Biosolids are widely used in Clarke County and viewed as a safe and cost-effective agricultural fertilizer by many Berryville and Clarke County officials. Even if Clarke County and Berryville officials held biosolids health concerns, it is widely accepted that the Commonwealth of Virginia has the authority to prevent localities like Clarke County from prohibiting biosolids use. But a Virginia lawyer who specializes in health and environmental laws related to biosolids says not only are biosolids dangerous, federal law empowers local officials to stop biosolids if they wanted to.
“I would estimate that there are approximately 50 farmers that have chosen to use biosolids as fertilizer on their farms,” said Clarke County Environmental Planner Alison Teetor. “The County has been generally supportive of biosolids application because it is a free source of fertilizer to the farmers and therefor an economic benefit to the agricultural community.”
The Town of Berryville’s Director of Utilities and wasterwater treatment plant manager David Tyrrell agrees.
“Biosolids are a great soil conditioner, they reduce the need for and in some cases eliminate the need for chemical fertilizers, and farmers who use biosolids on their fields see an increase in production on the fields where biosolids are applied,” Tyrell said. “The biosolids industry is heavily regulated by the EPA and Virginia Department of Environmental Quality and are safe for use. As with many types of industry in our past this was not always the case. Better regulation and treatment processes have corrected these old issues. The precautions actually come in how and where biosolids are applied which is part of the permitting process. Best Management Practices keep biosolids away from streams and rock breaks for example to keep from adding nutrient loading to the waters and eventually to the Chesapeake Bay. Also testing of the biosolids and soils help to determine the application rate so that too many nutrients are not added to the application fields. These are the same type of practices that we all should use when applying fertilizers whether to a farm field or to our front yards.”
“Biosolids are probably the most heavily regulated and researched form of fertilizer and have been determined to be safe by the EPA,” Teetor concurred. “There are concerns that certain elements such as pharmaceuticals or heavy metals may be present in biosolids but to my knowledge that has not been shown scientifically.”
Clarke County Supervisor David Weiss (Buckmarsh) said that while he doesn’t use biosolids fertilizer in his farming operation, the lack of use isn’t because of environmental concerns.
“Based on the science that I have seen before and the limited experience that I have had with biosolids it seems to be environmentally safe,” Weiss said. “If new science is presented then I’m open to looking at it.”
But the challenge facing most citizens and local officials who may have concerns about biosolids use is perhaps not whether new science is being presented – teams of scientists across the country are dedicated to better understanding the impact and benefit tradeoffs associated with biosolids use – but how best to weigh the balance of opposing opinions in order to reach a correct conclusion.
“The word simple never applies to biosolids,” said Tyrell.
For many local officials, the default position when it comes to evaluating the level of risk from using biosolids products is to rely on state and federal regulation. Even so, Clarke County did its best to reach its own conclusions about biosolids use when the idea began to gain popularity as a cheap source of agricultural fertilizer.
“Clarke County studied that matter for over a year prior to adopting their ordinance,” said Berryville Mayor Wilson Kirby. “This study included soil testing. As a result of their study they adopted requirements designed to protect ground water, surface water, and adjoining land owner.”
“The County did a year-long study in the late 1990’s that looked at biosolids use,” agreed County Zoning Administrator Jessie Russell. “We were concerned about the issue and wanted to understand biosolids use better for ourselves.”
Russell said that the County used a test plot to monitor the impacts of biosolids application at different soil depths. Russel said that although the County did not identify any specific health or public safety concerns, it still adopted a biosolids ordinance that included stream setbacks and prevented biosolids application from areas where rock cracks would allow the biosolids to easily reach ground water.
“When Clarke County originally adopted the biosolids ordinance we doubled the State setback requirements because of our concerns regarding karst,” said Teetor.
But most of Clarke’s restrictive regulations were nullified in 2004, according to Teetor, when a Virginia law repealed the ability of localities to regulate biosolids application beyond testing and monitoring. Teetor said that the change permits counties to request reimbursement for expenses relating to monitoring and testing but eliminated increased setback standards that Clarke County had adopted to protect ground and surface water resources in sensitive karst areas.
