EPA' Office of Water has claimed that its 1993 Sludge Use and Disposal policy regulation 40
CFR 503 was created under the Clean Water Act (CWA). Yet, EPA failed to comply with the
basic Congressional Order of the CWA to identify the toxic pollutants in sludge. Not only that,
but EPA failed to even acknowledge that there are any toxic pollutants in sludge in the 1993
final part 503 sludge policy.
EPA identified twenty-one carcinogens (cancer causing agents) in the 1989 proposed sludge
regulation. Five of these are carcinogenic when inhaled, Arsenic, Beryllium, Cadmium,
Chromium IV and Nickel (FR 54, p. 5777). EPA didn't stand the chance of a snowball in hell of
selling its sludge as a fertilizer to farmers if this information had been left in the final part 503.
EPA also removed all references to the 25 families of known disease-causing organisms in
sludge (FR), 54, P.5829.
It is EPA's position that toxic sludge disposal is excluded from all Environmental Laws under
the commercial fertilizer exclusion in CERCLA. According to EPA there is no liability for sludge
disposal open dump sites, as long as sludge is considered to be a fertilizer disposed of under
the blanket part 503 federal permit. Many states have now accepted liability for creating open
dumps under this blanket part 503 permit by changing the states' solid waste laws. Governors
and Attorney Generals accepted the liability in letters to EPA, bypassing the legislative
To sell farmers, health departments, the public and state officials on the disposal of sludge as
a fertilizer, EPA could not use the CWA § 1362 defined term "Toxic Pollutant" even though it
only identified health damage to "Organisms" . There are 65 Toxic pollutants listed in 40 CFR
401.15. What farmer or homeowner would use fertilizer known to be loaded with Toxic
Neither could EPA use the defined term "Hazardous Substance" for the extremely dangerous
heavy metals in the part 503 because in CERCLA § 9601 (14) The term “hazardous
(A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution
Control Act [33 U.S.C. 1321 (b)(2)(A)],
(B) any element, compound, mixture, solution, or substance designated pursuant to section
9602 of this title,
(C) any hazardous waste having the characteristics identified under or listed pursuant to
section 3001 of the Solid Waste Disposal Act [42 U.S.C. 6921] (but not including any waste the
regulation of which under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] has been
suspended by Act of Congress),
(D) any toxic pollutant listed under section 307(a) of the Federal Water Pollution Control Act
[33 U.S.C. 1317 (a)],
(E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C. 7412],
(F) any imminently hazardous chemical substance or mixture with respect to which the
Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act [15 U.
Nor could EPA admit that sludge was not only a hazardous waste, but it was an infectious
hazardous waste, as defined in RCRA § 6903, because it actually identified health damages
to humans. .
(5) The term “hazardous waste” means a solid waste, or combination of solid wastes, which
because of its quantity, concentration, or physical, chemical, or infectious characteristics
(A) cause, or significantly contribute to an increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the environment when
improperly treated, stored, transported, or disposed of, or otherwise managed.
Under the CWA Sec. 1362.
(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.
Yet, it is EPA's position in part 503 that there are only nine simple pollutants (metals) of
concern in sludge. EPA actually took the part 503 term "pollutant" from the COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY Act (CERCLA).
Under § 9601(33) The term “pollutant or contaminant” shall include, but not be limited to, any
element, substance, compound, or mixture, including disease-causing agents, which after
release into the environment and upon exposure, ingestion, inhalation, or assimilation into any
organism, either directly from the environment or indirectly by ingestion through food chains,
will or may reasonably be anticipated to cause death, disease, behavioral abnormalities,
cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction)
or physical deformations, in such organisms or their offspring;
In selling sludge as a fertilizer, it appears that EPA assumed that no one would bother to read
the definitions. Nor would they make the connection that a "pathogen" was a disease-causing
agent to humans.
Part 503.9(t) Pollutant is an organic substance, an inorganic substance, a combination of
organic and inorganic substances, or a pathogenic organism that, after discharge and upon
exposure, ingestion, inhalation, or assimilation into an organism either directly from the
environment or indirectly by ingestion through the food chain, could, on the basis of
information available to the Administrator of EPA, cause death, disease, behavioral
abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunction in
reproduction), or physical deformations in either organisms or offspring of the organisms.
But first, to understand how badly EPA has lied to the pubic, we need to look at what Congress
ordered it to do. Second, we need to look at the modified RCRA Solid Waste landfill regulation
created under the CWA.
