Chapter Eleven
ECONOMIC - LIABILITY AND INSTITUTIONAL ISSUES
The final point of the NRC Report is on the economic, liability and institutional
issues.
(6) economic, liability, and institutional issues".
According to the NRC report which evaluated the economics of residue "risks
perceived by crop producers, food processor and the public...(these do)
persist despite federal (for sludge) and state (for effluent) regulatory
safeguards." (p. 151) However, "The focus of this (NRC) study is on the use
of treated effluents and treated sludge in the production of food crops, and no
comparative assessment is made of the economics of other use or disposal
alternatives for sludge and wastewater." (p. 152)
The report takes this one step further, "As society has continued to reevaluate
and regulate disposal options, agricultural use of sludge is becoming an
increasingly attractive option because of its low cost......" (p. 152)
Does society in this case refer to Congress and some parts of the EPA? who
else could reevaluate and regulate options? Congress did reevaluate sludge
disposal sludge disposal in the oceam and stopped ocean dumping of sludge
because it was destroying the ocean environment. Even though New York City
environmental personnel claimed ocean dumping was preferable to land
dumping of sludge. When ocean dumping of sludge was banned, New York
City had a major problem. Commissioner Harvey Schultz of New York City's
Department of Environmental Protection, explained in a letter to EPA
Administrator Reilly, dated June 5, 1989, that "compliance with the pollutant
standards would be difficult, if not impossible, to achieve." According to the
letter, "no disposal option covered by the proposal would be allowed or
feasible for eighty percent of the City's sludge." In closing, Mr. Schultz urged
Mr. Reilly; "Considering the economic and environmental importance of these
regulations, the large volume of potentially beneficial sludge affected, and the
cost and paucity of landfill space, I urge you to devote the necessary
resources to revise 503 in accordance with the best available technical
information."
According to a recently released fact sheet on the 128,000 acre sludge range
at Sierra Blanca, Texas, it would appear that what Mr. Schultz really said, was
New York City has a disposal problem for 130,000 dry tons of sludge annually.
Forget safety, help us get rid of it.
Mr. Schultz was successful with his plea. The EPA revised the regulation to
allow all but six percent of New York sludge to be dumped on crop and ranch
land in Texas, Arizona, Colorado and Florida.
According to the NRC report, it costs New York City $800.00 a ton to ship the
sludge out of state. (p. 152) Yet, according to an article in the Waukesha
Freeman dated 5/18/1996 it would only cost the City of Waukesha, Wisconsin
$25.00 a ton to have the sludge hauled off as a fertilizer. Furthermore, the city
is only paying $26.89 to dispose of sludge in a landfill. That is only $1.89 a
ton difference between the two options which is a very small price for the
added safety of disposal in a legal landfill.
Yet, the Wisconsin costs for sludge dumping is even high by California
standards. According to a Pima Gro Systems letter to Imperial County, dated
May 17, 1996, "Throughout California, municipalities are paying from the high
teens and low twenty dollar per ton range for biosolids reuse; disposal into
landfills are often twice these cost."
The question is, why would New York City pay $800.00 per ton to ship sludge
to the western states when other municipalities are paying less than $30.00 a
ton for disposal?
According to the NRC report; economic cropland use of sludge is marginal at
best, unless the POTWs buy the land and become farm operators as many
have. Other POTWs have convinced farmers to buy the sludge, some give it
away and still others like New York City pay a very stiff premium to have
contractors dispose of the sludge.
However, according to the NRC report; "A farmer considering the use of
reclaimed wastewater or sludge will initially have several concerns, including
the potential health risks to family and employees, potential toxic effects on
plants, long-term detrimental changes in physical or chemical properties of the
soil that may affect crop production, the potential liability associated with the
sale or consumption of crops grown using wastewater and sludges, and the
fear of liability for contamination of the land with hazardous waste. Sewage
sludge is not listed as a hazardous waste under the Resource Conservation
and Recovery Act (RCRA) unless it exhibits characteristics that make it a
hazardous waste and prevent its beneficial use (EPA,1993)." (p. 155)
The last quote by the NRC is very misleading. While the sludge is not listed as
a hazardous waste, the regulated pollutants are toxic and hazardous
substances, and as noted earlier, the EPA claims a release of toxic and
hazardous substances at a Superfund Site is excluded from the CERCLA
because it is a federal permitted release. The EPA statement implied that
sludge would be placed on the Superfund site, which is not the case.
In reality, when the hazardous substances in sludge build up to a specified
level for the pollutant, the hazardous substance automatically becomes a
listed hazardous waste. In effect, one application of sludge
too many and a beneficial sludge use cropland site becomes a Superfund site.
The NRC report pointed out that common law liability could arise under the
product liability doctrine (the EPA does claim sludge is a commercial fertilizer).
Accordinng to the NRC study, if it is not handled properly, it can damage
human health, because, "Sewage sludges are recognized as potentially
harmful because of the chemical pollutants and the disease-causing agents
they may contain". (p. 121)
Why would we need to resort to common law liability? Staff Attorney Sheehan
of Attorney General Janet Reno's office has answered the implied question, by
stating in a letter, dated Aug. 5, 1995, that the Department of Justice does not
have any jurisdiction in environmental matters and all complaints are
automatically referred to the EPA. Yet, even when the EPA Inspector
General's Office acknowledges a municipality is violating a federal law, as it
did with Kansas City, Missouri, it states the EPA does not have any jurisdiction
to enforce violations of federal laws associated with these sludge dump sites.
According to the EPA IG's Office, the only thing it can do is keep the EPA
grants open until the violation is corrected which is not a major problem for the
municipalities.
