Spencer G. Hanes, Jr.

October 30, 2003

INTRODUCTION

The Vermont Law School's reputation as one of the top environmental law schools in the country is supported by its legal and scholarly achievements as well as its composting toilets.  Built in 1997, Oakes Hall[2] is equipped with eight composting toilets manufactured by Clivus of New England.[3]  Not only do the Clivus composting toilets safely treat human waste, but they do so without the use of a single gallon of water.[4]  In fact, since 1997, the composting toilets have not been emptied even once; standing as an example of an efficient, low-cost and clean sewage treatment alternative to traditional sewage treatment plants.[5]  This technology has saved more than five million gallons of water.[6]  Composting toilets are frequently viable alternatives to traditional sewage systems, which use clean water to transport waste and produce toxic sludge as a by-product.  Sewage sludge is toxic because it may be laden with heavy metals,[7] radionuclides,[8] pathogens (bacteria, viruses, protozoa, and eggs of parasitic worms)[9] and a slew of organic chemicals[10] that are not treated by current sewage treatment plant technology in the U.S.[11]   Today, nearly half[12] of the estimated seven million tons[13] of sewage sludge produced annually is applied to farmlands.  However, in October 2003, EPA announced it cannot assure that the application of sewage sludge to farmlands is safe.[14]  After more than a decade of sludge application on farmlands, there is a substantial body of evidence that suggests EPA should reopen its sludge rule to regulate the dumping of toxic sludge on America's farmlands.

 I.  SEWAGE SLUDGE IS A POLLUTANT

In 1972, Congress passed the Clean Water Act ("CWA") to eliminate the discharge of pollutants into waters of the United States by 1985.[15]  Senate Sponsor Edmund Muskie urged his colleagues to eliminate the "cancer" of water pollution.[16]  One of the objectives of the CWA is to "restore and maintain the chemical, physical and biological integrity of the Nation's waters."[17]  In order to meet this objective, Congress created a federal-state partnership for "sewering" much of our nation's municipal and industrial wastes.[18]  Congress determined that sewage sludge was a pollutant in 1972.[19]  In fact, Congress determined that the continued unregulated disposal of sewage sludge in oceans and on land was "unsatisfactory."[20]   Congress recognized the harmful nature of sewage sludge by prohibiting "any pollutant from such sewage sludge entering the navigable waters."[21]  Congress determined that the treatment of wastewater, and the resulting toxic sludge by-product, was a first step in the elimination of water pollution by 1985.[22]  However, after thirty years, we have done little to heed the dangers that sludge inherently poses as a pollutant:

[U]nless a regulatory mechanism was established to control the by-product of advanced waste treatment plants, the disposal of residual sludge could cause a serious problem.  Present practices which permit sewage sludge to be hauled out to sea and dumped or placed in areas on land where it is washed into streams and lakes, without regard to the impact on health and welfare, recreation, fish and shellfish and wildlife, are unsatisfactory.[23]

Although EPA testified that tertiary treatment would be less expensive than land application of sludge,[24] the ultimate resolution of the issue was identified for future study by EPA in 1977.[25]  

In 1977, amendments to the CWA identified concerns about the safety of land applied sewage sludge.[26]  Through the NPDES program, Congress further required permits for the land application of sludge.[27]  However, it wasn't until 1986 that Congress amended the CWA to develop technical requirements or standards for sewage sludge use and disposal through a permit program.[28]  Subsequently, Congress banned the dumping of sewage sludge in our oceans and required proper disposal in landfills by December 31, 1991.[29]  EPA reported that the dumping of sludge in our oceans negatively impacted water quality in coastal zones and also caused the bio-accumulation of toxins in marine life.[30]  In 1993, EPA promulgated the 503 Sludge Rule, which currently allows the disposal of sludge on farmlands, in landfills, and through incineration.[31]  The 503 Sludge Rule has been criticized for only regulating ten pollutants out of the many thousands that are found in sludge.[32]

