SOUND SLUDGE SCIENCE                Pages 1, 2, 3, 4
EPA/WEF Rapid Incident Response to Health Complaints From Land Application of Biosolids

by Jim Bynum                                                                                                                                                                                        5/20/2008
Help for Sewage Victims
Retired Safety Consultant

Government Employees Qualified Immunity and the Games They Play

Never the twain shall meet. Industry's Sound Sludge Science and Rapid Incident Response to health complaints from
land application of biosolids are mutually exclusive. According to Sourcewatch,
"Sound science is a phrase often used
by corporate public relations and government agency spokesmen to describe the scientific research used to justify a
claim or position. Sound science, however, has no specific scientific definition itself, so the phrase is used subjectively."

A perfect example of this illogical sound science is a UK Water Industry Research Limited funded study,  
in Biosolids - Microbiological Risk Assessment.  According to the author, P. Gale, "The working assumption is
that soil attached to crops [carrots, radishes, lettuces, barley, wheat]  may contain pathogens from the application of
treated sewage sludge to the fields." However,  "The highest risk is for Cryptosporidium, the model estimating one
infection every 45 years on average in the UK. For all other pathogens studied, the numbers of infections in the UK
annually are estimated at less than 1 every 10 million years."  The author assumed only 7 pathogens were of concern
and the treatment plants operated at 100% efficiency. The author explains, "The approach developed here
scientifically underpins The Safe Sludge Matrix and Regulations and demonstrates the importance of well-controlled
sewage sludge treatment and delay in harvesting."  

The author of the study should have read the study on "
bacteria surviving in  soil samples for 203 to 231 days, and
were detected after seeds were sown for 84 and  203 days on radishes and carrots, respectively. Now we can ask,
why  is it that:
"Superbugs kill at least 10,000 people in Britain each year — 20 times the number who die of

The study was designed to impress the media, the public and legal system, but, like all waste industry sound science
there is a qualifying statement denying any responsibility for misleading anyone, "All statements contained in this
document are made without responsibility on the part of UK Water Industry Research Limited,
and are not [to] be relied
upon as statements or
representations of facts; and UK Water Industry Research Limited does not make or give,
nor has any person authority on its behalf to make or give, any representation or warranty whatever in relation to the
contents of this document or any associated software."

Sound Sludge Science from the 1950s dictates that you do not spread sludge with
antibiotic resistant disease
organisms on food production land or where your children play. Sound science dictates that EPA admits lime treatment
does not destroy disease organisms as
USDA's John Walker discovered in 1973. Sound Sludge Science today dictates
that you test for the disease causing organisms in sludge at the
infectious body temperature where they grow and not
for some indicator organism that
only grows at a much higher temperature of 112.1 F.  Sound Sludge Science dictates
that you don't dump
toxic pollutant contaminated sludge on polluted yards to protect children's health. Therefore,  any
waste industry discussion on the subject of rapid response to health complaints from land applications of biosolids is all
smoke and mirrors. No one wants to admit that a few people at EPA  protected by qualified immunity have
compromised the law, industry, legislators, state regulators and highly educated scientists looking for research grant

An example is a pathogen test on
Synagro sludge compost pellets in Hawaii. The study states, "Despite effectively
disinfecting Salmonella, total coliform and E. coli in the biosolids, high concentrations (2.3 x 10-6 CFU/g of pellet) of
heterotrophic bacteria was recovered from the same Synagro Pellet." Most people may not realize that,
bacteria, which include all pathogens, obtain energy from oxidation of organic compounds." The strange part of the
study was stated, "The objective of this experiment was to determine whether the Synagro pellets added to Molokai soil
will stimulate the growth of total coliform bacteria.", which it did. Most people may not realize that
total coliform are the
gram negative Family Enterobacteriaceae which include Salmonella and E. coli. Then, according to the study, "The
results of this test were used to determine whether nutrients were released into the soil by Synagro pellets during the
experimental period."  While growth of coliform in the soil was given as proof the synagro pellets were releasing
nutrients into the soil.  It may be just the opposite, nutrient  deprived injured bacteria (
viable, but nonculturable) from in-
vessel composted sludge pellets were released into a nutrient rich environment which promoted growth.

Two sides of the coin 10 years apart

On June 27, 1997, CNN reported in a 3 part series called Hazardous Harvest, "The Environmental Protection Agency
prefers you call it "biosolids."    So does the Water Environment Federation, the industry group for  sewage plants
across the country.    "What it should convey is that this is a material that is carefully processed and tightly regulated,
carefully monitored and fully controlled, precisely for the purpose of protecting public health," said  Albert Gray, deputy
executive director of the Water Environment Federation."The Water Environment Federation insists science is on its
side, citing studies by the
National Academy of Sciences and other reports that say biosolids are safe for food crops."
Not exactly true according to CNN, "The EPA policy faces strong criticism even within the agency.   "Official U.S.
government policy in the Clinton administration is to grow food chain crops --the food supply of America -- on poison.
And not to tell the public," EPA engineer Hugh Kaufman says.'

