"Corruption is often the price of Progress."
Reverend Emanual Cleaver II, Mayor, KC, Mo.
(Starbeam—Kansas City Star, 1996)
One of the selling points in the EPA/WEF's promotion to farmers is their claim that the farmer and his
family will not be harmed by the use of sewage sludge and there will be no liability under the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (Superfund Act), if
the Part 503 is followed and sludge use is considered to be a "normal application of fertilizer."
In spite of all the EPA/WEF rhetoric about the lack of danger to the health of the farmer from sludge use,
sludge, fertilizers containing hazardous waste put farmers at risk.. In the book, TOXIC DECEPTION (1996)
Dan Fagin and Marianne Levelle, and the Center for Public Integrity, cited research done by Aaron Blair
and Sheila Hor Zahm, at tJae National Cancer Institute, "who have conducted at least seven studies of
farmers (a population that by most measures is healthier than the rest of us)," which showed increased
cancer among farmers. They quoted the researchers as saying, "we found ( unexpectedly high rates of
lukemia, Hodgkin's disease, non-Hodgkin's lymphoma, multiple myeloma, and cancers of the bone, brain,
connective tissue, eye, kidney, lip, pancreas, prostate, skin, stomach, and thyroid." (p. xvi)
In a series of articles in the Seattle Times, FEAR IN THE FIELDS, reporter, Duff Wilson, on July 3 & 4,
1997, exposed what could be contributing to not only farmers adverse health, but damage to animal health
and environment. According to the article, farmers in the little town of Quincy, Washington "were
wondering why their wheat yields were lousy, their corn crops thin, their cows sickly." An investigation led
by Quincy Mayor Patty Martin, revealed the fertilizer used by the farmers was made from hazardous waste.
"It's really unbelievable what's happening, but it's true," Martin said, "They just call dangerous waste a
product, and it's no longer a dangerous waste. It's a fertilizer."
Wilson gave several examples where EPA allowed hazardous waste to be used as a fertilizer—with a
simply name change. " In one case, toxic metal waste went into the top of a Bay Zinc Company silo under
an EPA hazardous waste storage permit and emerged out the bottom as an unregulated fertilizer. Bay
Zinc's President Dick Camp said, "Don't ask me why. That's the wisdom of the EPA." Wilson found that in
Gore, Oklahoma, radioactive waste was licensed as a liquid fertilizer and sprayed on 9,000 acres of
grazing land. Unsuspecting farmers in Tift County, Ga. loss 1,000 acres of peanuts when they used
hazardous waste mixed with lime.
Wilson found that. "Canada's limit for heavy metals such as lead and cadmium in fertilizer is 10 to 90 times
lower than the U.S. limits for metals in sewage sludge. "He stated, "The United States has no limits for
metals in fertilizers." Canadian Regulator, Darlene Blair, says, "Sorry, but we won't compromise our health."
Unlike the Canadian regulatory agency the EPA and USDA take the opposite approach. USDA's
Rufus Chaney followed the EPA line, when he spoke to Wilson, He said. "It is irresponsible to create
unnecessary limits that cost a hell of a lot of money."
Chaney also revealed the real nature of the 1989 Peer Review Hatchet Job when he told Wilson,
"Recycle and reuse, that's our national strategy," said Chaney...."It costs so much more to put it in a
landfill." In Wilson's article, Maryam Khosravifard, staff scientist for the California
Department of Food and Agricultural, revealed what everyone else has failed to recognize. Maryam said,
"EPA is in charge of getting rid of these materials. They do reuse and recycling. "
Edward Kleppinger, a former EPA employee who wrote hazardous waste rules, told Wilson, "The last
refuge of the hazardous-waste scoundrel is to call it a fertilizer or soil amendment and dump it on farmland."
Hazardous waste in fertilizer is not new. As we noted earlier in the Hatchet Job chapter, Milwaukee has
been selling this dangerous material to the public since 1926.
