Chapter Nine


This is the fifth point of the NRC Report - a

discussion of:

(5)  existing regulations and guidelines;

Actually, according to the EPA, Regulations are

only guidelines, which they are not required to follow.

The NRC Committee proposed to explain these complex

regulations so everyone understands how they are


"Government regulations at both the federal and

state levels develop within a complex set of

circumstances. To fully understand them, regulations

must be examined in terms of the regulatory approach

taken, the underlying scientific principals that are

applied, the objectives of the regulation, and the

effectiveness of implementation." (p. 120)

Yet, the NRC report implies that while the

regulations are complex, and protection of public health

is assured by federal regulations, not only part 503,

but Toxic Substance Control Act (40 CFR 700-799),

National Pollution Discharge Elimination System (NPDES)

(40 CFR 122-125), Solid Waste (40 CFR 256-257),

Hazardous Waste (40 CFR 260-280), U.S. Department of

Agriculture (7 CFR 600-611, 650-658, 799, 3100, 3407),

Drinking Water Standards (40 CFR 141-143), there are

safeguards, i.e. - "If public drinking water does not

meet mandatory requirements, suppliers must provide

notice to customers (40 CFR 135)".  (pp. 165-167)

However, according to the EPA Routing and

Transmittal Slip from EPA's Wastewater Management

Branch, Region 10, dated August 3, 1993, there is no

protection under the regulations, "Please note that,

when final, such documents (part 503) are only guidance

and that individual EPA offices and permit writers are

free to either use or not use the Agency guidance as

they consider appropriate and technical sound ("guidance

is only guidance")."  Furthermore, "States are not

required to use or conform to EPA guidance."

Moreover, the NRC Committee apparently did not even

read the title page of 40 CFR 135, and it is the most

important regulation for the public and especially

attorneys to know.  Lets, examine the NRC statement

again, "If public drinking water does not meet mandatory

requirements, suppliers must provide notice to customers

(40 CFR 135).  (pp. 165-167) THAT IS NOT TRUE IN ANY

FORM! The title for 40 CFR 135 outlines the purpose

__PRIOR NOTICE OF CITIZEN SUITS; under the Clean Water

Act and the Drinking Water Act.

In reality, the regulation authorizes a person to

file a civil action suit against an individual, a

corporation, a state or local agency, or a federal

agency, and prescribes the procedures an attorney must

follow in that action. If an attorney does not follow

those procedures, the case will be thrown out and the

attorney could be subject to a malpractice suit.

Let's continue to look at the report;

"If the quality of sludge does not meet

beneficial use criteria, it must be disposed as

required under the Part 503 Sludge Rule or, if

mixed with non-hazardous solid waste, managed under

existing state solid waste plans (40 CFR 256 and

258). (p.165)

Actually, there are four choices available to

the treatment plant operator for sludge disposal, three

of the choices are highly regulated:

1.   Dispose of sludge in a solid waste landfill under

40 CFR parts 257/258 where human health damages

would be very limited.

2.   Incinerate sludge under the provisions of 40 CFR

503 where human health damages would be limited to

an EPA estimated 10 people per year.

3.   Dispose of sludge in a highly regulated sludge only

surface disposal site under part 503, providing the

sludge does not have over 600 ppm of chromium in

it, where human health damages would be very


4.   Since the chromium level in beneficial sludge for

use on crops could be as high as 3,000 ppm (that is

to high to be put in a surface disposal site), the

treatment plant operator has to make another

choice, dispose of the sludge as a solid waste

under part 257/258 or dump it on crop land as a

beneficial fertilizer, which is excluded from the

safety and liability provisions of the federal law,

and where human health damage (high blood pressure from

lead) is estimated by the EPA to affect about 501 people a year.

While the NRC report claims the public health is

protected under the State Solid Waste Management Plans

required by 40 CFR 256 -there are no existing State

Solid Waste Management Plans under 40 CFR 256.

According to an EPA letter dated June 3, 1993, "In the

late 1970s it was envisioned that federal funds might

become available to the states for approved Solid Waste

Management plans which followed the 40 CFR 256

guidelines.  Since Congress did not allocate the funds

envisioned, states are not required to submit plans to

EPA for approval and funding."...."Also, the federal

law, RCRA, requires that each state have a solid waste

permitting program; however states do not have to apply

to the EPA for review or approval of this permitting


In effect, if the states are required to comply

with the federal laws, RCRA, and the federal laws

have classified sludge as a solid waste, then the EPA

has convinced the states to violate federal law with its

sludge dumping policy and the EPA has no responsibility

or liability, to the states or the people.  Texas

followed the EPA's beneficial sludge use policy and even

created a statute which removed sludge from it's own

solid waste laws. The statute initially required out of

state sludge to meet the more stringent of Texas

standards or the standards of the state it came from.

When New York City started shipping sludge into Texas

that couldn't meet the New York State Standards, Texas

deleted the stringent requirement from the statute.

Furthermore, according to the EPA, "Because no

States have received EPA approval of their State sewage

sludge management programs yet, EPA will be the

permitting authority...." (Federal Register (FR) 58, p.


Please note, sewage sludge management programs are

not State solid waste management plans.  And, if the

states are required to comply with the federal laws, how

could the EPA beneficial sludge use policy or the

regulation (guideline) relieve the states of their


Actually, the States are not relieved of the

responsibility, they just can not recover damages when a

Superfund site is created on the farmland dump sites.

According to the EPA, "Questions have been raised about

conditions under which sewage sludge disposed at a

Superfund site might give rise to liability under the

Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA)."  The answer, according to the

EPA, "(State cannot recover under CERCLA for damages

resulting from releases authorized by NPDES permit).

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."

In effect, the part 503 regulation gave every

sludge dumper an automatic Federal NPDES permit, and

some States thought the EPA was now totally responsible.

Since the states don't inspect the sites for compliance

with the regulation.  Who will then be responsible for

these sites?

It would appear that the participants in the NRC

study review failed to consider the published

regulation, 40 CFR 257 et al. (Part 503).  Part 503 is a

very unusual regulation in that it is based on

deliberately misusing exclusions in the actual Federal

Laws: 1) the domestic sewage exclusion in the RCRA

(residential raw sewage entering the treatment plant),

and 2) the commercial fertilizer exclusion in the

CERCLA.  Not only that, but the Part 503 regulation is

self-implementing (self-permitting) which means that the

regulation can be used as a permit, and as a partial

shield defense against any liability claims, 3) the statutory

exemption for agricultural runoff.

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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"