"Is there more to the toxic /hazardous pollutant contaminated sludge/biosolids debate than
meets the eye? It would appear that the sewage sludge regulation has less to do with the
protection of public health and the environment, than a 1986 court decision, which found that,
"EPA cannot, in the absence of section 405(d) regulations (part 503) authorize the issuance of
removal credits under section 307(b)(1)." This was a court decision which invalidated EPA's
pretreatment regulations on four aspects.")" (Natural Resources Defense Council v. EPA, 790
F. 2d 289 (3rd Cir. 1986) (FR. 58, p. 9261)
To date, there has only been one case involving Part 503 policy and improper sludge disposal
which has been tried and appealed in federal court -- United States vs. Cooper. In part, Cooper
went to jail because of improper disposal of Class B sludge on organic farming land.
In that case the Ninth Circuit Court of Appeals restated the case that sludge is a pollutant under
the CWA which must be disposed of safely;
In a Washington District Federal Court it was found that the EPA had/has no credible science,
except for a few pot studies, to support the 95 percentile limits for chromium -- therefore, EPA
arbitrarily removed it from the beneficial use section of part 503 policy; and
The Fifth Circuit Court of Appeals found there was no scientific evidence to show that sludge
was safe, only scientific opinions and, there were just as many scientific opinions against its use.
EPA actually tried to stop ocean dumping in 1981. However, New York City argued that ocean
dumping was safer than land disposal and the Court found that sludge dumping by New York
City had not "unreasonably degraded or endangered human health --" and ruled against EPA.
Congress and the Senate reversed the Court ruling in 1986 and New York was forced to move
its sludge dumping from the 12-mile site to the 106 mile site. (Report to National Sludge
Roundtable, Laredo Safety Institute, 1996, pp. 23-24)
In stopping ocean dumping, the National Resource Defense Counsel and others signed a
consent agreement that they would not sue EPA over sludge used on land as a fertilizer.
With the court ruling and the consent agreement, EPA had a mandate to poison the land
environment with sludge. EPA learned a major lesson, now when EPA can't find a loophole in the
law, it uses the Courts to create a loophole.
According to William Sanjour, Branch Chief of Hazardous waste division in 1978, this EPA belief
was a simple political decision made during the 78-80 sludge war. It was Sanjours belief that, "we
[EPA] will end up in court looking like fools". (7)
There was a second agreement in 2000.
The agreement allows EPA to violate the CWA. "In exchange for these commitments, the citizen
[partners] plaintiffs, NRDC, and AMSA agree not to sue EPA for failure to comply with CWA
405(d)(2)(C), preventing additional litigation. The Agreement preserves AMSA's right, however,
to intervene in any CWA 405(d)(2)(C) lawsuit that may be brought by another organization."
Leather Industries of America, Inc., claimed EPA did not consider any treatment plants accepting
sewerage from the leather industry in its National Sewage Sludge Survey (NSSS) of 479
treatment plants out of 11,407 nationally. According to the ruling, EPA claimed to have
performed sampling and analysis at 208 of the 479 treatment plants -or- was the number 180?
Both numbers were given by the EPA, so the Court was not sure which was correct. The
maximum chromium noted in the NSSS was 3750 mg/kg whereas, tanneries generate chromium
concentrations in excess of 30,000 mg/kg. (40 F.3d, 92, pp. 395, 401)
Furthermore, EPA claims there is a scientific basis for its sludge use and disposal regulation
which offers a "safe harbor" under the CWA for municipalities who use, sell or give away sludge,
for use on food crop production land as well as for public use on lawns and gardens.
It was also the Courts opinion, that because of: "(4) the lack of data to support the risk-based
cap on chromium, we remand those parts of the regulation to EPA for modification or additional
adjustment." (p. 392) [EPA stated the court ordered chromium removed from 503]
In effect, EPA now makes it possible for Publicly Owned Treatment Works treating tannery
sewerage to "beneficially" use sludge with the tannery chromium in excess of 30,000 mg/kg on
lawns, gardens and food crop production land, which can not be disposed of in a part 503 landfill
Therein lies the true purpose of EPA's Sludge Use and Disposal Regulation. Part 503 is the
court ordered legal authority for granting removal credits to industrial polluters under the
Pretreatment regulation 40 CFR 403. The court found, "EPA cannot, in the absence of section
405(d) regulations authorize the issuance of removal credits under section 307(b)(1)." (Natural
Resources Defense Council v. EPA, 790 F.2d 289 (3rd Cir. 1986) -FR. 58, p. 9261)
The stories referred to were in Walker's 12-29-94 memo,"(1) Merco/NYC biosolids expose-TV
Nations production -Law suit by TX Attorney General -Merco Lawsuit- Claims ..marital status.
own something. (4) Pending Prime Time TV story on Torres Martinez (Thermal, Ca.)--corrupt
contractor, biosolids mountain, and composting. (9) Pathogen regrowth during shipment--Merco.
