National Sludge Alliance
NSA Public Fact Sheet 106
The People vs. EPA and the Courts
2/28/1997
Thomas Jefferson could have been talking about the EPA when he said: "It is an axiom in my mind that our liberty can
never be safe but in the hands of the people themselves. Every government degenerates when trusted to the rulers of
the people alone."
An example of Thomas Jefferson's axiom can be found in the way the Environmental Protection Agency (EPA) has
handled the growing toxic sewage sludge problem in the United States. While the EPA is one of the most powerful
Departments in the federal government, charged with protecting the health of the people and the environment, it now
looks for loopholes in the federal laws as justification for its regulations. Furthermore, when EPA can't find a loophole in
the law, it uses the Courts to create a loophole.
According to EPA, the beneficial sewage sludge use and disposal regulation under the Clean Water Act (CWA) (40
CFR 503) is based on a domestic sewage exclusion in the Resource Conservation and Recovery Act (RCRA). Yet,
EPA acknowledges that the domestic sewage exclusion is specifically limited to hazardous waste mixed with domestic
sewage in the sewer pipes that enter a wastewater treatment plant. (Public Facts # 104)
Moreover, under RCRA section 1004 definitions "(26A) "Sludge" means any "waste generated from a municipal,
commercial, or industrial wastewater treatment plant, water supply treatment plant or air pollution control facility "
Furthermore, under the RCRA definitions, "Sludge (26A)" is a subsection of (26)" Sanitary landfill [which] means a
facility for the disposal of solid waste which meets the criteria published under section 4004." EPA found its domestic
sewage exclusion in definition (27), yet the first words in (27) are, "The term "solid waste" means in garbage, refuse,
sludge, from a waste treatment plant."
Not only that, but under the RCRA's definition "(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."
Furthermore, Under RCRA section 4004 (a), "...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."
Yet, EPA claims the beneficial sludge use and disposal regulation is based on a Congressional mandate in section
4004 to find; "(g) (5) alternate methods for the use of sludge, including agricultural applications of sludge and energy
recovery from sludge; ---" (PL 89-272 title III #4004 -Pl 94-580)
However, EPA has ignored the Congressional mandate in section 4004 to find; (g)(6) methods to reclaim areas which
have been used for disposal of sludge or which have been damaged by sludge." Not only did EPA ignore this section,
but it paid for a public relations campaign to promote the use of sludge as a fertilizer which began before the part 503
regulation was released. Not only that, but it also loaned the regulation's supervising scientist to the Water
Environment Federation (WEF) to oversee the public relation campaign. The WEF is a sludge industry association.
(Public Facts # 101)
It would appear that EPA also engineered a lawsuit by a different sludge industry association, the Association of
Metropolitan Sewerage Agencies (AMSA), as well as the Milwaukee Metropolitan Sewerage District, and the City of
Pueblo, Colorado, under the shelter of Leather Industries of America, Inc. (United States Court of Appeals, District of
Columbia Circuit, Nos. 93-1187, 93-1376, 93-1404 and 93-1555)
It would appear from the Appeal Court ruling that the primary purpose of the lawsuit was to remove chromium from the
regulation as well as the sanitary landfill section.
On the surface, the lawsuit appeared to be redundant since EPA's sewage sludge use and disposal regulation 40 CFR
503 offers municipalities the option of either creating open dumps under the beneficial use section [without any
Superfund liability] or sanitary landfills under the surface disposal section. Yet, sludge for beneficial use can be too
contaminated with toxic pollutants [primarily chromium] to be disposed of under the sanitary landfill section. (see Tables
in 503.13 and Tables in 503.23, FR. 58, pp. 9392, 9396)
However, 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. Under the "safe harbor" provision of the regulation, no one is responsible
for any damages to the public's health or the environment caused by the use of sewage sludge as a "clean" fertilizer.
