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

Under the citizen suit provision of RCRA's section 7002, private RCRA cleanup actions might also be brought against sewage sludge applicators by plaintiffs seeking reimbursement of cleanup costs.439 For years, it appeared that the citizen suit remedy provided by RCRA was limited to the abatement of the contamination, not reimbursement of cleanup costs.440 In KFC Western, Inc. v. Meghrig, however, a private cost recovery action against former service station operators was successfully maintained by a party who had cleaned up a petroleum release on that parcel.441 Thus, it appeared that private parties could obtain more complete relief under RCRA section 7002 then they could obtain under CERCLA. However, the Supreme Court reversed the Ninth Circuit, holding that because plaintiffs had already cleaned up the site, no imminent and substantial endangerment existed so as to allow for recovery of cleanup costs.442 The Court stated that the RCRA citizen suit provision was not intended to provide compensation for past cleanup efforts.443 If an imminent and substantial endangerment still exists, however, it seems that private parties may recover response costs for work taken thereafter.

Furthermore, while sewage sludge may not be listed as hazardous waste under RCRA, it may be regulated as such if it exhibits RCRA toxicity characteristics or is derived from a listed waste.444 The domestic sewage exemption in section 1004 of RCRA does not provide a defense against a potential RCRA suit based on the land application of sewage sludge-it has been a long-standing position of EPA that this "domestic sewage exemption" does not extend to residuals from the treatment of domestic sewage.445

The potential for CERCLA and RCRA liability for sewage sludge reuse projects depends on two factors: (1) the likelihood of harm occurring that would lead to legal action; and (2) the existence of a legal basis to support such an action.446 The above discussion outlines possible statutory liability for flawed beneficial reuse projects, although research has disclosed no CERCLA or RCRA legal actions in which plaintiffs have successfully recovered cleanup costs and natural resource damages resulting from land application projects.447 But as time passes and scientific knowledge increases, it is possible that even beneficial reuse projects performed in conformance with applicable regulations may result in contamination, thus subjecting them to federal statutory liability under CERCLA and RCRA.

V. RISK-SHARING MECHANISMS

In examining the legal problems associated with sewage sludge application, one fact has become clear: "liability. . . is an orphan-no one wants it, nor could any private business or individual accept it and stay in business."448 It is therefore not surprising that Farm Credit Institutions, consisting of major farm lenders in the United States, have also raised concerns over the potential damage to farmer livelihood should properties be subjected to the potential liabilities discussed above.449 Naturally, lenders do not wish to be subject to joint and several liability, and wish to preserve land productivity and value. Under CERCLA, ownership alone triggers liability, even though the owner has not actually participated in generating or disposing of the substance.450 Lenders have been found liable for clean ups even if they did not acquire the property, but had the capacity to affect hazardous waste disposal decisions 451 EPA has proposed a system of de minimus landowner settlements under CERCLA, and has exempted lenders from the definition of "owner-operator" if the lender does not participate in management and holds an "indicia of ownership primarily to protect [his] security interest ...."452 If, however, a lender becomes an owner by foreclosing and taking title to the property, or by conducting management activities at the site, he is potentially liable.453