Chapter Ten   


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







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

hazardous waste.

(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?

(g)   Sludge.

    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

 of sludge;

(4)   methods of disposal of such sludge, including

 the cost, efficiency, and effectiveness of

 such methods;

(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

regulations." (FR.58,32,p.9262)

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"

(FR.58,32, p.9252).

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

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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"