It appears, as already noted, that in the NRC Report, no
one took into consideration the federal laws concerning
sewage sludge which are very precise -- sludge from any
pollution control plant is classified as a solid waste
which must be disposed of in a sanitary landfill without
exception. If it is disposed of in any other way it is
considered an open dump. These laws give precise
1. "THE SOLID WASTE DISPOSAL ACT, AS AMENDED BY,
HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
(PUBLIC LAW 98-616); THE SAFE DRINKING WATER ACT
AMENDMENTS OF 1986 (PUBLIC LAW 99-339); AND THE
SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT
1986 (PUBLIC LAW 99-499).
99th Congress, 1st Session. Committee Print for S.
Prt. 99-215. Printed 1987.
Definitions; Section 1004. As used in this Act:
(Resource Conservation and Recovery Act)
(14) The term "open dump" means any facility or
site where solid waste is disposed of which is
not a sanitary landfill which meets the
criteria promulgated under section 4004 and
which is not a facility for disposal of
(26) The term "Sanitary landfill" means a
facility for the disposal of solid waste which
meets the criteria published under Section
(26A) The term "Sludge" means any solid,
semisolid, or liquid waste generated from a
municipal, commercial, or industrial
wastewater treatment plant, water supply
treatment plant, or air pollution control
facility or any other such waste having
similar characteristics and effects.
(27) The term "solid waste" means any garbage,
refuse, sludge, from a waste treatment plant,
water treatment plant, or air pollution
control facility and other discarded material
including solid, semisolid, or contained
gaseous material resulting from industrial,
commercial, mining, and agricultural
operations, and from community activities, but
does not include solid or dissolved material
in domestic sewage (this is the exclusion EPA
used to justify beneficial use and part 503),
or solid or dissolved materials in irrigation
return flows or industrial discharges which
are point sources subject to permits under
section 402 of the Federal Water Pollution
Control Act, as amended by (86 Stat 880) or
source, special nuclear, or byproduct material
as defined by the Atomic Energy Act of 1954,
as amended (68 Stat. 923)."
"Through Section 402 Permits.--Any permit
issued under Section of this Act to a publicly
owned treatment works or any other treatment works
treating domestic sewage shall include requirements
for the use and disposal of sludge that implement
the regulations established pursuant to subsection
(d) of this section, unless such requirements have
been included in a permit issued under the
appropriate provisions of subtitle C of the Solid
Waste Disposal Act, part C of the Drinking Water
Act, the Marine Protection, Research, and
Sanctuaries Act of 1972, or the Clean Air Act, or
under State Permit programs approved by the
Administrator, where the Administrator determines
that such programs assure compliance with any
applicable requirement of this section."
(FR. 58, 9358)
Basically, what the law says, according to the EPA,
is that if the sludge is not dumped on cropland as a
fertilizer, then it must be disposed of as a solid waste
in a highly regulated landfill. Or as the law states,
the exclusion for domestic sewage makes it a point
source, subject to regulation under Section 402. Since
part 503 does not address the use of domestic sewage
directly applied to the land as a point source of
pollution, even the domestic sewage should be regulated
by the Solid Waste Regulations once it leaves the sewer
Based on the law, there are only two types of
disposal sites for solid waste. Either a site is an
open dump (14) under section 4004 of the RCRA or it is
designated as a sanitary landfill (26). It should also
be noted here that sludge (26A) is a subpart of sanitary
landfill (26) as well as a subpart of solid waste (27).
The definitions leave little doubt as to the fate or
disposal of sludge in a sanitary landfill site.
While it is possible to make either a legal or an
illegal landfill out of a farmland site, why would a
farmer intentionally destroy his property with illegal
sludge dumping when the possibility of having to clean
the sludge up was noted in Title 42 (g)(6) in 1976?
"Title 42, The Public Health and Welfare.
Public Law 89-272, title III #4004, as added,
Public Law 94-580 # 2, dated 2-10-1976, and 90
Stat. 2815. #6944.
Criteria for sanitary landfills; sanitary landfills
required for all disposal.
(a) Criteria for sanitary land fills.
