Kern County Municipal Code Ch. 8.05 Land Application of Biosolids

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Editor's note— Ord. No. G-6931, §§ 2, 3, adopted Nov. 26, 2002, repealed the former Ch. 8.05, and enacted a new Ch. 8.05 as set out herein. Court Order of March 17, 2017 restored Ord. No. G-6931, in effect repealing amendments of the election of June 6, 2006. The former Ch. 8.05 pertained to similar subject matter.

There are numerous unanswered questions about the safety, environmental effect, and propriety of land applying biosolids or sewage sludge, even when applied in accordance with federal and state regulations. Biosolids may contain heavy metals, pathogenic organisms, chemical pollutants, and synthetic organic compounds, which may pose a risk to public health and the environment if improperly handled. Land application of biosolids may pose a risk to land, air, water, to human and animal health, and may cause loss of confidence in agricultural products from Kern County as well as the potential loss of productive agricultural lands.

In order to promote the general health, safety and welfare of Kern County and its inhabitants, the land application of biosolids, except for exceptional quality biosolids as defined in this chapter, is prohibited in the unincorporated area of Kern County.

The county recognizes that exceptional quality biosolids, as defined in this chapter, are considered by the U.S. Environmental Protection Agency to be a product, whether distributed in bulk form, bags or other containers that can be applied as freely as any other fertilizer or soil amendment to any type of land.

In order to assure continued compliance with the limitations imposed by this chapter on the land application of biosolids and to obtain data on the use of exceptional quality biosolids, the permitting, reporting, testing and inspection requirements of this chapter are being imposed. As the county obtains data and reporting information under this chapter, and as other scientific advances in the study of the impacts of biosolids occur, the county will evaluate the need for further regulation of the land application of all types of biosolids.

(Ord. No. G-6931, § 3, 11-26-02)

This chapter is adopted pursuant to the police power of Kern County as set forth in Article XI, Section 7, of the California Constitution. In addition, 40 C.F.R. Part 503 recognizes the authority of local government to impose more stringent requirements on the use or disposal of sewage sludge in order to protect public health and the environment from any adverse effect from sewage sludge.

(Ord. No. G-6931, § 3, 11-26-02)

A. "Agency" means an authorized representative of the public health services department of the county.

B. "Applier" means any person engaged in the land application of exceptional quality biosolids.

C. "Biosolids" are treated solid, semi-solid or liquid residues generated during the treatment of sewage in a wastewater treatment works that meet 40 C.F.R. Part 503 requirements specified in 503.32 for pathogen reduction, 503.33 for vector attraction reduction, and 503.13, Table 1 for pollutant concentrations. These residues include, but are not limited to, scum or solids removed in primary, secondary or advanced wastewater treatment processes and material derived from sewage sludge. Biosolids do not include ash generated during the firing of sewage sludge in a sewage incinerator or grit and screenings generated during preliminary treatment of sewage. Biosolids, as used in this chapter, excludes biosolids products that are in a bag or container packaged for routine retail sales through regular retail outlets which are primarily used for residential landscaping.

D. "Certified laboratory" means a laboratory certified by the state department of health services pursuant to Article 3 (commencing with Section 100825) of Chapter 4 of Part 1 of Division 101 of the California Health and Safety Code.

E. "Class A biosolids" are biosolids that meet the pathogen reduction requirements in 40 C.F.R. 503.32(a) alternatives 1—6 and contain constituents in concentrations not exceeding the concentrations listed in 40 C.F.R. 503.13, Table 1 or Table 3.

F. "Class B biosolids" are biosolids that meet the pathogen reduction requirements in 40 C.F.R. 503.32(b).

G. "Compost" means the product, in any form, resulting from the controlled biological decomposition of organic materials which may include biosolids. Facilities where compost is produced are required to obtain solid waste facilities and conditional use permits as a condition of operation. Compost products are required to meet or exceed product quality criteria as established by the California Integrated Waste Management Board.

