Sludge: The Regulations
Part II: Now that we know what's in it, and we also know nobody wants it; next question, "Who decides how it's going to be dealt with?"

(from Maine Townsman, May 1993)
By Jo Josephson, Assistant Editor

Promoting the "beneficial reuse" of "biosolids," the newly minted name for "recyclable sewage sludge," the National Sewage Sludge Rule, also known as "Part 503" was signed into law last November. Fifteen years in the making, it goes into effect in February 1994.

In its preamble to the new regulations, the EPA claims it is confident that its new regulations "adequately protect public health and the environment from all reasonably anticipated adverse effects . . . when sludge is disposed of on the land or used as a soil conditioner or fertilizer in compliance with these rules . . ." (Author's italics).

The new regs are described as setting a "regulatory floor" for handling and disposing of municipal sludge; which is the same as saying that permitting agencies can set more stringent standards and additional requirements if they wish.

Maine's current sludge rules have been on the books since 1976, amended once in 1986, and are said to be among the most stringent in the nation. They will be revised this summer, in light of past experience and in light of the new EPA regs.

DEP's Brian Kavanah notes that "the EPA rule is heavy in sludge quality but light on site specific criteria and management practices." Which is to say, Maine's regulations on site specific criteria continue to be more stringent than the EPA. For example, Maine requires a 300 foot setback from a surface body of water or a well or a residence. EPA's new rule only requires a 10 meter or 30 foot setback. The EPA has no criteria for slope; the DEP sets a maximum of 15 percent slope for de-watered sludge and 8 percent for liquid sludge.

However, when it comes to management practices, in the area in vector (flies, rodents, mosquitoes) attraction reduction, Part 503 has one requirement that is more stringent than the DEP's, according to Kavanah. The DEP has no timetable for incorporating the sludge that is spread on the field into the soil; under EPA's new regs, sludge that is not lime stabilized or heat treated to kill the pathogens must be incorporated /buried within 24 hours after spreading.

Part 503 is also more stringent when it comes to the waiting time be-ore planting crops for direct human consumption. Maine currently requires an 18 month waiting period after the sludge has been spread; EPA's regs require 40 months.

When it comes to the quality of the sludge there are also differences. For example, the EPA has set less stringent standards for cadmium, chromium, copper, mercury, nickel and zinc. Which is to say, EPA's regs allow for higher concentrations of these metals in the sludge.

But EPA has more stringent standards when it comes to the allowable concentration of lead in the sludge. Which is to say the EPA's new rules require a lower concentration of lead. The EPA requires only 300 parts per million (ppm); the DEP allows for 700 ppm.

But the difference does not appear to concern DEP's Kavanah. He reports that everybody in Maine is still in compliance because he has yet to find any Maine sludge containing lead at a concentration higher than 300 ppm. (The L/A sludge report for 1991 indicates only 102.5 ppm for lead; Portland reported only 142 ppm in 1987).

Lead aside, Kavanah also notes that the new regs set parameters for three metals Maine currently does not test for because it does not find them in the sludge: arsenic, selenium and molybdenum.

Part 503 is also more stringent when it comes to pathogen (bacteria, virus) reduction, requiring testing to prove the pathogens have been destroyed by the heat or the lime. Maine's current regulations assume the process has worked and require no testing.

"The levels set in Maine by DEP are a "best guess". The levels now set by EPA are the result of ten years of intense risk analysis," says former DEP staffer Steve Page when asked to speculate if Maine will reduce its standards.

While the rulemaking that would revise Maine's regulations in light of the EPA's new ones is formally set to begin sometime this summer, Kavanah says the process has already been jump-started. Small informal groups whose members include municipal officials, farmers; consultant managers have met several times and begun work on a first draft.

Kavanah says that not only will the quality, management and siting criteria undergo intense scrutiny, but the permitting process as well. Public hearings have yet to be scheduled.

