THE ROLE OF MUNICIPALITIES IN REGULATING THE LAND APPLICATION OF SEWAGE BIOSOLIDS

Land application of sewage biosolids and septage is increasing. Although the combination of federal and state regulatory requirements is significant in forming the initial base for sewage biosolids management decisions, local regulations also play a part. Within the constraints of federal and state authorization, localities may enact regulations to fit local needs and conditions. The primary legal constraints that localities face are constitutional Commerce Clause challenges and conflicts with Right-to-Farm statutes. Local governments may be involved in land application both as entities responsible for the disposal of sewage sludges and also as entities seeking to protect the health, safety and welfare of their citizens who may object to land application.In the US there is a hierarchy, with specific federal powers set forth in the Constitution and the remainder of powers reserved for the states. The states then grant authority to the municipalities within their borders. The authority of a municipality thus varies from state to state. This paper focuses on NYS which has granted strong home rule to its municipalities.In NYS, local laws may be enacted so long as they are not inconsistent with state laws. NYS Agriculture and Markets law is relevant to sewage biosolids application. It protects farmers engaged in “sound agricultural practices” from nuisance suits. More significant is the provision that prohibits “unreasonable” local restrictions on farm operations within legally adopted agricultural districts unless restrictions address a threat to health or safety.An array of local ordinances and how they address particular concerns was investigated. Local ordinances vary widely in the issues and the level of detail they address. Issues addressed in local ordinances include human health risks, animal health risks, water quality, nuisance issues such as odor, liability and uncertainty, monitoring and enforcement. They may impose restrictions on the type, amount, quality or source of sewage biosolids. Some specify management practices, notification requirements and additional monitoring beyond that required by federal or state rules. Concern over the inability of state and federal agencies to provide consistent enforcement of rules due to staffing shortages has led to local enforcement provisions. Fees are sometimes included in local ordinances to cover municipal costs.