Since the 1930's, Americans have built a vast network of sewers leading to approximately 15,000 publicly owned treatment works ("POTWs").[33]  POTWs reflect Congress's initial efforts to regulate pollution once dumped directly into our lakes and streams.  Although we certainly know more about the effectiveness of sewage treatment in 2003, sewage treatment technology has not changed in the past thirty years.  The sewage treatment process includes the use of water[34] as a transport medium[35] for human and industrial waste.  The process includes: 1) filtering waste through screens; 2) sedimentation (separation of solids via gravity); 3) aeration (aerobic decomposition of organic materials in clarifieródoes not include metals or many of the synthetic chemicals in waste stream); and 4) clarification.[36]  This process utilizes aerobic decomposition to treat much of the organic materials (nitrogen, phosphorus, etc) in waste.  However, sewage treatment plants are not equipped to treat as many as 10,000 chemicals that are regularly used in the marketplace.[37]  Nor do sewage treatment plants adequately treat pathogens, viruses, bacteria or parasites.[38]  EPA acknowledges the inevitable presence of biologic pathogens in sewage sludge.[39]  In 1989, EPA documents warned: "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."[40]  EPA also identified concerns for ground water pollution in 1986, stating that heavy metals in sludge present "a significant risk if that sludge is to be landfilled or land farmed."[41]

III.  THE DETOXIFICATION OF SLUDGE IN NAME ONLY

In 1993, EPA sanctioned and supported the disposal of sewage sludge on our nation's farmlands.[42]  With two of the largest environmental groups securing the Ocean Dumping Ban Act as a victoryóindeedóas well as avidly opposing incineration of waste, disposal of sludge on farmlands became the de facto solution for the nation's sewage sludge.[43]  Up until this point, however, sewage sludge was regulated as a solid waste.[44]  By providing an exemption in the Clean Water Act, after 1993, previously toxic sludge was pejoratively transformed into "beneficial bio-solids."[45]  What was once a pollutant could now be dumped on farmlands as a "fertilizer" of sorts.  In Toxic Sludge is Good For You, Sheldon Rampton and John Stauber detail the public relations efforts to detoxify the harmful connotation of sewage sludge.[46]  This campaign detoxified sludge mnemonically.  With escalating disposal costs of sewage sludge, the Water Environment Federation[47] hired the Washington Public Relations firm Tate & Powell "to win public acceptance for the beneficial use of biosolids."  Tate & Powell's "Name Change Task Force" created the goal of making "the beneficial use of biosolids non-controversial by the year 2000."[48]  Before finally settling on bio-solids, Tate & Powell suggested the following euphemisms for sludge: "biolife," "bioslurp," "black gold," "recyclite," "nutricake," and "R.O.S.E." or "Recycling of Solids Environmentally."[49] 

The propaganda model that has been utilized by the WEF goes beyond the use of a media consultant to help deliver its message.  It was not simply a matter of making sure that the public understands the nature of the sludge product.  As a 1981 EPA public relations document says: 

The major public acceptance barrier which surfaced in all the case studies is the widely held perception of sewage sludge as malodorous, disease causing or       otherwise repulsive. . . .  There is an irrational component to public attitudes about       sludge which means that public education will not be entirely successful.[50] 

Rather, public relations tactics are used to brand dissenters as "irrational" or "emotional."[51]  As Stauber points out, it is not the municipal waste and its odor that most citizens are concerned about, but the many heavy metals, chemicals, and pathogens that are commonly found in sludge.  It is the concern for the potential health impacts of these pollutants that food safety, community and environmental groups recently petitioned EPA to install a temporary moratorium on sludge application on farmlands while EPA revisits the 503 Sludge Rule.[52]

IV.  SLUDGE: THE CASE FOR CAUTION - THE 1990'S

Although concerns have been raised about the environmental and public health implications of the EPA 503 Sludge Rule,[53] additional empirical and anecdotal information collected throughout the 1990's suggests that toxic sludge is now causing irreparable harm to our nation's farmlands[54] and the public health[55] of adjacent communities.  Concerns for the safe application of sewage sludge are now as old as the Clean Water Act itself.  The EPA sludge policy, however, has not been subject to the same searching scrutiny as other federal programs.  Sewage sludge represents the final pollutant that has yet to be eliminated as called for by the Clean Water Act; it is in fact the pollutant that was left behind.  As a result, so-called biosolids program is no more sophisticated than it would have been if it had been created in 1972.  What the wastewater treatment industry lacks in effective treatment processes, EPA has failed to account for thorough enforcement or further development of regulations of sludge.  For example, in 1990, the U.S. General Accounting Office reported that "(1) continued questions over the sufficiency of resources to fully implement the program, [and] (2) the need to fully develop an effective enforcement program to deter program violations and to bring about compliance when violations do occur."[56]   