The NRC study implies that existing regulations of the EPA (solid waste), the
FDA, and USDA overlap to provide for any shortcoming in the Part 503 sludge
regulation for protecting human health. In addition, the study implies that state
and local agencies can take regulatory action, and the consumer is protected
under the common law provisions. Furthermore, the study implies that the Part
503 Rule is the law (p. 138).
In reality, all of the Federal Regulations are only guidelines, that specify the
requirements needed to meet the Federal laws. Unfortunately, as noted
above, that's not necessarily the case. Furthermore, health departments do
not have the statutory authority to investigate any health complaints
associated with EPA or State sanctioned sewage sludge dump sites, unless,
as in the case of Washington State, they are responsible for the dumping and
therefore, they will not investigate any complaint.
In effect, any toxic contaminated products which would damage consumer
health would be the problem of the food processor or the restaurant or the
consumer's own fault, because of the failure to properly prepare the food.
The only legal remedy, by regulation, available for stopping sludge dumping
under part 503 (CWA, section 405) to protect human health, where a State
allows the illegal dumping, is for Counties to ban the use of sewage sludge on
farm and ranch land as the study noted under the provisions of the CWA,
section 405. (p. 161)
This is a particularly important point to consider since the state agencies that
go along with sludge dumping are not concerned with the regulation or the law
- because the EPA has approved the dumping and it is responsible for the
compliance and enforcement of the sludge regulation.
As an example of "Inappropriate Behavior", the Texas Natural Resource and
Conservation Commission (TNRCC) recently (10-2-1995) registered a
beneficial use application site for sludge or septage (No. 710725) near
Laredo, Texas. According to TNRCC, this is not a permit. Furthermore,
according to the TNRCC, EPA is actually responsible for compliance and
enforcement of the Part 503 regulation at the site. Yet, the TNRCC approved
the dumping of sludge from a drinking water treatment plant, which is not only
a violation of Part 503, but a violation of its own solid waste law as well as a
violation of the federal solid waste regulation Part 258.
And it is certain at this point, that no state or government agency wants to find
a problem with sludge. The personal as well as agency liability would be of
unheard of proportions under the common law liability provisions of the
Constitution.
Where can one turn for Justice when neither the State Environment
Departments or the EPA are concerned about the individual's health, the
regulation or the law?
The Federal Department of Justice Staff Attorney Sheehan, as noted early,
claims it has no jurisdiction and refers any complaints to the EPA. The
Inspector General's Office claims too much money has been spent on sludge
disposal sites to question the EPA policy or regulation. The States are not
concerned because the EPA has authorized the illegal sludge dumping.
However, it gets worse, a number of States have passed False Disparagement
of Perishable Food Products laws which virtually guarantee the prevention of
lawsuits based on damage from the use of sludge or even questioning the
possibility that sludge could be harmful to food production.
In effect, a person can't even raise the question that sludge used as a fertilize
might harm food production or in fact damage individual health without raising
the possibility of a civil lawsuit by a land owner or the dumper, unless he has
scientific proof that the damage was caused by sludge.
Apparently, this NRC study is designed by the EPA's Compliance and
Enforcement Division, Water Environment Federation and Powell Tate to be
the ultimate court document for anyone who files a civil suit under the new law.
If the complainant does not have the scientific evidence to back up the court
action, the complainant can be sued by every individual who is using sludge
on farmland.
Furthermore, while the NRC report pointed out the Common law provisions to
protect the consumer from polluted products, it is generally only available after
the fact. Usually someone has to die, as in the case of a Salmonella outbreak
from eating contaminate meat. According to a report to the Springfield District
Farm Credit Council: Risks Arising from Land Application of Sewage Sludge on
Northeastern Farmland, Benbrook Consulting Services, 1993, "A
microbiologist in the Northwest I spoke to offered the view that the
Jack-in-the-Box contamination incident may have occurred as a result of
sludge applied to pasture land." (p. 9)
While this may not have been a scientific report as such, it is a realistic report.
There have been media reports from across the country of cattle's health
being damaged by pollutants from sludge sites. When health departments can
not identify the cause of cattle deaths, the contaminated, but apparently
healthy cattle will be sold off and enter the human food chain.
Not only that, but the Ohio Study documented a (WHO. 1981) study, "....of
Salmonella in cattle grazing on sludge amended pastures in Switzerland
(which) have indicated a positive association and a cycle of infection from
humans to sludge to animals to humans."
Health departments would not normally relate such a Salmonella outbreak
back to the farm environment, since, according to the study, "The USDA
requires mandatory inspection for all meats and meat products under 9 CFR
301-335 and has the enforcement capability to act on criminal offenses.
However, since meat is a perishable commodity, improper preparation or
handling of meat can encourage the growth of pathogens (disease causing
organisms) and toxic substance (?) even after inspection. Therefore,
consumers need to be educated as to the hazards involved in meat
preparation and cook meat thoroughly...No regulatory program can be
expected to eliminate this risk, and vigilant cooking practices are necessary for
health protection regardless of whether a beneficial sludge or wastewater
program is in effect." (p. 168)
In effect, if a rancher or dairy farmer's cattle are dying from some sludge
pollutants (unknown cause) and the relatively healthy appearing (diseased
cattle) cattle are sold for human consumption, and a consumer becomes sick,
the consumer is to blame, because the food wasn't properly prepared.
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Review of National Academy of Science's (NAS) 1996 literary review report by
its National Research Council (NRC) Committee :
"Use of Reclaimed Water and Sludge in Food Crop Production"
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