DEADLY DECEIT
CHAPTER TEN
LIABILITY OF THE FARMER
When Kansas City got a court injunction to put a gate across a public street in order to restrict
access to neighbors of its 1200 acre sludge site, because it thought several youth groups might
be allowed to use the land, it became very clear that the scientific approach to sludge disposal
has been used by the EPA to "evaluate its regulations for aggregate national health impact"
rather than to protect those people who work or live on or near the sludge application sites.
Dr. Gail Bynum and I decided to do a little more basic research. What we discovered was that
liability is the sludge industry's major concern, as pointed out by Hugh Kaufman, at the conference
on the "Dangers of Sludge", November 15, 1997, at the Franklin Pierce Law Center in Concord,
N.H.. Kaufman, who has been with EPA from its inception, and help write the laws on waste
management, the RCRA and Superfund Act and related Amendments, laid the facts on the line for
farmers: ...
industries can make a lot of money by transferring the
liability of that waste (sludge) from those industries
to the taxpayers, there are companies like Wheelabrator,
like RMI, Like BFI, that get paid substantial amounts of
money to transfer that liability to the lowest common
denominator in society today, and that lowest common
denominator unfortunately are farmers. When push comes
to shove, farmland and farmers end up at the end of the
food chain. The health of farm land is not as important
in public policy in the United States as fish in the
Atlantic Ocean.
On top of that, unfortunately, the federal
government has a policy now of allowing the use of
Superfund waste ---Superfund, being the program where we
have toxic facilities that are so dangerous, hundreds of
million dollars have to be spent to dig them up--to run
the Superfund waste through the wastewater treatment
plant where the plants basically take the Superfund
waste out of the water and transfer it to the sludge,
and then take that Superfund waste that's in the sludge
and land apply it to grow food. That's happen here in
New Hampshire, its happening all over the country.
In fact outside of Denver, Colorado, plutonium
waste, which is in the Superfund site, and it came from
the Rocky Flats nuclear reservation, went to the Lowery
landfill. That waste will be run through the waste water
treatment plant in Denver so the plutonium waste will
end up in the sludge, and that sludge will be used to
grow wheat that will go into intrastate and
international commerce.
So what we have is, we have the federal government
as a matter of public policy, not as a matter of
science, promoting the least-cost disposal, which is
putting the problem of liability of Superfund clean-up
waste, which is industry's problem, also on the back of
the farmers, as well as industries doing it directly.
This is a political battle, this is not a science
battle. The science is in. A recent decision this
summer by the Fifth Circuit Court of Appeals, the United
States government, has rendered the highest level U.S.
Government opinion based on science, on the land
application of sludge. They ruled, three Judge panel,
that there is no consensus among the experts on the
safety of sludge, there is no consensus. That was based
on three appellate court judge panel, and the Fifth
Circuit Court of Appeals, is the most conservative
appellate court in the United States. So they ruled
there is no consensus. Now, the public has to determine,
if there is no consensus about the safety in the minds
of the experts, whether they want to take the liability
and the risk. And that is the politics of sludge.
Ellen Harrison, primary author of Cornell's study, A
case for Caution, brought up another major point about
farmers liability at the conference, the EPA's
beneficial use propaganda line that farmers will not be
liable if a superfund site is created on the site,
because it is a fertilizer. She noted, "In fact, in
talking to a lawyer with the California Farm Bureau, his
interpretation was that,...if there is some kind of
clean-up problem that might be associate with sludge--if
there were, that farmer would likely be sued or
prosecuted under a different piece of law, some kind of
state law or you couldn't sell the property for
residential purposes."
Kaufman affirmed it would be, "Imminent hazard under
RCRA Section 7003 [the federal waste disposal law]."
Ellen Harrison, "Okay. And then in fact what it would
do, would be prevent the farmer from going after the
generator under Superfund?"
Hugh Kaufman, "That's correct. It's not as advertised."
Harrison was partial right, it is not just residential. As in our case, the City of Kansas City used the
courts to stop the sale of neighboring property for public use purposes.
According to EPA documents, they had good reason too, According to EPA:
The benefits of using sewage sludge to improve land
productivity are substantial. However, if sewage sludge
containing high levels of pathogenic organisms (e.g.