(Public Facts # 101 )
However, the United States Court of Appeals, District of Columbia, ruled: "(1) regulatory safe harbor for land
application of sewage sludge based on the 99th percentile levels of chromium and selenium indicated in national
survey violated Clean Water Act;"--Plus-- "(4) EPA abused its discretion in establishing phytotoxicity limit on soil
concentration of chromium in sewage sludge applied to land." (40 Federal Reporter; 3d series, p. 392)
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)
The reasoning behind the ruling is very revealing. According to the Court, "Environmental Protection Agency (EPA)
failed to supply rational basis for its assumed application duration and rate underlying regulatory safe harbor for land
application of "clean" sewage sludge, in light of the available information that actual application rate and duration of
use for heat-dried sludge were well below EPA's assumptions. 40 CFR 503.13(b)." (p. 392)
In effect, it would appear the Court was led to believe by both the challengers and EPA that all "clean" sludges in 40
CFR 503.13(b) were heat-dried and the regulation was primarily directed at Milwaukee's "Milorganite fertilizer". (40
Federal Reporter, 3d series p. 402
The basis for the opinion, according to the Court, was; "--- The AMSA challenges the risk-based caps in Table 3. It
argues that the assumptions about the rate and duration of sludge application underlying the risk-based caps in Table
3 are irrational with respect to heat-dried sludge, which is applied at lower rates for shorter duration. For what ever
reason, the EPA chose not to respond to this particular claim, and the AMSA has been less than totally clear about
what parts of the regulation are allegedly infected (sic) by the use of these assumptions. We are, accordingly,
somewhat handicapped in evaluating the challenge. Nonetheless, on the record, we conclude that EPA has not
adequately justified its use of the assumed rate and duration of application to apply the risk-based caps in Table 3 to
heat-dried sludge." (40 Federal Reporter, 3d series, p. 402)
It would appear that the Court had a major problem in that it did not understand the AMSA appeal, when the heat-
dried sludge in question was well below the regulation limits.
In effect, EPA failed to inform the Court that the Table 3 of 503.13 also applied to all sludges, not just heat-dried
sludges.
However, the Court found against the plaintiffs on one major challenge to the EPA's sludge use and disposal
regulation, "We reject the challenges to the classification of "dedicated uses" as "land disposal" and to EPA's refusal to
provide for site-specific variances from the pollutant limitation for land applied sewage sludge." (40 Federal Reporter;
3d series, p. 394)
It is clear the Appeals Court did not understand the options offered municipalities under the regulation, open dumping
of sludge in violation of the federal prohibition or disposal in a sanitary landfill as required by federal law. (Public Facts
# 100)
The AMSA attempted to get the Court to rule on the disposal section of part 503 and according to the record; "(10)
The AMSA challenges the EPA's classification of dedicated beneficial use sites as "surface disposal" rather than "land
application," arguing that this classification is arbitrary and "promotes a negative public perception of dedicated sites
as "dumping grounds'." (40 Federal Reporter, 3d series, p. 408)
EPA failed to enlighten the Court that a beneficial use application site was basically the uncontrolled dumping of sludge
as a fertilizer, while a surface disposal site was highly restricted and surface water run-off from a 24-hour, 25 year
storm event must be collected and disposed of under a NPDES permit. Not only that, but EPA failed to disclose that the
"Clean" Sludge was too contaminated to be disposed of in a surface disposal site. (503.24(g)(1)(2) - 503.23) (Public
Facts # 105)
It would appear that removal credits were a major concern of the AMSA arguments, which was rejected by the Court.
The Court noted, "Under the statute, removal credits are only available if they do not prevent the ultimate sewage
sludge from complying with the regulation at issue, the sludge use and disposal regulation. see 33 U.S.C. part
1317(b)." (p. 400)
Under the disposal section of 503.23, only three pollutants are eligible for removal credits, while the beneficial use
section of 503 allows removal credits for all the pollutants. (Appendix G to part 403 - FR. 58, p. 9386)
EPA responded to the Courts opinion by removing the chromium from the beneficial use section of part 503. However,
when the Court rejected the challenge to the classification of "dedicated uses" as "land disposal" it left both the
challengers and EPA with a major problem. Under the part 503 landfill disposal section, sewage sludge with chromium
levels in excess of 200 mg/kg (ppm) can not be placed within 75 feet (25 meters) of the land disposal site boundary
and the site itself is restricted to sewage sludge with chromium levels below 600 ppm. (see Tables in 503.23)
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. -LSI-