[HISTORY: Adopted by the Board of Supervisors of the County of Rappahannock 7-2-2007.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Stormwater management — See Ch. 145.
Zoning — See Ch. 170.
[1]
Editor's Note: This ordinance also stated that its effective date is 12:00 midnight on the date of its adoption.
NOTE: Authority: The authorities for this chapter are §§ 62.1-44.19:3, 15.2-2200, 15.2-2241, 15.2-1200, 15.2-1429, 32.1-164.5, (Former § 32.1-164.5, Code of Virginia, was repealed by Acts 2007, cc. 881 and 929, eff. 7-1-2008.), 10.1-2127, 10.1-2108, 10.1-2110 and 55-519 of the Code of Virginia.
A. 
The Board of Supervisors finds that improper spreading, placement, disposal or management of Biosolids without appropriate regulation, notice, monitoring and enforcement may result in adverse effects to the general health, safety and welfare of the inhabitants of the County and to agricultural lands, water supplies, wildlife, livestock, natural resources and the environment.
B. 
The Board of Supervisors further finds that any land application or storage of Septage, whether lime-stabilized or not, Sludge or Sewage is too dangerous to the health of inhabitants of Rappahannock County and the environment to be allowed in any form.
C. 
The Board of Supervisors further finds that Rappahannock County is in the Chesapeake Bay watershed and that nonpoint source pollution, including bacteria, nitrogen and phosphorus, from lands in Rappahannock will flow into and have adverse effects upon the Chesapeake Bay.
D. 
The Board of Supervisors further finds that one section of the Thornton River in Rappahannock County has already been found to be impaired because of bacteria contamination, and other rivers in the County are under study for water quality by the Virginia Department of Environmental Quality (DEQ).
This chapter is intended to ensure laws and regulations concerning the land application of Biosolids are properly implemented and enforced and to secure and promote the health, safety and welfare of the County's citizens; to deter the creation of a public nuisance and to prevent pollution of the waters and soils of the County by the land application or storage of Biosolids, Sludge or Sewage; and to eliminate or minimize the impact of certain substances found in Biosolids on the Chesapeake Bay. In carrying out this chapter, the County will test and monitor the application of Biosolids to agricultural land within its boundaries as authorized by the Code of Virginia and applicable regulations and enforce compliance with the law. This chapter is intended to address the land application of Biosolids in the County and to implement the authority granted to local governments by the Virginia Code, including, but not limited to, § 62.1-44.19:3 and §§ 32.1-164.5 et seq.,[1] § 10.1-2110, § 10.1-2108 and § 10.1-2127, to provide for the testing and monitoring of the land application of Biosolids within the County, and to ensure compliance with applicable laws, including the Chesapeake Bay Act (§§ 10.1-2100 et seq.) and the Virginia Water Quality Improvement Act of 1997 (§ 10.1-2117 et seq.). This chapter is not intended to regulate the land application of animal wastes, manure or exceptional quality Biosolids.
[1]
Editor's Note: Former § 32.1-164.5 et seq., Code of Virginia, was repealed by Acts 2007, cc. 881 and 929, eff. 1-1-2008.
A. 
All words and terms used in this chapter which are defined by the Virginia Biosolids Use Regulations, 12 VAC 5-585-10 et seq. (hereinafter the "Regulations"), shall have the meaning therein stated, and such definitions are incorporated herein by reference and indicated by capitalization of the first letter of the word or term.
B. 
As used in this chapter, the following terms shall have the meanings indicated:
APPLICANT
The person or entity that applies for a Permit to land-apply or store Biosolids.
HAULER
The person(s) or entity that transports Biosolids by truck into Rappahannock County for storage or land application. If the Hauler is different than the Permittee, the Permittee shall be responsible, upon notice, to stop any operations of the Hauler which violate this chapter or any Permit and to remediate any damage.
LANDOWNER
All persons who hold title to the land on which Biosolids are to be applied or stored.
PERMITTING AUTHORITY
The Virginia governmental agency, or agencies, that issues the Permit to land-apply or store Biosolids.
A. 
General provisions, restrictions and prohibitions.
(1) 
When any provision of this chapter requires compliance with the law, that shall mean compliance with:
(a) 
This chapter and all applicable federal, state and County laws, ordinances and regulations; and
(b) 
All applicable Permits, licenses and judicial or administrative orders concerning the land application or storage of Biosolids in Rappahannock County.
(2) 
Biosolids may only be applied in the Agriculture Zoning District.
(3) 
Biosolids may be land-applied only between one hour after sunrise and one hour before sunset.
