Sludge Watch ==> Virginia - County Lawyer says Proposed Sludge Bylaw Unenforceable

[Maureen Reilly]

Attorney: Sludge ordinance not enforceable


By Sarah Watson
swatson at newsadvance.com
January 11, 2007

A draft ordinance banning corporate biosolids applications would not be 
enforceable if adopted, Campbell County attorney David Shreve said in an 
opinion made public Thursday.

While the county has the authority to monitor and test land-applied sludge, 
that is where the power ends, Shreve wrote.

The draft ordinance was presented Jan. 2 by the Citizens Against Toxic 
Sludge, a grass-roots community group that formed in response to a 
Nutri-Blend permit modification increasing the amount of county land allowed 
to receive biosolids to more than 3,100-acres.

Instead of addressing regulatory or land-use issues, the draft ordinance 
challenges corporate constitutional rights.

Shreve wrote that counties do not have the authority to regulate land 
application of biosolids. He cited a state Supreme Court ruling that said 
local ordinances can’t pre-empt state law.

The only authority counties have regarding biosolids, which is treated 
sewage sludge, relates to requiring monitoring and testing during the 
application process, Shreve wrote.

“If a monitor hired by the county should determine there was a violation of 
existing state regulations, a stop work order could be issued,” Shreve 
wrote. “However, there are no enforcement mechanisms available to the county 
to enforce that stop work order.”

In theory, the county could seek an injunction in regard to enforcement from 
the county’s circuit court, but Shreve said he had “serious questions with 
respect to the county’s standing to do so.”

The opinion, which reiterates the attorney general’s 2002 opinion, will be 
included in a thick packet of information given to county supervisors, in 
preparation for their next meeting Tuesday. The board will take Shreve’s 
opinion under advisement before proceeding, County Administrator David 
Laurrell said.

Jennifer England, co-founder of the citizens’ group, said they will meet 
with the county Jan. 19 and explain the nuances of the draft ordinance. 
“We’re just waiting to see the outcome of that meeting and we look forward 
to having the board to be enlightened as to how the ordinance works and has 
worked in other places.”

Laurrell said he told the Citizens Against Toxic Sludge if they can provide 
a Virginia-licensed attorney who will tell the county that the ordinance is 
legal and enforceable in the state, the board would take that into further 
consideration.

Additionally, the board can follow up with a new attorney general opinion or 
look at alternatives to the proposed county ordinance, Laurrell said. “We’re 
going to have to look at some options and find out where we can move 
forward.”

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