Chapter Nine
REGULATIONS AND GUIDELINES
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
protected:
"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
limited.
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
program."
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.
9412)
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
responsibility?
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"
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