There are many victims from the land application of
sewage sludge. One of these is the farmer who allowed sludge
to be spread on his land believing the hype of the sludge
promoter who told him sludge was a fertilizer like the
commercial fertilizers he was used to using. Bob Ruane was
one of these farmers. He has lived on his 99 acre dairy farm
outside of Rutland, Vermont since 1947 when his dad purchased
it. He bought it from his dad in 1966.
In 1986, representatives from the City of Rutland
convinced him that sewage sludge could be used beneficially
as a fertilizer for his corn crops. At the time he agreed to
allow them to start spreading the sludge on 27 acres of prime
bottom land, the yield on the 27 acres was as high as 33 tons
of corn silage an acre. He had a herd of 300 cows--140 of
the cows were milk producers.
Arthritis, abortions, muscular problems started showing
up in his cattle after harvesting corn where sludge had been
applied to his land. Although Bob kept his cattle off the
fields where the sludge was applied, the corn was chopped up
for silage and fed to the cattle. He lost 119 cows before he
stopped feeding them the silage grown on the sludge-amended
soil. Prior to application of sludge to his land, he only
lost at maximum 6 cows annually which is normal for a herd of
300.
EPA has claimed crop production will only drop by half
after 100 years of sludge use. However, after the fourth
year of sludge application, the yield on the Ruane's 27 acres
dropped dramatically--from a high of 33 tons of corn per acre
to 18 tons of corn silage per acre. The corn only produced a
few ears here and there and these were damaged. A strip of
land without sludge produced a normal crop. No sludge has
been applied since 1990 and yet the yield on the 27 acres has
not returned to what it was before the sludge application. It
is now 22 to 24 tons per acre.
When Bob fed his cattle silage from a non-sludged field,
they began to improve. It wasn't until he ran out of this
silage and started feeding them the silage from the sludged-
field that the cattle again began to have health problems.
He knew then he had made a terrible mistake in believing the
City representatives that sludge was safe and would prove
beneficial to him. It cost him dearly and he is still paying
for his folly in believing a sludge promoter would tell him
the truth. His herd has not recovered completely. He has had
a problem getting the older cows bred to produce replacement
calves. His herd has shrunk from 300 cows to under 200--with
only about 103 milk producers. His operation is carrying a
debt load that required about 130 milkers to service it. In
CNN's "Hazardous Harvest" he warned other farmers against
using sludge on crop land.
When Ruane agreed for the city of Rutland to use his
land to dispose of their sludge, the City constructed a 100'
x 150' bunker with a concrete floor as a storage facility for
the sludge. The City also installed two monitoring wells 18'
- 20' deep on the 27 acres. When the City tried to renew its
state permit for the site, the permit was refused because of
the high nitrate levels in both monitoring wells. To add
injury on injury, when the City could not get the permit
renewed, it started charging Ruane $500 a year in taxes for
the bunker. When he told the City, he wanted the bunker off
his property. They told him to get a contractor to remove it
and they would pay for the removal and any damages caused by
the removal. He is still forced to pay the $500 a year
because no contractor will agree to remove it. The
contractors are afraid the storage bunker is so contaminated
that it will have to be put in a hazardous waste landfill.
One of the selling points in the EPA/WEF's promotion to
farmers is the economic benefit that will accrue to them from
using sludge in place of commercial fertilizer. Sludge is
represented to them as a resource to be recycled that helps
them financially because of its low cost or no cost and
benefits the crops providing necessary nutrients for crop
growth. Farmers would never knowingly put sludge on their
farm if they knew it could contaminate the water, enter the
food supply, adversely affect their neighbor, degrade their
land, harm their animals and even their family. The farmers
are not told that unlike the commercial fertilizers, sludge
contains toxic organic chemicals, toxic heavy metals,
disease-causing organisms, and even, in some cases, radio-
active hazardous waste that can harm humans and the
environment. They are not told about the potential
liabilities to the farmer from use of sludge.
The California Coalition for Sludge Education, which is a
group of farmers and residents of Stanislaus County, was
formed in April of 1993 for the purpose of "working together
to educate farmers, farm organizations and the general public
about the possible negative implications of spreading sludge
on farmland." Jane Beswick, Coordinator for the California's
Coalition for Sludge Education says in a 1995 Paper, "Sewer
Sludge--a Farmer's Perspective", that farmers are not always
told of their liability for allowing sludge to be spread on
their land. She says:
The U.S. Environmental Protection Agency, municipal
water treatment plants and industry organizations, such
as the Water Environment Federation and Tri-Tac, have
full time personnel--even Alan Rubin, Ph.D., Chief of
U.S. EPA's Risk Assessment Branch--dedicated to speaking
on behalf of the benefits of using sludge, promoting it
to farmers and lobbying regulatory agencies to
facilitate the disposal of sewer sludge. However, these
groups have not as overtly disclosed the potential down
side of using sludge.
In another 1993 paper, Some Misconceptions Concerning
Sludge, Beswick warns that "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, Ed Roller, of
Sparta, Missouri, became a victim of sewage sludge from
runoff from a neighbor's sludge site. Ed will probably be a
future candidate for debunking. 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 Roller's field. When cattle ate
fodder raised on it, they began to sicken. Like Zander and
Ruane, in 1990-1991, he lost 60 cows, 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 on some consumer's food table. He was
also concerned about possible contamination of the milk, but
when he contacted the buyers of the milk they told him 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 pollutant
contaminants found in the cattle have shown up in his
bloodstream.
