National Sludge Alliance
NSA Public Fact Sheet 122

Catch 22 -- The Plight of the Farmer Who Accepts Sludge

If you are a farmer who has accepted sewage sludge as a cheap or no cost fertilizer, you have forgotten the advise of
you father, beware of Greeks bearing gifts and people who say, "I'm from the government and I'm here to help." What
the government has done is transfer point source pollution liability from a City to you and turned your farm into an open
dump situation. EPA has run a con game on the public, court system and you by stating sludge use is safe when
properly used in accordance with part 503. Even though EPA recently stated that improper disposal of sludge will be
considered a nonpoint (unknown) source of pollution, courts have and will accept the implication that any damage
caused by sludge was a result of misuse or improper disposal by you.

You are not the first to fall for the con game. Like Bob Ruane of Vermont, and Andy McElmurry of Georgia, you thought
you were helping the government, by participating in a recycling program, by accepting low or no cost sewage sludge for
use as a fertilizer. However, you unwittingly contributed and participated in the demise of your farmland. This has
definitely put you between a rock and a hard place -- a Catch 22 situation. For example, health problems are not likely
to be connected to the use of sludge, so you may not have realized that there was a problem until your yield falls well
below normal, if then. If you could use the fact that EPA fined any city for illegal sludge disposal (which it has) to prove
your land was damaged by the toxic elements in sludge, the EPA could conceivably make you clean up the
contamination on your farm. That would be adding insult to injury, but it could happen. However, unlike the Zander's
dairy farm in Washington, the Alice Minter Trust farm (both Salmonella and E. coli at over 800,000 bacteria per 100
grams of soil) and Ed Roller's dairy farm in Missouri which were destroyed by nonpoint source toxic pollutants running
off a farm sludge disposal site, your problems are caused by a point source of pollution, a federally defined open dump.

To date, there has only been one case involving Part 503 policy and improper sludge disposal which has been tried and
appealed in federal court -- United States vs. Cooper. In part, Cooper went to jail because of improper disposal of Class
B sludge on organic farming land. The heart of the matter was that sludge is a pollutant under the Clean Water Act.
Furthermore, ignorance of the law and/or permit requirements is no defense for violating the law. Cooper was also
charged with creating Mt. San Diego, a sludge mountain contaminating the Torres-Martinez Indian Reservation. By the
miracles of science, the pile has now been declared "EQ" (exceptional quality) by US EPA. EQ sludge (either Class A or
Class B with relative low levels of nine tested metals) requires no recordkeeping, tracking, or liability for a City, state or
EPA. In effect, you have no record that anyone ever put a single toxic chemical on your farm. This is not good for a
court case.

However, there have been three federal court rulings which affect your situation:

  1. the Ninth Circuit Court of Appeals restated the case that sludge is a pollutant under the CWA which must be
      disposed of safely;
  2. the Washington District Federal Court ruling which found that the EPA had/has no credible science, except for a
      few pot studies, to support the 95 percentile limits for chromium -- therefore, EPA arbitrarily removed it from the
      beneficial use section of part 503 policy; and
  3. the Fifth Circuit Court of Appeals found there was no scientific evidence to show that sludge was safe, only
     scientific opinions and, there were just as many scientific opinions against its use.

Before your attorney can effectively resolve your problem in a law suit, you have to change the perspective and realize
that you are not just a victim of improper sludge disposal. In fact, a case can be made that you were a willing participant
in the demise of your farm or dairy and all the damages associated with toxic sludge use.

  1. In your case, you allowed sludge to be disposed of on your land even though you knew, or should have known,
      sludge was a pollutant, a solid waste, under RCRA, HSWA, CERCLA (Superfund) and the Safe Drinking Water Act.
      Even  part 503 policy warned that the EPA Administrator had information available which showed that exposure to
      any of the toxic chemicals and deadly pathogens in sludge disposed of on your land could cause death, disease,
      cancer and other assorted health problems and birth defects to your animals and family, as well as destroy 10% of
      the land sludge was used on. The policy was designed to only reduce crop production by half on a hundred year
      site life.

You also knew, or should have known that:
          a. hazardous waste (listed or unlisted) is not regulated in the sewage system and the hazardous materials,
              substances, constituents, toxic chemicals and deadly pathogenic disease organisms will be concentrated in
              the sludge generated by he treatment plant to be used as fertilizer on home lawns, parks, and farmland.

          b. the beneficial use section of part 503 policy is a guideline for sludge use based on the commercial fertilizer
              exclusion in the Superfund Act. When sludge is considered to be a commercial fertilizer, more and higher
              levels of toxic chemicals can be dumped on your farm than can be placed in a permitted sludge-only landfill
              under part 503.

          c. EPA did not use the term toxic pollutant in the body of part 503 policy because Congress wanted EPA to
              address more than the 126 "Listed" Toxic Priority Pollutants in sludge. Yet, EPA only addressed 10 in its
              original policy. The deadly Chromium VI was removed from any controls in the beneficial use section.

          d. In 1989, EPA released the information that there were 21 known carcinogens in sludge. Five of them were
              carcinogenic when inhaled.