Viruses, bacteria) or high concentrations of pollutants
is improperly handled, the sludge could contaminate the
soil, water crops, livestock, fish and shellfish.
The major human health, environmental, and aesthetic
factors of concern in the land application of sewage
sludge are related to pathogens, metals and persistent
organic chemicals content, and odors (p.5755).
Under Part 503 the EPA's 20 year old policy has now
been a "legal" regulation for 8 years. In some cases it
doesn't even require a permit to dump sludge (sorry, that's
fertilizer), just a statement that it is for beneficial use.
EPA knew the fertilizer would kill a few scattered farmers and livestock
but that is not a problem, they have to prove the connection.
If a Superfund Site is created, that is not a problem, it is
permitted by Part 503 and there is no liability. Of course
the land is destroyed, but that is not a problem, if the
farmer and his family are still alive, they should have been
paid enough to offset the cost of the land.
In spite of all the EPA/WEF rhetoric about the lack of
danger to the health of the farmer from sludge use, sludge,
fertilizers containing hazardous waste put farmers at risk.
In the book, TOXIC DECEPTION (1996) Dan Fagin and Marianne
Levelle, and the Center for Public Integrity, cited research
done by Aaron Blair and Sheila Hor Zahm, at the National
Cancer Institute, "who have conducted at least seven studies
of farmers (a population that by most measures is healthier
than the rest of us)," which showed increased cancer among
farmers. They quoted the researchers as saying, "we found
unexpectedly high rates of lukemia, Hodgkin's disease, non-
Hodgkin's lymphoma, multiple myeloma, and cancers of the
bone, brain, connective tissue, eye, kidney, lip, pancreas,
prostate, skin, stomach, and thyroid." (p. xvi)
Is it any wonder then that, Edward Kleppinger, a former EPA employee who wrote
hazardous waste rules, told Seattle Times reporter, Duff
Wilson, "The last refuge of the hazardous-waste scoundrel is
to call it a fertilizer or soil amendment and dump it on
farmland."
Speaking of hazardous waste scoundrels.
Non-medical type personnel in the EPA and on
the State level are making decisions and formulating new
regulations concerning human and animal health based on the need to
dispose of sludge rather than the protection of individuals
and the environment. These non-medical type personnel both
on the Federal and State level have more
statutory power than the Federal or State Departments of
Health. In effect, the health departments do not have the
authority to question Federal or State environmental
departments concerning the disposal of toxic contaminated
sludge;
Health departments have long known the problems that would be associated with sludge. As an
example:
In their paper, Ground-Water Contamination and
Remediation in New Mexico, 1927-1992, published in the
Journal of Proceedings of the New Mexico Conference On The
Environment, September 13-15, 1992, Dennis McQuillan and
Natalie Keller, senior staff members of the New Mexico
Environmental Department, reported that centralized sewage
treatment works and landfills were the major source of non-
industrial point sources of pollutions. The pollution from
these point sources consisted of nitrates, halogenated and
aromatic solvents, petroleum hydrocarbons, metals,
radionuclides, and/or TDS, chloride and chlorinated solvents.
They reported that between 1927 and 1992, 815 cases of
ground water contamination had been identified in New Mexico.
According to the authors, "A disturbing number of
contamination cases are being discovered in areas where the
depth to ground water is between 200 and 600 feet, suggesting
that depth to water may not be as important for aquifer
protection as widely believed." (p. 44)
The authors noted that "Depth to ground water has long been used as an
indicator of aquifer vulnerability in risk and priority
models." Yet, "These discoveries suggest that aquifer
recharge in areas of deep ground water may be occurring more
rapidly, and at greater magnitude, than is widely believed.
