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

1 Langan v. Valicopters, Inc., 567 P.2d 218, 220 (Wash. 1977) (holding crop dusting to be an abnormally dangerous activity).

31 This body of scientific opinion alone may be enough to render land application of sewage sludge an abnormally dangerous activity, because the cause of action for abnormally dangerous activity does not require a risk to public health from a "toxic" pollutant. In Langan, pesticides were legally sprayed on cropland from a helicopter, but an unpredictable gust of wind caused the substances to drift onto plaintiff's farmland. See id. Plaintiffs were organic farmers, and the contamination of their land consisted of the deposit of pesticide residues on their crops, even though these residues were below the tolerances set by U.S. Department of Agriculture. See id. Subsequently, plaintiffs destroyed the contaminated crop. See id.

3s The potential "toxicity" of sewage sludge is a function of its land application rates over time. Courts have imposed liability for abnormally dangerous activities on land applications of substances that cumulatively cause damage at a later date. See, e.g., Branch, 657 P.2d 267 (defendant's continuous depositing of wastewater from oil drilling in gravel pit on its own land, which reached plaintiff's well over a year later, was held to be an abnormally dangerous activity).

351 Compliance with a permit is not a defense to a common law action for pollution damages. See PLATER ET AL., supra note 157, at 173.

x See generally id. 157-232.

6 468 A.2d at 167, 160; see also T & E Indus., 587 A.2d at 1261 (holding that the processing, handling, and storage of radium constituted an abnormally dangerous activity). 3 See Prospect Indus. Corp. v. Singer Co., 569 A.2d 908, 911 (NJ. Super. Ct. Law Div. 1989). s 587 A.2d at 1259-0. 3 See id. at 1260. m See id.

6 See id. Radiation at the site exceeded those levels permitted under government health regulations, and the property was designated as a Superfund site. See id. N See Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 (1994); Spill Compensation and Control Act, NJ. STAT. ANN. 58:10A-1, :23.11(g) (West 1998).

M NJ. STAT. ANN. 58:1023.11(b), (k). 3 See PLATER ET AL., supra note 157, at 173. m See NJ. STAT. ANN. 58.1S23.11(b), (k).

m However, it is rumored that EPA will establish numerical limits for dioxins, furans, and PCBs. See supra note 124 and accompanying text. 3 See HARRISON ET AL., supra note 133, at 24-25.

a More than 50% of dioxins and furans were still present in soils 20 years after sewage sludge application. See Michael S. McLachlan et al., Polychlorinated Dibenzo-P-dioxins and Dibenzofurans in Sewage Sludge: Sources and Fate Following Sludge Application to Land, 185 Sc. oF THE lbTAL ENV'T 109, 118 (1996). 9 468 A.2d 150,159 (NJ. 1983).

370 See HARRISON ET AL., supra note 133, at 34. (explaining possible synergistic effects). 371 This would be the case unless state courts hold that even though abnormally dangerous activities are not explicitly included in Right to Farm Statutes, they are nevertheless implicitly immunized from liability by them. But such an interpretation would violate the inclusio unius principle of statutory construction: that whatever is not specifically mentioned is presumed to be excluded.