(4) 
Biosolids shall be land-applied as they are received at the site unless land application is precluded by unforeseen weather conditions or other circumstances beyond the control of the Permittee.
(5) 
Due to the western portion of the County being within the eastern slope of the Blue Ridge Mountains, rainfall there can quickly inundate floodplains transporting whatever is deposited there into the Chesapeake Bay. Therefore, no land application shall occur within any floodplain.
(6) 
A one-hundred-foot-wide vegetative buffer shall be maintained between the site of any land application and any stream, river or other body of water which flows into the Chesapeake Bay. The Permittee shall insure such buffer exists prior to any land application. Thereafter, it shall be the Landowner's responsibility to maintain the buffer as provided by Subsection C(3), below.
(7) 
Biosolids containing concentrations of live E-coli bacteria or fecal coliform in excess of that permitted by law shall not be applied or stored.
(8) 
No Biosolids shall be applied to any land which exceeds 15% in slope.
(9) 
No Biosolids shall be applied to any land that is flooded, saturated or snow covered.
(10) 
The nitrogen and phosphorous content of Biosolids applied to land should be limited to amounts established to support crop growth.
(11) 
Biosolids shall only be applied in accordance with law.
B. 
Prohibitions and restrictions applicable to applicants, permittees, generators and haulers.
(1) 
No person shall transport lime-stabilized Septage, unstabilized Septage, Sludge or Sewage into Rappahannock County for the purpose of storage or land application. Septage, Sludge or Sewage originating within Rappahannock County may be stored at the site of production in accordance with law until it can be properly disposed of.
(2) 
No person shall land-apply Biosolids, nor transport Biosolids into Rappahannock County for the purpose of land application, except in conformance with the law.
(3) 
No person shall store Biosolids in Rappahannock County, nor transport Biosolids into Rappahannock County for the purpose of storage, without first obtaining a special exception from the Rappahannock County Board of Supervisors in accordance with § 170-36G and § 170-68D of the Rappahannock County Zoning Ordinance, provided no special exception is required if the Biosolids are to be applied on the farm where they are stored and are not stored there for more than 45 days. The provisions of this chapter providing for the testing and monitoring of Biosolids shall apply to all stored Biosolids, whether a special exception is necessary or not.
(4) 
It is the Applicant's responsibility to check the legal title to the land on which Biosolids are proposed to be applied or stored to be sure that all persons who hold title to the property have executed the application agreement and that there are no restrictions in the chain of title which would prevent or restrict the proposed activities. If a deed of trust prohibits land application or storage of sludge, the trustee must also sign the application agreement. The Applicant or Permittee shall fully inform the Landowner of all restrictions that will be placed on the use of the property after any land application or storage and the need to maintain any buffers. The County may provide the Landowner with a summary of all requirements imposed by law.
(5) 
No Generator shall deliver to any Permittee or Hauler for storage or land application in Rappahannock County, Biosolids that do not conform to law. It shall be the Permittee's responsibility to insure prior to accepting any Biosolids from a Generator that each load meets all requirements of law.
(6) 
All trucks used to transport Biosolids into Rappahannock County shall bear the name and address of the Hauler and its telephone number in legible letters and numbers.
(7) 
It is the Permittee's responsibility to insure the weather is suitable for any land application. Biosolids shall not be applied when any precipitation is occurring nor when it is imminent.
(8) 
No person shall land-apply Biosolids unless a certified sewage sludge applicator is on site at all times during land application in accordance with § 62.1-44.19:3.1.
C. 
Prohibitions and restrictions applicable to landowners.
(1) 
No Landowner shall permit the land application or storage of lime-stabilized Septage, unstabilized Septage, Sludge or Sewage on property in Rappahannock County.
(2) 
No Landowner shall permit the land application or storage of Biosolids in Rappahannock County except in accordance with the law.
(3) 
After Biosolids are applied, neither the Landowner, nor any other person, shall disturb any vegetative or other buffer nor create or place any water channel, ditch, pipe, culvert or surface or subsurface drainageway which would allow runoff from lands on which Biosolids have been applied to bypass a buffer. This obligation shall continue until such time as the Local Monitor, in consultation with the Permitting Authority, determines the buffer is no longer needed. The Permittee shall inform the Landowner in writing of this requirement when the Biosolids application agreement is signed.
D. 
