[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was repealed by Acts 2007, cc. 881 and 929, eff. 7-1-2008.), 10.1-2127,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.
APPLICANT
HAULER
LANDOWNER
PERMITTING AUTHORITY
As used in this chapter, the following terms shall
have the meanings indicated:
The person or entity that applies for a Permit to land-apply
or store Biosolids.
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.
All persons who hold title to the land on which Biosolids
are to be applied or stored.
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:
(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;
(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.