Areas of shallow ground water are clearly vulnerable to
contamination. Deeper ground waters, however, are not as well
protected as many believe them to be." (p. 53)
In their Conference paper, Environmental Racism: The
Poisoning of Communities of Color, Michael Guerreo and Louis
Head, revealed a number of cases of people victimized by the
groundwater contamination in the southwest. One was "Betty
Griego of the Mountainview community south of Albuquerque
[who] spoke of how her child nearly died in her arms from
drinking excessive amounts of nitrates in water used to
prepare his formula. She and others spoke of the struggles to
hold potential polluters of the ground water accountable,
including the highly suspect Kirland Air Force Base."(p. 445)
Another example is cited from a letter dated April 6, 1998, Rob
Atwill, a professor with the School of Veterinary Medicine,
University of California-Davis writes of the danger of
pathogens in sludge:
We veterinarians are all too aware of the ability of
trucks and our own boots to move pathogens between
locations. Large numbers of wildlife, particularly
birds, such as flocks of blackbirds or cowbirds, can
quickly transmit pathogens between a nearby field and a
dairy. Application of biosolids [sludge] to animal
forage crops such as alfalfa can likewise expose our
food animals to human pathogens. Animal consumption of
water contaminated with sewage discharges has been
associated with Salmonella being transmitted from humans
to poultry in Southern California. The incident resulted
in a large outbreak investigation by the California
Department of Health Services, California Veterinary
Diagnostic Laboratory System, and the California
Department of Food and Agriculture.
Professor Atwill warns, "In addition, many of these
pathogens can be transmitted to livestock, such as dairy and
beef cattle. These pathogens can replicate in our livestock
populations and become a meat-borne or milk-borne human
health risk."
German researcher, D. Strauch, in his 1991 paper, "Survial of pathogenic
micro-organisms and parasite in extreta, manure and sewage
sludge" reported that two groups of researchers had found
that pathogenic disease organisms will be taken up inside the
food crops. In other words, it will do little good to wash
the outside of fresh vegetables and fruit when the pathogenic
bacteria, viruses and worms from the sludge can be inside the
plant. Strauch concluded in his report that, "In any case,
the agricultural utilization of hygienically dubious sewage
sludge poses a risk for the whole national economy."
All we had to do was look at Walker and Bastian's debunking
list to know we were all in deep sludge. Number 13 on the list
to debunk is, "Raleigh, NC --dead
cattle from nitrate poisoning due to high nitrogen content.
Forage was not mixed with other low-nitrate fodder as advised
by the POTW (Public Owned Treatment Works)."
In effect, the EPA is saying that the POTW knowingly
sold or gave away contaminated animal fodder that would cause
the death of any animal who ate it, if it was not diluted
with less contaminated fodder.
If the EPA allows contaminated crops to be sold by POTWs
when they know it will harm public health and the
environment, how safe are the crops grown on the large City owned or
contract farms such as the 15,600 acre
site the Metropolitan Water Reclamation District of Greater
Chicago has been operating for 20 years in Fulton County
Illinois? Sewage sludge is applied at that site to condition
and fertilize strip-mine spoils to produce crops, such as
corn, which are sold as animal feed or for alternative fuel
production, (FR.58.32,p.9260).
Then we have the 1,200 plus acre Kansas City sludge farm, the 50,000 acre
Denver radioactive sludge farm and the 128,000 acre New York City
hazardous waste sludge farm in Texas. These are the people EPA is pushing to
spread the word that sludge use is safe for the small farmer, who of course will lose his shirt, if not
his life, in the long run.
While in theory, the farms are used to grow animal feed such as corn, if the corn is sold to an
elevator, it could just as easily become corn meal. As a general rule crops grown on sludge
amended farms, such as soy beans or wheat, are sold directly to elevators (grain buyers) without
any testing.
The most alarming thing we found about the Missouri DNR's lack of interest in sludge disposal is,
according to newsletter, SLUDGE, "Arnold says farmers in Missouri only use biosolids (sludge) for
animal feed." John Bozarth, Kansas City's former sludge coordinator said the same thing.
However, in checking with a local grain elevator operator (grain buyer), it would appear they forgot
to tell the farmers who grow corn, wheat and soybeans on the Kansas City sludge site. The
farmers take the crops to the local grain elevator operators, who are not aware the crops are
grown for animal feed only.
As the public discovered in the genetic grain scandal, grain buyers do not generally have the
storage facilities to separate animal feed from grains destined for human consumption. Therefore,
the farmer who grows animal feed only would have no market.