Before 1985, the tannery waste chromium in Milwaukee's sludge fertilizer, Milorganite, was "Listed" by EPA
as a hazardous waste. In 1985, EPA began promoting the use of hazardous waste as a fertilizer without
warning the farmers or the public of the adverse human health effects associated with the dangerous
As the state agencies have slowly realized how skillfully the EPA has lead them into becoming a partner in
the destruction of our environment, the states have cut back on their enforcement efforts. As we noted
earlier, Missouri and Washington are examples of states who cut back on enforcement personnel. Wilson
also discovered that many states are cutting back on their laboratories. According to the article, "Testing
for heavy metals would cost $50,000 to $150,000 in capital investment for the typical state lab. plus
additional staff, plus $10 to $60 per sample. Some states, like "New York, don't even test for nutrients
anymore," according to the article. In effect they are dropping their regulatory apparatus and putting the
responsibility on EPA. As Wilson notes, "The EPA, meanwhile, is focusing not on testing or regulating but
on promoting waste recycling."
This lack: of responsibility and regulation by the states has worried some bankers since the final Part 503
regulation was released on February 19, 1993, On November 29-30, 1993, The Springfield District Farm
Credit Council, Springfield, Massachusetts, held a symposium on, Minimizing Risks and, Sharing Liability
From Application of Sludge and Sludge By-Products on Agricultural Land.
The symposium was attended by all sectors of the sludge industry, environmentalists and other interested
persons, except farmers. The number one, "Point of Agreement: [was] Under current law, landowners,
farm operators, and lenders are potentially liable for risks arising from the application of biosolids, unless
someone else assumes such risks through a clear and legally enforceable mechanism." (p. 5)
According to the Symposium report, Farm Credit was concerned that a farmer who used sludge, "might
suffer financial losses, be required to take remedial steps, or be held responsibility by an agency of
government or court, for alleged or actual damages arising as a result of biosolids [sludge] application."
The main points of concerned were:
Farmers and/or lenders may be held liable for:
* changes in the value of the land, for example...
* contamination may impair productivity of the farm
* farmers may be restricted from growing certain crops
* landowners may have difficulties selling land treated with biosolids.
* clean up cost associated with decontamination of the land and with future preventative measures
* legal cost and damages associated with lawsuits
* related health problems suffered by the farm family, livestock and pets, and neighbors or others
who might come in contact with biosolids applied to private lands. (p. 6)
According to Dennis Connolly, an insurance advisor to the .National Farm Credit Council, "— the industry
views these risks with "a somewhat poisoned eye," since it recently paid out over a billion dollars in liability
claims for damages from asbestos, a product the government once considered safe and even promoted to
enhance energy efficiency." (p. 7)
One of the major risks to farmers was pointed out by a participant. He noted that, "on fields receiving lime-
stabilized biosolids products, the need to monitor the saturation of certain cation exchange bases. He said
that if more than 80 percent of a soil's exchange capacity was saturated by the calcium in biosolids, future
crop yields could be jeopardized because other essential plant nutrients might be in short supply. In his
area of operation and at the rates his company applies biosolids, this degree of base saturation has
occurred after as few as two years of land application." (p. 16)
According to the report, "Participants also addressed another key question: Who is liable if someone
alleges harm from biosolids applied to land, when the biosolids product itself and the application was made
in full accord with state and federal law and regulations?"
The sludge industry made a key point for the farmer, "The group concluded that sludge generators,
biosolids manufactures and vendors, and the farmer receiving biosolids, should not be held liable in such
cases. The group also agreed that liability in such cases is now an orphan--no one wants it [the farmer has
it], nor could any private business or individual accept it and stay in business. Thus for the time being, the
question does not have an answer."
