|
SAFER WORLD a private independent international internet information network www.safer-world.org/ sludge |
|
contact: info@safer-world.org
|
some links: Site of EPA & WEF (association of sludge generators) http://www.biosolids.org , Swedish Site http://www.safesoil.com/ ............. From http://www.ourstolenfuture.org/NewScience RC Hale, MJ La Guardia, EP Harvey, MO Gaylor, T Matteson Mainor and WH Duff. 2001. Flame retardants: Persistent pollutants in land-applied sludges. Nature 412: 140 - 141 quick background on PBDEs Press coverage Hale et al. report high concentrations of brominated diphenyl ethers (BDEs) in sewage sludge being applied as fertilizer to US farmland. They also report high levels of BDEs in fish in Virginia. ... This family of compounds is widely used as a flame retardant in various industrial and consumer products. According to Hale et al., the most toxic BDEs are molecules containing 4-6 bromine atoms. Those with more than one bromine are "polybrominated," or PBDEs. These forms of BDEs are found increasingly in people and wildlife around the world. In general, they are highly persistent and bioaccumulative. Recent toxicological studies demonstrate that some of them are powerful hormone disruptors, particularly capable of disrupting thyroid hormone. .... -------------------- We are very thankful that Henry J. Staudinger give us the permission to publish his "Uncensored Story". You get a lot of information and you will see that "sludge" is not only a problem for a few people but also for all citiciens. -------------------------------------------------------------------------------------------------------------------- Land Application of Sludge (biosolids) - The Uncensored Story by Henry J. Staudinger2218 Riverview Dr Toms Brook, VA 22660 Prepared for the Water Environment Federation Seminar Richmond, Virginia November 4, 1999 I have been asked to address citizen concerns related to land application of sludge, and to focus on more than just the odor issue. My comments are based on personal experience, experiences of other victims, review of thousands of pages of scientific and permit documents, meetings with numerous experts, and unsuccessful efforts to interest the regulatory community to better address demonstrated sludge risks. Based on what I have learned, I can only wonder if one day this sludge will become better known as biocides than as biosolids. I. Victimization by Forced Exposure to Land Application of Sludge My first-hand experience with forced exposure to land-applied sludge occurred in May 1995. Almost immediately following applications on an adjoining farm site, our neighbors to the north became ill and were forced to leave their home. It was not until the wind changed direction that we first came to appreciate the serious health, water quality and odor problems associated with this activity. Even with my farm background and limited ability to smell, the odor was overpowering. Nevertheless, odor was not my major concern. Worsening physical symptoms, including burning eyes, difficulty in breathing, and coughing soon became more than a simple irritant. When the airborne particles from the sludge caused the fish in our pond to die, there was little doubt that we were being forcibly exposed to something that could cause serious problems. My wife and I, like our neighbors, were forced to move out of our home. With time, initial physical symptoms gradually subsided. However, a short time later I experienced a severe allergic reaction requiring several trips to medical emergency facilities. A third neighbor was also hospitalized a short time after her exposure to the sludge. Because no one was willing to test the material for harmful substances, we will never know for certain to what extent our serious health problems were caused by the forced exposure to sludge, much less what long term health problems we may face as a result of that exposure. We have to live with that uncertainty. In time I discovered that our experience was not unusual. Whenever health complaints are made to permitting agencies, they have been ignored and sludge testing refused. Many victims do not currently realize the relationship between their health problems and their forced exposure. This is because they have generally accepted without question representations from permitting agencies that their health problems are not or were not caused by anything in sludge. These representations are made without knowing what was in the sludge. The result is that most health problems relating to land-applied sludge are never known, and victims are prevented from taking appropriate action to protect themselves and their families. I was not prepared to be victimized a second, third or fourth time. When it became clear that there was no one to protect me and my family against further risks, the responsibility became mine. I did that by purchasing the adjoining farmland. II. Regulatory Policies and Practices have been Demonstrated to be Clearly Inadequate Following our victimization, I naively assumed there was someone accountable to whom I could turn to address the problem and make sure it did not happen again. With that in mind, I contacted the sludge spreader, the sludge generator and the permitting agency. Both the sludge spreader and the sludge generator pleaded