Unsafe sewage sludge or beneficial biosolids?: Liability, planning, and management issues regarding the land application of sewage treatment residuals

Boston College Environmental Affairs Law Review, Summer 1999 by Goldfarb, William, Krogmann, Uta

Commentators have identified fear of liability as a major deterrent to the widespread land application of sewage sludge. Liability issues regarding land application include not only legal liability, but also market liability as a result of negative public perceptions of the land application of sewage sludge. Under current law, municipal sewage treatment facilities, landowners, farmers, and even lenders are potentially liable for risks arising from sewage sludge application, unless someone else assumes the risk through a clear and legally enforceable mechanism. This article introduces this complex, evolving, and contentious environmental issue. It investigates the various siting and toxic tort liability issues associated with the land application of sewage sludge, and explores some of the risk-sharing mechanisms developed to minimize the liabilities associated with the application of sewage sludge to farmland. It concludes with a recommendation for a public indemnification fund to compensate for losses caused by land application of sewage sludge.

INTRODUCTION

Publicly Owned Treatment Works (POTWs) treat sewage at approximately 16,000 treatment facilities across the nation.1 Sewage sludge is the residual solid, semi-solid, or high-solid content liquid material remaining after treated municipal wastewater is discharged into local waterbodies.2 Before these residuals can be used on agricultural or nonagricultural land, or be sold to homeowners for garden use, sewage sludge must undergo additional treatment to stabilize and disinfect it.

There has been an ongoing and heated discussion about whether to call these residuals "sewage sludge" or "biosolids."3 This debate is a reflection of the larger controversy regarding the environmental impacts of this material. While the original term "sewage sludge" indicates a mudlike deposit originating from sewage,4 "biosolids" refers to the potential beneficial properties of this recyclable resource.5 In this article, the original term "sewage sludge" is used, since the definition of the term "biosolids" varies with the context in which it is used.6

In 1995, about 6.4 million dry tons of sewage sludge were produced in the nation's POTWs.7 With the construction of additional POTWs and improvements in wastewater treatment, this number will certainly continue to rise. The disposal options for this waste byproduct of modern sewage treatment methods are continuing to narrow, albeit at a slower pace due to the increased number of land application sites and mega-landfills. This narrowing of disposal options began when President Ronald Reagan signed into law the federal Ocean Dumping Ban Act on November 18, 1988, making it illegal to dump sludge into the ocean after December 31, 1991.8 Dumpers unable to meet the deadline faced a series of increasing fines and penalties. At that time, nine municipalities in New York and New Jersey were dumping sludge into the ocean.9 The enactment of the Ocean Dumping Ban Act prompted what was called the "sludge war" in Congress, as representatives from New York, New Jersey, and other East Coast states grappled with the phaseout of ocean dumping.10 When the U.S. Environmental Protection Agency (EPA or the Agency) banned the use of the twelve-mile New York Bight dump sight and forced sludge dumping to 106 miles offshore, New York and New Jersey were forced to compromise in September 1992.11 The new agreement included penalty and fee provisions for those still dumping, and stipulated that penalty and fee moneys were to be placed in a trust, to fund research on alternative disposal methods.12 New York City, in January 1993, became the last municipality to halt its ocean dumping practices, and thus ended ocean sewage sludge disposal.l3 Mounting environmental and economic pressures forced policy and decisionmakers to examine viable disposal alternatives for our nation's sewage sludge.

Section I of this article discusses the various sewage sludge stabilization and disposal options available. Section II provides the rich and controversial regulatory history of sewage sludge, and Section III reviews the siting issues that have arisen surrounding the land application of sewage sludge. Section IV explores the possible legal issues associated with siting sewage sludge land application projects. The remaining sections address possible toxic tort liability of sludge management actors. Potential common law and statutory liability is discussed and several risk-sharing mechanisms are examined. A recommendation for dealing with liability management is then offered.

I. SEWAGE SLUDGE STABILIZATION AND DISPOSAL OPTIONS

There are three main disposal alternatives for sewage sludge: (1) landfilling; (2) incineration; and (3) land application.14 Before being applied to land, sewage sludge must be stabilized and disinfected to reduce pathogens, the attraction of vectors (disease transmitting organisms like flies and rodents), and the potential to emit odors.15, The same is true for landfilling unless the sewage sludge in the landfill is covered daily.16 Also, since some biological stabilization and disinfection methods also reduce the volume of sewage sludge that must be disposed, sewage sludge is sometimes stabilized before being incinerated.17