H. "County" means the county of Kern, state of California.

I. "CPLR biosolids" are cumulative pollutant loading rate biosolids which are Class A, or Class B biosolids that have achieved a level of vector attraction reduction per 40 C.F.R. 503.33 and that meet the ceiling concentrations in 40 C.F.R. 503.13, Table 1, but exceed at least one (1) of the pollutant concentration limits in 40 C.F.R. 503.13, Table 3, and, therefore, are subject to the cumulative pollutant loading rates in 40 C.F.R. 503.13, Table 2. Cumulative pollutant loading rate is the maximum amount of a pollutant that can be applied to an area of land.

J. "Exceptional quality biosolids" are Class A biosolids that meet the pollutant concentrations in 40 C.F.R. 503.13, Table 3 and have achieved one (1) of the vector attraction reduction requirements of 40 C.F.R. 503.33(b)(1) through (b)(8). Additionally, Class A biosolids must meet both the fecal coliform and Salmonella sp. bacteria limits contained in alternatives 1 through 6 of 40 C.F.R. 503.32(a) to be exceptional quality. For the purposes of this chapter, exceptional quality biosolids are in bulk form and shall not include compost which meets or exceeds exceptional quality criteria.

K. "Field" means a discrete area of land within a site. It is the smallest unit of land for which monitoring, record keeping and reporting requirements apply.

L. "Land application" means the placement of exceptional quality biosolids on agricultural land at an agronomic rate to support vegetative growth. For purposes of this chapter, placement includes the spraying or spreading of exceptional quality biosolids onto the land surface, the injection of exceptional quality biosolids below the surface, or the incorporation of exceptional quality biosolids into the soil.

M. "Land apply" means the spraying or spreading of exceptional quality biosolids onto the land surface, the injection of exceptional quality biosolids below the surface, or the incorporation of exceptional quality biosolids into the soil so that it can either condition the soil or fertilize crops or vegetation grown in the soil.

N. "Permit" means a land application permit issued by the agency to an applier. Such permit authorizes the land application of exceptional quality biosolids in the county. Permits are not transferable to other parties without the prior approval of the agency as provided in Section 8.05.060(N).

O. "Person" means any individual, firm, partnership, joint venture, association, corporation, estate, trust, receiver, syndicate, city, county or other political subdivision, or any other group or combination acting as a unit.

P. "Sensitive receptors" are schools, hospitals, convalescent homes, food establishments, parks and recreation areas, and single and multiple-family dwellings.

Q. "Site" means the area of land covered by a single permit. This land may be a single parcel or contiguous parcels of land with a single applier. A site can be comprised of one (1) or more fields.

R. "Staging" means the placement of biosolids on a site for up to forty-eight (48) hours to facilitate the production of exceptional quality biosolids and the transfer of exceptional quality biosolids between the transportation and application vehicles.

S. "Storage" means the placement of biosolids on a site for more than forty-eight (48) hours.

(Ord. No. G-6931, § 3, 11-26-02; Ord. No. G-8006, § 18, 1-26-10)

A. It shall be unlawful for any person to land apply biosolids, except for exceptional quality biosolids as defined in Section 8.05.030.J, to property within the unincorporated area of the county. Any site which received a permit for the land application of biosolids under the authority of Ordinance G-6638 shall discontinue land application of biosolids on January 1, 2003.

B. The discharge of biosolids to surface waters or surface water drainage courses, including wetlands and waterways, is prohibited.

(Ord. No. G-6931, § 3, 11-26-02)

A. Prior to commencing any land application activities under this chapter, the applier shall apply for a permit and pay all applicable permit fees.

B. Before exceptional quality biosolids are land applied, the applier shall contact the agency and regional water quality control board to determine whether CPLR biosolids have been applied to the field since July 20, 1993.

1. If CPLR biosolids have not been applied to the field since July 20, 1993, the cumulative amount for each pollutant may be applied to the field in accordance with 40 C.F.R. 503.13, Table 2.

2. If CPLR biosolids have been applied to the field since July 20, 1993, and the cumulative amount of each pollutant applied to the field since that date is known, the cumulative amount of each pollutant applied to the field shall be used to determine the additional amount of each pollutant that can be applied to the field in accordance with 40 C.F.R. 503.13, Table 2.

3. If CPLR biosolids have been applied to the field since July 20, 1993, and the cumulative amount of each pollutant applied to the field since that date is not known, no further exceptional quality biosolids may be applied to the field.

