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My comments setting forth examples of the many deficiencies of the current permit system are not directed to permitting agencies. I have been there and tried that on behalf of both farmers and the public in Virginia. Instead, my comments are directed to municipalities and companies that generate sludge and to a lesser extent, the companies that land-apply it.
It is my hope that with a better understanding of legal and moral obligations as well as potential liabilities, serious consideration will be given to approaching both the agencies and the Virginia General Assembly to make sure that the permit system more closely relates to overall legal obligations.
Some may mistakenly believe that their sludge is being land-applied in accordance with the terms of their permit. Others may mistakenly believe that they are protected from liability as long as they have a permit. For those (who) believe that their sludge is being land-applied in accordance with permit requirements, I recommend that you take a closer look. Reviews of permits files, site visits and other efforts readily confirm that this is often not the case. Moreover, as stated, permitting agencies make little effort to make sure that permit requirements are complied with.
At the same time, it is important that every company and municipality clearly understand that a land application permit is simply one of many legal hurdles to be cleared before sludge can be lawfully land-applied. There is a clear requirement that each and every land application must comply with all other laws and regulations.
There are many laws that may be applicable. They range from local zoning and health laws to constitutionally protected personal and property rights of those who may be forcibly exposed to sludge. As described earlier, the many deficiencies of the permit system make very clear that permit terms are far from adequate to assure constitutionally protected personal and property rights. It should also be understood that those rights cannot be abridged by either the federal government or the Commonwealth of Virginia.
It would have been most helpful to both companies and municipalities if permit requirements were adequate to provide those protections. Instead, the permit system leaves each permittee on its own to determine how to land-apply without running afoul of its legal obligations--it is up to each company and each municipality to make sure that nothing in the sludge could cause personal injury or property damage. That is simply not possible as long as there is a failure to fully test sludge before it is land-applied.
Moreover, where full testing is not conducted following health complaints, the specter of intentional disregard of applicable laws is raised. The failure to test is made worse by the refusal to determine whether high risk individuals may be exposed to land-applied sludge-- including those with immune deficiencies who are susceptible to serious health problems and even death. These failures are compounded by the additional failure to give notice to those who may be forcibly exposed so that they would have the option to take themselves and their families out of harm's way. It is inexcusable that we give more protection to the animals we hunt than to the potential victims of land-applied sludge.
The inability of permitting agencies and even EPA to provide scientific information to demonstrate the safety of many land applications, makes it more than likely that companies and municipalities also do not have a scientific basis to support their current activity. Lacking that scientific support, there is no reasonable basis for companies and municipalities to conclude that their land applications will not cause personal injury and/or property damage.
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