In 2002, the U.S. EPA Inspector General ("IG") confirmed that the same deficiencies from 1990 continue today.[57]  The IG found that EPA had committed eighteen full-time equivalent ("FTE") positions to biosolids enforcement in 1998, but the enforcement officials had dropped to ten FTEs by 2000.[58]  It is difficult to understand how a mere dozen officials could be expected to perform the thousands of inspections of POTWs and sludge farms in order to safeguard public health and the environment.  Without enforcement officials to inspect POTWs and the farmlands where sludge is land applied, it is increasingly impossible to determine if the Sludge Rule is safe and effective on a regional or national scale.   

One example of the inconsistency with the EPA 503 Sludge Rule is seen in the inconsistency with which septage is adequately treated for pollutants.  Under the 503 Sludge Rule, more than 12.4 billion gallons of septage generated by 68 million Americans does not have any reporting requirements for land application.[59]   

Elsewhere, hazardous waste has been mixed with fertilizer, called a product, and used as a fertilizer in Quincy, Washington.[60]   One farmer, Tom Witte, reported yields for red spring wheat, silage corn, and grain corn were all down by two-thirds their normal yield.[61]  After six of his cows got sickóincluding three with canceróWitte sent off dust used as fertilizer to an out of state laboratory for testing.  The dust was laced with arsenic, beryllium, lead, titanium, chromium, copper, and mercury.[62]  Dennis DeYoung also applied "fertilizer" from Cenex to his land.  Although DeYoung received $10,000 to let Cenex put its "fertilizer" on his property, the land died and DeYoung defaulted on his mortgage.[63]  Cenex bought the land after the foreclosure. 

In June 2003, a jury returned an award of $550,000 to a farmer whose land was destroyed from sludge application.[64]  The Boyce family applied sewage sludge from the City of Augusta to their farmlands from 1986 to 1998.  Suing for breach of contract, the Boyce's only recovered a fraction of the $12.5 million sought for damages from the sludge poisoning.[65] 

In 1997, EPA approved a Superfund remediation in Denver, Colorado that threatens the underpinnings of the Superfund.  The remediation of the Lowry Landfill Superfund site pumps partially treated runoff from the superfund site and then pumps the water into the Denver sewage system.[66]  Superfund was created in 1980 to address the most toxic releases of waste into our environment through containment and treatment.[67]  With the cleanup of one of the largest liquid hazardous waste landfills in the country carried out through connection to the Denver sewage system, Superfund liability may turn into a thing of the past.  If contaminated waste from the Lowry Landfill can be dumped into the sewage system, polluters will seek to obviate joint and several liability through the public sewers.  In 1999, a Freedom of Information Act Request to EPA Region VIII revealed that as many as 32 Superfund sites were being "remedied" through pumping polluted groundwater into the public sewer system.[68]  The addition of Superfund waste to the public sewage treatment process is yet another reason why greater scrutiny is demanded of the nature and purpose of the EPA Sludge Rule.   

At best, citizens, water quality experts, and industry will continue to speculate about the efficacy of the water treatment process while additional anecdotal reports of illness and death from sludge exposures persist.  These exposures say nothing about the impact on water quality. 

V.  CONCLUSION

The safety of the EPA Sludge Rule has been challenged by a coalition of food safety, community, and environmental groups who lodged a Notice of Intent to Sue on October 21, 2003.[69]  Sewage sludge is not properly monitored throughout the United States.  Neither are the regulations protective of public health and the environment.  Recent reports of illness and additional sources of pollutants in sludge should draw closer scrutiny to the EPA Sludge Policy. In light of information collected throughout the past decade, and the reliance upon Congress' express intent to eliminate all sources of pollution, EPA should support the sludge moratorium.  Sewage sludge has been categorically exempted from other environmental laws, but today it represents a significant source of pollution that enters our nation's waters, our land, and comes in contact with some of our crops. The Vermont Law School's use of Clivus composting toilets presents one solution to the generation and transport of pollution by treating waste at its source.  To be sure, composting is not the panacea to save the world.  However, in light of the growing concerns of pollution of our land, water and possibly our food, composting offers a solution that prevents the use of water for sewage transport and avoids the creation of sludge.  That sounds like a solution that EPA should support while it considers the ultimate fate of sewage sludge disposal on our farmlands.