C. Soils on all fields will be sampled and analyzed prior to the application of exceptional quality biosolids as set forth below. The applicant will submit a current analysis reflecting soil conditions at the time of submittal of the permit application. All costs associated with sampling and analysis will be paid by the applicant.

1. Soils will be analyzed for the purpose of monitoring environmental considerations.

a. Environmental analyses for the total quantity of molybdenum listed in 40 C.F.R. 503.13, Table 1 and metals listed in 40 C.F.R. 503.13, Table 3 will be conducted every three (3) years or after every forty (40) dry tons/acre of exceptional quality biosolids has been land applied, whichever occurs first. Further, exceptional quality biosolids land application shall be prohibited on fields with soils exceeding any of the Table 3 limits. Analyses shall also be made for total dioxins and PCBs. All analyses shall be conducted by a certified laboratory.

2. The minimum number of soil samples and sampling depth is as follows:

a. A minimum of one (1) composite sample is required for every one hundred sixty (160) contiguous acre site comprised of similar soil types as defined by soil surveys or consultation with the natural resources conservation service. A minimum of one (1) composite sample for each forty (40) acres will be required for sites with highly heterogeneous soil types.

b. Each sample must be a composite of soil cores taken from a minimum of six (6) randomly selected locations representing the average soil conditions in the field. The sampling depth shall be consistent with the depth of incorporation of the exceptional quality biosolids. samples for nitrate-nitrogen and soluble molybdenum must be taken to a depth of three (3) feet.

D. In order to confirm exceptional quality biosolids are being land applied, prior to initial land application, and quarterly thereafter, samples of the biosolids shall be taken at the staging area prior to land application. Samples shall be collected by an independent party not associated with the generator, applier or owner of the permitted site and analysis performed by a certified laboratory.

E. The application of exceptional quality biosolids shall be confined to sites that are approved by the agency in accordance with the provisions of this chapter.

F. The agency shall be allowed, whether announced or not, to enter and inspect all sites where exceptional quality biosolids are being or have been land applied. The agency shall, during normal business hours, have access to and may copy any records that must be kept under the provisions of this chapter.

(Ord. No. G-6931, § 3, 11-26-02)

A. It shall be unlawful for any person to apply exceptional quality biosolids to land [within] the unincorporated area of the county without obtaining a permit from the agency and being in compliance with the terms and conditions as stated herein.

B. A permit application, furnished by the agency, shall be filed with the agency, accompanied by an eight thousand dollar ($8,000.00) permit fee. The application form shall include the following information:

1. The name and address of the applier, the property owner or leaseholder;

2. The address, legal description or other sufficient identifying description of the property;

3. A map of the property, showing:

a. The location of the proposed land application fields within each site,

b. All potable water wells, drinking water supplies, and buildings, including the identification of any buildings which are owned by the applicant, within one thousand (1,000) feet of the site,

c. The location of property boundaries.

4. Copies of all original laboratory tests for any tests required to be performed prior to the initial application of exceptional quality biosolids as required by Section 8.05.050.C;

5. Such additional information as may be required by the agency to facilitate any required investigation.

C. The person filing the application shall sign a statement under penalty of perjury that the facts stated in the application are true and correct and that all information required has been set forth in the application. The owner or authorized representative of the property shall also sign the application acknowledging the intended use to be made of the property.

D. Applicants shall be notified of incomplete or inaccurate applications within twenty (20) working days after the date of the filing of the application. The applicant shall make the necessary corrections and additions and resubmit the application within thirty (30) calendar days of notification. The agency shall evaluate the information provided in the application to determine whether or not the land application proposal will be in compliance with the applicable requirements of this chapter.

E. The agency shall have fifteen (15) working days after the date of filing of a complete application to approve or deny all complete and accurate applications. If an application is denied, the applicant may amend the application and resubmit the amended application within thirty (30) calendar days of the date on which the denial was mailed to the applicant. Such submittal of an amended application is not subject to an additional fee.

F. Written notice of the denial of a permit shall be delivered in person or by U.S. Mail, postage prepaid, to the applicant at the address on file with the agency.