Site-specific prohibitions and restrictions. The Board of Supervisors has determined that the following issues directly relate to the protection of the environment and to the health, safety and welfare of animals and persons in the vicinity of a proposed Biosolids land application. These issues, therefore, should be addressed by the Permitting Authority under § 62.1-44.19:3E in imposing site-specific requirements in any permit, and any Applicant should be prepared to address them:
(1) 
If a total maximum daily load (TMDL) or TMDL action plan has been established for any waters which are adjacent to land on which Biosolids are to applied or stored, the Permit shall insure that all necessary measures are taken so surface water runoff does not cause a TMDL to be exceeded or a TMDL action plan to be violated. Prior to the establishment of a TMDL action plan for waters listed as impaired by DEQ under Section 303(d) of the Clean Water Act, Biosolids shall not be applied on land that drains into such impaired waters.
(2) 
No Biosolids shall be applied that adversely affect a threatened or endangered species listed under Section 36503 of the Endangered Species Act, or its critical habitat.
(3) 
The Permit shall restrict Biosolids application so to avoid any adverse effects on fish and other aquatic life in waters for which a fish consumption advisory has been issued.
(4) 
If Biosolids are to be stored or applied on lands adjacent to any waters designated "Tier III," or which waters flow into Tier III waters, special conditions shall be imposed to insure Tier III waters will not suffer any degradation.
(5) 
Lands which are located in close proximity to steep slopes shall be protected by an additional buffer area to mitigate the resulting high volume of surface runoff.
(6) 
In order to protect the health of persons particularly susceptible to having adverse reactions from inhaling airborne particles and to minimize complaints, no Biosolids shall be applied or stored within 400 yards of any school, playground, church, public park, day-care center, potable water supply well, wetland, residential facility for the elderly or infirm, or public or private gathering of a large number of people.
A. 
To enable the County to monitor the land application and storage of Biosolids and to determine sites to be tested and the extent of same, any person or entity which applies to the Permitting Authority for a Permit (hereinafter referred to as the "Applicant"; if a Permit is issued to an Applicant, that person or entity is then referred to as the "Permittee") shall contemporaneously submit the same information to the County Administrator. If not included in the state submission, the Applicant shall submit to the County:
(1) 
A map of the parcel(s) of land proposed for the land application or storage of sludge which shall show:
(a) 
The areas proposed for land application or storage;
(b) 
The slope of all areas proposed for land application differentiating between those areas of:
[1] 
Slope less than 5% slope;
[2] 
Slope between 5% and 7%;
[3] 
Slope between 7% and 15%; and
[4] 
Slope greater than 15%.
(c) 
Any on-site or off-site "adjacent features" described in 12 VAC 5-585-510 which will trigger the application of any buffer zone, and specifically any school, playground, public park, day-care center, or residential facility for the elderly or infirm which is within 400 yards of any proposed application or storage site.
(d) 
Any streams, rivers, ponds or lakes.
(2) 
The Tax Map numbers of all parcels shown.
(3) 
The deed book and page number or instrument number of the last deed in the chain of title to each parcel.
(4) 
The names, addresses and telephone numbers of the Landowners;
(5) 
The names and addresses of all property owners who adjoin any parcel on which Biosolids are to be applied or stored as shown by the County Tax Map.
(6) 
The Biosolids application agreement with the Landowner.
(7) 
A nutrient management plan prepared by a person certified as a nutrient management planner by the Virginia Department of Conservation and Recreation (DCR). All nutrient management plans shall account for all sources of nutrients to be applied to the site and shall be prepared in accordance with law.
(8) 
A copy of the letter of approval of the nutrient management plan for the operation from DCR if required by 12-VAC-585-630, and any recommendations from DCR and the Department of Health provided to the Applicant under § 62.1-44.19:3D.
(9) 
Any request for Permit modification or variance.
B. 
If any of the foregoing is not known to the Applicant when making the initial filing with the County, it shall be filed as soon as it becomes known to the Applicant and in any case 14 days before any application of Biosolids.
C. 
If a Permit is issued, the Permittee shall give notice to the Local Monitor of intent to begin operations by no later than 14 days before any storage or land application occurs by providing a copy of the notice given to the Permitting Authority under § 62.1-44.19:3L. If not contained in such notice, the following shall also be provided:
(1) 
The estimated date range on which land application or storage will occur and the duration of the planned application.
(2) 
A copy of the current Permit and any other state or federal permits authorizing the land application or storage.
(3) 
The proposed haul routes and alternative haul routes shown on a County map.
(4) 
The name, address, e-mail address and telephone number of a person who will act as agent for the Applicator or Permittee to receive all communications, complaints and notices with respect to the land application or storage. If a Hauler, or other parties, are contractors or employees of the Permittee, the Permittee shall be responsible for their activities undertaken pursuant to a Permit, and notice to the agent for the Permittee shall be notice to all such persons.
(5) 
If access to or use of the property is prohibited or restricted after an application of Biosolids, or if a buffer is required to be maintained, a statement signed by the Landowner acknowledging same.