ignorance and claimed to be shielded from accountability by the permit. This left the permitting agency, which proved as nonresponsive as the sludge generator and applicator. I then set out to find a responsible person at any level of government willing to address the problem. To my surprise, I found no one at any agency willing to be responsible--including by way of example, the Virginia Department of Environmental Quality, the Virginia Department of Health, the Virginia State Water Control Board, the Virginia Secretary of Natural Resources, and the Office of the Attorney General. At the same time I conducted a parallel investigation of my own, hoping to find facts and science to ease our concerns. Unfortunately, I learned instead that there was considerable risk to my family, and many others forcibly exposed to land-applied sludge. I learned that the degree of risk was in part dependent on what was in the sludge, yet it was never fully tested. I also learned that the degree of health risk depended on who was exposed, with special concern for those with immune deficiencies, including the young, the elderly, the ill and even those who receive steroids as medication for allergies. I would like to briefly share with you some of the areas of deficiency I have found under current permit policies and practices. As you will see, these deficiencies more than confirm that claims that sludge land-applied under a permit is safe, is at best, an oxymoron, and more likely, an intentional misrepresentation. 1. Failure to Demonstrate Exclusion of Harmful Substances in Sludge Land application of sludge is simply a method of disposing of pollutants. There can be any of more than 60,000 toxic substances in any particular land application, yet only a few are actually tested for. There are also different pathogens that may be present. Yet only fecal coliform tests are performed, even though it is well known that fecal coliform is not an indicator of the presence of certain pathogens such as viruses. Under these circumstances, no one really knows just what pollutants may be contained in any given land application. Accordingly, there can be no certainty about the degree of risk in any specific land application. This deficiency is widely understood by those involved in land application of sludge. However, permitting agencies refuse to make this clear to farmers and the public. Instead, it is argued that land applications of sludge must be safe because there are no studies demonstrating harm to the public. Left unsaid is that no such studies have been undertaken, and health complaints are not properly investigated. The refusal to conduct full testing of sludge following health complaints makes it scientifically impossible to confirm whether the sludge was, or was not, the cause of the health problems occurring following land applications of sludge. My father once said that if it looks like a skunk and smells like a skunk, it is probably a skunk. Refusal to admit that it is a skunk because of an unwillingness to take a close look does not mean it is not a skunk. Yet this is how the safety issue of sludge is addressed. The refusal to use science suggests a sinister motive--to make it impossible for victims to establish the scientific link between their ill health and their forced exposure to sludge. This failure to determine the nature of the health risk makes it impossible for any reasonable person to claim that forced exposure to any given land-applied sludge is safe. Only sludge promoters could be expected to make such an unsupported claim. 2. Failure to Establish Adequate Permit Provisions Even if proper testing were developed, under current permit provisions there would still be no assurance that any given land application would be safe. The adequacy of permit terms is based on EPA’s risk assessment model. However, the many deficiencies of that model are never discussed. For example, the model did not address most of the toxic substances that might be found in a sludge; and it did not take into account local pollution potential characteristics such as karst terrain, soils with pollution-sensitive characteristics, and areas that frequently flood. Even if those factors had been incorporated into a risk assessment model, it would still not establish the safety of specific land applications because assumptions in the EPA model are often not included in permits. For example, the risk assessment model used slopes limited to 6 percent. In Virginia, slopes up to 15 percent are allowed, and there has been an ongoing refusal to provide any scientific data to demonstrate the impact of this major change. The EPA risk assessment model also assumes that pH will remain at sufficiently high levels to keep heavy metals from leaching into groundwater. However, current permits in Virginia provide for pH requirements only at the time of application. There is no requirement that it be in perpetuity, and that it run as an obligation against the land. In areas with high acid soils, this is a special problem. The failure to consider local pollution potential conditions in Virginia is especially troubling because of the karst terrain found in many counties. Everyone associated with land application of sludge should know that karst terrain is very pollution-sensitive. Because of the presence of