NSA Fact Sheet #100
January 25, 1997

EPA Overcomes Federal Prohibition Against Open Dumps

There are several Congressional mandated ACTS (Public Laws) which classify all sludges
generated by treatment plants as a solid waste which must be disposed of in a highly restricted
sanitary landfill to protect public health and the environment. (Public Laws)

Under Title 42 (1976), sewage sludge is classified as a solid waste. Title 42 required EPA to study
alternate methods for the use of sludge. More important, the study was to address "methods to
reclaim areas which have been used for disposal of sludge or which have been damaged by

Yet, the EPA's regulation under the Clean Water Act (40 CFR 257 et al./503), promotes open
dumping under
perceived loopholes in the law and claims: 1) that sewage sludge generated
from the treatment of domestic sewage, even if there is industrial sewage in it, is exempt from the
Public Laws, 2) part 503 is a self-implementing blanket permit (federal authorization) for the
release of hazardous substances [pollutants] on lawns, gardens and food crop production land,
and 3) that if sludge is simply considered a fertilizer, it is exempt from the liability provisions of
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), even if a
Superfund site is created (FR. 58, 32, pp. 9326, 9263, February 19, 1993).

Disregarding fertilizers manufactured from hazardous waste, the CERCLA, Public Law 96-510, was
primarily designed to close the loopholes in the Resource Conservation and Recovery Act to
protect the public and environment from a release of hazardous substances (pollutants) from
inactive hazardous waste sites. (House Report 96-1016, May 16, 1980)

Yet, part 503 only identifies 10 pollutants in the most contaminated sewage sludge (exception
quality fertilizer) which is reserved for use on lawns, gardens, food crop production land and
grasses. The "exceptional quality" sludge fertilizer can now contain up to 75 ppm of
unlimited Chromium UP TO 100,000 ppm and 420 ppm of Nickel. (40 CFR 503.13, Table 1)

However, the EPA is uncertain of its Arsenic
risk assessment and is currently proposing a 3
million dollar
Arsenic Health Effects Research project. (FR. 61, 236, pp. 64739,41, December 6,

And, according to an article in Biocycle, Dec. 1996, EPA plans to delete any reference to
Chromium in the
disposal section of the regulation.

Is it safe? According to EPA, "When sewage sludge is not used to condition the soil or to fertilize
crops or vegetation grown on the land, the sewage sludge is not being land applied. It is been
disposed of on the land. In that case, the requirements in the subpart on surface disposal in the
final part 503 must be met." (FR. 58, 32, p. 9330)

However, the exceptional quality sewage sludge fertilizer is too dangerous to be disposed of in a
part 503 surface disposal sanitary landfill, it must be disposed of in a solid waste sanitary landfill
under 40 CFR 257/258.

Under part 503, only the least dangerous sewage sludge may be disposed of in a sanitary landfill,
that is sludge with less than 73 ppm of Arsenic, 600 ppm of chromium and 420 ppm of Nickel. (40
CFR 503.23, Table 1)

Part 503 is even more restrictive within 25 meters of a surface disposal sanitary landfill boundary.
The pollutant concentrations must be less than 30 ppm of Arsenic, 200 ppm of Chromium and 210
ppm of Nickel. (40 CFR 503.23, Table 2)

Now EPA is starting to shift the blame for open dumps to the states, "EPA's role in the management
of industrial nonhazardous Waste [sludge] is very limited. Under RCRA Subtitle D, EPA issued
minimal criteria prohibiting "open dumps" (40 CFR 257) in 1979. The states, not EPA, are
responsible for implementing the "open dumping criteria," and EPA has no back-up enforcement
role." (FR. 62, 19, p. 4284, January 29, 1997)

Yet, the States no longer accept any responsibility for your protection. As an example, in a letter to
Kansas City, Missouri, the State Department of Natural Resources attempted to wash its hands of
the open dumping problem, "These (wastewater treatment plant) inspections did not address
compliance with EPA sludge regulations under 40 CFR 503. These regulations are
self-implementing and directly enforceable [by who?] without being included in your state operating
permit." (Dettman, June 23, 1994).

While EPA measures the pollutants in sludge on a dry weight basis (mg/kg), there are no
restrictions on the disposal of the "exceptional quality" sludge fertilizer pollutants, Arsenic,
Chromium and Nickel up to 10 meters from our water sources, even when sludge is disposed of at
98 percent liquid. If the "exceptional quality" sludge fertilizer has been designated "Class A" (for
pathogen reduction), there are no disposal restrictions. (part 503.14,& 503.15)

The EPA has allowed the use of sewage sludge on food crops since the first solid waste regulation
(40 CFR 257) was released in 1979, before it knew how toxic the sludge could be to humans. Only
Cadmium and PCB's restricted the use of sludge in the 1979 regulation.

The EPA has actually promoted the use of toxic sewage sludge on lawns, gardens and food crops:
by statement (1981), by policy (1984), and by regulation (1993). (EPA report SW905, WH-595, 40
CFR 257 et al./503)

Yet, EPA claims there has and will be about 500 + cases of adverse health effects (high blood
pressure) each year from the open dumping of sludge as a fertilizer vs less than 1 case of adverse
health effects from sludge disposed of in a legal sanitary landfill. (FR. 58, 32, pp. 9374, 9375)

EPA acknowledges that exposure to a pollutant through the food-chain, "-- could, on the basis of
information available to the Administrator of EPA, cause death, disease, behavioral abnormalities,
cancer, genetic mutations, physiological malfunctions (including malfunction in reproduction), or
physical deformations in either organisms [people] or offspring [children] of the organisms
[people]." FR. 58, 32, p. 9389 -
part 503.9(t)

Not only that, but according to EPA, "The term "toxic pollutant" is not used in the final part 503
regulation because this generally is limited to the list of priority toxic pollutants developed by EPA.
The Agency concluded that Congress intended that EPA develop the part 503 pollutant limits for a
broader range of substances that might interfere with the use and disposal of sewage sludge, not
just the 126 priority pollutants." (FR. 58, 32, p. 9327)

Furthermore, adverse health effects through the food-chain, such as; death, cancer, disease, etc.
are severely underestimated because EPA would only address the 10 pollutants in the sludge
regulation, of which, three of the pollutants Chromium, Nickel and Arsenic make the sludge too
dangerous to be disposed of in a sanitary landfill. (FR. 58,32, pp. 9362, 9396 - part 502.13 &

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. 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."

In effect, as long as EPA "considers" sludge to be a fertilizer under the CERCLA, not only open
dumps, but hazardous waste Superfund sites can be created. Not only that, but, according to the
EPA, the American public and our children will be forced to accept death, disease, cancer and
other assorted health problems through pollutants in the food-chain with no recourse under the
Federal Laws.

The questions are: how long will the American public and its representatives allow this illegal
activity to continue? Will it only end when our lawns, gardens, cropland and water resources are
too contaminated for any of us to survive?

Public Laws and Definitions
Title 42, The Public Health and Welfare, Public Law 89-272, title III #4004, as added, Public Law
94-580 #2, dated 2-10-1976, and 90 Stat. 2815. #6944. CERCLA, Public Law 96-510, see page
94 Stat. 2767, Title 42 part 9601.

1st Session. Committee Print for S. Prt. 99-215.
The EPA definition of a pollutant is only similar to that of a toxic pollutant in section 502(13) of the
"-- 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
[sludge] at such facility."
"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 (of the RCRA) and which
is not a facility for disposal of hazardous 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." (Domestic sewage exclusion)
"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)
"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." - LSI-