[1] Spencer G. Hanes, Jr. is a candidate for the Juris Doctor and Masters of Studies in Environmental Law degrees (2004) at Vermont Law School and is the Co-Editor-In-Chief of the Vermont Journal of Environmental Law.  Mr. Hanes worked for the US EPA Superfund and Hazardous Waste Ombudsman located in Washington, D.C. (1999-2001).  Mr. Hanes holds a B.A. in Environmental Studies from the Univ. of Colorado at Boulder.

[2] Oakes Hall, named for the Honorable James L. Oakes who is a Senior Circuit Judge on the Second Circuit Court of Appeals, is a remarkable example of how engineering and environmental values may exist in a cost-effective and environmentally friendly manner.

[3] See Oakes Hall Performance Report, Vermont Law School Website, available at http://www.vermontlaw.edu/life/index.cfm?doc_id=206 (last visited Nov. 16, 2003); See also, Clivusmultrum, Inc. Website, at http://www.clivusmultrum.com/products.html (last visited Nov. 16, 2003).

[4] Clivusmulstrum, Inc. Website, at http://www.clivusmultrum.com/products.html (last visited Nov. 16, 2003).

[5] Id.

[6] Based on average usage of 15 gallons per person (200) per day a traditional building would have used as much as 5,475,000 gallons of water in 5 years. Vt. Agency for Nat. Resources, Dept. of Envtl Conservation, Water Supply Rule, Standards for Water System Design, Construction and Protection, Ch. 21 (June 19, 2003) available at http://www.vermontdrinkingwater.org/wsrules.htm (last visited Nov. 16, 2003).  In contrast, Oakes Hall averages 15.5 gallons of water per day for the entire facility, or 28,287.5 gallons over five years.  Thus, the Clivus composting toilets have reduced the use of water by approximately 99.5% (Although the Oakes building accommodates as many as 300 people per day, a conservative estimate of 200 people per day was used in this calculation.).

[7] Standards for the Use or Disposal of Sewage Sludge, 40 C.F.R. § 503.13 (2003) (pollutant limits for arsenic, cadmium, copper, lead, mercury, molybdenum, nickel, selenium and zinc).

[8] See Washington State Dept. of Health, The Presence of Radionuclides in Sewage Sludge and Their Effect on Human Health (Dec. 1997) available at http://www.doh.wa.gov/ehp/rp/sludge.pdf (last visited Nov. 23, 2003).

[9] Standards for the Use or Disposal of Sewage Sludge, Final Rule, 58 Fed. Reg. 9248, 9256 (Feb. 19, 1993) (codified at 40 C.F.R. Part 503) [Hereinafter Sludge 1993 Final Rule].

[10] Id.

[11] A wastewater treatment plant incorporates the following combination of treatment technologies: 1) filtration of large items; 2) settling ponds (utilizing gravity); 3) flocculation; 4) Ö

[12] EPA Website, Municipalities and Wastewater Treatment Plants Frequently Asked Questions available at http://cfpub.epa.gov/npdes/faqs.cfm?program_id=13 (last visited Nov. 23, 2003).

[13] Marty Coyne, Greenwire , Oct. 9, 2003, available at http://www.eenews.net/Greenwire/searcharchive/test_search-display.cgi?q=sewage+sludge.html (last visited Oct. 10, 2003).  In 1998, wastewater treatment plants generated 7 million tons of sludge.  This is the most recent data available and is used as an approximate average for sludge generated in 2003.

[14] See Interview with Paul Gilman Assistant Administrator of Research and Development at U.S. EPA, 60 Minutes, Sewage Sludge Under Fire (Oct. 26, 2003) available at http://www.cbsnews.com/stories/2003/10/29/eveningnews/main580816.shtml (last visited Nov. 17, 2003) (EPA Assistant Administrator Paul Gilman said: "I can't answer it's perfectly safe.  I can't answer it's not safe.").

