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

Unfortunately, the sewage sludge contained lead, trichloroethane, trichloroethylene, chloroform, and other hazardous substances, presumably in violation of the permit.427 Ultimately, the site was included on EPA's National Priority List and the purchasers of the property sued Strunk under several theories, including CERCLA.428 The court summarily rejected Strunk's argument that his application of sewage sludge was a protected release under CERCLA, holding that "uncontradicted evidence support a finding that the sludge applied by the Strunk's [sic] was not 'normal' because it was contaminated. Accordingly, the exemption for normal application of fertilizer is inapplicable."429

If sewage sludge is applied in violation of a permit, a farmer could be liable under CERCLA. Moreover, a POTW's CERCLA fate may be entirely out of its control, and may depend on the ability of its contractors and/or farmers and state enforcement officials to ensure that 100% compliance is maintained. If a POTW's sewage sludge contractors disregard accepted management practices, then CERCLA liability may rest with the POTW.

Furthermore, neither CERCLA's language nor its legislative history indicates whether the exclusion of the initial application of a fertilizer (first release) extends to any later contamination of groundwater caused by chemicals in the sewage sludge.430 Thus, despite EPA's assertions to the contrary, CERCLA liability may exist in certain circumstances. For farmers, however, CERCLA liability may actually be comparatively beneficial. The CERCLA exemption does not protect them from state cleanup responsibility because the exemption does not appear to preempt state law, such as State Spill Fund cleanup requirements.431 Accordingly, if farmers are subject to state cleanup laws, which are often stricter than federal requirements, they may not be able to bring in other responsible parties to contribute to cleanup costs. However, if CERCLA's joint and several liability scheme controls the cleanup, the statute may provide flexibility to allow farmers to join other potentially responsible parties.

2. RCRA

CERCLA is not the only federal statute that may impose liability upon farmers for the land application of sewage sludge. RCRA also governs disposal of "solid waste."432 Section 1004(27) of RCRA defines "solid waste" as "garbage, refuse, sludge from a waste treatment plant, water supply treatment plant. . . and other discarded material . . . ."433The use of the term "discarded material" has led to a longstanding debate about whether secondary materials that are reused and recycled are "solid waste," and thus within the jurisdiction of RCRA.434 While EPA has sometimes vascillated about whether other recycled materials are solid waste under RCRA, it has been the agency's consistent opinion, since 1979, that sewage sludge used as fertilizer is a solid waste.435

In 1985, EPA amended its hazardous waste regulations to more clearly define when secondary waste materials (sewage sludges) are considered to be solid wastes.436 EPA then explicitly took the position that all sewage sludges used in a manner constituting disposal (i.e. placed on the land) were solid waste, even if used as fertilizer.437 It is unlikely that sewage sludge used as fertilizer pursuant to section 405 of the CWA would be listed as hazardous waste. However, under RCRA sections 7002 and 7003, as a nonhazardous solid waste, sewage sludge may still be subject to corrective action requirements if disposed of at a facility requiring a RCRA Subtitle C Permit (which would not be the case for land application to cropland or rangeland, or abatement action).