(15) Citizens irate over purchase of farmland for biosolids use--how land ought to be used is big
issue--private developer conflicts--NIMBY- personality clashes--often does not involve health
Walker's instructions to WEF's Nancy Blatt continued, "If the cases were (2) Zander,
(4)Miami-Dade, (5) Tree Kill, (6) Miniature horses, (7) Bioaerosols, (10) AIDS, (11) Lou Gehrig's
Disease, (12) Turf grass loss, (13) Dead cattle in NC; then the audience might be the general
public who various anti groups tell the "horrors" of these cases and to which we would tell the
rest of the story. The audience might also be WEF biosolids spokesperson and/or the
wastewater professionals who would be working with the general public to tell the authoritative
truth. Some of the cases may be written up for more than one audience, (i.e., differently for each
Bode also warned the producer organization in the Zander Action Summary that Zander had
identified 18 medical experts (including physicians, immunologists, toxicologists, and
nutritionists), 9 veterinarians, 2 property valuation/devaluation experts, 3 soil/hydraulic/geologic
experts and 1 testing lab who would testify about the dangers of sewage sludge use to humans
and animals. Bode also warned that there would be extra-regional impact and "This action must
not be settled". Bode further warns that, "The public persona of biosolids is precarious, at best,
and each member of WEF and AMSA can be assured that Zander appears dedicated to
capitalizing on every available opportunity to publicize her scare story ... and remember, with
respect to land application, the farming community comprises less than 2% of the population, so
she need only reach a narrow population to cripple land application. It is essential that her
soapbox be removed and her credibility challenged before our regional problem has any more
effect nationally or internationally on land application of biosolids." (RNSR)
The State of Washington Courts have found that the State has no responsibility to protect the
lives and health of individuals under the public duty doctrine or the law. (Zander Case, 1995).
Kansas City vs James Bynum, in CV198-006085 (1998-99)
This is perhaps the only lawsuit in which any City (Kansas City, Mo) claimed state and federal
rules require that a sludge site must be fenced and public access must be restricted. The Clay
County court agreed and the city put a fence across a public street 500 feet from the city's
sludge site property line. Other farm owners could go through the gate, but they could not have
any visitors to the remaining farms. No farm owner was ever told sludge was not safe.
[This lawsuit was a fight over whether or not the City of Sparta, Missouri, has
insurance coverage for the damage their sludge did to Ed Roller's dairy farm - the
critical point here is that the City admitted liability and agreed to pay Ed Roller
compensation because its sewage sludge did kill his cows and damage his dairy farm.)
McElmurray and Boyceland dairies suffered extensive dairy cow illnesses and deaths and land
contamination as a result of the land spreading of Augusta, Georgia sewage sludge.
Latest article on McElmurray
Government agencies like EPA and USDA play the courts like a fine instrument. When the
agencies want to continue a policy that is detrimental to your health, they tend to lose critical
lawsuits, which result in strange opinions that puts your life in jeopardy. As an example, that
wonderful Mouth of the South, Molly Ivins, says, "Unless you have reason to suspect that your
nearest and dearest are putting arsenic in your food, your bad stomach was likely caused by
tainted meat." She said, "In December 2001, the Fifth Circuit Court of Appeals sided with the
industry in a case that gutted meat and poultry inspection laws. In the Supreme Beef (I'm not
responsible for the irony), the court ruled "because cooking kills Salmonella organisms, the
presence in meat products does not render them injurious to health." Ivins says, "Industry
officials have argued for years that food poisoning bacteria are natural constituents of raw meat
and poultry and that they have no obligation to control them."
In addition, the Supreme Court's 1993 ruling in the Daubert vs. Merrell-Dow case now makes it
vertually impossible to get a toxic health damage claim against a polluter into court based on
expert scientific witnesses. Daubert lost and that has become the rule for judges. The scientific
problem judges face is illustrated in a New York Times article. "For example, a 1994 E.P.A.
brochure says that biosolids may "protect child health." The brochure cites a study showing that
animals that ingest "biosolid-treated soil and dust may have a decreased absorption of lead into
the blood stream, thus lessening the potential for lead-induced nerve and brain damage."(13)
Legal experts are now recognizing the damage. "The result is that the jury trial process is being
subverted and there are signs the influence of Daubert is impacting the regulatory arena,
Michaels told reporters at a press briefing in Washington, D.C."(12) Few experts realize EPA
based its 1994 sludge PR promotion and victim debunking campaign on the manipulation of
science and the law. Some experts still believe only private interests would stoop that low.
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