National Sludge Alliance
Fact Sheet # 140
PANIC at EPA?
You know some Federal and state regulators are starting to panic because: 1) The death of one
young man exposed to sludge was settled out of court; 2) The deaths of dairy cattle exposed to
sludge was won in a Georgia court; 3) lawsuits are starting to stack up; 4) EPA initiates a second
round of public relations perception issues; and 5) the Assistant Administrator of Water, G. Tracy
Mehan III, starts quoting second hand sources and attempting to debunk victims reports.
EPA has reason to panic. An Inspector General's (OIG) Report, dated March 28, 2002, implies
that the four people managing the Office of Water's part 503 sludge disposal program are
responsible for completely disregarding the federal environmental laws. Laws which state that
sludge from pollution control facilities are an RCRA solid waste with hazardous exposure
characteristics which will cause the aforementioned deaths from disease causing pathogenic
agents and poisonous heavy metal toxic pollutants. This also leads to lawsuits stacking up and a
new very crude public relations campaign to get the sludge dumping program protected under
the agricultural right to farm rules. Under the agricultural exemptions, even the most extreme
hazardous solid waste becomes a nonpoint source of pollution after it is disposed of as a fertilizer
JOAN PLOTNICK's August 13, 2003 article 'Biosolids' battle problems of perception as 'sludge' in
the Claytonnews-Star reported on the EPA's current effort to promote sludge as a fertilizer.
According to the article, EPA Office of Water's Robert Rubin, currently working for the North
Carolina State University as an Agricultural Extension specialist recently addressed farmers in
North Carolina about the perception problems with sludge. Rubin stated that, "EPA-endorsed
products were uniformly found to be safe. " Furthermore he stated, "The EPA checks 14 potential
pathogen exposure pathways, from children eating soils to people eating meat from a cow that
ate grass treated with biosolids."
It would appear that Rubin has not been involved with sludge or read 503 or even the risk
assessment he mentions since the facts do not support the statements. While his boss, Tracy
Mehan may agree with him, even the EPA Inspector General would disagree with the first
More importantly, attached to the EPA OIG's report is a letter from G. Tracy Mehan III, Assistant
Administrator for Water trying to change the OIG\'s original report. "An EPA OIG audit report,
Biosolids Management and Enforcement, issued In March 2000 (No. 2000-P-10), disclosed that
EPA does not have an Effective program for ensuring compliance with the land application
requirements of the Sludge Rule. "
We hope Mehan would not deliberately lie to the OIG in a letter, which begs the question as to
were did he and Robert Rubin get their misinformation? All of the misinformation points in his
letter are not being addressed at this time. Only a few major points will be given.
As an example, in discussing Class A sludge Mehan states, "--- a demonstration must be made
that there is an absence of Salmonella, Enteric virus, and viable helminth ova."
The correct term is non-detectable fecal coliform or Salmonella. EPA doesn't require a test for
viruses or helminth ova. Furthermore, a July 2000 study by the Corps of Engineers research on
one wastewater treatment process treating secondary wastewater effluent for snowmaking
shows that cell damage during this third treatment process causes the bacteria to be non-
detectable. The study also shows that the bacteria can repair the cell damage very quickly and
become detectable again. This is the same wastewater used to irrigate food crops and golf
courses as well as to recharge underground water sources. Technical Report ERDC/CRREL TR-
Mehan says, "• While it is correct to consider mosquitoes as vectors, mosquitoes are not
usually attracted to biosolids. It might be best to eliminate the reference to mosquitoes here"
Standing liquid biosolids will attract mosquitoes, as does water and expose them to all of the
viruses in sludge, which is likely to include the West Nile Virus. Furthermore, the CWA identifies
combined sludge and viruses as a toxic pollutant.
Mehan says, "• It would be better to say ". . .sludge may contain toxic pollutants . . . " instead of ".
