Township of Maidencreek, PA Storage of Sewage Sludge

This article is enacted pursuant to the authority granted to the Township by all relevant federal and state laws and their corresponding regulations, including, without limitation, the following:

The provisions of the Second Class Township Code, as codified in 53 P.S. § 65101 et seq., which authorize the Township to provide for the protection and preservation of natural and human resources, to promote, protect, and facilitate public health, safety, and general welfare, and to preserve and protect farmland, woodland, and the recreational uses of land within the Township;

The provisions of the Second Class Township Code, as codified in 53 P.S. § 66501 et seq., which authorize the Township to enact ordinances concerning the protection of the Township residents' health, the regulation of refuse material and nuisances, and the promotion of public safety;

The provisions of the Second Class Township Code, as codified in 53 P.S. § 67101, which empower the Township to prohibit the accumulation of ashes, garbage, solid waste, and other refuse materials within the Township;

The Pennsylvania Constitution, Article I, Section 27;

The Solid Waste Management Act, 35 P.S. § 6018.101 et seq., which expressly reserves the rights and remedies of townships concerning solid waste within their borders;

The Pennsylvania Nutrient Management Act, 3 Pa.C.S.A. § 501 et seq.;

The Municipal Waste Regulations, 25 Pa. Code §§ 271, 275, 287, 291 et seq.;

The Clean Air Act, 42 U.S.C. §§ 7416 and 7431; and

Land Application of Sewage Sludge, 40 CFR Part 503.

§ 170-30 Purpose and intent.

In support of the enactment of this article, the Board of Supervisors of Maidencreek Township finds and declares:

The land application of sewage sludge in the Township that fails to comply with acceptable methods, quantities, and standards poses a significant threat to the health, safety, and welfare of the citizens and the environment of the Township if the levels of heavy metals, pathogens, chemicals, radioactive material, vector attractants, or other pollutants in the sewage sludge exceed the levels determined to be safe by the Pennsylvania Department of Environmental Protection (DEP);

In order to protect the health, safety, and welfare of the residents of the Township, the soil, groundwater and surface water, and the environment, it is necessary to require any person who intends to land apply sewage sludge in Maidencreek Township to obtain a site registration from the Township to do so and for the Township to have the right to test the soil and each truckload of sewage sludge that is applied within the Township to confirm compliance with applicable regulations regulating the land application of sewage sludge;

It appears that DEP does not presently possess adequate staff to ensure that persons applying sewage sludge in the Township are doing so in compliance with federal and state laws and regulations, and so the Township must enforce such compliance by methods consistent with federal and state laws and regulations concerning land application of sewage sludge;

The intent of this article is to authorize Township testing and monitoring of land application and storage of sewage sludge within the Township to ensure its compliance with existing standards and requirements otherwise provided by law, as well as to create Township standards identical to those of the Department of Environmental Protection to enable the Township to determine compliance with state laws regulating land application of sewage sludge; and

It is the intent of the Township for this article to pertain to land application and storage of sewage sludge, and not residual food processing wastes.

§ 170-31 Definitions.

The following words and phrases when used in this article shall have the meanings given to them in this section unless the context clearly indicates otherwise.

AGRONOMIC RATE

The annual whole sludge application rate (dry weight basis) designed to do the following:

Provide the amount of nitrogen needed by the food crop, feed crop, fiber crop, silvicultural crop, cover crop, horticultural crop or vegetation grown on the land; and

Minimize the amount of nitrogen in the sewage sludge that passes below the root zone of the crop or vegetation grown on the land to the groundwater. 25 Pa. Code Chapter 271, Subchapter J, § 271.907.

APPLICANT or SEWAGE SLUDGE APPLICANT

Any person responsible for complying with all federal, state, and local laws and regulations concerning the land application of sewage sludge.

BENEFICIAL USE

Use or reuse of residual waste or material derived from residual waste for commercial, industrial, or governmental purposes where the use or reuse does not harm or threaten public health, safety, welfare, or the environment, or the use or reuse of processed municipal waste for any purpose where the use or reuse does not harm or threaten public health, safety, welfare, or the environment. 25 Pa. Code Chapter 271, Subchapter A, § 271.1.