          e. EPA also released a list of 25 deadly families of pathogenic disease organisms in sludge which could kill your
              cattle and family. Some of these have now mutated into more deadly strains and new ones have emerged.

          f. EPA warned that even Class A sludge must be incorporated into the soil within 14 hours after leaving the
             treatment process to prevent pathogenic organism regrowth. Research by German and EPA scientists have
             shown that the Class A treatment process will encapsulate and hide the disease organisms.

         g. EPA warned that there were 2 million fecal coliform bacteria per gram of Class B sludge, which means that
             there were untold numbers of Salmonella, E. coli, Listeria, and other assorted deadly pathogenic organisms in

        h. Yet, EPA claims it has never done a cancer risk assessment. It placed that responsibility on the states in part
            258. What it did do was a dose-response exposure on 10 metals it did not consider carcinogenic in 14
            pathways. Nine of the 10 metals were/are known carcinogens.

2.    On the surface, it would appear that you knew, or should have known, EPA is allowed to release toxic pollutants into
    the environment, using a federal permit as a partial shield, without any liability. In effect, on the surface, you willingly
    accepted the responsibility for transferring toxic sludge  from a regulated point source of pollution, the storage
    lagoon, to an unregulated point source of pollution, your farm, where the Toxic Priority Pollutants from the sludge
    disposal site could contaminate your land, water, food crops, milk, animals and your family.

3.   That works against you ---- and for you --- as the City who generated the sludge also knew, or should have known,
   the same information. Plus, the best thing you have going for you is that your problems were not caused by runoff
   from a nonpoint source (i.e., an unknown source).

3.   There is no provision for a suit under the beneficial section of Part 503. The 1993 Part 503 policy is the guideline for
   sludge use, as a commercial fertilizer, under the exclusion in the CERCLA (Superfund Law). The basis and science
   behind this EPA policy is that many cities have been selling heat dried and composted toxic sludge as a commercial
   fertilizer for use on home lawns and gardens since 1926. Once EPA discovered the extent of the deadly chemicals
   and pathogenic disease organisms being sold to the public, it had two options, place new liabilities on cities for the
   death and disease cause by them or cover up the situation and divert attention to some other problematic cause.

4.   The only provisions for a sludge suit under the Clean Water Act are given in the real 1991 sludge disposal
   regulation, part 258. However, a citizens suit can only be filed under the RCRA, where sludge is identified as a solid
   waste which must be disposed of in a permitted sanitary landfill, for a violation of NPDES permit conditions.

5.   EPA has stated that part 503 will only work, to prevent liability, if sludge is considered to be a commercial fertilizer.
  Class B sludge was never sold as a commercial fertilizer prior to CDC, FDA, USDA and EPA's 1983 policy and the
  release of part 503 in 1993. Yet, it can be injected, placed on the land surface or sprayed without regard to the
  overall chemical and pathogenic content. Plus, based on the March 22, 2000 Hearing, there is no monitoring,
  recordkeeping, enforcement provisions or oversight requirements.

6.  The government forgot to warn you that the Pollution Prevention Act of 1990, specifically negates the EPA's position
  of changing the name, and considering sludge to be a commercial fertilizer to escape liability for damages done by

7.  The EPA Inspector General's report released by the Congressional Committee on Science during the March 22
  Hearing also brought out the facts that people were expected to die from the policy ----- which was indefensible ----
  and that EPA did not intend to change its position for at least a couple of years.

8.   In the beginning, Congress gave EPA two directives concerning sludge, figure out how or if it could be safely used
   on land and figure out a way to clean up land already damaged by sludge. The EPA has been derelict in following
   both directives. However, it did create a debunking program in 1994 to cover up the current damage cause by
   sludge use.

At this point it would appear that a number of people in government have exceeded their authority by lying to get you to
accept sludge in the first place. In the second place, they failed to inform you that they were turning your farm into an
open dump and possibly a Superfund site. In effect, they have deliberately placed your farm and health at risk. They
can go home at night, you have to live or die with the results.

It would appear that we need get Congress and the courts to return to the basic principles:

what is sludge?
It is a pollutant and solid waste by federal law.

where should it be disposed of?
Federal laws require safe disposal in a sanitary landfill to protect public health and the environment.

what happens if sludge is not safely disposed of in a landfill?
The chemicals and disease organisms can kill people (9,000 attributed to Salmonella annually), animals (10% of dairy
herds infected with Salmonella), poisons food crops (81 million food-borne illnesses annually), water (400,000 in one
1993 Milwaukee incident), land (5 listed here and more surfacing everyday), and air (most notable is Sierra Blanca, TX
and counting)

 what is EPA's job?
It is charged with ensuring the safe disposal of all toxic waste, not promoting hazardous waste and toxic sludge disposal
on farmland as well as home lawns and gardens as a fertilizer, and
who gets blamed for all of the human health damages?
1.  UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GORDON PAUL COOPER, Defendant-Appellant.
  No. 97-50296


173 F.3d 1192; 1999 U.S. App. LEXIS 6335; 48 ERC (BNA) 1477; 99 Cal. Daily Op. Service 2623; 29 ELR 21044