“We have a County monitor who visits each farm where biosolids is being applied to insure setbacks are adhered to and that individual may take samples of the material for testing” Teetor said. “We still ask applicators to adhere to this standard and some do even though they are not required to do so. The EPA has determined that biosolids, when properly applied, are safe.”
After the Environmental Protection Agency said that biosolids were “safe”, Virginia Department of Environmental Quality’s “test and monitor only” rule prevented localities like Clarke County from restricting biosolids use.
“The Commonwealth of Virginia requires localities to permit biosolids application that conform to established regulations,” said Kirby. “Localities may regulate this use more stringently than the State provided that the limitations are reasonable and do not have the effect of prohibiting the application.”
David Tyrell said that he agrees with federal and state government positions that biosolids application does not present a threat to human health when safety precautions are followed.
“In my opinion, with proper solids treatment and application, I feel there are nearly no public health risks,” Tyrell said. ”Of course you are asking a person who is directly in contact with these products all the time. I have never had any health issues from biosolids and have had, shall we say without details, many concentrated interactions with it over the past twenty-seven years – more so than the general public would ever come in contact with such products.”
Asked about health care concerns expressed by members of the Clarke County community, Kirby replied;
“Not knowing the concerns about which you speak, I can’t comment on specifics but I am aware that biosolids application is tightly regulated by the Virginia Department of Environmental Quality. These regulations dictate how various classes of biosolids may be applied.”
But while the scientific process offers one way of understanding the biosolids debate, the legal system offers yet another. According to health and environmental law expert Chris Nidel, the Federal Clean Water Act actually does provide Virginia localities with the authority to ban biosolids despite widely held beliefs to the contrary.
Nidel, who founded his own law firm in 2006 in order represent those injured or damaged by environmental or occupational exposures, has a Master’s degree in Chemical Engineering from M.I.T has worked for a major pharmaceutical company.
In countering the belief that Virginia localities are powerless to stop biosolids use, Nidel points to the 40 C.F.R. Part 503, ‘Standards for the Use and Disposal of Sewage Sludge’, regulations were passed pursuant to the federal Clean Water Act – and the Clean Water Act itself – as providing the authority for localities to regulate biosolids use.
According to Nidel, the Federal Clean Water Act’s language empowering localities to make their own decisions about biosolids trumps state oversight, even in Virginia where the Dillion rule limits local government autonomy. Nidel outlines his position in detail on his law blog http://www.nidellaw.com/blog/?p=17.
“The Clean Water Act says that the use and disposal of sludge is a local issue,” Nidel said. “While local governments are not required to regulate the use and disposal of sewage sludge, under the federal sludge laws it is required that the ultimate determination on both biosolids use and disposal is reserved to the local government, and NOT left solely to the State.”
“There’s nothing that the Commonwealth of Virginia can do to restrict localities because of the supremacy clause of the United States Constitution,” Nidel continued. “You can think of the Dillon Rule however you want to but it doesn’t take away the locality’s right to regulate sludge use.”
Nidel, who has recently represented two Virginia families in court over harm alleged to have stemmed from repeated exposure to biosolids used on a nearby field, said that although the case settled out of court, the EPA’s wait-and-see stance on biosolids is nothing more than bureaucratic wishful thinking.
“This is an experiment—with the initial results being negative—that we are going to continue ad nauseam until we have a regulatory agency that has a backbone,” Nidel said
While the larger biosolids debate is complex, three major issues repeatedly arise whenever biosolids are mentioned and Clarke County is no exception; smell, heavy metal contaminants, and disposal alternatives.
According to Clarke County Director of Utilities David Tyrell, Berryville’s biosolids production will not have the same level of noxious odor as biosolids currently being imported for use from other localities.
“Often this depends upon the type of treatment the biosolids receives. Larger facilities often use an anaerobic process – lack of oxygen – to further treat the organic portion of the biosolids, Tyrell explained. “The result of this type of biological activity is an odorous biosolids. Lime stabilization of these solids helps to reduce the odors. Berryville will be using a totally aerobic process – oxygen present – which will not have the same strong odor as the anaerobic processes and will also be lime stabilizing.”
But according to Chris Nidel, the real threat of biosolids is the material itself, not the terrible odor.
