealing with "the determination of the manner for use of sludge is a local determination ..." that there was nothing implied in the Part 503 to require a POTW to use a specific use or disposal practice, but that this is a determination to be made by the POTW.
AT THE SAME TIME, I AGREE THAT IT WAS ALSO CLEARLY STATED
THAT THE STATES AND LOCAL COMMUNITIES REMAIN FREE TO IMPOSE MORE STRINGENT REQUIREMENTS THAN WERE REQUIRED TO COMPLY WITH PART 503.
However, this rule does not provide the formal legal authority for the States or local communities to impose such more stringent requirements, which they would need to do under their own legislative authorities.
Bob Bastian


From: hshields
To: Robert
Bastian/DC/USEPA/US@EPA </cgi-bin/HoTMaiL?curmbox=F000000001&a=810a2dcad2c36336e56389fcc00db833> ath.net>
cc: Alan
Rubin/DC/USEPA/US@EPA </cgi-bin/HoTMaiL?curmbox=F000000001&a=810a2dcad2c36336e56389fcc00db833>
, John Walker/DC/USEPA/US@EPA </cgi-bin/HoTMaiL?curmbox=F000000001&a=810a2dcad2c36336e56389fcc00db833>
06/02/2002 10:33 Subject: "GENERATOR" = POTW? - LOCAL CONTROL - WHAT THE AM FEDERAL REGISTER SAYS ABOUT "LOCAL CONTROL" - VIRGINIA -

Dear Mr. Bastian ....
At the end of this message is our exchange wherein you say "local control" over "use or disposal" of sludge applies to "generators" or "POTWs" --not to "local communities". I call your attention to the following references to local control from the PREAMBLE to Part 503: FEDERAL REGISTER - VOLUME 58, No. 32 - Friday, February 19, 1993 PREAMBLE TO THE PART 503 SLUDGE RULES -- COMMENTS ON THE "LOCAL CONTROL" ISSUE: Page 9251 - "Preserve a LOCAL COMMUNITY"S Choice of a Disposal Practice. Although the Agency prefers local communities to use their sewage sludge for its beneficial properties rather than simply disposing of it, EPA's responsibility is to set standards for each practice that are adequate to protect public health and the environment. WHILE THE CHOICE OF A USE OR DISPOSAL PRACTICE IS RESERVED TO LOCAL COMMUNITIES by section 405(e) of the CWA (Clean Water Act), protection of public health and the environment, where risks are significant, dictate stringent pollutant limits." -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Page 9261 - "Section 405(d)(5) also provides that nothing in the section is intended to waive more stringent requirements in the CWA or any other law. This means that States AND LOCAL COMMUNITIES remain free to impose more stringent requirements than those included in today's rule. In addition, as described later in the preamble, where EPA has established requirements applicable to sewage sludge under other statutes, compliance with regulations established under those states also constitutes compliance with part 503. Section 405(e) was further amended to read as follows: The determination of the manner of disposal for 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." - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Page 9262 - State Requirements - The information on existing State requirements summarized below was gathered as part of EPA's effort in developing guidance for writing sewage sludge interim permits prior to promulgation of the part 503 standards. Under section 510 of the CWA, States, political subdivisions of States and interstate agencies retain the authority to adopt or enforce more stringent standards than those provided in today's part 503 regulations." (My note: "Political subdivisions" of States include cities, towns, counties and townships.) = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Page 9263 - "In one State, the development and enforcement of controls on all methods of sewage sludge use and disposal are delegated entirely to local agencies, as is issuance of permits. In other States, LOCAL AS WELL AS STATE CONTROLS are imposed on the use and disposal of sewage sludge." - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - --- Page 9325 - "Although EPA encourages the beneficial use of sewage sludge (e.g. through land application), the selection of a sewage sludge use or disposal practice, whether land application or some other use or disposal practice, IS A LOCAL DETERMINATION (e.g. the responsibility of the municipality or authority responsible for the use or disposal of sewage sludge). ******************************************************************************************************************************************************* THERE are innumerable references to "generators" and "POTWs" throughout the Preamble, (as well as in the Clean Water Act, Part 503, Plain English Guide, etc). Is it your position that the words "Local Community" and "POTW" and "Generator" are used interchangeably? Did Tracy Mehan really mean "generator" or "POTW" (instead of "local government") when she wrote the following to Greg Kester: "EPA generally supports beneficial reuse of biosolids, BUT IT IS THE RESPONSIBILITY OF LOCAL GOVERNMENT TO MAKE LOCAL DECISIONS REGARDING USE AND DISPOSAL OPTIONS THAT ARE CONSISTENT WITH THE PART 503 RULE." *******************************************************************************************************
I would appreciate knowing your answer to the following question. Please advise if that is possible, or should I file a Freedom of Information Request? "
SENATOR BOLLING asked Iif Mr. Bastian knew what states allow localities to have greater restrictions than the EPA minimums. He answered, "No", but that a meeting is scheduled soon with state coordinators where EPA will learn what the states are doing. He said he would share this with the Commission." *******************************************************************************************************************************************************
Respectfully submitted, Helane Shields


From Bob Bastian to Helane Shields: "
Your question ... Why do we refer only to "State" regulation of sludge spreading, when the Clean Water Act and Part 503 appear to be clear that "disposal or use of sludge is a local determination" ... is simply intended to refer to fact that the choice of what use or disposal practice that a generator of sewage sludge (biosolids) may use is not dictated by the Part 503 rule, but is a choice made by the generator, subject to local planning, zoning, etc. requirements and applicable State requirements as well as the Part 503 requirements. >


;From Helane Shields to Bob Bastian: "
So what you are saying is that the references to "local determination" apply only to POTWs (the generators) .. it is THEIR choice as to "use or disposal" ..... and that localities are NOT authorized under the Clean Water Act and 40 CFR Part 503: 5(b) to regulate and/or control landspreading of sewage sludge within their borders? >


From Bob Bastian to Helane Shields: "
I know of no authorities under the Clean Water Act whereby the "local community" is authorized to regulate and/or control landspreading of sewage sludge within their borders. §503.5(b) states that nothing in Part 503 precludes a State or political subdivision thereof or interstate agency from imposing more stringent requirements, but it provides no "authority" for them to do so. This would likely be an issue addressed in the State's statutory authorities."


BLO fecit 20020615 S.E.E.O. - - PA Sludge Issues