To Sludge Or Not To Sludge?

Local governments may use their zoning powers to ban the land application of sewage sludge without running afoul of federal law or interstate commerce, according to a ruling by a federal district court.

A group of farmers in Rappahannock County, Va., filed suit to invalidate a county ordinance that prohibited the disposal of sewage sludge by land application. The farmers put forth a dual argument. First, the U.S. Environmental Pro- tection Agency (EPA) prefers this disposal method over all others. Second, the ban contradicts the federal Clean Water Act (CWA). Under the Supremacy Clause of the U.S. Constitution, states and localities can't pass measures that conflict with federal laws or policies. The farmers claimed that the county ordinance was an "obstacle to the accomplishment of the full purposes and objectives of federal law."

Indeed, the Clean Water Act seeks the "reduction of risks and the maximization of benefits associated with the disposal of sewage sludge." However, the law allows state and local governments to impose disposal requirements for sewage sludge even "more stringent" than what the CWA requires.

The U.S. District Court for the Western District of Virginia upheld a ruling by a magistrate that the ordinance does not contradict either the objectives of the CWA or federal standards for sewage sludge disposal. Moreover, it makes no difference that EPA prefers the land application approach, said the court. Accept-able disposal methods include incineration and landfilling, which the county ordinance does not prohibit, the court noted.

The court also rejected the farmers' claim that the ordinance unreasonably burdened interstate commerce. To succeed, the farmers had to prove either that the county was not pursuing a legitimate local interest when it enacted the ban or that whatever valid public interest existed was nevertheless overshadowed by an undue burden on commerce.

As the judge saw it, the farmers proved neither proposition. The county's explanation for the ban was not pretext or self-delusion, ruled the court. In addition, the farmers failed to prove that the ban would impair interstate commerce.

Small business forgiveness. Fighting irresponsible polluters is no trivial pursuit at the U.S. EPA. But agency officials now say they won't pursue the trivial.

The agency has decided to reduce or waive penalties for minor first-time infractions by small businesses, according to a recently announced policy.

Eligible small businesses that clean-up or correct these violations within 180 days may not have to pay any penalties. Even if the agency declines to assess a fine, it still may try to collect the dollar value of any economic benefit if a business takes more than a year to correct the problem.

For starters, the agency is offering a six-month grace period during which small companies can bring their operations into compliance with environmental laws. Firms that use pollution prevention techniques would have 360 days to correct their problems.

A small business - that is, an entity with no more than 100 em-ployees - that wants to benefit from the penalty-waiver policy must prove it is doing its utmost to meet applicable environmental requirements. For EPA, this means a business that has participated in a small business technical assistance program and that has not received within five years any notices, warnings or other enforcement attention from any governmental agency regarding a similar violation.

The small business forgiveness policy extends to violations of water pollution and drinking water laws, toxic substances handling requirements, the Resource Conservation and Recovery Act and other key laws.

Of course, no criminal violations or acts that substantially endanger public health or the environment are eligible for a waiver or abatement.

Manipulating the FMLA. For many waste hauling firms, no-show drivers are a problem. Routes usually get covered, but at the cost of sizable overtime pay.

Employees have discovered the Family and Medical Leave Act (FMLA), which guarantees up to 12 weeks of unpaid, job-guaranteed leave for childbirth, their own serious illness or that of a family member, and provides a perfectly legal way to skip work. FMLA has become a convenient defense for the problem employee who faces losing his or her job for excessive absenteeism.

Workers covered by the Act may take medical leave in segments as small as one hour. For the most part, a manager cannot deny the leave. Of course, an employer can ask for a medical certificate or a second opinion.

A House committee plans hearings on the law this month.

"We aren't interested in giving irresponsible polluters a break," said Browner. "We do want to help honest business owners comply with the law and run their businesses as cleanly and efficiently as possible."