(6) 
The name, address and telephone number of the Biosolids Hauler, if different from the Permittee.
(7) 
If the map submitted by the Applicant does not accurately reflect the area finally approved for land application or storage by the Permit, the Permittee shall submit an amended map showing such area as was approved. At the request of the Local Monitor, the Permittee shall also submit such longitude and latitude data as is reasonably necessary to locate such areas using a GPS receiver.
(8) 
Copies of any documents in the possession of the Permittee that refer to any testing or sampling performed by the Generator of any Biosolids which are to be stored or land-applied in Rappahannock County pursuant to the Permit.
(9) 
Any Biosolids management or operational plans which govern the Permittee's activities in Rappahannock County.
D. 
The County shall review the documentation provided with the notice and shall notify the Permittee in writing of any deficiencies in the submittal within 10 business days of receipt. The Permittee will have 10 business days to correct and amend the deficiencies unless otherwise permitted by the County in writing and shall not begin activities until all deficiencies are satisfied.
E. 
Throughout the period the Permittee is land-applying, storing or transporting Biosolids in Rappahannock County, and during any period thereafter when the Permittee is required to monitor any site in Rappahannock County, the Permittee shall provide the Local Monitor with a copy of all:
(1) 
Documents required to be filed or maintained by law with respect to the site or the Biosolids applied, including any amendments to the nutrient management plan which reflect the actual Biosolids application.
(2) 
Documents which come into the possession of the Permittee which show the composition of any applied Biosolids or which refer to soil or groundwater/surface water testing with respect to a storage or application site.
(3) 
Documents received from the state or any federal agency which inform the Applicant, its agents, employees or contractors of any violation of law; which change the terms of a permit, plan or agreement affecting the land application or storage of Biosolids; or which direct the correction or change of a use, practice or procedure employed by the Permittee, its agents, employees or contractors in the storage or land application of Biosolids.
(4) 
Pleadings initiating any suits, in law or equity, which allege the Permittee is in violation of law pertaining to the storage or land application of Biosolids.
(5) 
Complaints made by citizens of Rappahannock County as to any specific transport, storage or application.
The County Administrator shall maintain a file as to each separate parcel of land on which Biosolids are land-applied or stored, cross-indexed by the Landowner, the Permittee, the Tax Map number, and any number assigned to the site by the state or the County. The County Administrator shall communicate this indexing information to the Commissioner of Revenue, who shall place the information on the real estate tax assessment card maintained by her/him on the property. In addition, the file maintained by the County Administrator shall contain all submissions made by the Applicant with respect to the site. This file shall be open to the public.
A. 
The posting of signs shall be in accordance with 12 VAC 5-585-480 B. In addition, the Land Monitor, after consultation with the Permittee, may require the Permittee to place signs at other locations which provide access to the property upon which Biosolids are to be stored or land-applied or which adjoin public places.
B. 
Upon receipt by the County of the fourteen-day notice of intent to commence land application, the County shall publish in the Rappahannock News a notice to the public containing information about scheduled applications.
A. 
By agreeing to accept Biosolids for land application or storage, the Landowner of property on which land application or storage is to take place agrees to allow the Local Monitor, the County Administrator and any experts or assistants deemed necessary by them to perform monitoring and testing access to the land application or storage site for the purpose of monitoring and testing. It is the responsibility of the Permittee to ensure that the Landowner is advised of this requirement. The County shall make diligent efforts to make contact with the property Owner prior to entering the property, but the failure to do so will not prevent the Local Monitor, County Administrator, and any experts or assistants deemed necessary by them from entering onto the property to perform the monitoring and testing required by law.
B. 
The Permittee and Landowner shall allow the County to take soil, water and Biosolids samples at the application or storage site before, during and after the application or storage begins. Any test samples shall be analyzed at a lab qualified to conduct such analysis. At the request of the Permittee, the Local Monitor will provide the Permittee with a split sample.
C. 
The Permittee shall provide the Local Monitor with the most recent analysis results for Biosolids that are land-applied at any site in the County.
D. 
Prior to any application or storage of Biosolids, the Local Monitor shall review all submissions made by the Permittee to the County and inspect any site(s) proposed for land application or storage of Biosolids to insure the submissions and the site(s) meet all requirements of law.
E. 
The Local Monitor may spot-check the contents of any truck transporting Biosolids into Rappahannock County for storage or land application and may redirect the route of such trucks in the event of road closures, construction or public events. The Local Monitor shall advise the Permittee or Hauler of any rerouting as soon as the need becomes apparent. The Permittee will, at the request of the Local Monitor, make all reasonable efforts to schedule land application activities so as to avoid conflicts with community or social events in the vicinity of the land application site.
