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

In order to comply with its common law duty to warn of any dangerous propensities, the manufacturer must furnish a warning on the label that is sufficient to convey to those who might use the product notice of any inherent dangers in the product and of the possible consequences of the use or even misuse thereof.413 A product may be manufactured and designed perfectly, but may still be defective under the common law if it contains a hidden danger. Products with such hidden dangers are defective unless they are accompanied by a warning that includes "the directions, communications and information essential to make the use of the product safe."414 This might cause a problem for sewage sludge manufacturers relying solely on Part 503 requirements. Recall that for sewage sludge and sewage sludge derived products meeting the EQ standards, no labeling or user information is required.415 There has been a great deal of criticism regarding the lack of information given to consumers about sewage sludge product quality.416 However, what is now merely criticism could in the future form the basis of a lawsuit. The common law actions against fertilizer manufacturers described above suggest that sewage sludge product manufacturers relying on Part 503 compliance may also be open to common law property damage, personal injury, and failure to warn claims based on product liability.417

B. Statutory Liability

1. CERCLA

Common law strict liability has been extensively supplemented, or even supplanted, by strict liability imposed under the terms of environmental statutes. At the federal level, the most significant source of potential strict, joint, and several liability is CERCLA.418 Under CERCLA, generators, transporters, and disposers of hazardous substances, including those who arrange for the disposal of hazardous substances, such as POTW operators, are strictly, jointly, and severally liable for the costs of cleanup relating to releases or threatened releases of such substances.419

At first glance, it appears that Congress and EPA have provided safe harbors in CERCLA directly applicable to the land application of sewage sludge. First, section 101(22) of CERCLA specifically defines "release" to exclude the "normal application of fertilizer."420 Second, a party is also protected when a release of a hazardous substance is federally authorized, such as pursuant to a CWA permit.421 Lastly, in the preamble to the Part 503 Rule, EPA states that if the placement of the sewage sludge on land is considered to be either (1) the normal application of fertilizer under CERCLA, or (2) a "federally permitted release," then CERCLA liability would not result.422 However, CERCLA's fertilizer and federally permitted release exemptions, and EPA's brief discussion about the exemptions' applicability to sewage sludge land application, raise as many questions as they answer .423

Superficially, it appears that the land application of sewage sludge falls under the fertilizer exemption to CERCLA. In addition, to the extent that sewage sludge is applied in a normal manner and within normal concentrations, that is, if land application is a "federally permitted release," that placement would not constitute a "release" that would give rise to CERCLA liability.424 A release in compliance with a sewage sludge permit issued by EPA (or an EPA-authorized state) would thus qualify as a "federally permitted release."425 However, if any of the requirements contained in a Part 503 permit were violated, it would appear that an associated release would not be a "federally permitted release," and CERCLA liability would accrue. In Fallowfield Development Corp. v. Strunk, the Pennsylvania Department of Environmental Resources issued a permit to defendant Strunk, allowing him to land-apply sewage sludge as fertilizer to cornfields.426