Ten years later, EPA appears to be putting together a program with the Water Environment Research Foundation
(WERF) (similar to the UK Water Industry Research Limited) to investigate health incidents associated with biosolids
land application. This was outlined in the
Proceedings of the Biosolids Exposure Measurement Workshop
(2007) EPA/600/R-07/055 September 2007 --  
Protocols for the Timely Investigation of Potential Health Incidents
Associated with Biosolids Land Application
by Alfred P. Dufour. Dr. Dufour, with USEPA’s NERL (National Exposure
Research Laboratory) , discussed a December, 2004 WERF workshop on rapid incident response to health complaints
from land application of biosolids. Participants in the meeting developed a request for proposal (RFP), based on input
about previous cases of
reported health effects from the perspective of those affected. The objectives of the RFP will
be addressed in three phases. Phase 1 will involve the development of a protocol for rapid incident response. This will
be achieved by: reviewing previous incidents, collecting information on all adverse environmental outcomes,
developing a data collection/investigative instrument, consulting with states about conducting investigations, providing
investigation guidance, and communicating with health practitioners. In Phase 2, the protocol will be refined after pilot
testing at three localities.
After the protocol is optimized, recommendations will be made to WERF on how to roll out the
protocol nationwide.
In Phase 3, a database of biosolids-related investigations will be developed. In addition, guidance
will be provided on the communication of the protocol to the public through community dialogs and other mechanisms

Lets see, EPA employees (who have qualified immunity) are talking about a rapid response to health complaints, but it
has taken 3 years to figure out the objects of the proposal -- plus -- EPA claims there has never been any documented
previous incidents or adverse environment outcomes.
Yet, EPA's Incidence Response Team leader, Bob Brobst,
was asked to update his protocol in 1998 to address radioactive hazardous waste effluent going into the
Denver Metro POTW, public acceptance and dead cows.


In October 1994, EPA's John Walker and Bob Bastian was asked to submit a proposal requesting water pollution
control grant money for a third party to address sludge horror stories. The water pollution control grant money was
awarded to the Water Environment Federation (WEF) in December 1994.  John Walker was the EPA Project leader
with WEF's Nancy Blatt and Tim Williams as Co-project leaders. Walker told them who to hire as the writer, who to go to
for the story he wanted told and listed 15 sludge horror stories as immediate
Candidates For The Rest of the Story.  
Three involved dead cows and horses, six involved human health, three involved trees, crops and grass, one involved
bankers liability, One was the purchase of a 50,000 acre farm for the disposal of Denver Metro's Sludge. The most
surprising was the Federal Bureau of Land Management opposition to the use of sludge based on potential Superfund
Liability, equating it with hazardous waste dumping and landfilling.

WEF proceeded to write a number of one sided "fact sheets" to debunk the horror stories. The most shameless action
was the fact sheets were sent out to some of the sludge victims for review and comments -- but, the comments were
ignored thereby victimizing the victims.. An example is the
Linda Zander "fact  sheet" were the writer tried to debunk
three cattle death cases at once. Then we have the disclaimer: "
The information in this document has been funded
wholly or in part by the U.S. Environmental Protection Agency under assistance agreement #CX820725-01-2. It may
not necessarily reflect the views of the Agency and no official endorsement should be inferred."
 In that case, it would
appear there were rogue EPA employees running loose with too much money, too much power and no supervision.
EPA's Alan Rubin, who claims to have written the Part 503 sludge rule  was assigned at this time to the Water
Environment Federation (WEF) for two years to oversee the public relations program promoting sludge disposal as a
fertilizer and victimizing the victims.

Now EPA wants to wash it hands of the liability.  The first  step  was the
1995 public relations campaign, which included
setting up the  research arm (WEFR) to receive  direct funding from Congress (12.9 million (1999-2001) . According to
the March/April 2006 WEF Bulletin, EPA is now  negotiating to turn over to WEF the copyright to its Process Design
Manual for Sludge Treatment and Disposal (EPA/625/1-79-011) "To accomplish the transfer of the liability to
the states, EPA created its
"gang of 10" EPA and WEF stakeholders to rewrite the federal rules to  make it easier for
the states to accept responsibility for the sludge program. The "gang of 10's" formation was reported in the August 1,
1995, issue of SLUDGE. The article noted that the rewriting of the Code of Federal Regulations on state delegation
requirements  would be given to "John Walker of EPA's Municipal Technology Branch who would submit it by
September 1 for the agency review and comments." The major change in the Code would be that the states' attorney
general could simply certify that state rules were in place to regulate sludge, thereby, bypassing the current approval
process of states' legislative bodies. There was a qualifier, the states' rules could not be any more stringent than
EPA's rules."