A. 
The Local Monitor shall notify the Permitting Authority, the Applicator or Permittee and the Landowner of all complaints concerning the land application or storage of Biosolids upon receipt of the complaint, and in any case not later than 72 hours after receipt. The notice provided by this subsection shall not trigger the requirements of § 140-12, below, unless the notice makes reference to being an "abatement order."
B. 
The Local Monitor shall notify the Permittee of any failure to follow the requirements of law.
C. 
The Permittee shall undertake appropriate corrective action for any violations of law immediately upon receiving such notification.
D. 
In the event that the Permittee does not respond as provided by law, the Permittee shall compensate the County for the actual cost of remediation of the violation.
E. 
The Permittee is responsible for ensuring that the tracking of Biosolids from land application sites onto public roads is minimized and that any such Biosolids are promptly removed from public roads and highways in accordance with 12 VAC 5-585-490.
Land application of Biosolids is not allowed unless the Permittee is in compliance with the financial responsibility requirements of § 62.1-44.19:3H and regulations issued pursuant thereto. The Permittee shall provide the Local Monitor with a copy of the written evidence of financial responsibility approved by the Permitting Authority.
The County shall submit requests for reimbursement for the costs and expenses of testing and monitoring of land application and related activities from the Virginia Sludge Management Fund in accordance with § 62.1-44.19:3G.
A. 
The violation of this chapter by any person or entity is a Class 1 misdemeanor. Each day during which any violation is committed or exists shall constitute a separate offense. The Local Monitor or County Administrator may obtain warrants or summonses for such violations. Initiation of a criminal charge shall not restrict the County or state from also proceeding under the following subsections.
B. 
The Local Monitor or the County Administrator shall have all enforcement authority granted by § 62.1-44.19:3.2. Any notice or act required by law to be given or undertaken by the Local Monitor or the County may also be given or undertaken by the County Administrator. Further, all notices may be given by the County Attorney on their behalf or on behalf of the County. Continuation of the activity after receiving the abatement order shall be presumed to be intentional and willful if the activity is subsequently found to be a violation of law.
C. 
The abatement order shall be given by any means of communication to the designated agent(s) for the Permittee, the Landowner, the Permitting Authority, and the Generator, as applicable. If the order is given orally, a written order shall be mailed or e-mailed within 24 hours.
D. 
In the event of a dispute concerning the existence of a violation, the procedures set forth in § 62.1-44.19:3.2B shall be followed, provided nothing in that section shall prevent the County from pursuing its legal remedies to enforce this chapter. Venue for any court proceedings shall be in Rappahannock County.
E. 
For violations other than those cognizable under § 62.1-44.19:3.2, the County or state may bring suit to enjoin, restrain, correct or prevent such violation, and if they substantially prevail, they shall be entitled to recover their costs and reasonable attorneys' fees.
F. 
Any person or entity that knowingly aids and abets another in violating this chapter shall be subject to the same punishment as a principal in the first degree.
G. 
Any person or entity, including any Generator of Biosolids transported into Rappahannock County for storage or land application, who is found by a court or responsible state official to be in violation the law with respect to the storage or land application of Biosolids in Rappahannock County three or more times, is prohibited from thereafter storing or land-applying Biosolids in Rappahannock County.
If there develops a conflict between a provision of this chapter and any state law, regulation or permit, this chapter shall be interpreted so that no provision hereof shall prohibit what the state has specifically authorized, nor to authorize what the state has specifically prohibited.
A. 
Any person applying to rezone or subdivide property or for a special use permit or a special exception shall disclose in their application to the County whether any portion of the property affected by the application has been a Biosolids storage site or has had Biosolids applied to it. The County may require such additional information as it deems necessary to evaluate the effect of the storage site or land application on the application and the proposed uses of the property.
B. 
Any subdivision plat which shows the subdivision of a parcel of land on which Biosolids have been applied or stored shall show the area where the Biosolids were applied or stored, the year or years of application and/or storage and the project number(s) assigned to the site. If there is no record of Biosolids having been applied to the property, a statement to that effect and the date shall be placed on the plat by the subdivision agent.
Nothing in this chapter shall be construed as an approval by Rappahannock County of any specific storage or land application site or of any method or manner of storage or land application. Nothing in this chapter shall affect any right of action, cause of action, or claim which a third party may have either against a Generator or a Permittee, their agents, employees and contractors, or against a Landowner. Compliance with this chapter shall not relieve any person of any other reporting or disclosure requirements imposed by law, including the requirement to disclose "regulated materials" on transfer of real property under § 55-519 of the Code of Virginia.