[15] Clean Water Act of 1972, Pub. L. No. 92-500, 86 Stat. 813, 866 (codified as amended at 42 U.S.C. § 1251(a) (2000)).

[16] S. Rep. Conf. Comm., 93d Cong., 1st Sess. (1972) (reprinted in 1 The Legislative History of the Clean Water Act 161 (1973)).

[17] Clean Water Act, 42 U.S.C. §1251(a) (2000).

[18] Clean Water Act of 1972, Pub. L. No. 92-500, 86 Stat. 816, 833 (as reprinted in 1 The Legislative History of the Clean Water Act 20 (1973)) ("Title IIóGrants for Construction of Treatment Works").

[19] Id. at 886 (as codified at 42 U.S.C. § 1362(6)) ("The term ëpollutant' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials . . . .").

[20] 1 The Legislative History of the Clean Water Act 170 (1973).

[21] Id. at 110 (Except Congress did allow for permits to be obtained in order to regulate sewage sludge in 1972.).

[22] Id. at 171 ("reasonable further progress toward the elimination of the discharge of pollutants").

[23] Id. at 170.

[24] 2 The Legislative History of the Clean Water Act 437-38 (1973) (Letter from EPA Administrator William D. Ruckelshaus to Hon. William H. Harsha dated Mar. 27, 1972 stating "[t]he costs of applying land disposal techniques nationwide would be about $161 billion. . . . By contrast, application of tertiary treatment nationwide would cost 113 billion. . . . The economic and social costs incident to land disposal are substantial and its treatment efficiency is not fully understood.").

[25] Clean Water Act of 1977, Pub. L. No. 95-217, 91 Stat. 1591 (as codified at 42 U.S.C. § 1281 (2000)).

[26] Id. at 1606.

[27] Id.  at 1606.

[28] Sludge 1993 Final Rule, supra note 9, at 9250.

[29] The Ocean Dumping Ban Act, Pub. L. 100-688, 102 Stat. 4139, (codified at 33 U.S.C. § 1414b (2000) amending the Marine Protection, Research, and Sanctuaries Act) [hereinafter Ocean Dumping Ban Act].

[30] See Sludge 1993 Final Rule, supra note 9, at 9259 ("In ocean disposal, certain pollutants often associated with municipal sludge, including mercury, cadmium and polychlorinated biphenyls can bioaccumulate.  High levels of these pollutants can interfere with reproductive systems of certain marine organisms, may produce toxic effects in aquatic life, or may present public health problems id individuals eat contaminated fish and shellfish.")

[31] Id at 9248.

[32] Id. at 9254.

[33] Joel Bleifuss, Nightmare Soil, In These Times, Oct. 12, 1995, at 12.

[34] Sewage from homes and industrial facilities are commingled in the United States.  It is estimated that a family of four generates 300-400 gallons of wastewater each day.  Sludge 1993 Final Rule, supra note 9, at 9255.

[35] Abby A. Rockefeller, Sewers, Sewage Treatment, Sludge: Damage Without End, New Solutions, Vol. 12(4) 341, 343 (2002).

[36] See Spike Carlsen, What Happens After the Flush, Family Handyman Magazine, March 1997, available at http://cfpub.epa.gov/npdes/wastewatermonth.cfm (last visited Nov. 14, 2003); see also Sludge 1993 Final Rule, supra note 9, at 9256.

[37] Marty Coyne, Greenwire , Oct. 9, 2003, available at http://www.eenews.net/Greenwire/searcharchive/test_search-display.cgi?q=sewage+sludge.html (last visited Oct. 10, 2003) ("There are as many as 100,000 chemicals used in American Industry, and every year about one thousand new chemical compounds are put into commercial use.").

[38] Joel Bleifuss, Nightmare Soil, In These Times, Oct. 12, 1995, at 13-14 (Univ. of Arizona soil scientists concluded: "Significant numbers of pathogens exist in sludge even after stabilization and treatment.").