A major concern of the symposium was that, "No one can accept liability for harm that might arise in the
future if regulatory standards, science, or legal precedents change. There is no protection from such risks
now for anyone in the biosolids chain, or for any other agricultural input." (P- 9)
According to the report, "Some participants objected to the very notion of indemnification, since they felt
that calling for indemnification implied the presence of risks, and would indeed invite claims and encourage
litigation. Other pointed out that publicity about indemnification clauses sometimes needlessly raises public
concerns." (p. 10)
The participants were very concerned about the concept of "joint and several liability" included in the
Superfund Act. While it was not mentioned in the symposium, this concept has been and still is applied to
legally permitted landfills, when they become superfund sites. In 1997, some businesses in Gettysburg,
Pennsylvania were sued by EPA because their garbage was taken to a landfill that was later declared a
Yet, in a footnote, the report states, "* Since the symposium, word has been received from Dr. John Walker
that EPA finds "... that farmers (and their lenders) who use biosolids in accordance with the Federal
regulations are protected from CERCLA liability and any enforcement action from EPA." Cited is a
September 27, 1993, letter from Martha Prothro, EPA acting assistant administrator for water, to
Congressman Gary Condit." (p, 7)
After two days of discussion, it became evident that if a problem arose, the landowner or the Farm Credit
Banks of Springfield would be responsibility for damages to the land.
In February 1994, the Farm Credit Banks of Springfield, offered the following, Suggested Language for
Landowner Indemnification In Biosolids Land Application Contract:
Contractor agrees to indemnify, defend and hold harmless
Landowner and Landowner's successors and assigns from
and against any and all claims, suits, actions, demands,
losses, costs, liabilities, expenses (including
remediation cost and reasonable attorney's fees) to the
extent that these result from Contractor's violation of
applicable laws or regulations in effect at the time of
land application, negligence or willful misconduct in
Contractor's generation, delivery and application of
biosolids to the undersigned Landowner's land. This
indemnification shall survive termination of this
There is nothing in this agreement to protect the farm owner, or the banks, should the land become
contaminated beyond use or if the land can not be sold because of contamination. In spite of Walker
producing a letter from an acting assistant administrator, who is no longer at EPA, saying the EPA would
not hold anyone responsible for damages from sludge-—even if it were true, it would only apply to k the
sludge producer or spreader.
One concerned farmer, Jane Beswick, Coordinator for the California's COALITION FOR SLUDGE
EDUCATION, thinks it may be possible to use sludge in some isolated cases, but she warns in her paper,
Some Misconceptions Concerning Sludge, "Unless provision is made to prevent liability from being
transferred, the landowner will be responsible for any adverse effects of spreading sludge. This risk must
be understood by the landowner so it can be weighed against any expected benefits. She believes, "If
disclosure of the bad points and risks is fully understood and the buyer still wants to make the deal, then it
is an informed decision. Without disclosure, the seller is taking unfair advantage of the buyer's lack of
knowledge." Beswick uses the real estate disclosure laws as an example of how farmers should be treated.
She writes, "It is necessary to disclosure because both the purchaser of a house and the farmer who is
willing to accept sludge should be dealt with honestly." It is evident that the farmer who has sludge on his
property, for whatever reason is going to end up being responsible for the problems it causes, whether it is
contaminated food products he can not sell, ground water contamination or land which will not produce the
crops necessary to keep the farm operating.
The farmer also has to be concerned about sludge contaminating his neighbors property and causing
serious adverse health problems or property damage. Like the Zanders, in Washington State, and Robert
Ruane, in Vermont, Ed Roller, of Sparta, Missouri, became a victim of sewage sludge from runoff from a
neighbor's sludge site. We learned about Ed's plight when he contacted Help for Sewage Victims. For 17
years Ed had been a successful dairy farmer with a herd of 150 cows and several head of young stock.
His animals were of very good breeding and a lot were registered. His troubles began in 1988 when
Sparta installed a sewer plant producing sludge for land disposal. In 1989, his neighbor allowed sludge to
be applied to his field. The runoff from his neighbor's sludged field contaminated his field. When cattle ate
fodder raised on it, they began to sicken. Like Zander and Ruane, in 1990-1991, he lost cows (60), milk
production dropped and cows would not breed back. The veterinarian he called was baffled and couldn't
figure out what was the matter with the cows. Determined to find the cause, Ed had a cow that was about
to die tested. The tests showed heavy metals, and fluoride contamination in the cow.
