Slinging Sludge

Citing health concerns, some Pennsylvania communities no longer allow sewage sludge to be spread on farmland — and now the state is taking them to court.


Packer Township, Pennsylvania (pop. barely 1,000), is a rural community some 100 miles northwest of Philadelphia. Though small, Packer has found itself in the middle of a very big fight that is putting it at the forefront of the sewage sludge debate.

Concerned about the environmental and public health effects of spreading sewage sludge on farm fields, the township has prohibited its use. Packer is one of nearly 80 Pennsylvania communities to have taken this step. Rather than seeking to regulate sludging by putting restrictions on the practice, these laws prohibit it outright.

Packer, like so many communities across Pennsylvania and the country, has seen small and family farms disappear as agriculture has become corporatized. However, visitors can still see row after row of corn and even visit a local alpaca farm.

Now the state attorney general is suing Packer Township, arguing that the municipality doesn't have the authority to ban corporations from sludging. It's a David and Goliath fight with consequences that may reach well beyond the tiny township.

Packer Township, a holdout against sewage sludge

What is sludge?

Sewage treatment plants process all sorts of waste: human, hospital, industrial, radioactive — anything that is either flushed down a toilet or goes down a drain. At the treatment plant, the waste is separated into liquids and solids. The liquid — called effluent — is eventually returned to lakes, rivers, and streams. The remaining solid is sewage sludge, what the waste management industry calls "biosolids." It's this waste that is the subject of the debate.

In response to the growing pollution of U.S. waterways, Congress in 1972 adopted the Clean Water Act, which required communities to eliminate pollutants from the liquid discharged by sewage treatment systems. Municipal treatment plants moved forward with cleansing the effluent, but as a result those pollutants ended up in the solid, rather than the liquid, waste. (The law also called for the removal of all pollutants from waterways by 1985, but that goal wasn't met.)

The effluent that reaches the waterways may still contain nitrates, phosphates, heavy metals, and other toxins. The result can be massive algae blooms that deprive a lake or pond of oxygen and kill the life within them.

And what of the sludge itself? According to the U.S. Environmental Protection Agency, which regulates sewage sludge treatment and disposal, even treated sludge may contain organic solids, nutrients, pathogens (bacteria, viruses), heavy metals and inorganic ions, and "toxic organic chemicals from industrial wastes, household chemicals, and pesticides."

According to the nonprofit Center for Food Safety, "(H)undreds of people have fallen ill after being exposed to sewage sludge fertilizer — suffering such symptoms as respiratory distress, headaches, nausea, rashes, reproductive complications, cysts, and tumors." The EPA monitors only nine of the thousands of pathogens commonly found in sludge, so there could be even greater risks to humans and the environment.

The sludge and agricultural industries argue that the land application of sludge is safe when conducted in accordance with government regulations. In a fact sheet, the Water Environment Federation, the main lobbying arm of the sludging industry, makes its case by citing a 2008 review of sewage sludge pathogens that was published in the Journal of Environmental Quality. The article states that the "risks to human health posed by many microbiological entities within biosolids have been shown to be low if current EPA regulatory guidelines are followed. In addition, risks from indirect exposures such as aerosolized pathogens or contaminated groundwaters appear to be particularly low."

Sludge disposal

Until the late 1980s, it was common for municipalities to transport their sludge by barge to the nearest ocean and dump it 12 miles offshore. That changed in 1984 as increasing evidence showed that ocean dumping was harming marine ecosystems, and the EPA issued new regulations requiring sewage sludge to be dumped at least 106 miles offshore. Just four years later, in 1988, Congress passed the Ocean Dumping Ban Act to prohibit the practice altogether.

The waste management industry, which hauls sludge away from sewage treatment plants, was forced to find another place to dump the waste. What it found was farmland. Today, the EPA estimates that half of the millions of tons of sewage sludge produced each year is applied to farmland.

According to some estimates, sludge hauling is now an $11 billion a year industry. Sludge haulers — such as Houston-based Synagro Technologies, the largest of the companies involved and the owner of Waste Management, plus numerous subsidiaries — give farmers the sludge for free to apply to agricultural land where crops are grown.

Last year, the EPA reported findings from its Targeted National Sewage Sludge Survey, the fourth such survey since 1982. The latest survey sampled sewage sludge from some of the largest treatment plants in the country. Every sample studied contained flame retardants, pharmaceuticals, steroids, heavy metals, and other chemicals, but the report stated further that "inclusion of pollutants in the TNSSS does not reflect a determination that their presence in sewage sludge adversely affects human health or the environment."

Public health advocates across the country are convinced there is a danger from exposure to sewage sludge spread on fields. Advocates have spent years lobbying Congress, the EPA, and state regulators to end the practice of land application.

In the 2008 case of McElmurray v. U.S. Department of Agriculture, the federal district court in the Southern District of Georgia ordered the USDA to pay compensation to a rancher whose cows died after exposure to land-applied sewage sludge. The sludge was found to contain PCBs, arsenic, and heavy metals. Lawsuits continue to be filed as more people and livestock have fallen ill.

Saying "no"

The sludge itselfCommunities that try to stop sludging face a host of state and federal environmental regulatory laws — such as Pennsylvania's Solid Waste Management Act and the federal Clean Water Act — that legally authorize the land application of sewage sludge. They also find that the agencies administering these laws are actively promoting "biosolids recycling" on farmland — working with the waste haulers.

The EPA has joined with the Water Environment Federation to form the National Biosolids Partnership, which promotes the land application of sewage sludge. The partnership's website includes biosolids "success stories."