cracks, fissures and sinkholes, what goes on the ground often goes directly into groundwater. Permitting agencies in Virginia are quite familiar with the serious pollution potential in these areas, and yet have authorized land applications in karst areas with the greatest pollution potential under the Drastic Index. Admittedly, a limited effort has been made to address this issue by requiring buffers. However, there are no studies to confirm if sludge could be safely land-applied on karst under any circumstances, especially when the extent of the pollutants is never determined. Moreover, there is little certainty that buffer restrictions are adequate or will be complied with. Furthermore, permits do not address many other local pollution potential issues such as high shrink-swell soils, rapid runoff rate soils, and soils that frequently flood. 3. Failure to Implement Current Regulatory Requirements Even if there were adequate testing and adequate permit terms, there would still be no assurance that any given land application of sludge would be safe. Based on personal experience and review of permit files and sites, it is clear that those requirements are not always included in issued permits. For example, on the site next to our home, sludge was allowed to be land- applied over springs, on areas that did not meet minimum depth to water limitations, on areas that exceeded slope limitations, and over the top of our septic drainfield. Other permit sites investigated in Shenandoah County were also found to be in violation of numerous regulatory requirements, including failure to buffer out springs, wells, sinkholes, rock formations, streams and excessive slopes. 4. Failure to Adequately Monitor and Enforce Even if there were adequate testing, adequate permits terms and they were adequately implemented, there would still be no assurance that land application of sludge would be safe. There is little or no monitoring or enforcement of permit terms. Permitting agencies refuse to modify permit terms even when terms are shown to be contrary to regulatory requirements; they ignore the many violations shown in permit file documents; and they refuse to conduct meaningful investigations and testing when health complaints are made. In our case, after more than four years there has still been no effort to determine what might have been in the sludge that caused our problems. Nor has there been a decision as to whether my wife and I were interested parties, having the right to require that the issues we raised be addressed. III. Permitting Agencies Promote Rather than Protect, Making it Necessary to Look Elsewhere to Protect the Public Health and Water Quality I have been chastised more than once by the Virginia State Water Control Board for asking that permit terms be modified to protect public health and water quality. The Board has made very clear that it has neither the authority nor the responsibility to protect public health when it issues permits; and that unless directed by specific regulatory language, cannot even protect water quality. According to the Board, this would require legislative action by the Virginia General Assembly. I have already discussed the inability to get permitting agencies to investigate health complaints or to provide scientific support for safety claims. Yet agency personnel are readily available when needed to help market the sludge to farmers and the general public. Agency personnel will show up whenever asked to tell anyone who will listen, that sludge is safe. Those representations are made knowing full well that they don’t know what is in a particular sludge; they don’t have adequate regulatory authority; they don’t adequately implement regulatory requirements; they fail to adequately monitor and/or enforce permit terms and conditions; and they are not able to provide scientific support for their assertions. I have come to think of permitting agencies as sludge marketers who follow the P.T. Barnum marketing concept. This marketing concept not only misleads the public about risks associated with sludge, it also distorts actual benefits. For example, it is not made clear that the ratio of nitrogen and phosphorous in sludge is not in the ratios needed for proper crop growth. As a result, phosphorous is often applied in amounts far in excess of crop requirements, and nutrient crop needs are not always balanced. The end result is vastly overstated claims of economic benefits to farmers, and further water pollution through nutrient leaching and runoff of sludge nutrients. Some of the distortion is accomplished by falsely claiming that sludge is land applied at agronomic rates. IV. Sludge Generators Have Failed to Discharge their NonPermit Responsibilities and have Subjected Themselves to Substantial Potential Liabilities My comments setting forth examples of the many deficiencies of the current permit system are not directed to permitting agencies. I have been there and tried that on behalf of both farmers and the public in Virginia. Instead, my comments are directed to municipalities and companies that generate sludge and to a lesser extent, the companies that land-apply it. It is my hope that with a better understanding of legal and moral obligations as well as potential liabilities, serious consideration will be given to approaching