EPA's Reckless Endangerment of Public Health

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 104

EPA's Reckless Endangerment of Public Health

2/10/1997

For almost 40 years, Congress has been trying to close the last remaining loopholes in the environmental laws and eliminate toxic pollutants from the environment to protect the public and especially children. (Federal Pollution Prevention Act, Solid Waste Act, Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation and Liability Act, Clean Water Act, Clean Air Act, Safe Drinking Water Act, etc.)

Yet, for the past 20 years, EPA has been recklessly endangering human health and the environment by promoting the use of toxic contaminated sewage sludge on food crops under perceived loopholes in the Acts. Considering the domestic sewage exclusion in the RCRA includes sludge, the law is a moot point, if sludge is considered a safe fertilizer and the 40 CFR 503 regulation can be used adversely as a blanket federal self-implementing permit effecting human health, life and the environment without Superfund liability. (40 CFR 257 (1979), EPA report SW905 (1981), WH-595 (1984, 40 CFR 257 et al./503 (1993) and the 1996 National Academy of Science Report, Use of Reclaimed Water and Sludge in Food Crop Production, FR. 58, 32, pp. 9326, 9263, February 19, 1993) (Public Facts #101)

EPA knowingly based the 1993 regulation on exclusions which do not exist. In a letter dated Feb. 7, 1986, to the Honorable Thomas P. O'Neil, Jr., Speaker. U.S. House of Representatives, The (EPA) Administrator, explained: "The purpose of the Domestic Sewage Study was to evaluate the impacts of waste discharged to public owned treatment works (POTW's) as a result of the Domestic Sewage Exclusion. The Domestic Sewage Exclusion, (specified in Section 1004(27) of RCRA) provides that a hazardous waste, when mixed with domestic sewage is no longer considered hazardous. Therefore, POTW's receiving hazardous waste in this manner are not subject to the RCRA treatment, storage and disposal facility requirements. The premise behind the Domestic Sewage Exclusion is that RCRA management of wastes within a POTW is unnecessary and redundant since these wastes are regulated under the Clean Water Act's regulatory programs." (Public Facts # 100)

Furthermore, "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)

EPA has consistently misrepresented the intent of Congress, the laws, its own studies and information or lack of information, and is currently funding a public relation campaign to "debunk" the horror stories of human health and environmental damage done by the uncontrolled use of domestic sludge/biosolids as a fertilizer on lawns, gardens and food crop land. (EPA Memo, John Walker to Water Environmental Federation, dated 12-19-1994) (Public Facts #101)

While EPA or the States will not investigate any of the horror stories because of the liability concerns, EPA estimated that prior to the 1993 regulation there were over 600 people annually who had experienced adverse health effects from the use of sludge or incineration, such as: death, disease, cancer, etc. vs less than one person for solid waste landfill disposal. There were no major changes expected from implementation of the regulation. (Federal Register (FR) 58, pp. 9373-9375)

Moreover, "EPA concluded that adequate protection of public health and the environment did not require the adoption of standards designed to protect human health or the environment under exposure conditions that are unlikely and where effects were not significant or widespread." (FR. 58, p. 9252)

According to a memo from EPA's Robert E. Lee to John Walker and Robert Bastian, dated Oct. 17, 1994, at least part of the 1. 2 million dollars given to the Water Environmental Federation (WEF) (association of sludge disposal interests) for use in EPA's public relations campaign to debunk the horror stories associated with sewage sludge use is EPA 104 funding, which actually restricted funding to..."establish national programs for the prevention, reduction, and elimination of pollution." (EPA memo and WEF press release, March 15, 1996)

Congress has always been very clear about its intent: "(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985." "(3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;" (Title 33, part 1251(a))

"(c) Section 301 of the Federal Water Pollution Control Act is amended by adding at the end thereof the following new subsection: "(1) The Administrator may not modify any requirement of this section as it applies to any specific pollutant which is on the toxic pollutant list under section 307(a)(1) of this Act"." (91 STAT. 1950, PL 95-217, 1977, 33 USC 1311)

While, as noted, EPA allowed much higher levels of priority toxic pollutants in its "safe fertilizer" than it allowed to be disposed of in a part 503 land fill, it also failed to address 116 of the 126 EPA listed priority toxic pollutants in the regulation because; "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 or disposal of sewage sludge, not just the 126 priority toxic pollutants." (FR. 58, p. 9327)

"(6) The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.---" (Title 33, part 1362)

"(13) The term "toxic pollutant" means those pollutants, or combinations of pollutants, including disease causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism [living entity], either directly from the environment or indirectly by ingestion through food chains, will, on the basis of information available to the Administrator, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions (including malfunctions in reproductions) of physical deformations, in organisms [people or animals] or their offspring." (Title 33, part 1362, also see 503.9(t))

"The U.S. Environmental Protection Agency (EPA) identified Priority Pollutants in regulations that deal with municipal and industrial wastewater (EPA, 1984) due to their toxicity to humans and the aquatic environment. These Priority Pollutants are divided into four classes; (1) heavy metals (oftentimes referred to as trace elements or trace metals) and cyanide, (2) volatile organic compounds, (3) semivolatile organic compounds, and (4) pesticides and polychlorinated biphenyls (PCBs). In addition, nontoxic organic compounds in wastewater can be transformed into potential toxic chlorinated compounds, such as trihalomethanes, when chlorine is used for disinfection purposes (National Research Council, 1980)." (National Research Council Study, Use of Reclaimed Water and Sludge in Food Crop Production. 1996)

"(19) The term "pollution" means the man-made or man- induced alteration of the chemical, physical, biological, and radiological integrity of water." (Title 33, part 1362)
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)

Congress stopped the deep ocean dumping of sludge and it has addressed the careless land disposal problem in RCRA, the Solid Waste Act and the Hazardous and Solid Waste Amendments which define sludge as a solid waste which must be safely disposed of in a sanitary landfill. Any other disposal method is defined as "open dumping".

The CWA regulation, part 503, has become the primary vehicle for the uncontrolled land disposal of sludge under a perceived exclusion in the RCRA, even though this "safe fertilizer /biosolids" could not be placed in a part 503 regulated surface disposal landfill. (FR. 58, pp. 9392, 9396 - 503.13 Tables -503.23 Tables) (Public Facts Sheet #103)

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)

Texas believed the EPA policy and regulation would protect it from any liability and registers [not permits] sludge sites under regulation 30 TAC Sections 312 (Land Application for beneficial Use) (which) are applicable to persons applying [municipal] domestic wastewater treatment plant sludge, water treatment plant sludge, ---. According to TNRCC, EPA is responsible for enforcing compliance with 40 CFR 503.

In at least one case (Reg. 710725), TNRCC not only violated the federal prohibition against open dumping (by registering a site for sewage sludge and water treatment plant sludge), but also the part 503 regulation. Water treatment plant sludge is specifically excluded from beneficial use by part 503.6.

On the other hand, in a letter to Kansas City, Missouri, the State Department of Natural Resources has attempted to wash its hands of the toxic open dumping problem on food crop land, "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). Is your health or your children's, significant? EPA has chosen not to protect public health and safety in exchange for a "cost effective" sludge disposal policy. -LSI-