DEP

The Commonwealth of Pennsylvania Department of Environmental Protection.

LAND APPLICATION or LAND APPLY

The spraying or spreading of sewage sludge onto the land surface for beneficial use; the injection of sewage sludge below the land surface for beneficial use; or the incorporation of sewage sludge into the soil for beneficial use so that the sewage sludge can either condition the soil or fertilize crops for vegetation grown in the soil. 25 Pa. Code Chapter 271, Subchapter J, § 271.907.

ORDINANCE

The Maidencreek Township Sewage Sludge Ordinance.

PATHOGENS

Organisms that cause disease, including, without limitation, certain bacteria, protozoa, viruses, and viable helminth ova.

PERSON

Any natural person, company, corporation, business, contractor, joint venture, trust, trustee, court-appointed representative, syndicate, association, partnership, firm, club, institution, cooperative enterprise, or agency; any government corporation, municipal corporation, city, county, municipality, district, or other political subdivision, department, bureau, agency, or instrumentality of federal, state, or local government; any other entity recognized by law as the subject of rights and duties; and any officer, agent, employee, independent contractor, or representative of any kind of any of the aforementioned persons.

POLLUTANT

An organic substance, inorganic substance, a combination of organic substances, a pathogenic organism, or any other substance identified by DEP that, after discharge and upon exposure, ingestion, inhalation, or assimilation into an organism either directly from the environment or indirectly from ingestion through the food chain, could, on the basis of information available to DEP, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproduction), or physical deformation in either organisms or offspring of organisms. 25 Pa. Code Chapter 271, Subchapter J, § 271.907.

SEWAGE SLUDGE

Liquid or solid sludge and other residue from a municipal sewage collection and treatment system, and liquid or solid sludge and other residue from septic and holding tank pumpings from commercial, industrial, or residential establishments. The term includes material derived from sewage sludge. The term does not include ash generated during the firing of sewage sludge in a sewage sludge incinerator, grit and screenings generated during preliminary treatment of sewage sludge at a municipal sewage collection and treatment system, or grit, screenings, or inorganic objects from septic and holding tank pumpings. 25 Pa. Code Chapter 271, Subchapter A, § 271.1.

SITE or SEWAGE SLUDGE SITE

A surveyed area of land used or to be used for the land application of sewage sludge.

SITE REGISTRATION

A written recognition by the Township issued to the applicant after applicant has provided the Township with all information required by this article, which will aid the Township in monitoring the applicant's land application of sewage sludge operations and will enable the Township to determine if the operations are within the parameters of the DEP regulations.

SOURCE or SEWAGE SLUDGE SOURCE

The wastewater treatment facility or other facility that produces the sewage sludge to be land applied.

STORAGE

The containment of any waste on a temporary basis in such a manner as not to constitute disposal of such waste. It shall be presumed that the containment of such waste in excess of one year constitutes disposal. This presumption can be overcome by clear and convincing evidence to the contrary.

TOWNSHIP

Maidencreek Township in Berks County, Pennsylvania, its Board of Supervisors, or its representatives or agents.

VECTOR ATTRACTION

The characteristic of sewage sludge that attracts rodents, flies, mosquitoes, or other organisms capable of transporting infectious agents (vectors). 25 Pa. Code Chapter 271, Subchapter J, § 271.931.

§ 170-32 Requirements.

It shall be unlawful for any person to land apply sewage sludge in the Township unless:

(1)

The person applying the sewage sludge is covered under a valid permit as may be required by DEP or any other agency under the laws of the Commonwealth of Pennsylvania and the United States of America;

(2)

The person applying the sewage sludge holds a valid site registration issued by the Township under § 170-33 of this article; and

(3)

The person applying the sewage sludge complies with applicable federal, state, and local laws and regulations concerning the land application of sewage sludge, including, without limitation, 40 CFR Chapter 503, 25 Pa. Code Chapters 271, 275, 287, and 291, this and other Township ordinances, as amended.

