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

It is also possible that courts will not extend the doctrine of abnormally dangerous activities to sewage sludge land application. If a court decides that knowledge is a requirement under the abnormally dangerous activity doctrine, it may then decide that farmers who place their trust in compliance with Part 503 should be immunized. Given the scientific controversy and uncertainty surrounding sludge application, it is unlikely that any farmer could have constructive knowledge as to the dangers of sludge. In T&E Industries, the dangers of radium were well documented, and the owner of the site knew that it had been given Superfund designation.376

Even if the court decides that knowledge is not a prerequisite for a strict liability claim for an abnormally dangerous activity (as the court seemed to do in T&E Industries), it still may not extend the abnormally dangerous activity doctrine to sewage sludge disposal for public policy reasons-the chain of liability might be too extensive. Farmers,377 contractors/transporters/applicators,377 as well as indirect dischargers and POTWs, may be liable because the liability for abnormally dangerous waste is absolute from the moment the waste is generated until the waste produces harm.379 Without workable risksharing mechanisms for dealing with widespread liabilities, an extension of the abnormally dangerous activity doctrine to land application of sewage sludge might ultimately discourage this mode of disposal.3

4. Sewage Sludge and Product Liability: A Combination of Common Law Theories and Statutory Strict Liability

Once the Part 503 EQ sewage sludge criteria are met, sewage sludge-derived material can be deemed a sewage sludge product, which can be registered with the Department of Agriculture just like any normal fertilizer or soil conditioner .381 Proponents of sludge-derived products argue that their production will reduce a POTW's potential sludge management liability. When sludge is used to produce a product, title to the sludge might be passed from the POTW to the EQ product manufacturer, thus insulating a POTW from liability.3e The sludge would be treated as any other raw material used in the production of a product. In such a situation, POTWs would arguably be relieved of responsibility for any future mismanagement of the sewage sludge.383 Proponents also argue that transferring sewage sludge to companies making EQ sewage sludge products would relieve POTWs from a substantial amount of the Part 503 burden.384 For example, permit requirements would only contain conditions up to the time the POTW transfers the sludge. No Part 503 land application requirements would apply.385 Therefore, there would be less likelihood of Part 503 permit violations, on the part of the POTW, that could trigger potential CERCLA liability (as discussed below). Furthermore, the sale of the final EQ sewage sludge product to a third party might arguably insulate both the POTW and the product manufacturer from CERCLA liability as well.