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

On the other hand, if sewage sludge is treated as a crop care product, the possibility arises that companies producing such a product (which may be POTWs) will be open to product liability actions. Like companies that manufacture fertilizers, the manufacturers of sewage sludge-derived products may be held liable for personal injury or property damage allegedly caused by their products.386

Generally, fertilizer product liability suits have been based on common law theories of negligence, breach of warranty (implied or express), strict liability in tort, or a combination thereof.387 A negligence theory of recovery focuses on the manufacturer's conduct, i.e., the manufacturer was allegedly at fault in creating the defect in the product and it knew, or should have known, about the defect and yet sent the product into the stream of commerce. Thus, in design or warning defect cases, the issue is the reasonableness of the manufacturer in marketing a product and in warning, or failing to warn, of the dangers associated with the use/misuse of that product.383 In strict liability cases, the focus is on the product itself, and the manufacturer is deemed to know about the harmful propensities of the product.389 The implied warranty theory of recovery has typically been used where a product malfunctions or is simply unfit for use.390 This theory of recovery holds sellers liable to their immediate buyers, but is considered largely irrelevant in design or warning defect cases.391 That a product was fit for its intended use has no bearing on whether or not the manufacturer should be held liable for injuries resulting from the design or failure to warn.392 Finally, the express warranty theory of recovery is largely statutory, and is governed by the Uniform Commercial Code.393

Some states have superseded common law theories of recovery with Product Liability Acts.394 New Jersey's Product Liability Act (the Act) has the effect of creating a unified, statutorily defined theory of recovery that is, for the most part, identical to strict liability.395 Under the Act, negligence and breach of warranty claims are no longer viable as separate claims for harm caused by defective products.396 If product liability actions against sewage sludge product manufacturers are subject to the provisions of acts such as New Jersey's, then the safety of sludge-derived products themselves, and not necessarily the manufacturer's conduct, would come under scrutiny and strict liability would be imposed. Once again, the scientific uncertainty surrounding the EQ criteria and criticism of EPA's beneficial reuse policy would likely play a role in litigation.397 However, the New Jersey Product Liability Act explicitly excludes from coverage environmental torts actions.398 These actions are defined as civil actions "seeking damages for harm where the cause of the harm is exposure to toxic chemicals or substances .... "399 Harm means physical damage to property or personal or physical illness, pain and suffering, mental anguish, or any loss of consortium or services.400 Thus, if sewage sludge-derived products are deemed environmentally harmful, actions brought against manufacturers for damage to property and persons might be considered environmental torts, and thus might be excluded from coverage under the Act.