The application, spreading, depositing, dumping or spraying of any sewage sludge without full compliance with all the provisions of this article is hereby declared to be a public nuisance.

§ 170-33 Site registration.

At least 30 days prior to the first land application of sewage sludge to any site in the Township, the person intending to land apply sewage sludge in the Township must complete and submit an application for a site registration from the Township. Site registrations issued by the Township shall be valid for a period concurrent with the analogous DEP permit the land applier is operating under. No site registration will be issued unless a valid DEP permit for land application of sewage sludge has been issued. The Township shall issue or deny the site registration within 30 days of receiving the applicant's submission. If the submission is not administratively complete, a site registration will be denied. An administratively complete site registration application submission shall include all of the following items:

A completed Township application for site registration including, but not limited to, the name and address of the generator of the sewage sludge to be land applied in the Township, the name and address of the land applier of the sewage sludge, the name and address of the owner of the land to which the sewage sludge is to be applied;

A copy of the valid DEP permit for land application of sewage sludge that the land applier is covered under;

A copy of the thirty-day notification of first land application submitted to DEP by the land applier, and any exhibits or attachments thereto; and to the extent that it has not already been provided with the thirty-day notification of first land application, or as an exhibit or attachment, thereto, the following shall be provided:

(1)

A copy of the contractual consent of landowner;

(2)

If sewage sludge is to be stored on the site, a map locating the proposed storage areas and a detailed description of the design, construction and operation of the storage area(s);

(3)

A list of adjacent landowner(s) to the site and copy of each required notice that was provided;

(4)

A copy of the farmers conservation plan;

(5)

Soil chemical analytical results for the following parameters in each field at the site: arsenic, cadmium, copper, lead, mercury, molybdenum, nickel, selenium, zinc, polychlorinated biphenols (PCBs) and pH;

(6)

A copy of the sheet showing how the agronomic rates are calculated; and

(7)

A copy of the Pennsylvania Natural Diversity Inventory Form;

A nonrefundable administrative fee of $500 is to be submitted with the application, which shall be sufficient to cover all Township expenses reasonably incurred to process the site registration;[1]

[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

A certificate of insurance, bond, indemnification agreement or such other financial security as may be in place and which addresses injury to persons and/or damage to property which might arise or result from the aforesaid activities and the applicant's faithful performance of the conditions of any and all applicable permits and/or providing for remediation or restoration in the event of default in the faithful performance of said obligations. The policies, bonds, guarantees and/or evidence of financial security shall remain in full force and effect for the entire duration of said activities and/or the life and term of the permit and for at least two years following the termination of such activities and/or permit and shall be in the amount of $1,000,000; and

Certify by letter that the documentation the land applier has submitted demonstrates it has complied with all applicable federal, state, and local laws and regulations concerning the land application of sewage sludge, including without limitation, 40 CFR Chapter 503, 25 Pa. Code, Chapters 271, 275, 287, and 291, and this and other Township ordinances, all as amended.

§ 170-34 Criteria for land application.

Any person applying sewage sludge in the Township shall apply sewage sludge in accordance with the then currently adopted applicable federal, state and local laws and regulations and the requirements under the general and/or individual permit for the beneficial use of sewage sludge by land application issued under corresponding DEP regulations, all of which are incorporated into this article, and this and other Township ordinances, all as amended;

The person applying sewage sludge shall maintain records of quantities, dates, sources and land application locations of the sewage applied and any testing or chemical analysis conducted on the same and shall furnish copies of said records to the Township. Further, the person applying sewage sludge shall provide a copy of its annual report to the Township when complete; and

The person applying sewage sludge shall inform the Township of any discharges, spills, upsets or any other violations of which the land applier is aware of.

§ 170-35 Criteria for storage of sewage sludge at land application site.