. .sewage sludge contains toxic pollutants . . . ""
Perhaps Mehan should read the list of toxic pollutants he is supposed to address in part 503
under the Clean water act as well as part "§ 401.15 Toxic pollutants. designated pursuant to
section 307(a)(1) of the Act:"
That is not the first deception concerning the term toxic pollutants. According to EPA in 1993,
"The term "toxic pollutant" is not used in the final part 503 regulation because this generally is
limited to the list of priority toxic pollutants developed by EPA. The Agency concluded that
Congress intended that EPA develop the part 503 pollutant limits for a broader range of
substances that might interfere with the use and disposal of sewage sludge, not just the 126
priority pollutants." (FR. 58, 32, p. 9327)
That is a very strange statement when EPA only pretends to regulate 9 heavy metals
(chemicals). As a matter of fact the statement was intended to deceive because the term toxic
pollutant is not to be found in the Priority Pollutants list which can be found in "Appendix A to Part
423 -- 126 Priority Pollutants" However, the nine metals listed as pollutants in part 503 are on
both lists and can also be found in part 116 , "Table 116.4A--List of Hazardous Substances"
Furthermore, EPA did not account for all of the 21 carcinogens (cancer causing agents)
acknowledged to be in sludge in the 1989 proposed part 503. Nor was Dioxin included as a
pollutant or cancer causing agent. Five of these cancer causing agents are listed by the EPA as
carcinogenic when inhaled in dust. (1989, FR. 54, p. 5777)
Yet, EPA claims in its 1995 risk assessment document, that it considered all of the toxic pollutants
in sludge to be noncarcinogenic -- they don't cause cancer. However, all of the hazardous
chemicals (pollutants) listed in part 503 for safe use on crops are listed by the National Institute
for Occupational Health (NIOSH) as a poison by inhalation, ingestion or other routes. NIOSH also
has data which not only shows the hazardous chemicals in sludge are poisonous, nine are
cancer causing agents, and they will cause mutagenic effects.
Mehan says, "• It would be more helpful to most readers if the references provided were to
sections of the Clean Water Act rather than to sections of the United States Code."
Mehan does not want anyone to study the United States Code. for the Clean Water Act, TITLE
33 > CHAPTER 26 > SUBCHAPTER V > Sec. 1362.(6)(9) as part 503 does not reflect the Clean
Water Act in any shape or form., specifically, its definitions. Nor does he want you to know that
EPA thinks of you as only an organism and/or animal. Confusing, but true. To EPA and biologist
we are just the top of the line organisms and/or animals.
Under the Code's item (6) The term ''pollutant'' means dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into water.
And, under the Code's item (13) The term ''toxic pollutant'' means those pollutants, or
combinations of pollutants, including disease-causing agents, which after discharge and upon
exposure, ingestion, inhalation or assimilation into any organism, either directly from the
environment or indirectly by ingestion through food chains, will, on the basis of information
available to the Administrator, cause death, disease, behavioral abnormalities, cancer, genetic
mutations, physiological malfunctions (including malfunctions in reproduction) or physical
deformations, in such organisms or their offspring.
Neither definition quite matches the definition of a pollutant in part 503.9(t) which still says you
could die or worse if exposed to the chemicals and disease causing agents in sludge through the
air, food or water. In reality, EPA never planned to protect the public health of us animals or the
environment and stated as much in 1989. "The assessment does not quantify ecological losses
caused by plant or animal toxicity, even though some numerical limits in today's proposal are
based on animal and plant toxicity values. Methodologies and data are not yet available to
accurately estimate the ecological impacts from the use and disposal of sludge." (FR. 54, p.5780)
Mehan says, "• You fail to point out that most state program requirements are now comparable or
more restrictive that the Part 503 requirements, although you do include a quote from a member
of the regulated community that "Many states also go beyond what is required in Part 503 with
regard to management practices ...""
But, as a past Director of Missouri's Department of Natural Resources, 1989-1992, Mehan knows
better. By EPA contract, the DNR was required to enforce the solid waste rules on sludge
disposal. That did not happen when he was in charge, nor did the DNR take any more
responsibility for sludge disposal after he left. "As an example, in a letter to Kansas City,
Missouri, the State Department of Natural Resources attempted to wash its hands of the open
dumping problem, "These (wastewater treatment plant) inspections did not address compliance
with EPA sludge regulations under 40 CFR 503. These regulations are self-implementing and
directly enforceable [by who?] without being included in your state operating permit." (Dettman,
June 23, 1994)." (NSA Fact Sheet #100)
Mehan says, "• Page 41 in the section entitled Health Concerns
• Here you discuss the NIOSH Hazard ID report and recommendations, but fail to mention that
most of the NIOSH recommendations are routinely practiced by local POTWs and land
No city or sludge contractor is going to admit to the public that they actually have to follow OSHA
safety rules. OSHA doesn't have any rules that offer protection to individual contract farmers.
