National Sludge Alliance
Charlotte Hartman, National Coordinator
180 Boston Corners Road
Millerton, NY 12546
(518) 329-2120 (phone/fax)
email: chartmannsa@taconic.net
NSA Public Fact Sheet 100
EPA Overcomes Federal Prohibition Against Open Dumps
1/25/1997
- 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 sludge.” - 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 contain up to 75 ppm of Arsenic,
unlimited Chromium 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, 1996) - 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 acknowledges there has and will be about 500 + cases of adverse health effects 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 & 503.23) - 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. - 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. - The EPA definition of a pollutant is only similar to that of a toxic pollutant in section 502(13)
of the CWA. - “– 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-