Milwaukee has been selling this dangerous sludge material to the public as a fertilizer since 1926.
Before 1985, the tannery waste chromium in Milwaukee's sludge fertilizer, Milorganite, was "Listed"
by EPA as a hazardous waste. In 1985, EPA began promoting the use of hazardous waste as a
fertilizer without warning the farmers or the public of the adverse human health effects
associated with the dangerous materials and now Milorganite is a safe Class A fertilizer with high
levels of chromium (with warning labels?)
This lack of responsibility and regulation by the states
has worried some bankers since the final Part 503 regulation
was released on February 19, 1993, On November 29-30, 1993,
the Springfield District Farm Credit Council, Springfield,
Massachusetts, held a symposium on, Minimizing Risks and
Sharing Liability From Application of Sludge and Sludge By-
Products on Agricultural Land.
The symposium was attended by all sectors of the sludge
industry, environmentalists and other interested persons,
except farmers. The number one, "Point of Agreement: [was]
Under current law, landowners, farm operators, and lenders
are potentially liable for risks arising from the application
of biosolids, unless someone else assumes such risks through
a clear and legally enforceable mechanism." (p. 5)
According to the Symposium report, Farm Credit was
concerned that a farmer who used sludge, "might suffer
financial losses, be required to take remedial steps, or be
held responsibility by an agency of government or court, for
alleged or actual damages arising as a result of biosolids
[sludge] application."
The main points of concerned were:
Farmers and/or lenders may be held liable for:
* changes in the value of the land, for example...
-- contamination may impair productivity of the farm
-- farmers may be restricted from growing certain crops
-- landowners may have difficulties selling land treated
with biosolids.
* clean up cost associated with decontamination of the
land and with future preventative measures
* legal cost and damages associated with lawsuits
* related health problems suffered by the farm family,
livestock and pets, and neighbors or others who might
come in contact with biosolids applied to private
lands. (p. 6)
According to Dennis Connolly, an insurance advisor to
the National Farm Credit Council, "-- the industry views
these risks with "a somewhat poisoned eye," since it recently
paid out over a billion dollars in liability claims for
damages from asbestos, a product the government once
considered safe and even promoted to enhance energy
efficiency." (p. 7)
One of the major risks to farmers was pointed out by a
Participant. He noted that, "on fields receiving lime-
stabilized biosolids products, the need to monitor the
saturation of certain cation exchange bases. He said that if
more than 80 percent of a soil's exchange capacity was
saturated by the calcium in biosolids, future crop yields
could be jeopardized because other essential plant nutrients
might be in short supply. In his area of operation and at the
rates his company applies biosolids, this degree of base
saturation has occurred after as few as two years of land
application." (p. 16)
According to the report, "Participants also addressed
another key question: Who is liable if someone alleges harm
from biosolids applied to land, when the biosolids product
itself and the application was made in full accord with state
and federal law and regulations?"
In a footnote, the report states, "* Since the
symposium, word has been received from Dr. John Walker that
EPA finds "... that farmers (and their lenders) who use
biosolids in accordance with the Federal regulations are
protected from CERCLA liability and any enforcement action
from EPA." Cited is a September 27, 1993, letter from Martha
Prothro, EPA acting assistant administrator for water, to
Congressman Gary Condit." (p. 7)
Like the bankers, some industry people have also been
extremely concerned about the lack of protection in EPA's
Part 503 regulation. In a letter dated May 4, 1995, J.
Patrick Nicholson, Chief Executive Officer for N-VIRO
International, a company that uses sludge and lime to make a
soil amendments, expressed his serious concerns about EPA's
indifference to public health and public responsibility
questions, relative to Part 503. The letter was addressed to
Michael B. Cook, Director of EPA's Office of Wastewater
Management. In the letter Mr. Nicholson pointed out, in a
nice way of course, that EPA was lying when it said "--there
is little, if any, evidence of inadequate management of
sludge, or any evidence of problems caused by sludge
practices." Mr. Nicholson identified 3 major problems.
1. In 1994, Lake St. Clair and the southern end of Lake
Erie were closed to the public due to fecal coliform
contamination. The sources were identified as non-point
source discharge pollution cause by improper land
application of manures, sludges, and chemical
fertilizer.
