Unfinished Business: Managing the Risks Posed by

Agricultural Use of Sewage Sludge.

Professor Michael Baram © February 14, 1998

1. EPA's 503 Rule

• Enacted 2119193. See 40 CFR 257,403,503;58 Fed. Reg. 9248-9415 (2119193).
• Imposes national requirements governing the application of domestic sewage sludge to agricultural lands for "beneficial use" (e.g. enhance crop production & forage).
• Establishes five categories of sludge and sets risk management requirements for each, noting the "the majority" of sludge in the US fits categories PC-A and PC-B.
• Sets restrictions on agricultural use of each type of sludge, including the following for the largest sludge categories, PC-A and PC-B:
  • concentration limits for various pollutants in the sludge (such as lead, arsenic, mercury);
  • density limits for disease-causing pathogens in the sludge, and use of designated methods for pathogen reduction;
  • use of designated procedures for reducing vector attraction (such as mosquitoes and flies which can carry disease);
  • restrictions on sludge application sites (types of land, setbacks from surface water, etc.);
  • restrictions on the types of crops to be harvested for human consumption from areas where the sludge has been applied. For example, crops that "usually do not touch the biosolids" must not be harvested for 30 days thereafter, (e.g. apples, oranges, oats, cotton, etc.); crops that "usually touch the biosolids must not be harvested for months (e.g. strawberries, melons, tomatoes, lettuce, etc.); and crops grown under the sludge for up to 38 months (e.g. potatoes, peanuts, onions, beets, etc.);
  • restrictions on animal grazing and human access for 30 days after sludge has been applied;
  • other restrictions regarding application management practices (e.g. agronomic rate of applications, etc.);
  • various notification and permit procedures, monitoring, record keeping and reporting requirements.
• Applies these and other requirements to those who treat domestic sewage and generate the sludge, those who prepare the sludge for agricultural use, and those who apply it to land for agricultural use, with violations subject to enforcement by EPA and EPA-approved states.

2. Unfinished Business

• EPA recognizes that the rule offers incomplete protection against risks.
• Preamble to the rule provides that it "may not regulate all pollutants in sewage sludge that may be present in concentrations that may adversely affect public health and the environment" (p. 9253); and that is was "not designed to protect the public against every conceivable misuse" but that the agency "assumes that simple instructions on proper use will be followed" (p. 9252); and that the rule is but the first part of a "phased approach" wherein EPA will identify additional toxic pollutants and set limits for them in subsequent amendments to the rule.
• Rule provides that it does not prevent state or local governments from imposing more stringent requirements, or additional requirements governing the agricultural use of the sludge (§ 503.5).
• Since enactment of the rule, many developments indicate the full scope of unfinished business for EPA to address in the next stage of its phased approach, if not sooner. These developments include -
• outbreak of local conflicts across the nation over the risks and nuisance implications of using sludge pursuant to the rule;
• attempts at state and local levels to ban sludge use, some of which have been successful; critiques of the technical bases for the rule (e.g. analytic flaws, mistaken assumptions, unaddressed risks, etc.);
• critiques of the regulatory framework created by the rule (e.g. unrealistic promises about enforcing farmer compliance with crop, grazing, siting, public access and application rate restrictions; lack of state and local regulatory capabilities; lack of confidence in EPA enforcement and POTW compliance; etc.);
• concerns about ability of farmers to assume the burdens imposed (e.g. financial, management, record keeping and reporting, etc.);
• studies of economic risks to banks which lend to farmers using sludge;
• forecasts of litigation, transaction costs, liability and market losses arising from sludge-related food safety incidents (e.g. re: farmers, food processors and distributors, and food retailers).

3. Examples of Problems to be Addressed

• Need to identify problems and concerns throughout the life-cycle of using sludge in agriculture. Recommend that EPA do what industry does regarding hazardous products prepared for commercial use-namely use a life cycle analysis to identify all problems and their interrelationships, and then address each problem to minimize the risks it poses to health, property, environment, and the financial viability of the parties involved.
  • show life cycle (overhead projection)
  • discuss problems at points 1 thru 4

Sources of Domestic Wastes			Sources of Commercial/ Industrial Wastes
				<------------------1	Sludge production input problems
		POTW
	Treament of Wastewater and Production of Sludge (and subsequent preparation)			<------------------2	Sludge production output problems
Lending Institution (e.g. Farm Credit Bank)
		Farmer
	Application of Sludge and Production of Crops			<------------------3	Sludge product application/use problems
Consumers (Roadside)		Food Processors		<------------------4	Derivative food products and
					downstream use/ consumption problems
		Retailers
		Consumers

Sludge Use in Agriculture: Risk Management Problems Under 503 Rule
Professor Michael Baram, Boston University Law School - 2/14/98

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