Packer Township adopted its ordinance in 2008 to prohibit sludging on farmland, knowing that the law might be challenged. Residents decided that a ban was their only choice. They had seen the impacts of sludging directly, as the ordinance describes:

"In 1994, eleven-year-old Tony Behun from Rush Township, Centre County, Pennsylvania, died from a staphylococcus infection shortly after being exposed to sewage sludge. The following year, seventeen-year-old Daniel Pennock from Reading, Pennsylvania, died from a staphylococcus infection shortly after being exposed to sewage sludge. The U.S. Environmental Protection Agency (EPA) recognizes staphylococcus as a potential pathogenic component of sewage sludge."

The ordinance further states, "The land application of sewage sludge in Packer Township poses a significant threat to the health, safety, and welfare of the citizens and environment of Packer Township."

And: "In April 2002, the Inspector General of the Environmental Protection Agency (EPA), which oversees state sewage sludge regulations, issued a report in which it concluded, 'EPA cannot assure the public that current land application [of sewage sludge] practices are protective of human health and the environment.'"

A key piece of the Packer ordinance is found in Section 8.12, which eliminates corporate constitutional "rights" and protections within the township. By taking this step, the township is, in effect, stripping away the waste haulers' court-conferred rights, including Fifth and 14th Amendment rights to due process and equal protection, as well as powers under the Commerce Clause of the U.S. Constitution.

In adopting those provisions, Packer joined a dozen other communities across the U.S. that have found it necessary to take on over 100 years of Supreme Court jurisprudence that confers the Bill of Rights and other protections onto corporations.

The U.S. Supreme Court continues to expand and affirm corporate constitutional rights (this year's Citizens United decision is just one example of this trend). These communities do not expect the courts or government agencies to agree that corporate constitutional rights are illegal and illegitimate; instead, they are building a people's movement to drive such change upward to the state and federal levels. In the Packer Township lawsuit, the attorney general is arguing that the section of the township's ordinance that removes corporate constitutional rights "obviously is unconstitutional."

Pennsylvania fights back

In response to community ordinances banning sludging, as well as the dozen or so local ordinances prohibiting factory farming, the Pennsylvania state legislature adopted the Agriculture, Communities, and Rural Environment Act in 2005. The ACRE law, adopted at the urging of the agribusiness industry, authorizes the Pennsylvania attorney general to sue local townships to overturn these ordinances — and to sue at the request of agribusiness companies.

This very step was taken in 2007, when Attorney General Thomas Corbett sued East Brunswick Township in Schuylkill County, Pennsylvania, at the behest of a sludging corporation. The aim was to overturn the township's anti-corporate sludging ordinance. A year after the suit was filed and before a decision could be issued in the case, the East Brunswick Board of Supervisors voted to rescind the ordinance and replace it with another that simply regulated sludging.

The new ordinance restricted the hours when sludge could be spread and required farmers to notify the township before it was applied. The state attorney general sued East Brunswick a second time to overturn the new ordinance, arguing that the community was not authorized to regulate sludge more stringently than the state. Having settled the case with the state, the township is now allowed to prohibit sludge application on certain days such as major holidays.

Meanwhile, other communities moved forward with their own anti-sludging ordinances, including Packer. A month after the Packer ordinance was adopted, in July 2008, Corbett sent a letter to the township indicating that a corporation had asked his office to review the ordinance and consider suing the township to overturn it. The supervisors responded in an open letter to the attorney general stating that state law permitting sludging "was drafted and adopted by agribusiness corporate interests, using the legislature as a vehicle."

The letter continued: "It is an undemocratic and illegitimate law under a system in which the consent of the people directly affected by such governing decisions is made irrelevant ... and we refuse to recognize its enforceability."

Last fall, the attorney general sued Packer and filed a motion for summary relief — arguing that the ordinance should be immediately overturned. In March, the Commonwealth Court of Pennsylvania denied the request, giving Packer Township a partial initial victory. However, the court also ruled that the township does not have the authority to countermand the attorney general's authority to enforce state law.

If Corbett pursues a trial (this is an election year and he is running for governor), the court will focus on two key questions. First, whether the land application of sewage sludge is a "normal agricultural practice," as the state argues. And second, whether the land application of sewage sludge constitutes a direct threat to human health and safety, as Packer asserts. The state and its expert witnesses are arguing that it is not. This will be the first time such questions are directly considered in a court of law.

The state's expert witness, Herschel Elliott of Pennsylvania State University, argues that the land application of sewage sludge is safe, writing, "Many of the chemicals and toxicants present in biosolids are also present in our food and drinking water. ... It is not the presence or absence of toxins that define risk, but rather their concentrations and frequency of exposure."

In May, the township supervisors unanimously adopted an ordinance that enables the municipality to enact and enforce environmental protection standards exceeding those set by the state legislature. The new ordinance asserts that laws overriding local controls "have violated the right of Packer Township residents to govern their own community." It also declares that building a sustainable community means opposing illegitimate law, requiring "the people of Packer Township to refuse to recognize the authority of the attorney general or the courts, when those entities attempt to enforce the legislature's illegitimate acts."

Taking on the system

Packer Township is at the forefront of the fight on sewage sludge, but similar discussions are happening in other Pennsylvania communities — and communities in New Hampshire and Maine, as well as places like Spokane, Washington, and Mt. Shasta, California. These places are rethinking an entire structure of law and governance that puts them at the losing end of the stick.

These efforts follow decades of battles over environmental justice. But while those earlier fights have led to some increased regulation of adverse environmental impacts, they have failed to challenge the legal authority that has been reserved for corporations — and their directors — to override community decision making.

Now communities are challenging the system head-on. As Tom Gerhard, chairman of the Packer Township Board of Supervisors, explained at an anti-sludge rally this spring at the state capitol in Harrisburg, Pennsylvania, "We have the right of self-government. Don't stop us and don't challenge us. It is my responsibility to keep the township healthy and safe. I'm doing my job."