THE PERMITTING PROCESS AND THE PLAYERS

Local ordinances aside, the DEP is responsible for licensing the spreading of the sludge on a site by site basis. Permits or licenses are good for five years. The license is granted to the generator of the sludge, i.e. the treatment plant; it is not granted to the farmer on whose land it is to be spread, nor to the so-called middleman who is often hired to do the necessary paperwork and oversees the spreading.

There are currently five known "middlemen" or private consulting firms that treatment plants contract the work out to in Maine. Resource Conservation Services, located in Brunswick is the oldest and largest of the sludge managers in Maine; it currently manages the spreading of 40,000 cubic yards of sludge a year in Maine for six major treatment plants, trucking the sludge to 100 Maine farms, according to Jo D. Saffeir. It was founded in Maine in 1983 and acquired by an out-of-state firm in 1991.

The other players/managers are ESCO in Medomak (Waldoboro), Crane Environmental Associates in South China, NETCO in Berwick, and the newest kid on the block, but the largest waste disposal firm in the country: Waste Management Inc. in Portland. Many of the firms are headed by former DEP staffers. Steve Page, who until recently headed up DEP's sludge is now developing WMI's sludge disposal program.

It is these firms that contact abutters and local government officials and local newspapers when an application has been filed with the DEP to spread sludge in a community. It is their name and return address that appears on the envelope; not DEP's, nor the wastewater treatment plant's.

The firms work with the generators (treatment plants) to prepare the applications to spread the sludge on the farmland. The applications require that the sludge be "characterized" or analyzed on a timely basis to see that the sludge is suitable for land application; to see that they conform to DEP's rules. They also locate potential farmers with suitable land; land whose slope and soil comply with DEP's regulations and is also within a reasonable radius of the treatment plant.

"It's an elaborate process to prove that the site is suitable," says RCS' Saffeir. Among other things, the prospective field is tested for is pH. If it is above 7 (read "alkaline") the site is disqualified, as sludge already contains a lot of lime and too high a pH makes for poor growing conditions. The soil is also tested for specific nutrients and heavy metals to ensure that the existing concentrations are below acceptable levels in order that they can absorb more.

The prospective field is also mapped for distance to surface waters, wells, drainage ways, and houses. Slopes are checked. The minimum distance to wells is 300 feet; the maximum slope is 15 degrees.

And last but not least, a detailed management plan is developed noting, among other things, the types of crops to be grown, the anticipated spreading schedule and the application rate at which the. sludge will be spread. In Maine, the application rate is based on the amount of nitrogen needed for the crop. (The average farmer uses between 10 and 20 cubic yards of sludge per acre).

On the same day that the application is submitted to the DEP on behalf of the treatment plant, the consulting firms send a notice to each abutter of the land under consideration. Notice is also sent to the chairman of the planning board, the board of selectmen and a local newspaper for publication. The town clerk receives a full copy of the application for purposes of public inspection.

The abutters have 14 days after the notice appears in the newspaper to comment on the application and request a public hearing. A public hearing may or may not be held "at the discretion of the DEP or the Board of Environmental Protection."

A public hearing is different from a public meeting, citizens of Thorndike pointed out when they made an appeal for the former to the Board of Environmental Protection last month. They were turned down, but not before they made it clear that they felt the permitting process had been flawed.

"If we can't trust you on the small details, how can we trust you on the scientific details," one citizens told the BEP.

NEW GLOUCESTER'S ORDINANCE

New Gloucester has had its own ordinance regarding the storage and spreading of municipal sludge since 1986; it is still in effect, having been amended as recently as 1992. "No one has yet definitely answered the question: Can towns enact their own ordinances governing the spreading of sludge," says attorney Janet McClintock of the Maine Attorney General's office. Which is to say, no one has yet challenged or tested New Gloucester's ordinance in court, yet.

The only law that possibly prohibits the local ordinances, speculates McClintock is Title 38, Section 1310-U of the Maine Solid Waste Management Law which was passed a year after New Gloucester's ordinance. Section 1310-U addresses the issue of municipal ordinances, prohibiting municipalities from enacting stricter standards than the state for solid waste facilities.

