102

National Sludge Alliance
NSA Public Fact Sheet 102
The Law vs. EPA Science
2/1/1997

Four years after Congress enacted major cradle to the grave legislation (Resource Conservation and Recovery
Act, 1976) to protect the American public from hazardous substances (pollutants) in the environment, Congress
found the EPA was not enforcing the law and enacted even stronger legislation in 1980 with the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), to give the EPA even more power to protect
the public health and environment from "releases" of hazardous (toxic) substances into the environment. (House
Report No. 96-1016 Part 1, 1980)
Since that time, Congress has enacted even stronger laws such as the Hazardous and Solid Waste Amendments
of 1984 and other related laws which identify all sludges generated from pollution treatment plants as solid wastes
which must be disposed of in sanitary landfills) in an attempt to protect the public health and the environment. Yet,
EPA and many States have ignored the Congressional mandates in favor of the "science-based" sludge rules
under the Clean Water Act.
In fact, "The French government wants to increase land application of biosolids and is looking to the United States
for guidance, said Alan Rubin, a senior scientist with the Water Environment Federation on loan from EPA. Rubin
was in Paris last week explaining through interpreters how EPA wrote its risk assessment. "The French love the U.
S. rules," Rubin said. The European Union's strict precautionary biosolids standards are not science-based,
Rubin said. EU nations are preparing for a 1998 ocean-dumping ban, while analysts have predicted biosolids
volumes in member countries may rise to 17 million tons in 2000 from 7 million in 1990." Sludge, July 5, 1994, p.
111 - June 20, 1995, p. 101)
New York City had the same problems as France in 1989, strict federal laws, increasing volumes of sludge, an
ocean dumping ban, and the EPA's proposed "science-based" beneficial use and disposal sludge rule (40 CFR
503), which was destined to quickly degenerate into a self-implementing blanket Federal permit for sludge
dumping on lawns, gardens and food crop production land. (see NSA Fact Sheet # 103 )
The primary impact of the proposed science-based sludge rule would have fallen on New York City, which was
ocean dumping its sludge. At the time, New York City had completed a comprehensive study "In accordance with
the USEPA General Pretreatment Regulation---". The study found, "Surveys of municipal wastewater in the United
States and all over the world indicate the presence of toxic substances which, even in cases where treatment is
provided, eventually end up in the aquatic environment and the soil. The toxics most often reported are heavy
metals. --- USEPA includes in its list of 126 priority pollutants 14 of these metals."
According to the study, pretreatment by industry would not help New York City control the toxic metals. "The 1970
to 1972 study of the sources of these heavy metals in New York City waste-water concluded that even with zero
discharge by industry, 94 percent of the zinc, 91 percent of the copper, 84 percent of the cadmium and 80
percent of the chromium being discharged would continue to be discharged by sources virtually immune to
treatment (Ref. 1)."
Furthermore, the study found, "For land application, the Task 4 Report used NYDEC criteria (Table 5). It
concluded that because of metals concentration, 94% of New York City Sludge is presently unacceptable for land
application. After pretreatment, either through local limits or categorical standards, 83% to 84% of New York City
Sludges would still be unacceptable for land application. The reason for this is that non-domestic sources of
pollutant loading, not industrial sources, are primarily responsible for interfering with this sludge use."
Not only that, but the study determined, "Although it was determined acceptable to continue ocean dumping at the
newly designated 106-mile off-shore site, most of the sludge is currently not suited for land application according
to NYSDEC Criteria." (Yapijakis, Constantine, and Papamichael, Fotios, (1987). Sources of Heavy Metals and
Their Impacts on Wastewater Bodies Quality--Case Study of a Metropolitan Area. (Wat. Sci. Tech. Vol. 19, No. 9,
pp. 133-144)
While NYDEC did not change its Criteria for land application of sludge, the EPA's science-based sludge use rules
were changed after, "Commissioner Harvey Schultz of New York City's Department of Environmental Protection,
explained in a letter to EPA Administrator Reilly, dated June 5, 1989, that "compliance with the pollutant standards
would be difficult, if not impossible, to achieve." According to the letter, "no disposal option covered by the
proposal would be allowed or feasible for eighty percent of the City's sludge." In closing, Mr. Schultz urged Mr.
Reilly; "Considering the economic and environmental importance of these regulations, the large volume of
potentially beneficial sludge affected, and the cost and paucity of landfill space, I urge you to devote the
necessary resources to revise 503 in accordance with the best available technical information."" (Bynum, James
W., 1996. Report to National Sludge Round- table, Toxic Sludge is Safe for Your Food says National Academy of
Science. p. 144. Laredo Safety Institute. Laredo, TX.)