both the agencies and the Virginia General Assembly to make sure that the permit system more closely relates to overall legal obligations. Some may mistakenly believe that their sludge is being land-applied in accordance with the terms of their permit. Others may mistakenly believe that they are protected from liability as long as they have a permit. For those believe that their sludge is being land-applied in accordance with permit requirements, I recommend that you take a closer look. Reviews of permits files, site visits and other efforts readily confirm that this is often not the case. Moreover, as stated, permitting agencies make little effort to make sure that permit requirements are complied with. At the same time, it is important that every company and municipality clearly understand that a land application permit is simply one of many legal hurdles to be cleared before sludge can be lawfully land-applied. There is a clear requirement that each and every land application must comply with all other laws and regulations. There are many laws that may be applicable. They range from local zoning and health laws to constitutionally protected personal and property rights of those who may be forcibly exposed to sludge. As described earlier, the many deficiencies of the permit system make very clear that permit terms are far from adequate to assure constitutionally protected personal and property rights. It should also be understood that those rights cannot be abridged by either the federal government or the Commonwealth of Virginia. It would have been most helpful to both companies and municipalities if permit requirements were adequate to provide those protections. Instead, the permit system leaves each permittee on its own to determine how to land-apply without running afoul of its legal obligations--it is up to each company and each municipality to make sure that nothing in the sludge could cause personal injury or property damage. That is simply not possible as long as there is a failure to fully test sludge before it is land-applied. Moreover, where full testing is not conducted following health complaints, the specter of intentional disregard of applicable laws is raised. The failure to test is made worse by the refusal to determine whether high risk individuals may be exposed to land-applied sludge-- including those with immune deficiencies who are susceptible to serious health problems and even death. These failures are compounded by the additional failure to give notice to those who may be forcibly exposed so that they would have the option to take themselves and their families out of harm’s way. It is inexcusable that we give more protection to the animals we hunt than to the potential victims of land-applied sludge. The inability of permitting agencies and even EPA to provide scientific information to demonstrate the safety of many land applications, makes it more than likely that companies and municipalities also do not have a scientific basis to support their current activity. Lacking that scientific support, there is no reasonable basis for companies and municipalities to conclude that their land applications will not cause personal injury and/or property damage. During my research, I attempted to understand how such a lack of accountability and disregard of potential liabilities could have developed within the industry. I concluded that while there are a number of contributing factors, perhaps the direct marketing role played by permitting agencies is a significant factor. I suspect that the ongoing misrepresentations by those agencies has lulled some into a false sense of security. The success in keeping hidden the full list of pollutants in a particular land application cannot be disregarded as another important factor. The mistaken belief that permits can be used as shields when health and property damage complaints are made, is another possibility. This situation will not last. More people are experiencing health problems, and their complaints are being ignored. The public is beginning to become aware of the problem, and the failure of the permit system to protect them. As science develops it will become much easier for victims to demonstrate land sludge applications to be the cause of their health problems and property damages. Because of the failure of companies and municipalities to assure that health and property are not injured, gross negligence may well apply. Where there has been a refusal to address health complaints and to take corrective action, the possibility of criminal responsibility is real. Class actions as well as punitive damages may well become the norm. The types of damages are varied. Property damage may range from contaminated soil to contaminated drinking water (necessitating the development of rural water districts), to unmarketability of property, to just plain nuisances. Injury to person may range from minor to serious illnesses to loss of life. To add insult to injury, many of the companies and municipalities that land-apply may become their own victim. This is especially true when land applications are made in areas where companies and municipalities also depend on quality sources of water. The cost to install needed treatment facilities to provide quality water could be yet another cost when sludge is