Any person storing sewage sludge at a land application site in the Township for more than seven days shall store the sludge in accordance with the then currently adopted applicable federal, state and local laws and regulations and the requirements under the general and/or individual permit for the beneficial use of sewage sludge by land application issued under corresponding DEP regulations, all of which are incorporated into this article, and this and other Township ordinances, all as amended; and

When in use, the storage areas must be inspected regularly and after severe precipitation events to ensure run-on and runoff controls are in good working order.

§ 170-36 Limitation on disposal.

No sewage sludge shall be applied to any land within the Township at a rate that is greater than the agronomic rate, unless a greater application rate is approved by DEP for land reclamation activities.

§ 170-37 Inspections, testing and monitoring.

The Township Code Enforcement Officer, or other Maidencreek Township representative, as may be determined from time to time by resolution of the Board of Supervisors, shall be responsible for monitoring and reporting any violations of federal, state and/or local laws or regulations regarding the land application of sewage sludge and/or the regulations set forth in the permit for beneficial use of sewage sludge by land application issued to the applicant under corresponding DEP regulations to the appropriate official. The Township Code Enforcement Officer, or such other Maidencreek Township representative, may enter the land application of sewage sludge site and inspect the land application and/or storage of sewage sludge at any reasonable time, prior to or after the land application of sewage sludge at that site in accordance with the following:

(1)

The Township Code Enforcement Officer or Maidencreek Township Official may:

(a)

Contact DEP prior to any investigations or inspections, so that DEP may accompany Maidencreek Township at the inspection;

(b)

Inspect the site to determine if all provisions of this article, federal, state and local laws and regulations have been complied with;

(c)

Test the soil, groundwater, or surface water at the sewage sludge application site for chemicals, metals, radioactive material, and other pollutants;

(d)

Take a sample of the sewage sludge to be applied on the site and have it tested to ensure that its land application meets the federal and state pollutant, pathogenic organism, pH, and vector attraction reduction regulations; and

(e)

Be accompanied by the owner of the land application site, representatives of the DEP land application of sewage sludge permit holder and representatives of DEP.

If such testing and/or monitoring reveals that the site registration holder has violated federal, state and/or local laws or regulations regarding the land application and/or storage of sewage sludge, and/or the regulations set forth in the permit for beneficial use of sewage sludge by land application issued to the applicant under corresponding DEP regulations, all of which have been incorporated into this article, the Township shall have the right to enforce said laws and regulations as set forth in § 170-38; and

Should such violation of federal, state and/or local laws or regulations lead to further testing or monitoring costs for the Township, the site registration holder shall be responsible for any and all costs associated with the additional testing and monitoring of the sewage sludge.

§ 170-38 Enforcement.

This article is enacted pursuant to Article XVI of the Second Class Township Code for the purpose of regulating public health and safety and as such shall be enforced by an action brought before a Magisterial District Judge in the same manner provided for enforcement of summary offenses under the Pennsylvania Rules of Criminal Procedure. The municipal solicitor may assume charge of the prosecution without the consent of the district attorney as required under Pa.R.Crim.P. No. 83(c) (relating to trial in summary cases). Any person, firm or corporation convicted of violating or permitting a violation of this article shall pay a fine not exceeding $1,000 per violation and may be imprisoned to the extent allowed by law for the punishment of summary offenses. The Township shall further have the right to be reimbursed for attorney's fees and costs related to the action;

Each day's violation of this article shall constitute a separate offense. All fines and penalties collected for the violation of this article shall be paid to the Maidencreek Township Treasurer. The Board of Supervisors may delegate the initial determination of ordinance violation and service of notice of violation to such officers or agents as the Township shall deem qualified for that purpose;

Upon finding a person has deviated from federal and/or state laws or regulations regarding the land application of sewage sludge, the Township may immediately alert the EPA and/or the DEP; and

The Township may also bring a cause of action for injunctive relief through an action in equity brought in the Court of Common Pleas of Berks County to enjoin land application of sewage sludge in violation of state laws or regulations.

§ 170-39 Additional regulations.

The Maidencreek Board of Supervisors may promulgate regulations relating to the site registration documentation, the operation, limitations, and enforcement of this article by resolution from time to time.