Congressional Order (CWA Law)
Sec. 1345. Disposal or use of sewage sludge
(d) (2) Identification and regulation of toxic pollutants
Not later than November 30, 1986, the Administrator
shall identify those toxic pollutants which, on the basis of
available information on their toxicity, persistence,
concentration, mobility, or potential for exposure, may be
present in sewage sludge in concentrations which may
adversely affect public health or the environment, and
propose regulations specifying acceptable management
practices for sewage sludge containing each such toxic
pollutant and establishing numerical limitations for each
such pollutant for each use identified under paragraph
(ii) Final regulations
However, EPA has create one sludge disposal regulation under the authority of the Clean
Water Act (CWA) that does give us a list of Hazardous Constituents (i.e. Toxic pollutants,
hazardous substances, pollutants) that can be found in sewage sludge, (aka) biosolids. That
is the Municipal sludge co-disposal landfill regulation 40 CFR titled PART 258--CRITERIA FOR
MUNICIPAL SOLID WASTE LANDFILLS.
There are three major points
§ 258.1 Purpose, scope, and applicability.
(a) The purpose of this part is to establish minimum national criteria under the Resource
Conservation and Recovery Act (RCRA or the Act), as amended, for all municipal solid waste
landfill (MSWLF) units and under the Clean Water Act, as amended, for municipal solid waste
landfills that are used to dispose of sewage sludge. These minimum national criteria ensure
the protection of human health and the environment.
(g) Municipal solid waste landfill units failing to satisfy these criteria are considered open
dumps for purposes of State solid waste management planning under RCRA.
(h) Municipal solid waste landfill units failing to satisfy these criteria constitute open dumps,
which are prohibited under section 4005 of RCRA.
(i) Municipal solid waste landfill units containing sewage sludge and failing to satisfy these
Criteria violate sections 309 and 405(e) of the Clean Water Act.
§ 258.2 Definitions.
Sludge means any solid, semi-solid, or liquid waste generated from a municipal, commercial,
or industrial wastewater treatment plant, water supply treatment plant, or air pollution control
facility exclusive of the treated effluent from a wastewater treatment plant.
Solid waste means any garbage, or refuse, sludge from a wastewater treatment plant, water
supply treatment plant, or air pollution control facility and other discarded material, including
solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial,
mining, and agricultural operations, and from community activities, but does not include solid
or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges that are point sources subject to permit under 33 U.S.C. 1342, or
source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954,
as amended (68 Stat. 923).
§ 258.22 Disease vector control.
(a) Owners or operators of all MSWLF units must prevent or control on-site populations of
disease vectors using techniques appropriate for the protection of human health and the
(b) For purposes of this section, disease vectors means any rodents, flies, mosquitoes, or
other animals, including insects, capable of transmitting disease to humans.
258.27 Surface water requirements.
MSWLF units shall not:
(a) Cause a discharge of pollutants into waters of the United States, including wetlands, that
violates any requirements of the Clean Water Act, including, but not limited to, the National
Pollutant Discharge Elimination System (NPDES) requirements, pursuant to section 402.
(b) Cause the discharge of a nonpoint source of pollution to waters of the United States,
including wetlands, that violates any requirement of an area-wide or State-wide water quality
management plan that has been approved under section 208 or 319 of the Clean Water Act,
Appendix I to Part 258—Constituents for Detection Monitoring 1
Appendix II to Part 258—List of Hazardous Inorganic and Organic Constituents 1
210 hazardous inorganic and organic constituents
The Hazardous Constituents list (Appendix VIII) of the Resource Conservation and
Recovery Act (RCRA) is used to identify the universe of chemicals of concern under
RCRA, the primary environmental law governing the proper disposal of hazardous
The Hazardous Constituents list includes substances that meet the following criteria:
1. Inclusion in the Clean Water Act list of priority pollutants
2. Chemicals considered hazardous to transport by the Department of Transportation
3. Chemicals identified as carcinogens by the U.S. EPA's Carcinogen Assessment
4. Chemicals with high acute toxicity, as identified by the National Institute for
Occupational Safety and Health's Registry of Toxic Effects of Chemical Substances
Electronic Code of Federal Regulations. 40 CFR - CHAPTER I - PART 261. Appendix
VIII to Part 261 -- Hazardous Constituents.
In the 1989
known to be in
sludge. Five of
Chromium IV and
Nickel (FR 54, p.