Kansas City gives us the perfect example of someone who has to follow the rules and doesn't
want to admit it to it contract farmers. "All of these allegations rile wastewater treatment division
manager Williamson. "When there's someone out there who says I've put something out there on
the land that's making people sick, that means I'm putting my employees at risk," he says, raising
his voice. "Now, I take that personal." He pauses for a second and continues. "If it's so
dangerous, what about this mechanic I got who gets in there and fixes the pump when it breaks
down? I got a hundred people out here in the raw stuff. They don't have to work in moon suits."
"Field of Bad Dreams " http://pitch.com/issues/2000-11-16/feature.html/2/index.html
Mehan says, "* You also fail to mention a follow-up article in the June/July'01 edition of Water
Environment Laboratory Solutions (p.12-13). The article includes the following statement(s) "The
LeSourdsville study misrepresents the facts, because the biosolids had pathogen levels
exceeding Class B thresholds when workers experienced gastrointestinal problems. . . this key
fact is missing in the reports and calls into question the legitimacy of claims based on them.""
Lets see. Mehan suggests that NIOSH's LeSourdsville report of worker sickness wasn't legitimate
because the pathogen levels were too high in the sludge dumped as a fertilizer. That would
appear to be a major violation of the Clean Water Act. As the first National Academy of Science
report states, "The intent of the 1987 amendment to adequately protect human health and the
environment from reasonable anticipated adverse effects of each pollutant' [Section 405(d)(2)
(D)]." (p. 24)
If EPA doesn't know the difference between a pollutant and a toxic pollutant under the CWA and
a Priority Pollutant or a hazardous substance under its own regulations, how in heaven can
Mehan do his job? Or more importantly, does he even want too?
Mehan says, "* Page 43 in the section entitled Economic Concerns
• Here and elsewhere, you discuss the concerns of the California Farm Bureau, but fail to note
that the Ohio Farm Bureau coordinated an in-depth study (in conjunction with the Ohio State
University's Dept. of Pathobiology) of land application of Class B biosolids in Ohio, including an
epidemiological study involving the general health of residents from 47 sludge-receiving farms
compared with residents of 46 control farms for EPA/ORD's Water Engineering Research Lab.
and Toxicology and Microbiology Div./Health Effects ResearchLab. in Cincinnati (the final report
Demonstration of Acceptable Systems for Land Disposal of Sewage Sludge was issued in 1985)
that found the health of the farm families on farms receiving biosolids was as good if not better
than the health of the control farm families"
Lets see. EPA and WEF doesn't do original research and now it seems they do not even read
any original research papers. It's a shame but the National Academy of Science doesn't either.
The first National Academy of Science scientific study also referred to the one limited epidemic
study on human exposure to sludge in Ohio, which was attributed to: Brown, R.E, and titled,
Demonstration of acceptable systems for land disposal of sewage sludge. Water Engineering
Research Lab. EPA 600/Z- 85- 062. Cincinnati, Ohio: U.S. Environmental Protection Agency.
The Brown paper quoted by Mehan and the National Academy of Science is only a third party two
page abstract of the actual study. Even though animal health was not the scientific point of the
study, Brown stated in the seventh paragraph of the abstract, "Significantly higher fecal Cd
(cadmium) concentrations in cattle, and significantly higher Cd and Pb (lead) accumulations were
observed in kidney tissues of calves grazing on sludge-amended pastures."
That appears to be a very good reason why the study was never completed. But then again, too
many people dropped out. However, the study also noted that the World Health Organization
(WHO, 1981) reported a positive association and a cycle of infections of Salmonella from humans
to sludge, to animals, and back to humans where cattle grazed on sludge treated pastures.
(Municipal Sewage Sludge Application on Ohio Farms: Health Effects. Dorn, R.C., et al,
Environmental Research 38, 332- 335).
Is this all a misunderstanding? Could it be that EPA's Mehan and Rubin really had no idea how
dangerous sludge is?
"An EPA OIG audit report, Biosolids Management and Enforcement, issued In March 2000 (No.
2000-P-10), disclosed that EPA does not have an Effective program for ensuring compliance with
the land application requirements of the Sludge Rule. "
"The report concluded that the almost complete absence of a Federal presence in the biosolids
program was a result of the low priority given to biosolids management by EPA's Office of Water
and the decision of EPA's Office of Enforcement and Compliance Assurance not to commit
resources to biosolids."