G. The agency may deny an application for one (1) or more of the following reasons:

1. Inadequate, incomplete, or inaccurate application information;

2. The land application proposal would not be in conformance with the applicable requirements of this chapter.

H. The agency shall issue the permit within twenty-four (24) hours of approving the application.

I. Permits shall be reviewed annually from the date of issuance or reissuance. Permit review and reissuance are subject to the following:

1. A Permit does not expire at the end of one (1) year absent an express permit term or condition limiting the period of the permit;

2. The agency shall notify the applier sixty (60) calendar days before the permit is due for review;

3. No fewer than thirty-five (35) calendar days before the permit is due for review, the applier shall submit a certification that the information contained in the permit is current, or shall file a new application pursuant to Section 8.05.060.B;

4. If the applier files a certification as specified in subsection (I)3, the agency shall reissue the permit upon payment of the annual fee.

J. A permit may be revoked by the agency when the applier has violated any provision(s) of this chapter or any federal/state laws or regulations related to the land application of exceptional quality biosolids, or violated a provision(s) of any permit issued by the regional water quality control board, or other state agency with jurisdiction, related to the land application of exceptional quality biosolids. If the agency intends to revoke the permit, a written notice to this effect shall be delivered in person or by certified mail to the mailing address of the permit applicant. The written notice shall state the grounds for the proposed revocation. The revocation shall become effective ten (10) days after service of the notice unless the permit holder files an appeal with the board of supervisors within that time period.

K. The applicant may appeal a denial or revocation of a permit. Any appeal of revocation shall be made to the board of supervisors by filing a written request for a hearing before the board of supervisors with the clerk of the board not more than ten (10) calendar days after notice of the proposed denial or revocation has been delivered. Upon receipt of a written request for a hearing, the clerk of the board shall set the matter for public hearing on a date not more than sixty (60) calendar days following receipt of such written request, and shall give the permit applicant and the board of supervisors at least thirty (30) calendar days written notice of the time, date, and place of the hearing. After the hearing, the board of supervisors shall issue its written decision and findings on the appeal within thirty (30) calendar days after the close of the hearing.

L. The agency may temporarily suspend any permit issued under this chapter, prior to any hearing when, in the opinion of the agency director, such action is necessary to protect the residents of the county from immediate threats to health and safety. The agency shall notify the permit holder of the temporary suspension and the effective date thereof and at the same time shall set the matter for hearing as soon as possible before the board of supervisors as set forth in subsection K herein. The temporary suspension shall remain in effect until the board of supervisors has taken final action on the merits.

M. Fees to review and process permit applications, appeal an action of the agency, as specified herein, inspect sites, engage in enforcement activities and compensate for infrastructure impacts shall be established by the board of supervisors.

N. No permit may be transferred without the prior approval of the agency. The agency shall review a request for transfer of a permit using such criteria as it deems necessary to assure that the proposed transferee would qualify for the approval, in the first instance, for issuance of a permit and is capable of complying with the conditions of the permit and the requirements of this chapter. The agency shall not unreasonably withhold its consent to the transfer of any permit. Denial of any request for the transfer of a permit may be appealed to the board of supervisors following the procedures provided for appeal of the denial or revocation of a permit under subsection K herein.

(Ord. No. G-6931, § 3, 11-26-02)

A. Transportation, storage of biosolids and land application of exceptional quality biosolids shall not degrade the groundwater or surface water.

B. Discharge of biosolids to surface waters or surface water drainage courses is prohibited and all biosolids shall be confined to within the boundaries of the site.

C. All irrigation tailwater on sites utilized for exceptional quality biosolids application shall be maintained on the permitted site and shall not be allowed to flow onto adjacent properties, either by means of surface or subsurface flows.

D. Class B biosolids shall not be stored on the site unless approved by the agency due to adverse climatic or other emergency conditions which prevent production and application of exceptional quality biosolids within forty-eight (48) hours. Sites where exceptional quality biosolids are stored for more than forty-eight (48) hours shall be designed and maintained to contain all storm water falling from a ten (10) year, twenty-four (24) hour storm and to prevent washout or inundation from a one hundred (100) year storm or flood.

E. Transportation, fugitive dust, surface water runoff, storage of biosolids and application of exceptional quality biosolids shall not cause a nuisance, odors, flies, or other vectors.