“At the fundamental level biosolids are composed of decaying human proteins,” Nidel said. “It’s a basic problem that the industry can’t get around. Endotoxins and bacteria that breakdown the human feces are present in biosolids. When those endotoxins and bacteria are breathed into the body they can inflame the human lung and produce flu-like symptoms – nausea, dizziness and headaches.”
Nidel said that nausea associated with biosolids endotoxins is so common that it even has a disease – “Sewage Sludge Disease.”
Nidel says that prolonged lung inflammation causes scarring in the lung lining and, in some cases, can eventually result in death.
“Biosolids also contain things like flame retardants and PCB’s but those are not what produce flu-like symptoms” Nidel said.
A second biosolids concern involves the presence of heavy metals, like mercury, left behind in the biosolids after the filtration process has removed the water from the sewage.
Introduction of heavy metals into soil can cause a range of long-term health problems. But according to David Tyrell, there are no companies presently in Berryville that use heavy metals in their industrial processes.
“I am aware of no industrial uses in Berryville that are of concern,” said Tyrell.
But even though heavy metals may not be a concern at the moment in Berryville, Nidel says that science has little understanding of the effects other biosolids components – like pharmaceuticals and hormones.
“These are materials that we know have an inherent risk,” Nidel said. “Yet the biosolids regulators have no idea what the materials can do once they are introduced through biosolids into the soil.”
New research shows that biosolids that do contain heavy metals and other chemicals may be linked to an increase in autism.
“Depending on a person’s genetics, one or more heavy metals may trigger one of these diseases to develop. For others, it may require exposure to a particular pesticide or some other toxic organic chemical to trigger the onset of a particular disease. It used to be that someone had to work in a factory or live on a farm where pesticides are sprayed to be exposed to many of these chemicals in amounts that could damage the immune or the neurological system. Children are particularly susceptible,” said Dr. David L. Lewis, Director of the Research Misconduct Project at the National Whistleblowers Center in Washington , DC.
“Over the past three decades, EPA and USDA have been increasingly pushing the idea that sewage sludge, which contains almost every imaginable chemical pollutant is the world in concentrated form, should be spread on land. Applying biosolids dramatically increases the probability that people living in the area where it’s applied will encounter whatever chemical pollutant, or combination of pollutants, it takes to trigger the onset of the particular diseases to which they are genetically susceptible. We no longer have to live near a chemical plant to be exposed on a daily basis to whatever chemical pollutants trigger some disease or disorder we lack the genes to protect us from getting. EPA is having all of them delivered to us to be spread on our farms and forests, public parks, school playgrounds, and home gardens” Lewis said.
Like all waste, human or otherwise, biosolids have to go somewhere. When biosolids aren’t used on fields one common alternative is to dump the material in a local landfill, an approach that County Environmental Planner Alison Teetor rejects. Asked if the County should consider a moratorium on the use of Berryville biosolids when the new sewage treatment plant goes online later this month, Teetor said “No”.
“I would not support that,” Teetor said. “The sewage must be treated and meet certain standards prior to any land application. If the material is not land applied then it is put in the land fill which uses up space. I don’t think the Berryville biosolids are any different than any other sewage treatment plant and at least we would be recycling locally.”
David Tyrell agreed.
“There are two options for our biosolids, first in depositing in the landfill, the other is land application,” Tyrell said. “There is a permitting process for both scenarios. Land application requires the permitting of land for the application of biosolids and a bank of ongoing testing of both solids and the soils the biosolids are applied to.”
“Local disposal is the most economical,” Tyrell said.
But M.I.T.- trained Chris Nidel sees energy generation as yet a third option for bio-solid disposal but says that the new energy production technology may never become commercially available as long as the human costs of using biosolids continue to be hidden from the public.
“There are already technologies available like plasma arc gasification that can turn biosolids into energy,” Nidel said.
Plasma arc gasification is a high-temperature pyrolysis process whereby the organics of waste solids are converted to a synthesis gas while inorganic materials and minerals produce a rock-like glassy by-product called ‘vitrified slag’ that contains heavy metals and other substances. The resulting gas can be used an energy source.
“The problem is that as long as oversight agencies ignore the real costs of using biosolids we’re never going to move beyond the lowest common denominator.”