It is interesting to note that the Maine Waste Management Agency's definition of the phrase "solid waste disposal facility" is limited to incinerators and landfills and expressly exempts, among others, Recycling Facilities, Composting Facilities, Other Waste processing Facilities and Landspreading Sites."

Legality aside, those interviewed for this article describe the New Gloucester ordinance on the whole as "workable" and "reasonable" and at best gives the townspeople a "sense of control".

Twenty-five miles from the Portland Water District, 15 miles from the Lewiston Auburn facility, New Gloucester's farmlands are prime targets for the spreading of sludge from big city treatment plants. But the town also sits on a very large aquifer. Twenty square miles worth, the aquifer, the town's sole source of water, sits under half the town, notes Roger Paquette, New Gloucester's code enforcement officer.

So it is not surprising that back in 1986, working with the Portland Water District and Resource Conservation Services, the New Gloucester Planning Board, drafted an ordinance "Regulating Storage and Land Application of Sludge Residuals". At the time the ordinance was drafted the town felt DEP's standards were "too permissive", recalls Kinvin Wroth who was a member of the planning board in 1986. And the Portland Water District "wanted to do it right".

"Looking out for itself," is how L/ A's Richardson views the New Gloucester ordinance. "Unnecessary, but it gives the town a feeling of greater control," is how RCS' Jo D. Saffeir sees it.

Under the ordinance, the treatment plant must not only apply to the state, but to the town as well, through a separate application to the planning board. The town's permit is subject to an annual review by the board and requires an annual inspection fee.

The ordinance requires the applicant to furnish the town's code enforcement officer with copies of all conditions and limitations imposed by the DEP as well as prompt notice of any changes . . . any further testing required by DEP . . ." It also requires that the applicant notify the code enforcement officer of the delivery timetable and who is to do the actual spreading, in a timely manner.

In other words, New Gloucester's ordinance requires the state and the treatment plant to keep the town well informed in a timely manner.

But it doesn't stop there, the New Gloucester ordinance also imposes some of its own requirements to be doubly sure that its aquifer is protected. Not only does it prohibit the storage and spreading of sludge in any groundwater protection overlay zone in New Gloucester, it also makes provisions for monitoring the wells within 300 to 500 feet of any site proposed for storage or spreading.

The request can be made at "the discretion of the Planning Board or at the request of the owner of the well. The Board may require baseline and annual water analysis of the well for nitrate and nitrite levels." The cost to be born by the applicant.

The ordinance's authority is based on the Home Rule Provision of the Maine Constitution: Article VIII, Part 2 and Title 30-A of the Maine Revised Statutes Annotated, Section 3001.

LOCAL CONTROL: IN LIEU OF THE ORDINANCE

In lieu of passing a local ordinance, those interviewed for this article said there were other ways for municipalities to take control of the situation.

At the state level, they are encouraging citizens to take an active role in the upcoming sludge rulemaking by attending the public hearings that will be scheduled by DEP this summer and to focus their attention on the permitting process and the public's rights under them.

At the local level they suggest the following:

Insist that there be an informational meeting with the major players when an application has been made: the DEP, the treatment plant, and the firm managing the sludge disposal, as well as the local farmer.

Walk the potential site with the authorities; point out possible wet areas that might have been overlooked.

Make sure the county soil and water conservation district has reviewed the application.

Hire an independent firm to review the application (Pittsfield hired such a firm for under $1,000).

Ask who is liable if something goes wrong.

Ask that random sampling be taken before the sludge is spread.

Ask who is going to be on the site supervising the spreading; ask if the setbacks are going to be clearly marked

Ask if the abutting landowners will be notified just prior to the delivery of the sludge so that local representatives can be on the site to oversee the spreading for themselves.

Ask DEP if they are getting the annual analysis of the contents of the sludge from the treatment plant.

Ask the treatment plant if you can tour the plant and see it in operation.

Become familiar with "SRURF Update", a quarterly newsletter published by the Maine Sludge and Residuals Utilization Research Foundation, 11 Coburn Hall, University of Maine, Orono, 04469,. tel: 581-1490.