Not later that one year after October 21,
1976, after consultation with the States, and
after notice and public hearings, the
Administrator shall promulgate regulations
concerning criteria for determining which
facilities shall be classified as sanitary
landfills and which shall be classified as
open dumps within the meaning of this chapter.
At a minimum, such criteria shall provide that
a facility may be classified as a sanitary
landfill and not an open dump only if there is
no reasonable probability of adverse effects
on health or the environment from disposal of
solid waste at such facility. Such
regulations may provide for the classification
of the types of sanitary landfills.
(b) Disposal required to be in sanitary landfills,
For purposes of complying with section 6943
(2) of this title each State plan shall
prohibit the establishment of open dumps and
contain a requirement that disposal of all
solid waste within the State shall be in
compliance with section 6943 (2) of this
What happened to the law and the State plan
required by the law, not the regulation?
The Administrator shall undertake a
comprehensive study and report on the sludge.
Such study shall include an analysis of --
(1) What types of solid waste (including but not
limited to sewage and pollution treatment
residues and other residues from industrial
operations, such as extractions of oil from
shale, liquefaction and gasification of coal
and coal slurry pipeline operations) shall be
classified as sludge;
(2) the effects of air and water pollution
legislation on the creation of large volumes
(4) methods of disposal of such sludge, including
the cost, efficiency, and effectiveness of
(5) alternate methods for the use of sludge,
including agricultural applications of sludge
and energy recovery from sludge; and
(6) methods to reclaim areas which have been used
for disposal of sludge or which have been
damaged by sludge."
Item (1) makes it very clear that sewage sludge, as
the sewage residue from a wastewater treatment plant, is
a solid waste. And, while the EPA was required to look
at alternate methods of disposal, including agricultural
applications, it also had a mandate to look at methods
to reclaim areas which have been used for disposal of
sludge or damaged by sludge. The guiding principal was,
the site was not an open dump only if there is no
reasonable probability of adverse effects on health or
the environment from disposal of solid waste at such
facility. The current Clean Water Act has the same
provisions in it.
In the beginning, the EPA appeared to follow
Congress's mandate to protect the public health as the
following material taken from the Federal Register
(F.R.) shows in the next three pages. Under the RCRA,
sludge is always a solid waste and the main concerns are
the protection of environment and scarce land supply.
"In short under RCRA solid waste do not cease to be
a solid waste simply because they are being used,
re-used, recycled or reclaimed. Rather, use, re-
use, recycling, resource recovery and reclamation
are ways of managing solid waste which, if properly
conducted, can avoid environmental hazards, protect
scarce land supply, and reduce the nations reliance
on foreign energy, and materials (H.R. at 47).
Congress' overriding concern ---
the safe handling of hazardous waste (H.R. at 3)
and the elimination of the "last remaining
loophole" in environmental regulation (H.R. at 4) -
-- must prevail." (45 F.R. 33092, dated 5-9-1980).
Congress was very emphatic about the classification
of sludge as a solid waste.
"The first category of material which are regulated
as "waste" under RCRA are "garbage, refuse (and)
sludge" (section 1004 (27).
These materials are almost always thrown away, and
it is clear from both section 1004 (27) of the
statute and its legislative history (H.R. Rep. at
2-4; S. Rep. at 5) that congress regarded them as
"waste" regardless of their intended end use." (45
F.R. 33093, dated 5-19-1980).
By 1983, Congress was in the process of putting more
stringent controls on hazardous and solid waste and the
Hazardous and Solid Waste Amendments were added in 1984.
The EPA was also proposing new regulations which still
included sludge as a solid waste, even if it was
"Before explaining how we are proposing to craft
these standards, however, we discuss briefly the
Agency's current regulations defining which
recycled materials are solid waste, and how these
materials are to be regulated.
The key feature of the existing definition of solid
waste states that certain materials are always
solid waste, irrespective of whether they are
disposed of or destined for recycling. These
materials are garbage, refuse, sludge,-------------
A sludge used similarly also would be a solid waste
because all sludges are defined without exception
as solid waste. (48 F.R. 14475, dated 4-4-1983).
