National Sludge Alliance
NSA Public Fact Sheet 107
The Sludge Gets Deeper
3/10/1997
Just nine days after the article EAT SLUDGE AND DIE was published on October 16, 1995, which warned that, "-under
503, sludge sold as a fertilizer can be so contaminated with toxins that, according to EPA, such sludge cannot be legally
landfilled." The warning referred to the fact that sewage sludge containing chromium at 3,000 ppm could be used on
lawns, gardens and crop production land, but it could not be disposed of in a part 503 landfill, which prohibited
Chromium levels above 600 ppm. The Environmental Protection Agency (EPA) published a revised list, in the October
25, 1995 Federal Register (FR), of regulated pollutants for beneficial sludge fertilizer/ biosolids, which deleted
Chromium. (Joel Bliefuss. p. 12. In These Times. Chicago - FR. 60, p. 54769- -1995 edition of the Code of Federal
Regulations (CFR). 40 CFR503.13 and 503.23 Tables)
In reality, the EPA arbitrarily removed chromium from the regulation based on an Federal Appeals court ruling that the
"Exceptional Quality" sludge pollutant levels in Table 3 of 503.13(b) were not risk based as it applied to Milwaukee's
"Milorganite" heat-dried sludge fertilizer. (Leather Industries of America, Inc. v. EPA. Nos. 93-1187, 93-1376, 93-1404,
and 93-1555 - 40 Federal Reporter, 3d Series p. 392 - Public Facts #106)
The Association of Metropolitan Sewage Agencies (AMSA) joined with Milwaukee and the Leather Industries of America
in the Appeals suit. In 1992, Milwaukee complained to the EPA about the limits on chromium which prohibited the sludge
from being disposed in a part 503 landfill. "The Milwaukee Metropolitan Sewage District is concerned about EPA's limit
on molybdenum and chromium. Milwaukee's wastewater contains chromic acid from the numerous leather tanners in the
Milwaukee area. A limit of 1,200 mg/kg on chromium will necessitate pretreatment of this wastewater if Milwaukee is to
continue marketing its Milorganite product. MMSD has sent letters to EPA expressing its concern and has had
discussions with the leather tanning industry as well. "Landfilling our sludge would be a much more costly option," notes
Tom Crawford, senior staff attorney for MMSD. Milwaukee is considering a formal request for review." (Water
Environmental Federation Washington Bulletin -December 1992- Page 3)
According to the Court record, "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 concentration 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
regulations 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 the 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 p. 402)
It would appear the Court was aware the Appeal was engineered, but it could not define the purpose of the suit since,
"The EPA has provided no response to the AMSA's claim that the assumed rate and duration are irrational as applied to
heat-dried sludge." (40 Federal Reporter, 3d p. 402)
The Appeals Court did not order EPA to remove chromium from the regulation. Yet, it is clear the EPA used the Appeals
Court as an excuse to remove chromium from the regulation. In reality, it appears the AMSA argument was less than
truthful to the Appeals Court.
Chromium is one of only three toxic substances that allow removal credits be granted to industrial polluters when
sewage sludge is placed 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)
According to Part 403, which authorized removal credits under the Clean Water Act, 1977, "It establishes responsibilities
of Federal, State, and local governments, industry and the public to implement National Pretreatment Standards to
control pollutants which pass through or interfere with the treatment process in Publicly Owned Treatment Works
(POTWs) or which may contaminate sludge." (403.1(a))
The objective of the regulation was, "To prevent the introduction of pollutants into POTWs which will interfere with the
operation of a POTW, including interference with its use or disposal of municipal sludge;" (403.2(a)
While there are 65 toxic pollutants listed in part 403 Appendix B, only 10 are addressed in part 503. there was a
pressing need to remove sludge from the safety provisions of the CERCLA because removal credits for the 10 toxic
pollutants (hazardous substances) addressed in part 503 can only be granted to industrial users, providing, the sludge
is used as some form of fertilizer for land application to grass, lawns, gardens or food crop production lands. (Appendix
G to part 403)
Furthermore, only 3 pollutants, arsenic, Chromium and Nickel, are eligible for removal credits when sludge is disposed
of in a part 503 surface disposal landfill. These are the same 3 pollutants that prohibit sludge fertilizer from being
disposed of in a part 503 landfill. (1985 editions, appendix G to part 403 -part 503.13, 503.23 Tables)
According to part 403.7(ii) "Sludge requirements shall mean the following statutory provisions and regulations or permits
issued there-under (or more stringent State or local regulations): Section 405 of the Clean Water Act; the Solid Waste
Disposal Act (SWDA) (including title II more commonly referred to as the Resource Conservation Recovery Act (RCRA)
and State regulations contained in any State sludge management plan prepared pursuant to subtitle D of SWDA)); the
Clean Air Act; the Toxic Substance Control Act; and the marine protection Research and Sanctuaries Act."
