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Toxic/Hazardous Sludge Management is State/Local Responsibility

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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 128

Toxic/Hazardous Sludge Management is State/Local Responsibility

4/13/2002

EPA Assistant Administrator Mehan’s statements about local control of sludge disposal have left State regulators in a very precarious position. However, the Safe Control of sludge disposal has always been a State responsibility. No State has ever submitted a solid waste or sludge management plan to the EPA for approval. The States have always had the responsibility to comply with
the Federal Environmental laws.

The States’ people involved in the sludge issue have a right to be concerned
with Mehan’s attitude. Many States changed their solid waste laws to comply
with the EPA’s court ordered sludge policy, the part 503. The Court Order
guideline policy took the responsibility from the EPA. Yet, the Attorneys General in several States signed on with EPA to take responsibility for
sludge disposal without going through the proper legislative process. Some
States have allowed the States’ Health Department to issue permits for sludge
disposal on farmland. Still other States have allowed the sludge disposal
under the self-permitting part 503 — with the assurance that EPA would
issue the permits and enforce its rules.

Congress laid out the cradle to the grave pollution prevention laws for EPA
to enforce. Congress included sludge in the Resource Conservation and
Recovery Act (RCRA) as a solid waste because it was hazardous.
  In 1989, EPA warned that sludge could be a hazardous waste when it said,
“…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” (Preamble to 503, FR. 58, 32, p.9258). (NSA Fact Sheet
#101)

“Yet [1993], EPA created a raging scientific debate over how much of the
nine
threatening toxic metals in sludge it would take to harm public health and
the environment. EPA even removed all references to Chromium (a
carcinogen) from the beneficial use section of its sludge policy and no one
asked why. Not only that, but EPA claims it has little or no data on airborne
toxic contamination, even though 5 of the chemicals it proposed for
regulation in 1989 were acknowledged cancer causing agents by
inhalation.”
(NSA Fact Sheet 123)

“Since 1981, EPA has claimed sewage sludge was safe for use on food
crops.
Yet, at that time the methodology was not available to test for dioxins. The
EPA still does not have a human health risk assessment model in place. The
Peer Review workshop is only now (March 1997) being held. (Jan, 1997-FR. 62,
p. 8241, 42)” (NSA Fact Sheet #109)

On April Fools Day, 2002, EPA and its partner (AMSA) signed an agreement to
set the dioxin level in sludge at the 99 percentile level. What this means is
that 99 percent of the sludge from the samples surveyed would be eligible to
be disposed of as a fertilizer. Since the norm is to average seven sludge
test samples for each number they give out, the public has no idea what the
actual test results were. Not only that, but sludge is so dirty, averaging
seven test samples as opposed to actual test results on a variable material
like sludge could grossly underestimate the contaminants and raises the
question whether the averaging tests could ever be reliably duplicated.

According to a report on the National Biosolids Partnership web site.
“EPA
proposed a 300 parts per trillion (ppt) limit for dioxins in land-applied
biosolids,” based on ” The average dioxin concentration in AMSA’s
2000/2001
Survey is 48.5 ppt-TEQ. All but one of the 200 samples from the survey would
comply, and most go well beyond compliance with the proposed regulatory
standard of 300  ppt-TEQ;”

It is all smoke and mirrors. According to the records, there are
approximately 20,000 publicly owned treatment works and others treating
domestic sewage which were “required” to apply for permits after
part 503 was
released in 1993. (58 FR 9404)

Under the Clean Air Act, Clean Water Act, Resource Conservation and Recovery
Act and Safe Drinking Water Act, Dioxins are on the EPA’s lists of “Air
Pollutants”, “Priority Pollutants”, “Toxic
Pollutants”, Hazardous Constituents”, “Regulated
Chemicals”.

The chemicals are on the lists because, Dioxins attacks the eyes, skin,
liver, kidneys, reproductive system. In animals it has caused tumors of the
liver, lung,
mouth, tongue, and skin cancer. It is known to cause lymphomas in humans.

For these reasons, NIOSH recommends that dioxin be limited to the lowest
concentration possible. North Carolina and South Dakota set the exposure
limit for air at zero, which is also preferable for the limit in water.