The EPA was consistent and repetitive in its belief
that Congress was clear in defining sludge as a solid
"The definition, of course, continues to define
as solid waste those materials that are disposed
of, buried, or incinerated - or stored, treated, or
accumulated before or in lieu of these activities.
The definitions states that five types of
recycling activities are within EPA's jurisdiction:
(1) Use constituting disposal; this activity
involves the direct placement of waste onto the
"Sludges are defined in RCRA and the
implementing regulations as residues from
pollution-control processes (see RCRA section 1004
(26A) and 40 CFR 260.10).
The statute further indicates that sludges
include not only these materials but "other such
waste having similar characteristics and effects".
Putting all this together, spent materials,
sludges, byproducts, and commercial chemical
products are considered to be solid waste when they
are recycled in any of the following ways:
(1) Used or re-used in a manner constituting
disposal via direct placement onto the land: this
provision applies to all spent materials, sludge
and byproducts." (48 F.R. 14476, dated 4-4-1983).
While the Clean Water Act leaves the actual
protection of a county's residents and land up to the
local authorities, under section 405(e) of the Clean
Water Act, local authorities must choose between
supporting the EPA open dump permitting and protecting
human health and the environment by proper disposal of
sludge in a sanitary landfill or incineration. The Act
states, "The determination of the manner of disposal for
use of sludge is a local determination, except it shall
be unlawful for any person to dispose of sludge from a
publicly owned treatment works or any other treatment
works treating domestic sewage for any use for which
regulations have been established pursuant to subsection
(d) of this section, except in accordance with such
The EPA beneficial sludge use policy as outlined in
40 CFR 503 appears to be based on a perceived loophole
in the public duty doctrine. The perceived benefit of
dumping sludge on isolated areas, is that the, "The
public duty doctrine provides that regulatory statutes
impose a duty on public officials which is owed to the
public as a whole, and that such a statute does not
impose any actionable duty that is owed to a particular
individual... "Honcood v. State (1988)
The EPA's Part 503 sludge use and disposal
guideline expressed the same opinion, when the, "EPA
concluded that adequate protection of public health and
the environment did not require the adoption of
standards designed to protect human health or the
environment under exposure conditions that are unlikely
and where effects were not significant or widespread"
That is a very broad range of exclusions and it
gets worse. In effect, what EPA is saying is, damage to
the health of a single farm family and its animals from
sludge dumping is unlikely by EPA standards and anyway,
the effects would not be widespread from one individual
dump. However, EPA acknowledges, it needs the exclusion
badly, "(For lack of adequate data, the inherent
variable in individual exposure to pollutants in sludge
is not addressed" (FR.58,32,p.9275).
The EPA appears to be concerned that the exclusion
of individual protection under the public duty doctrine
might not be enough protection for officials who approve
sludge dumping as well as the sludge dumper. Therefore,
the EPA has determined that there will be no liability
under the Federal Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) (Superfund Act))
for any damages to health or the environment by disposal
of toxic levels of hazardous substances in sewage sludge
under the part 503 self-implementing (self-permitting)
regulation. "Consequently, releases of hazardous
substances from the land application of sewage sludge
authorized under and in compliance with an NPDES permit
would constitute a Federally permitted release"
Furthermore, "Biosolids (sludge) used as a fertilizer
under good agronomic management practices is exempt from
third party liability under CERCLA as is any other
commercial fertilizer" (FR.58,32,p.9262). However,
commercial fertilizers do not have the high levels of
toxic and hazardous contaminates, pathogens and they do
not attract rodents. Also, as noted earlier, the
provisions of the CERCLA do apply to a legal solid waste
landfill which could not accept most of the "beneficial"
use sludge, because of the high liquid content which
might contaminate ground water.
Yet, under part 503 there is an implied authority
to contaminate the adjacent property with full immunity;
the health of the few people living adjacent to the site
are not a matter of concern for the dumper or the
Review of National Academy of Science's (NAS) 1996 literary review report by
its National Research Council (NRC) Committee :
"Use of Reclaimed Water and Sludge in Food Crop Production"