The best available technical information at the time indicated "The standards for the various methods of use and
disposal were thus established to protect human health and the environment at a risk level of 1 in 10,000. The
recently- released final rules set standards for pathogen and limits 12 pollutants which have the potential for
adverse effects, and explains why limits are not needed for 61 other pollutants that were considered." --- "Tudor
Davis, Director of EPA's Office of Science and Technology, noted that the ecological risk assessment approaches
in this rule will serve as a model for future regulatory efforts in a variety of EPA programs." (Water Environment
Federation Bulletin p. 4 - December 1992)
However, that was not destined to happen. The risk level of 1 in 10,000 in the standard was based on
conservative pollutant concentrations in sludge which prevented New York City sludge from being used as a
fertilizer on food crops. As an example, the Peer Review Committee recommended a lead level of 500 ppm "based
on the observation that body burdens (absorptions) of animals fed up to 10 percent of their diet as sewage
sludge did not change until the lead concentration in the sewage sludge exceeded 300 ppm. The Agency
therefore decided to select the more conservative numerical limit for the final part 503 rule to minimize lead
exposure to children and set the allowable lead concentration in sludge at 300 ppm." (FR. 58, 9286)
The primary reason for the lower limit was, "Because childhood ingestion of dirt is so widespread a phenomenon
and the potential consequence so severe, a high order of conservation is warranted on this point, especially in
the context of regulatory decisions authorizing the addition of a threshold pollutant like lead to the environment. In
addition, a 300 ppm lead concentration in sludge is consistent with current sewage sludge quality at all but a small
number of POTWs." (FR. 58, 9286)
EPA changed part 503 to accommodate the disposal of most of the New York City Sludge as a beneficial
sludge/biosolids fertilizer in other states, because New York State rules still prevented it from be used in the state.
Yet, EPA claimed part 503 was still a science-based sludge rule after arbitrarily raising the lead concentration to
840 ppm for beneficial use sludge. Not only that, but EPA has since deleted the chromium restrictions. (Part
503.13, 1996)
New York City had two major problems with the heavy metals, lead and chromium: the "Mass weighted average of
90% confidence limits, all 12 NYC WPCPs; July 1979 to June 1981" was "6,400 ppm" for lead, and 4,230 ppm for
chromium, whereas the New York State Criteria limited lead and chromium in beneficial use sludge to "1000 ppm".
(see, Yapijakis, 1987, study, Table 5, P. 139)
Not only did the EPA change the science-based regulation to accommodate the disposal of sludge as a fertilizer, it
funded a massive public relations campaign before the regulation was released. "With the publication of the new
sewage sludge regulation, the Water Environment Federation will be mounting a campaign to educate the public
on beneficial uses of sludge. The Federation has received a $300,000 cooperative grant from EPA for
development of educational materials and other programs, and work on these and other strategies now under
way." (Water Environment Federation Washington Bulletin (WEF) p. 4 - December 1992)
The funding didn't stop there. According to a memo from EPA's Robert E. Lee to John Walker and Robert Bastian,
dated Oct. 17, 1994, at least part of the money used for the public relations campaign funding was from EPA 104
funding, which actually restricted funding to..."establish national programs for the prevention, reduction, and
elimination of pollution." Yet, among other things the money was to be used for was [to debunk] "Sludge Horror
Stories", "arid lands", "PCBs in Biosolids" and "What about one with a watershed twist ---Ways to utilize biosolids
in watersheds to mitigate other environmental problems" as well as "maybe we should put one or some $ in for the
wetlands work in watersheds also." (Public Facts #101)
EPA's public relations campaign appears to be working, according to the Water Environment Federation / EPA
Biosolids Fact Sheet 1, Figure 2, New York City sludge was extremely clean by the time it arrived at the arid lands
of the 128,000 acre west Texas ranch owned by Merco. When compared to the Texas, New York and Federal
standards (p. 2), chromium was down from the average 4,230 ppm to 93 ppm and lead was down from the
average 6,400 ppm to 193 ppm.
How did the New York City sludge become so clean? The answer can be found in the WEF/EPA Biosolids Fact
Sheet 1, "the biosolids are analyzed and tested routinely for pollutants and disease causing organisms using
Toxicity Characteristic Leachate Procedure (TCLP) tests." (p.5) The TCLP test actually measures the amount of a
toxic substance that can be chemically leached out of a test sample, while the regulations are based on the total
concentration of the toxic substance in the test sample. Two different types of scientific tests, therefore, two
extremely different results.
As Commissioner Schultz noted, under the proposed science-based sludge rule, 80% of New York City sludge
was too contaminated to be used as a fertilizer in New York State or anywhere else. Yet, the Biosolids Fact Sheet
1 notes, "Merco handles 27% of New York City biosolids. About 67% goes to the New York Organic Fertilizer
Company, where they are pelletized. Pelletized biosolids have been used on dry wheat farms in Colorado,
irrigated cotton and grain farms in Arizona, and Citrus orchards in Florida. The remaining six percent is landfilled."
-LSI-