Ed Roller of Sparta, Missouri 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 (toxicity) effects or environmental damage even
though Missouri's Water Quality Standards specify that sludge
is prohibited 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 our own experience with
Kansas City, that prohibition has never been enforced. In
fact it was pointed out by the state and EPA that the
prohibition only applied to sludge, not the pollutants in
sludge, which do the actually damage to human and animal
health as well as the environment.
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.
When I interviewed Jerry Long, Director of the Milk
Board, on November 14, 1997, the Milk Board still believed
cattle were restricted from sludged pastures for one year.
Long 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.
Although the City of Sparta and the state of Missouri had a
duty to protect Ed Roller and his family and property from
harm, they ignored his claim of damage. Now, Roller is
bankrupt and his family is sick, because of sludge use.
Like Linda Zander, Ed Roller is not an exception. What
happened to him is happening all across the country in spite
of the environmental laws in place to protect the people from
sludge.
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The potential liability from the land application of
sludge has worried many people in and out of government. As
we discovered with EPA's list of horror stories to debunk,
the Federal Bureau of Land Management (BLM) has a longterm
policy opposing use of biosolids on Federal lands: equating
its use to hazardous waste dumping and landfilling raising
SUPERFUND liability concerns. If the largest land owner in
the United States, the federal government, will not allow
sludge to be beneficial used on its property because of
liability concerns, why would anyone else take a chance?
The potential liability has bothered 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,
Minimizing Risks and Sharing Liability From Application of
Sludge and Sludge By-Products on Agricultural Land, to
address this problem.
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 responsible by an agency of government or court, for
alleged or actual damages arising as a result of biosolids
[sludge] application."
The main points of concern 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
and 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?"
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.
Others 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. After two days of discussion on the liability issue, it
became evident to them that if a problem arose, the landowner
or the Farm Credit Banks of Springfield would still be held
responsible for damages to the land.
While it was not mentioned in the symposium, this
concept of joint liability 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 superfund site.
In February 1994, the Farm Credit Banks of Springfield,
in order to protect the landowners and themselves from
liability offered the following, "Suggested Language for
Landowner Indemnification In Biosolids Land Application
Contract" which included:
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
agreement.
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 {sludge} in accordance with the Federal regulations
are protected from CERCLA liability and any enforcement
action from EPA."
Although Walker claims the farmer and the lenders are
protected from CERCLA liability and enforcement action by the
EPA, Ellen Harrison, Director of Cornell's Waste Management
Institute and primary author of its study, The Case for
Caution, and Hugh Kaufman, (EPA whistleblower) contend they
will still be held liable if a superfund site is created even
if sludge is used as a fertilizer. The issue of liability
for farmers was brought up at the New Hampshire conference on
the "Dangers of Sludge", November 15, 1997, at the Franklin
Pierce Law Center in Concord, N.H. According to Harrison:
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 associated 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 law]."
Ellen Harrison answered, "Okay. And then in fact what it
would do, would be prevent the farmer from going after the
generator under Superfund?"
Kaufman said, "That's correct. It's not as advertised."
There is nothing 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. Liability
should be a major concern for the farmer. Kaufman, who has
been with EPA from its inception and helped write the laws on
waste management, the RCRA and Superfund Act and related
Amendments, laid the facts on the line for farmers at the
conference when he said:
...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.
Kaufman adds further:
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 happened 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
international commerce.
The farmer who willingly accepts sludge believing the
hype that he is saving money on fertilizer is not going to
have any protection at all. If the sludge contaminates his
neighbor's property, the neighbor will have recourse, not
under the Part 503 policy regulation, but under the real
sludge disposal 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 are authorized
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 today's
rule becomes effective, they constitute the basis for
citizen's 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,
toxicity, sludge is still 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
National Research Council (NRC) in the report The Use of
Reclaimed Water and Sludge in Food Crop Production pointed
out the common law liability a farmer may also incur.
According to the report, "farmers and food processors face
potential liability for compensatory and punitive damages
under the common law for a broad range of harms that might
occur throughout the life cycles of treated sludge and
wastewater." The report states:
As with many products, liabilities for personal
injury and property damage can arise at various stages
in the life cycles of treated sludge and treated
effluents, such as when the product is put to use, when
it becomes a component of other products (crops and
derivative foods), when the subsequent products are
consumed as foods by consumers, and when the product
wastes are disposed of.
The NRC gives several examples in the report of
liabilities that the farmer may incur if harm befalls a
consumer of a product produced with sludge or wastewater. One
is liability for negligence. According to NRC, "Parties who
produce or sell products are held to a particularly high
standard of care and are there by especially vulnerable to
negligence actions."
Another liability is from the state's strict product
liability doctrine for selling a "defective" product.
"According to this doctrine, a defective product is one that
is unreasonably dangerous due to faulty design or
manufacture...or due to inadequate warnings of latent risks
of the product or inadequate instructions for its use," NRC
says. "In such cases, farmers, food processors, and even
POTWs are particularly vulnerable to liability because the
victim need establish only that the product was defective and
that the defect caused the injury, and is not required to
prove negligent conduct, a more difficult task."
Still another liability, says the NRC, is "nuisance
claims by owners of neighboring property, such as when sludge
or wastewater contaminates or otherwise impairs (e.g. via
odors) their use and enjoyment of their property."
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