Not knowing at the time that they were contaminated with toxic substances, he sent 40 cows to market with
various health problems. He is very upset because these cows were slaughtered and the meat became a
part of the food supply, eventually winding up in some consumer's food. He was also concerned about
possible contamination of the milk, but when he contacted the buyers of. the milk, they told hire not to
worry about it. They dumped the milk and told him to keep ' quiet about it. Like the Zanders, through no
fault of his own, Ed has been truly victimized. All his hard work of seventeen years building up his dairy
herd was for nought. His dreams have been destroyed along with his livelihood as a farmer. Forced into
bankruptcy, he has had to give up farming and find a job. He worries about his father, who had helped him
for four years in the dairy. Some of the same contaminants found in the cattle have shown up in his ,
In trying to get justice for the harm that has been done to him through no fault of his own, he may be
stymied in his attempt by a proposed food slander law. According to a January 17, 1998 editorial in the
Kansas City Star, Missouri Rep. Sam Leake, a Laddonia farmer who chairs the Agriculture Committee in
the Missouri House, wants to protect Missouri farmers by enacting a "law to impose tough penalties on
people who "disseminate a false and defamatory statement" about farmers or their products." "Leake's bill
would establish a penalty of three times actual damages for anyone who "knowingly" makes or
disseminates a false and disparaging statement about agricultural products or an ag producer." The basic
premise behind these laws is that anyone who claims he/she has been adversely affected from consuming
certain food products has to scientifically prove his/her claim.
At least 13 states have now enacted "food slander" laws to protect "farmers". Supposedly, these laws
were enacted after it was revealed the carcinogen, Alar, was being used on apples. Many consumers
stopped eating apples and the industry was hurt. However, it is now evident that this was only an. excuse,
which allowed the states to enact laws, which would protect the states themselves, for failing to protect the
food supply, not only from Alar, but from such dangerous ; practices as spreading hazardous waste on
farm land. These laws are not designed to protect the legitimate farmers, who would never knowingly put
such dangerous products on their farm, where it could destroy the water supply, could enter the food
supply, adversely affect their neighbor, degrade their land, harm their animals and even their family.
Ed could not get any help from the state. In following EPA's sludge promotional program, Missouri's
Department of Natural Resources (DNR) has let the uncontrolled use of sludge as a fertilizer get so far out
of hand, it can not afford to investigate any adverse human health effects or environmental damage. It
needs Leakes' food slander law.
As an example, in 1989, Missouri's Water Quality Standards prohibited sludge use within 50 feet of a
property line. Number 1, under the best management practices of the standard was the prohibition against
the discharge of sludge from the application site. As we found in Kansas City, that prohibition has never
been enforced- Because of our complaints, engineers from the DNR first looked at the sloping ground
which funnels the contaminated runoff from the Kansas City sludge onto the Alice Minter Trust farm in
1990, and to this day, the DNR has refused to acknowledge the runoff is occurring.
Before 1993, DNR's standards and Missouri's Department of Agriculture Milk Board policy prohibited
lactating dairy cows from grazing on sludge amended pastures for one year. Once Part 503 was released,
the DNR changed its standards to conform to the 30 day grazing restriction in Part 503. The DNR put the
health of Missourian's who drink milk at risk, when it failed to notify the Milk Board of the change. The Milk
Board still believed cattle were restricted from sludged pastures for one years. When I interviewed Jerry
Long, Director of the Milk Board, on November 14, 1997, he was shocked to discover the DNR had
changed the grazing restrictions, without notifying him. He told me his inspectors still did not allow lactating
cows to graze on sludge amended pastures—if they knew about it.
Missouri is a case in point, where the State regulators have completely turned their backs on the people,
who live around these sites and eat the food raised on the sites.
Now, Rollor is bankrupt and his family is sick, because of sludge use. If Leake's law is passed he would be
prevented from recovering any damages from his neighbor's use of sludge and could possibly be sued for
disparaging his neighbor.
Although the City of Sparta and the state of Missouri had a duty to protect Ed Rollor and his family and
property from harm, they ignored his claim of damage. This is happening all across the country in spite of
the regulations in place to protect the people from sludge.
As an example, under Part 122.4 any municipality, has a duty to take all reasonable steps to minimize or
prevent any discharge [from the sludge site] or sludge use or disposal in violation of either a State permit
or the self-permitting Part 503 regulation, which has a reasonable likelihood of adversely effecting human
health or the environment.