[39] Sludge 1993 Final Rule, supra note 9, at 9256; See also, Joel Bleifuss, Nightmare Soil, In These Times, Oct. 16, 1995, at 13.

[40] Sludge 1993 Final Rule, supra note 9, at 9259.

[41] Bleifuss, supra note 32, at 13.

[42] See EPA Website, supra note X, and compare Water Environment Federation ("WEF") Website, WEF/U.S. EPA Biosolids Fact Sheet Project, available at http://www.biosolids.policy.net/factsheet/source/explain.pdf (last visited Nov. 23, 2003).  The WEF is a not-for-profit organization that represents many of the largest wastewater treatment plants in the US.  See WEF Website, About the Water Environment Federation, available at http://biosolids.policy.net/factsheet/source/_re_WEF.pdf (last visited Nov. 14, 2003).

[43] Abby A. Rockefeller, Sewers, Sewage Treatment, Sludge: Damage Without End, New Solutions, Vol. 12(4) 341, 342 (2002).

[44] See 42 U.S.C. § 6903(27) (2000) (defining solid waste as "any garbage, refuse, sludge from a waste treatment plant . . . and other discarded material . . . .").

[45] EPA Website, Municipalities and Wastewater Treatment Plants Frequently Asked Questions available at http://cfpub.epa.gov/npdes/faqs.cfm?program_id=13 (last visited Nov. 23, 2003).

[46] Sheldon Rampton and John Stauber, Toxic Sludge Is Good For You: Lies, Damn Lies and the Public Relations Industry, The Sludge Hits the Fan [PAGE] (1995) available at http://www.riles.org/sludge (last visited Nov. 14, 2003).

[47] See Water Environment Federation Website, supra note 42.

[48] Sheldon Rampton, Sludge, Biosolids, and the Propaganda Model of Communication, New Solutions, Vol. 12(4), at 348 (2002).

[49] Id.

[50] Id. at 351.

[51] Id. at 351-52.

[52] Petition to EPA Administrator Michael Leavitt from Center for Food Safety, et al., Seeking Emergency Moratorium on the Land Application of Sewage Sludge (filed Oct. 21, 2003), available at http://www.centerforfoodsafety.org (last visited Nov. 14, 2003).

[53] See Duff Wilson, Fear in the Fields: How Hazardous Waste Becomes Fertilizer, Seattle Times, July 4, 1997 [Hereinafter Fear in the Fields].

[54] Id.

[55] Ellen Z. Harrison & Summer R. Oakes, Investigation of Alleged Health Incidents Associated with Land application of Sewage Sludges, New Solutions, Vol. 12(4), 387 (2002).

[56] U.S. General Accounting Office, Water Pollution: Serious Problems Confront Emerging Municipal Sludge Management Program, GAO/RCED-90-57, B-236805, at 25 (Mar. 5, 1990) [hereinafter GAO Report].

[57] U.S. EPA, Office of Inspector General, Audit Report Water: Biosolids Management and Enforcement, 2000-P-10 (Mar. 20, 2002) and U.S. EPA, Office of Inspector General, Status Report, Land Application of Biosolids, 2002-S-000004 (Mar. 28, 2002) [hereinafter OIG 2002 Report].

[58] OIG 2002 Report at 2-3, available at http://www.whistleblowers.org/OIGFinalSludgeReport.htm (last visited Nov. 20, 2003).

[59] GAO Report at 25.

[60] Fear In the Fields, supra note 49, at 1.

[61] Fear In the Fields, supra note 49, at 3.

[62] Id.

[63] Id.

[64] Robert Pavey, Sludge Award Upsets Family, Augusta Chronicle, June 25, 2003, available at http://augustachronicle.com/stories/062503/met_143-5273.000.shtml (last visited Nov. 23, 2003).

[65] Id.

[66] Joel Bleifuss, Radioactive Sludge, In These Times, Apr. 28, 1997, at 12.

[67] 42 U.S.C. § 9604(a)(1) (2000).

[68] EPA Region VIII, Explanation of Significant Differences for the Lowry Landfill Superfund Site, Appendix (on file with author).

[69] Petition to EPA Administrator Michael Leavitt from Center for Food Safety, et al., Seeking Emergency Moratorium on the Land Application of Sewage Sludge, supra note 48.