However, the sludge management division of EPA claims these laws only apply when sludge cannot be used as a
fertilizer. EPA claims sludge fertilizer is authorized under a domestic sewage exclusion in the RCRA. Yet it acknowledges
in the regulation, "Domestic sewage is waste and waste water from humans or household operations that is discharged
to or otherwise enters a treatment works." (40 CFR 503.9) Furthermore, it claims, "This is a key definition, because the
standards in the part 503 regulation apply to sewage sludge generated during the treatment of domestic sewage in a
treatment works. When domestic sewage is in the influent to a treatment works, even if the influent also contains
industrial wastewater, sewage sludge is generated during the treatment of the domestic sewage." (FR. 58, p. 9326 - 40
CFR 257 et al.)
Furthermore, EPA also acknowledges, "When the sewage sludge is not used to condition the soil or to fertilize crops or
vegetation grown on land, the sewage sludge is not being land applied. It is being disposed on the land. In that case,
the requirements in the subpart on surface disposal in the final part 503 regulation must be met." (FR. 58, p. 9330 - 40
CFR 257 et al.1)
EPA has been using an exclusion which doesn't exist. In a letter dated Feb. 7, 1986, from, The (EPA) Administrator, to
the Honorable Thomas P. O'Neil, Jr., Speaker. U.S. House of Representatives, is stated: "The purpose of the Domestic
Sewage Study was to evaluate the impacts of waste discharged to public owned treatment works (POTW's) as a result
of the Domestic Sewage Exclusion. The Domestic Sewage Exclusion, (specified in Section 1004(27) of RCRA) provides
that a hazardous waste, when mixed with domestic sewage is no longer considered hazardous. Therefore, POTW's
receiving hazardous waste in this manner are not subject to the RCRA treatment, storage and disposal facility
requirements. The premise behind the Domestic Sewage Exclusion is that RCRA manage of wastes within a POTW is
unnecessary and redundant since this wastes are regulated under the Clean Water Act's regulatory programs."
Congress was very clear in what it considers to be solid waste. "Solid waste means any garbage, or refuse, sludge from
a wastewater treatment plant, water supply treatment plant, or air pollution control facility and other discarded
material----, but does not include solid or devolved materials in domestic sewage."
"Sludge means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater
treatment plant, water supply treatment plant, or air control facility exclusive of the treated effluent (clean water) from a
wastewater treatment plant." (Public Laws. (1987). "The SOLID WASTE DISPOSAL ACT, AS AMENDED BY, THE
HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 (PUBLIC LAW 98- 616); THE SAFE DRINKING WATER ACT
AMENDMENTS OF 1986 (PUBLIC LAW 99-339); AND THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT
OF 1986 (PUBLIC LAW 99-499)." 99th Congress, 1st Session. Committee Print for S. Prt. 99-215)
If sewage sludge was a safe fertilizer, there would be no need to remove the safety provisions of Federal Law, as the
EPA claims it can do by simply considering sludge as a fertilizer. "If the placement of sludge on land were considered to
be "the normal application of fertilizer," that placement could not give rise to liability under CERCLA." (Comprehensive
Environmental Response and Liability Act) --- "Under CERCLA, protection from liability is also provided when there is a
release of a CERCLA hazardous substance and the release occurs pursuant to Federal authorization. Thus under
CERCLA, in defined circumstances, the application of sewage sludge to land in compliance with a permit required by
section 405 of the Clean Water Act is a Federally permitted release as defined in CERCLA." ---"Consequent, releases
of hazardous substances from the land application of sewage authorized under and in compliance with an NPDES permit
would constitute a Federally permitted release." (FR. 58, p. 9262 - 40 CFR 257 et al.)
The ultimate insult to Congress and the American public was given in a letter to Congressman Conduit, dated October
1, 1993, by Martha G. Prothro, (EPA) Acting Assistant Administrator. In spite of the federal laws which classify sludge as
a solid waste that must be disposed of in a sanitary landfill, she states that, "If the placement of sludge on land were
considered to be "the normal application of fertilizer"--it--"would not give rise to CERCLA liability for the municipality
generating the sewage sludge, the land applier, the land user or the land owner."
The EPA seems to be intent on forcing the use of sludge on croplands. "In 1989, Littleton (Colo.) received an award
from EPA for the cleanliness of the towns biosolids (sludge). The plaque also commended Littleton for beneficial reuse
of the product, including land application on wheat fields in the state. But the award did not stop EPA from suing Littleton
for disposing its sludge at the nearby Lowry Municipal Landfill, which the town did at the Agency's and the Colorado
Health Department's direction. The landfill is now a superfund sit e that was used for hazardous waste disposal."
(Sludge, Vol. 20 No. 13, p. 101, June 20, 1995) -LSI-