F. Exceptional quality biosolids with a moisture content less than fifty percent (50%) shall not be applied and incorporated when wind gusts are in excess of ten (10) miles per hour.

G. Application of exceptional quality biosolids shall not cause or result in the covering, disturbing or changing any part of a county road or highway or the placing of any obstruction or piling any material on the surface of any county road or highway.

H. No exceptional quality biosolids shall be applied which contain PCBs in excess of fifty (50) parts per million or dioxins in excess of ten (10) parts per billion.

I. Before the land application of exceptional quality biosolids each year, a management plan shall be submitted to the agency. The plan must include: fields to be used, process used to create exceptional quality biosolids and mitigation of offsite flows through the site.

(Ord. No. G-6931, § 3, 11-26-02)

A. All exceptional quality biosolids staging, storage and application areas shall be at least:

1. Fifty (50) feet from property lines;

2. Five hundred (500) feet from domestic or public water supply wells;

3. Fifty (50) feet from nondomestic water supply wells;

4. Five hundred (500) feet from occupied residential buildings. However, in the case of the owner's residence on the site, the agency may waive this setback requirement if requested by the owner;

5. Ten (10) feet from agricultural buildings;

6. Five hundred (500) feet from sensitive receptors, except schools;

7. Fifty (50) feet from public roads;

8. One hundred (100) feet from surface water (streams, ponds, lakes, marshes, or surface percolation or settling ponds intended for water banking use);

9. Two (2) miles from any school site.

10. Sites where Class B biosolids are stored shall be located, designed and maintained to restrict public access.

(Ord. No. G-6931, § 3, 11-26-02)

A. Test results shall be expressed in milligrams per kilogram of exceptional quality biosolids on a one hundred percent (100%) dry weight basis.

B. Analyses shall be conducted using methods as required by 40 C.F.R. Part 503.8.

C. For exceptional quality biosolids, the applier shall retain the following information for five (5) years after the last application of exceptional quality biosolids, in a location approved by the agency:

1. The concentration of each pollutant listed in 40 C.F.R. 503.13, Table 3 and any other constituents as may be specified by the agency for all land applied exceptional quality biosolids;

2. The certification statement (which may be required from the generator of the exceptional quality biosolids) set forth in 40 C.F.R. 503.17(a)(2)(ii);

3. A description of how the pathogen requirements in 40 C.F.R. 503.17(a)(2)(ii) are met (which may be required from the generator of the exceptional quality biosolids);

4. A description of how the vector attraction reduction requirement in Part 503 is met (which may be required from the generator of the exceptional quality biosolids);

5. A description of how the site restrictions in Section 8.05.060 are met for each land applied site.

D. Persons who apply exceptional quality biosolids in the county shall submit a written report of their activity to the county on a monthly basis. The report shall include a summary of the quantity in wet tons of Class B biosolids hauled from each source per day and total quantities in both wet and dry tons of exceptional quality biosolids applied per month.

(Ord. No. G-6931, § 3, 11-26-02)

A. The agency shall inspect all sites at least four (4) times per year during the period when exceptional quality biosolids are being applied and may inspect more frequently or at any time.

B. The agency shall charge for services not specifically described that are rendered by personnel that are necessary for the enforcement of the provisions of this chapter. The charge will be calculated on the per-hour fee of eighty-five dollars ($85.00) as established in Section 8.04.100.

C. The agency shall charge actual costs for testing, sampling, and analyzing necessary to ensure compliance with the provisions of this chapter.

D. Any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor.

E. In addition, any violation of this chapter may be deemed by the agency to be a public nuisance, and may be abated, or enjoined by the agency, irrespective of any other remedy herein provided.

(Ord. No. G-6931, § 3, 11-26-02)

Any person violating any provision of this chapter is guilty of a misdemeanor and upon conviction thereof is punishable by a fine of not more than five hundred dollars ($500.00) or by imprisonment of not more than six (6) months or both. Every violation of this chapter shall be construed as a separate offense for each day during which such violation continues and shall be punishable as provided in this section. The court or the county may also demand and require the violator to clean up at the violator's expense any illegally applied or deposited biosolids and dispose of it in an approved, environmentally safe and clean manner.

(Ord. No. G-6931, § 3, 11-26-02)