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private. This is a constitutionally protected right that cannot be taken away.
Interestingly, sludge victims have not yet looked for protection under the nuisance laws. I believe this is due in part to efforts of local governments to address citizen complaints. This has been accomplished through special local regulations, moratoriums and bans. Ironically, relief provided by local governments has given companies and municipalities some breathing room to make changes before losing the right to land-apply sludge everywhere. If sludge victims had not had that outlet, they would have been forced to seek relief in other ways, including relief through the courts under the nuisance laws. A single court decision related to the nuisance issue could have already ended all land applications of sludge.
It should also be noted that odor is not the only nuisance aspect of land-applied sludge. Transfer of pollutants through air, common vectors such as birds and mice, erosion, runoff and leaching may each constitute a separate basis for nuisance suits. Thus even if policies and practices could be developed to resolve the odor nuisance issue, other nuisance issues remain.
The nuisance concept could also be applied to pollutant discharges into rivers and streams. Each time another forced exposure of sludge incident occurs, the public becomes more aware. In time the public can be expected to focus on discharges as well. The potential cost in this area could far exceed those related to land-applied sludge. Court ordered compliance is a real possibility.
Under these circumstances, it would be a prudent business practice to voluntarily defer further land applications until better policies and practices can be developed to address the many issues surrounding the current practice. Failure to do so could result in the end of all land applications of sludge.
Current permit policies and practices in Virginia are totally inadequate to protect public health and water quality where sludge is land-applied. Many current land applications of sludge appear to be in violation of numerous constitutional, regulatory and permit requirements. Land application of sludge is not only subjecting farmers and the public to special risks, it is also subjecting every company and municipality that land applies to special risks as well.
With the failure of the permit system, it falls squarely on companies and municipalities that generate the sludge, those who apply it, and farmers who accept it to develop a system that would adequately protect public health and property rights of those forcibly exposed. Pending the development of such a system, sludge generators would be wise to impose their own moratorium on land applications of sludge.
If the industry continues to ignore its obligations, as well as its own self interest, forced changes ran be expected. Each time a land application is made, the awareness of the public will grow. Each incident of forced exposure and health problems will make it more difficult for these issues to be resolved without widespread litigation. Please give this issue serious thought, and do not forget to take into consideration your own real self interest when you do so.
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