That is a polite way of saying it is a nonpoint source of pollution states right problem best left to
the states. The Clean Water Act regulation for sludge disposal under RCRA is part 258 which is
enforceable under the RCRA. The official position is, "EPA's role in the management of
industrial nonhazardous Waste [sludge] is very limited. Under RCRA Subtitle D, EPA issued
minimal criteria prohibiting "open dumps" (40 CFR 257) in 1979. The states, not EPA, are
responsible for implementing the "open dumping criteria," and EPA has no back-up enforcement
role." (FR. 62, 19, p. 4284, January 29, 1997)
Furthermore, published reports indicate there is more to the story, "* 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)
When EPA's sludge dumping program causes the farm to become a Superfund site, there will be
no enforcement action from EPA. That is very generous of EPA, but it does nothing to protect the
farmer or consumer and it does appear to violate the spirit of EPA's mandate.
According to the "Office of Inspector General Status Report Land Application of Biosolids 2002-S-
000004 March 28, 2002, Congress gave EPA broad authority to deal with water pollution when it
enacted the Clean Water Act (the Act) in 1972. The Act's goal is to "restore and maintain the
chemical, physical, and biological integrity of the nation's waters." Under this mandate, EPA has
developed a variety of regulations and programs to reduce pollutants entering all surface waters,
including lakes, rivers, estuaries, oceans, and wetlands. For example, in order to discharge
pollutants into the waters of the United States, a facility such as a sewage treatment plant must
obtain a permit from EPA or a State."
EPA promotes creating sludge open dumps on farmland which can contaminate groundwater and
yet, it blame farmers for the pollution. As an example, EPA said (EPA841-F-96-004F), "The most
recent National Water Quality Inventory reports that agricultural nonpoint source (NPS) pollution
is the leading source of water quality impacts to surveyed rivers and lakes, the third largest
source of impairments to surveyed estuaries, and also a major contributor to ground water
contamination and wetlands degradation."
Yet, to promote sludge open dumps on farmland, EPA had to: 1) expand the domestic sewage
exclusion in the RCRA to include hazardous waste contaminated sludge discharged from the
treatment plant; 2) use the fertilizer exclusion in the CERCLA to prevent the states from
recovering damages from the farmer and contractor after they revised their solid waste laws; and
3) take advantage of the nonpoint source pollution discharge exemption for agricultural land.
EPA qualifies it this way, if a sludge pipeline breaks on the farm, it is a point source pollution
discharge and violates the laws. If however, the sludge is deliberately sprayed on the land from
the same pipeline, it is a nonpoint source and exempt from the laws. The part 503 eliminated the
reality of simple common sense here. It would appear that it only took 4 people managing the
biosolids program to make EPA leaders look like fools and that Congress was not only derelict in
its supervisory duties but actively funding and promoting the destruction of our food crop
What the EPA OIG also didn't say was that there is no provision under the Clean Water Act to
address pollutants on land, which explains why the Office of Enforcement and Compliance
Assurance refuses to get involved. The OIG says, "As can be seen from the table (in the report),
the Office of Water provides the majority of the Headquarters FTEs (4) managing the biosolids
program, while the Office of Enforcement and Compliance Assurance (OECA) provides none,
even though it has program responsibilities. As we explained in our prior report, that office has
disinvested from the biosolids program." In other words, OECA leaders want to keep their hands
Lets revisit a statement by William Sanjour, "Earlier, in 1975, the Hazardous Waste Management
Division, in which I was a Branch Chief, was working with Congressional staffers interested in
drafting legislation to regulate hazardous waste disposal. Since many municipal sludges would
meet any reasonable definition of a hazardous waste, I wrote a memo (3) warning of the
implications of including municipal sewage sludge in the definition of solid waste in any of the
proposed bills that were being discussed. In light of the Construction Grant Juggernaut, we did
not want to be involved in that can of worms. In that memo I concluded:
What will happen, then, if Congress gives EPA regulatory authority over hazardous wastes? Will
we have one policy for hazardous wastes which go through municipal treatment plants and a
different policy if it goes through and industrial treatment plant? if so, we will end up in court
looking like fools. Will we fail to adequately regulate industrial wastes for fear of compromising
EPA's policy on municipal sludge? If so, we will be brought into court for failure to perform our
EPA did look like a fool in the court case, Leather Industries, et al. vs EPA. The et al., was
EPA's biosolids partnership. EPA admitted in court that it had no creditable studies on chromium.
Its time we asked our legislators why they are still funding EPA and WEF programs that violate
the intend and spirit of the law as well as destroying our quality of life.