land-applied. Some companies could even be forced to close because of those costs. It would be prudent for each and every generator to assess its obligations and to implement changes that will protect not only the public, but themselves as well. Short term, I believe the only safe course would be to dispose of sludge through landfilling or incineration. Only when a meaningful determination is made that it can be land-applied without violating applicable laws should resumption of land applications be considered. For companies and municipalities that wish to land-apply sludge in the future, much work is needed to determine if it can be done in a manner consistent with all legal and moral obligations. To this end, I would recommend that permitting agencies be contacted to help develop appropriate policies and practices. In recognition of the inadequate funding of permitting agencies, the industry should be prepared to fund much of that effort. After all, it is the industry that is at risk, and it may be the only way to protect itself and merit public support. For those of you who would scoff at the idea you have real risks, you need only look around the country to see what is happening. I will give you just one example, recent lawsuits in Augusta, Georgia alleging that land-applied sludge slowly poisoned cattle and land, has led to a special investigation by the National Ombudsman. The Augusta investigation could well be a window through which EPA is forced to re-examine its own national policies governing the use of sludge as fertilizer. Consider the possibility that one of you might be the next target of a truly independent investigation? V. Odors: The Nuisance Factor Odors are the primary focus of this seminar. Much of my earlier discussion relates to background information needed to better understand how odors and the resulting nuisance could serve as a basis for the courts to terminate most of the land applications of sludge. It should be remembered that no land sludge application may be made lawfully if it causes a nuisance, either public or private. This is a constitutionally protected right that cannot be taken away. Interestingly, sludge victims have not yet looked for protection under the nuisance laws. I believe this is due in part to efforts of local governments to address citizen complaints. This has been accomplished through special local regulations, moratoriums and bans. Ironically, relief provided by local governments has given companies and municipalities some breathing room to make changes before losing the right to land-apply sludge everywhere. If sludge victims had not had that outlet, they would have been forced to seek relief in other ways, including relief through the courts under the nuisance laws. A single court decision related to the nuisance issue could have already ended all land applications of sludge. It should also be noted that odor is not the only nuisance aspect of land-applied sludge. Transfer of pollutants through air, common vectors such as birds and mice, erosion, runoff and leaching may each constitute a separate basis for nuisance suits. Thus even if policies and practices could be developed to resolve the odor nuisance issue, other nuisance issues remain. The nuisance concept could also be applied to pollutant discharges into rivers and streams. Each time another forced exposure of sludge incident occurs, the public becomes more aware. In time the public can be expected to focus on discharges as well. The potential cost in this area could far exceed those related to land-applied sludge. Court ordered compliance is a real possibility. Under these circumstances, it would be a prudent business practice to voluntarily defer further land applications until better policies and practices can be developed to address the many issues surrounding the current practice. Failure to do so could result in the end of all land applications of sludge. VI. Summary Current permit policies and practices in Virginia are totally inadequate to protect public health and water quality where sludge is land-applied. Many current land applications of sludge appear to be in violation of numerous constitutional, regulatory and permit requirements. Land application of sludge is not only subjecting farmers and the public to special risks, it is also subjecting every company and municipality that land applies to special risks as well. With the failure of the permit system, it falls squarely on companies and municipalities that generate the sludge, those who apply it, and farmers who accept it to develop a system that would adequately protect public health and property rights of those forcibly exposed. Pending the development of such a system, sludge generators would be wise to impose their own moratorium on land applications of sludge. If the industry continues to ignore its obligations, as well as its own self interest, forced changes can be expected. Each time a land application is made, the awareness of the public will grow. Each incident of forced exposure and health problems will make it more difficult for these issues to be resolved without widespread litigation. Please give this issue serious thought, and do not forget to take into consideration your own real self interest when you do so.
|
Copyright© 1998-2008 SAFER WORLD. All rights reserved |