These state regulators know exactly what they are doing to the people. As noted earlier, the Part 503.6(t)
regulation told them that exposure through the food chain to the pollutants in sludge can cause disease,
death, cancer, etc.
While the Missouri Director of Natural Resources has
refused to do his job in the Kansas City case, as well as the
Ed Rollor case, under the state Water Quality Standards, he
does have the duty under the federal regulations to get
involved. In Kansas City, as an example, since the
groundwater monitoring wells showed groundwater :
contamination, and is a part of the state NPDES permit
requirements, the Director of the DNR has the authority under
Part 122.27, which enable the State to sue for compensation
for any loss or destruction...and for any other damages
caused by unauthorized activity, either to the State [waters]
or any resident of the State who are aggrieved by the
unauthorized activity, or both.
At a minimum, the Director has the authority under 123.27, "To restrain immediately and effectively any
person by order or by suit in State court from engaging in any unauthorized activity [permit violations]
which is endangering or causing damage to public health or the environment."
Furthermore, according to Part 123.27(d)(2)(i), the State agency is required to investigate and provide
written responses to all citizens complaints. To date, the DNR's response has been that Kansas City says it
is complying with all state and federal rules. Even though City acknowledged the ground water
contamination under the Alice Minter Trust property and documented it in reports to the state, both EPA
and the state refused to investigate.
As there are no requirements for groundwater monitoring in Part 503, the states have been let off the hook
by EPA. Unlike the Kansas City sludge site, most sludge disposal sites do not have groundwater
monitoring wells, even though the states and EPA know that at some point, there will be
In their paper, Ground-Water Contamination and Remediation in New Mexico, 1927-1992, published in the
Journal of Proceedings of the New Mexico Conference On The Environment, September 13-15, 1992,
Dennis MeQuillan and Natalie Keller, senior staff members of the New Mexico Environmental Department,
reported that centralized sewage treatment works and landfills were the major source of non-industrial
point sources of pollutions. The pollution from these point sources consisted of nitrates, halogenated and
aromatic solvents, petroleum hydrocarbons, metals, radionuclides, and/or TDS, chloride and chlorinated
They reported that between 1927 and 1992, 815 cases of ground water contamination had been identified
in New Mexico. According to the authors, "A disturbing number of contamination cases are being
discovered in areas where the depth to ground water is between 200 and 600 feet, suggesting that depth
to water may not be as important for aquifer protection as widely believed." (p. 44) The authors noted that
"Depth to ground water has long been used as an indicator of aquifer vulnerability in risk and priority
models." Yet, "These discoveries suggest that aquifer recharge in areas of deep ground water may be
occurring more rapidly, and at greater magnitude, than is widely believed. Areas of shallow ground water
are clearly vulnerable to contamination. Deeper ground waters, however, are not as well protected as
many believe them to be." (p. 53)
In their Conference paper, Environmental Racism: The Poisoning of Communities of Color, Michael
Guerreo and Louis r Head, revealed a number of cases of people victimized by the groundwater
contamination in the southwest. One was "Betty Griego of the Mountainview community south of
Albuquerque [who] spoke of how her child nearly died in her arms from drinking excessive amounts of
nitrates in water used to prepare his formula. She and others spoke of the struggles to hold potential
polluters of the ground water accountable, including the highly suspect Kirkland Air Force Base."(p. 445)
Like the bankers, some industry people have also been extremely concerned about the lack of protection
in EPA's Part 503 regulation.
In a letter dated May 4, 1995, J. Patrick Nicholson, Chief Executive Officer for N-VIRO International, a
company that uses sludge and lime to make a soil amendments, expressed his serious concerns about
EPA's indifference to public health and public responsibility questions, relative to Part 503. The letter was
addressed to Michael B. Cook, Director of EPA's Office of Wastewater Management. In the letter Mr.
Nicholson pointed out, in a nice way of course, that EPA was lying when it said "—there is little, if any,
evidence of inadequate management of sludge, or any evidence of problems caused by sludge practices."
Mr. Nicholson identified 3 major problems.
1. In 1994, Lake St. Clair and the southern end of Lake Erie were closed to the public due to fecal
coliform contamination. The sources were identified as non-point source discharge pollution cause by
improper land application of manures, sludges, and chemical fertilizer.
