National Sludge Alliance
Charlotte Hartman, National Coordinator
180 Boston Corners Road
Millerton, NY 12546
(518) 329-2120 (phone/fax)

NSA Public Fact Sheet 128

Toxic/Hazardous Sludge Management is State/Local Responsibility


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."

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-