However, currently, it appears that there is no standard method available to
determine the amount of dioxin in air. There are tests from emission sources
just no standards in 503’s for sludge processing facilities or land
application.

The purpose of the agreement was to allow the EPA to continue its program of
using sludge as a fertilizer without controlling the runoff of
toxic/hazardous chemicals and pathogens into the waters of the United States.
In effect, this agreement was: “In order to prevent a future lawsuit over
this issue, under the Agreement EPA commits to review the CWA 405(d)
regulations to identify additional toxic pollutants, if any, that may warrant
regulation.”

The agreement allows EPA to violate the CWA. “In exchange for these
commitments, the citizen [partners] plaintiffs, NRDC, and AMSA agree not to
sue EPA for failure to comply with CWA 405(d)(2)(C), preventing additional
litigation. The Agreement preserves AMSA’s right, however, to intervene in
any CWA 405(d)(2)(C) lawsuit that may be brought by another organization.”
http://www.amsa-cleanwater.org/advocacy/dioxin/dioxin.cfm

Wasn’t a similar agreement signed with EPA when the NRDC sued EPA to stop
ocean dumping? Who gave these people in EPA, NRDC, and AMSA the right to
create an agreement for EPA to violate the CWA 405(d)(2)(C) provisions which
put the farmers and public at risk?

Sometimes, if we didn’t know better, it appears that neither EPA scientists,
public sector scientists, or lawyers associated with sludge have completed
any basic research. Nor do they appear to understand the nature of the 10
original toxic / hazardous heavy metals listed in the final part 503 and what
they should be called.

The question is, how and why EPA could get so far off track? “Title 42,
Public Health and Welfare, Public Law 89-272, tparts 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. Part. 99-215. The EPA part 503.9(t) definition of a
pollutant is 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.” (NSA Fact Sheet #100)

Manipulation of the laws was done with a giant loophole and linguistic
detoxification.   Rename sludge /biosolids call it a “
fertilizer” and toxic
sludge can be recycled as a “beneficial use” that transfers the
liability
from polluters to the public. Rural America was targeted to solve a major
urban waste disposal problem. Rural America is the last frontier for EPA —
an uncontrolled dumping ground for creatibg non-point source pollution. Once
sludge is put on the land, neither the EPA nor the States care were
the toxic / hazardous constituents go or how much damage they cause.

It would appear that EPA and its partners would like us to believe they have
never read the environmental laws they are mandated to enforce. Nor have they
read the scientific documents, which caused these laws to be enacted. The
alternate position is that EPA and its partners set out to put into practice
a policy of expediency and “lest cost disposal.”  At the
expense of our farmland and farmers, which in turn puts the public and the economy at risk.
Farms have been destroyed.
Our food, water and air are contaminated, and our people are dying. All we
have to
do is look at the RCRA, and we know sewage sludge (biosolids) is a hazardous
waste.

Resource Conservation and Recovery Act (RCRA) TITLE 42 – THE PUBLIC HEALTH
AND WELFARE  Sec. 6903. – Definitions
(5) The term ”hazardous waste” means a solid waste, or combination of solid
wastes, which because of its quantity, concentration, or physical, chemical,
or infectious characteristics may –

(A) cause, or significantly contribute to an increase in mortality or an
increase in serious irreversible, or incapacitating reversible, illness; or
(B) pose a substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed of, or
otherwise managed.

(27) The term ”solid waste” means any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control
facility and other discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial, commercial, mining, and
agricultural operations, and from community activities

A few people at EPA have done a lot of damage under the guise of complying
with the Clean Water Act. However, “Congress never intended for the Clean
Water Act to be the primary enforcement tool for the regulation of sludge:
“(1) Purpose – This section was not intended to be [the] primary source
of
regulation of sludge but was intended as [a] cautionary measure to provide
additional protection against dangers to navigable waters caused by disposal
methods unregulated by section 1311 of this title, i.e. careless land
disposal and deep ocean dumping of sludge from vessels. —” (Title 33,
part
1345, note 1)” (NSA Fact Sheet #104) -LSI-