2. "Mt. San Diego" (ABC's PRIMETIME) is a national monument to the lack of state and local
enforcement. And this travesty occurred in California, a state, with one of the strongest records for
environmental protection and ' enforcement in the nation. Other management practice problems can be
3. The National Research Council, the USDA, and others have correctly identified improper soil
management practices, including the management of sludge, as the primary cause of current water
pollution, yet today, USEPA is exerting only limited effort in dealing with the issue of non-point source
discharge pollution, and current permissive 503 land application practices are a . major cause of such
pollution, particularly where year-round land application is tolerated.
Mr. Nicholson also hit the heart of the health problem issue for the people of Franklin, Kentucky, where
385 to 500 tons a day of untreated sludge were being brought in for storage and composting, when he
There is no evidence that such sludges (Class B) are
safe from infectious organisms. In fact, the evidence,
including our own testing of Type B sludges, indicates
recontamination over time, especially with salmonella.
Unrestricted open storage is a potential public health
menace. Even type A sludge products, with 2,000 times
more stringent standards, should be placed in a
contained area. We charge that any less stringent sludge
storage management practice is absolutely wrong and a threat to public health.
Mr. Nicholson also pointed out the EPA's deceptive practices:
At the October 1994 Chicago conference of the Water
Environment Federation, the Disinfection Committee of
the WEF raised serious concerns relative to public
health issues pertaining to pathogens and the 503
regulations. Dr. Rubin.challenged these critics, and
stated that public confidence in the credibility of Part
503 would be greatly diminished if these concerns were
publicized. Have these concerns been addressed
by USEPA? By whom? Where are the reports? If not, why
Liability is the sludge industry's major concern, as pointed out by Hugh Kaufman, at the conference on
the "Dangers of Sludge", November 15, 1997, at the Franklin Pierce Law Center in Concord, N.H..
Kaufman, who has been with EPA from its inception, and help write the laws on waste management, the
RCRA and Superfund Act and related Amendments, laid the facts on the line for farmers:
Industries can make a lot of money by transferring the liability of that waste (sludge) from those industries
to the taxpayers, there are companies like Wheelabrator, like RMI, Like BFI, that get paid substantial
amounts of money to transfer that liability to the lowest common denominator in society today, and that
lowest common denominator unfortunately are farmers. When push comes to shove, farmland and farmers
end up at the end of the food chain. The health of farm land is not as important in public policy in the
United States as fish in the Atlantic Ocean.
On top of that, unfortunately, the federal government has a policy now of allowing the use of Superfund
waste ——Superfund, being the program where we have toxic facilities that are so dangerous, hundreds of
million dollars have to be spent to dig them up—to run the Superfund waste through the wastewater
treatment plant where the plants basically take the Superfund waste out of the water and transfer it to the
sludge, and then take that Superfund waste that's in the sludge and land apply it to grow food. That's
happen here in New Hampshire, its happening all over the country. -
In fact outside of Denver, Colorado, Plutonium waste, which is in the Superfund site, and it came from the
Rocky Flats nuclear reservation, went to the Lowery landfill. That waste will be run through the waste water
treatment plant in Denver so the plutonium waste will end up in the sludge, and that sludge will be used to
grow wheat that will go into intrastate and If international commerce.
So what we have is, we have the federal government as a matter of public policy, not as a matter of
science, promoting the least-cost disposal, which is putting the problem of liability of Superfund clean-up
waste, which is industry's problem, also on the back of the farmers, as well as industries doing it directly.
This is a political battle, this is not a science battle. The science is in. A recent decision this summer by
the Fifth Circuit Court of Appeals, the United States government, has rendered the highest level U.S.
Government opinion based on science, on the land application of sludge. They ruled, three Judge panel,
that there is no consensus among the experts on the safety of sludge, there is no consensus. That was
based on three appellate court judge panel, and the Fifth Circuit Court of Appeals, is the most
conservative appellate court in the United States. So they ruled '--' there is no consensus. Now, the public
has to determine, if there is no consensus about the safety in the minds of the experts, whether they want
to take the liability and the risk. And that is the politics of sludge.