2. "Mt. San Diego" (ABC's PRIMETIME) is a national monument
to the lack of state and local enforcement. And this
travesty occurred in California, a state with one of
the strongest records for environmental protection and
enforcement in the nation. Other management practice
problems can be readily identified.
3. The National Research Council, the USDA, and others
have correctly identified improper soil management
practices, including the management of sludge, as the
primary cause of current water pollution, yet today,
USEPA is exerting only limited effort in dealing with
the issue of non-point source discharge pollution, and
current permissive 503 land application practices are a
major cause of such pollution, particularly where
year-round land application is tolerated.
Mr. Nicholson also hit the heart of the health problem
issue for the people of Franklin, Kentucky, where 385 to 500
tons a day of untreated sludge were being brought in for
storage and composting, when he wrote:
There is no evidence that such sludges (Class B) are
safe from infectious organisms. In fact, the evidence,
including our own testing of Type B sludges, indicates
recontamination over time, especially with salmonella.
Unrestricted open storage is a potential public health
menace. Even type A sludge products, with 2,000 times
more stringent standards, should be placed in a
contained area. We charge that any less stringent sludge
storage management practice is absolutely wrong and a
threat to public health.
Mr. Nicholson also pointed out the EPA's deceptive practices:
At the October 1994 Chicago conference of the Water
Environment Federation, the Disinfection Committee of
the WEF raised serious concerns relative to public
health issues pertaining to pathogens and the 503
regulations. Dr. Rubin challenged these critics, and
stated that public confidence in the credibility of Part
503 would be greatly diminished if these concerns were
publicized. Have these concerns been addressed
by USEPA? By whom? Where are the reports? If not, why
not?
Now, if you think you could just go out and start raising hell about
E. coli and Salmonella or metals contaminated food products, think again.
The boys at EPA and WEF did a little politicking. According to a
January 17, 1998 editorial in the Kansas City Star, Missouri
Rep. Sam Leake, a Laddonia farmer who chairs the Agriculture
Committee in the Missouri House, wants to protect Missouri
farmers by enacting a "law to impose tough penalties on
people who "disseminate a false and defamatory statement"
about farmers or their products." "Leake's bill would
establish a penalty of three times actual damages for anyone
who "knowingly" makes or disseminates a false and disparaging
statement about agricultural products or an ag producer."
The basic premise behind these laws is that anyone who claims
he/she has been adversely affected from consuming certain
food products has to scientifically prove his/her claim.
At least 13 states have now enacted "food slander" laws
to protect "farmers". Supposedly, these laws were enacted
after it was revealed the carcinogen, Alar, was being used on
apples. Many consumers stopped eating apples and the industry
was hurt. However, it is now evident that this was only an
excuse, which allowed the states to enact laws, which would
protect the states themselves, for failing to protect the
food supply, not only from Alar, but from such dangerous
practices as spreading hazardous waste on farm land.
These laws are not designed to protect the legitimate farmers, who
would never knowingly put such dangerous products on their
farm, where it could destroy the water supply, could enter
the food supply, adversely affect their neighbor, degrade
their land, harm their animals and even their family.
It is a serious concern that most attorneys have never
understood the legal challenges presented by the EPA's
promotion of hazardous waste and sludge as a fertilizer,
In the past, before Part 503, attorneys have had a level playing
field, where each attorney operated under the same set of rules.
Today that is not the case. EPA has created such a complex web
of misinformation concerning sludge disposal the attorneys are
floundering in the legal system. The attorneys can offer little or no
help for the farmer, or the consumer under the current legal
system.
As we have seen, the EPA, states and the state
courts will fight to protect the status quo. What this means
is that the farmer who has adverse health effects or
environmental damage from sludge use, if the EPA and states
have their way, will either be dead or bankrupt, before an
attorney can figure out how EPA and the states, and even
Congress, have twisted and misused the laws to subverted the
justice system. These actions by the regulators and
legislative bodies have placed everyone at risk, and the most
liability falls on our children whose health may be adversely
effected before they are even born.