Deadly Deceit  
                                         CHAPTER 6

                           The Scapegoats

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


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


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



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


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: 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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