Ellen Harrison of the Cornell Waste Management Institute and primary author of its study, A case for
Caution, brought up another major point about farmers liability at the conference, the EPA's beneficial use
; propaganda line that farmers will not be liable if a superfund site is created on the site, because it is a
fertilizer. She noted, "In fact, in talking to a lawyer with the California Farm Bureau, his interpretation was
that,...if there is some kind of clean-up problem that might be associate with sludge—if there were, that
farmer would likely be sued or prosecuted under a different piece of law, some kind of state law or you
couldn't sell the property for residential purposes."
Kaufman affirmed it would be, "Imminent hazard under RCRA Section 7003 [the federal waste disposal
Ellen Harrison, "Okay. And then in fact what it would
do, would be prevent the farmer from going after the
generator under Superfund?"
Hugh Kaufman, "That's correct. It's not as advertised."
Since there will be no help from the state, if the farmers lands are contaminated beyond use, it is up to
each of them to protect their health and livelyhood by refusing to accept hazardous waste in any form as a
fertilizer. The farmer who willingly accepts sludge or a hazardous waste for use as a fertilizer is not going
to have any protection at all. If the sludge contaminates his neighbors property, the neighbor will have
recourse, not under the Part 503 policy, but under the real sludge regulation, that is backed up by
law, Part 258.
According to the preamble to Part 258:
Citizens may seek enforcement of the revised Criteria Part 258 sludge regulation) independent of any State
enforcement program. Citizens suits under section 7002 of RCRA. Section 7002 of RCRA provides that
any person may commence a civil action suit on his own behalf against any person who is alleged to be in
violation of any permit, standard, regulation, condition, requirement, prohibition, or order that has become
effective pursuant to RCRA [as long as the citizen gives the proper 60 day notice under 40 CFR Part
135]. Once the self-implementing criteria in todays rule becomes effective, they constitute the basis for
citizens actions brought in federal court against facilities that fail to comply.
Under the RCRA, sludge is still a solid waste and based on the fourth common characteristic of a
hazardous waste, since EPA has not addressed the toxicity question.
Under section 505 of the CWA, any person may commence a civil action against any person alleged to be
in violation of an effluent standard or limitation under the CWA. "Effluent standard or limitation" is defined
to include a regulation under section 405(d) of the CWA. [section 505(f), 33 U.S.C 1365(f).] Because the
part 258 Criteria are also standards for sewage sludge uses and disposal promulgated under section 405
(d) of the CWA, citizen enforcement action in Federal court is authorized against non-complying facilities
accepting sewage sludge. (FR 56, p. 50995
In effect, beneficial sludge use under the EPA's Par 503, which claims an exemption from all federal laws
would actually fall under the "Open Dumping" section of the real sludge disposal rule, Part 258. Federal
damage lawsuits could be filed against anyone under the Clean Water Act who accepts sludge for use as
The implications of the "Open Dumping" provisions of Part 258, appear to have been specifically noted by
some concerned EPA regulator in reference to Part 503's beneficial sludge use section, where chromium
can be disposed of at very hazardous levels vs the sludge only landfill section which only allows 600
Although the NSA's main concern is the adverse human health effect caused by sludge, it is also
concerned that most attorneys have never understood the legal challenges presented by the EPA's
promotion of hazardous waste and sludge as a fertilizer, In the past, before Part 503, attorneys have had a
level playing field, where each attorney operated under the same set of rules. Today that is not the case.
EPA has created such a complex web of misinformation concerning sludge disposal the attorneys are
floundering in the legal system. The attorneys can offer little or no help for the farmer, or the consumer
under the current legal system. As we have seen, the EPA, states and the state courts will fight to protect
the status quo. What this means is that the farmer who has adverse health effects or environmental
damage from sludge use, if the EPA and states have their way, will either be dead or bankrupt, before an
attorney can figure out how EPA and the states, and even Congress, have twisted and misused the laws to
subverted the justice system. Theses actions by the regulators and legislative bodies have placed
everyone at risk, and the most liability falls on our children whose health may be adversely effected before
they are born.