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

Whether EQ products are harmful to crops and humans remains controversial. But, assuming that damage from sewage sludge product application occurs, and it can be shown that the product was environmentally harmful, a product liability action would not be completely barred under the environmental tort exclusion of the Act. Instead, the action would be governed by that jurisdiction's common law theories. For example, in Macrie v. SDS Biotech Corp., where an employee of a produce broker suffered injury from contact with a fungicide, his action against the manufacturer for inadequate warning was excluded from coverage under the Act because it involved an "environmental tort," but he was not foreclosed from bringing a common law failure to warn claim against the manufacturer.401 Thus, common law theories of recovery still play a role in shaping product liability actions against manufacturers of crop care products, even within a statutory context.

Courts have reached different results as to whether a property owner may recover damages in a products liability action for injuries to his property caused by the application of fertilizers or similar products. Most theories of recovery in this area involve either express or implied warranties of quality given by the seller or manufacturer. Naturally, if a sewage sludge product does not meet Part 503 standards, is marketed as EQ, and then it causes injury, the manufacturer would have breached its duty to consumers.402 But more interesting to consider is what happens if sewage sludge that meets EQ standards causes injury? As is often the case, crop damage and causation issues will become an issue of expert testimony and scientific evidence.40 Courts have sometimes allowed recovery for personal injuries caused by fertilizers and similar products,404 while in other cases they have concluded that the evidence presented was insufficient to establish liability.405 Courts have also found crop care product manufacturers liable for injury to livestock.406

In New Jersey, even though the Products Liability Act governs most theories of recovery, the legislative committee statements make it clear that warning defect cases are also still largely covered by the common law.407 Due to the fact that fertilizers and other chemical products for crop care can often be toxic to human beings and some plants, the common law has typically dictated that the manufacturer, distributor, or retail seller of crop care products has a duty to warn users of the product's foreseeable dangers that cannot reasonably be expected to be within the knowledge of users.408 Regardless of whether a failure to warn claim is premised upon a theory of negligence, strict liability, or breach of warranty, the duty to warn arises only where the risk of harm is foreseeable to defendant.409 A risk of harm is foreseeable when a defendant has actual knowledge of the dangerous propensities of the product.410 Furthermore, the manufacturers of herbicides and insecticides have been subject to a duty to warn where they reasonably should have known of a risk of harm, for example, where the scientific evidence of a link between exposure and an illness or disease is less than conclusive, but where there is a general link between the chemical product and a specific category of illness.411 "Although a manufacturer may not have had actual or constructive knowledge of a danger so as to impose a duty to warn, subsequently acquired knowledge, both actual and constructive, may obligate the manufacturer to take reasonable steps to notify purchasers and consumers of the newly-discovered danger."412