Robert Perciasepe, Assistant Administrator for the EPA's Office of Water, wrote in two confidential January 1998 draft
statements (original & final) received from Washington that there hasn't been any monitoring or compliance
enforcement.  But, he requested $120 thousand dollars to fund the EPA's
Incidence Response Team.  According to
Bob Brobst "will be asked to update his protocol on when and how the Incidence Response Team will
work."   The first effort of the Team, according to Persiacepe, "involves the Denver Metro site where {radioactive
hazardous waste} effluent from a Superfund site {Lowery landfill} is scheduled to go into Denver Metro POTW and
biosolids would go onto their municipal owned {50,000 acre} ranch where wheat is grown." It was also sold to the public
as a soil amendment fertilizer for home use. Just think what that does to the immune system?

The only other incidence mentioned in Perciasepe's statement involved dead cows. He wrote, "
His study [Brobst]
also is involving public acceptance and dead cows at another site alleged to be associated with biosolids use,
but is

This last sentence was a puzzle. What study was he talking about and what dead cows? Was it the dead cows in the
list of
horror stories, or the dead cows in Vermont reported by CNN and debunked in the WEF Zander fact sheet or the
dead cows in Missouri, where the City of
Sparta's insurance company refused to pay the damages because of the
pollution exclusion in the policy ? As it turns out, it was dead cows in Georgia and the study was to have legal
repercussions for University of Georgia researchers who fell prey to Walker and Brobst's con game.

According to an
EPA fact sheet, it was actually 10 months after Perciasepe told Brobst to update his protocol to
investigate the Georgia cattle deaths that  on "November 7, 1998, EPA Region 4 was made aware, by an outside
private party, of an Internet site that contained information and allegations regarding the death of cattle on both dairy
farms." " In December 1998, EPA Region 4 conducted a Compliance Evaluation Inspection (CEI) at the Messerly
Wastewater Treatment Plant in Augusta, Georgia. The primary purpose of the CEI was to evaluate the City's sewage
sludge program, operated pursuant to 40 C.F.R. Part 503. EPA Region 4 also asked EPA's Biosolids Incident
Response Team (BIRT) to help the Region assess the allegations about the death of dairy cattle in Burke and
Richmond Counties. The BIRT is comprised of EPA personnel from Region 8 and Headquarters with expertise in
assessing the effect of biosolids on livestock."

Attorney Ed Hallman testified to Congress, it was not about cattle. He said, "The public nature of the litigation, and
the EPA’s fear that the sludge program could be impacted by the lawsuits, caused certain EPA employees, including
Mr. Brobst, to emerge from hiding and blindly attack the Boyce and McElmurray families."

The main attack came in the form of a University of Georgia study in which EPA's Incidence Response Team leader,
Brobst, was a co-author of
his study. In the study, "Long-term biosolids application effects on metal concentrations in
soil and bermudagrass forage",    EPA argued that the concentrations of metals in Augusta sludge at the time the
cattle died were below the levels required by federal and the state regulations and, therefore, could not have harmed
any farmland or livestock. As the EPA Grant Project leader, and co-author, Brobst controlled the study, and the
apparently fabricated data that went into the study. The
JURY did not buy it and found:  AUGUSTA RESPONSIBLE

In March 2008
the AP reported, "USDA Ordered to compensate Georgia farmer for contaminated cropland.  Officials
admit knowing that sludge chemical contaminated milk had been sold to public since 1999." "In one case, according to
test results provided to the AP, the level of thallium - an element once used as rat poison - found in the milk was 120
times the concentration allowed in drinking water by the Environmental Protection Agency." "EPA lists thallium as a
toxic heavy metal that can cause  gastrointestinal irritation and nerve damage,"

WEF members at work?

In ordering USDA to compensate the farmer, the court based its ruling on the facts: "there is a broad consensus
that Augusta's reports were unreliable, incomplete, and in some cases, fudged,"
Georgia EPD's "Larson
also reported that management at the facility was "literally a joke[,]" and that the "staff is the most
demoralized bunch of people I have ever witnessed[ .]" "Augusta manipulated its data by averaging lab
results over several months in an attempt to reduce the levels of metals present in the sludge . AR 0681 .
A former Supervisor of the Messerly Wastewater Treatment Plant, Allen Saxon, confirmed that this was the
case." "There is also evidence that the City fabricated data from its computer records in an attempt to
distort its past sewage sludge applications." "Saxon prepared sludge spreadsheets in 1999, which
showed cumulative loading calculations for the first time in the twenty-year history of the City's land
application program." "Other evidence indicates that City officials altered the spreadsheets in 1999 in an
attempt to remove any record of the application of hundreds of thousands of gallons of sludge to
hundreds of acres on the McElmurrays'  farm ."

"Of particular concern, Hall noted that over ten percent of samples showed highly elevated cadmium
concentrations, at levels up to seven times the limits that had been established at some Superfund sites,
which were being remediated under the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U .S .C . § 6901-6992k (2003)." "Food-chain crops may not be grown when the
pH of the sludge and soil mixture is less than 6 .5 and the cadmium level therein exceeds 2 ppm .
40 C .F .R . § 257 .3-5(a) (1) (i) (2007) . Nor may such crops be grown where the annual application of
cadmium from solid waste exceeds 0 .5 kilograms per hectacre,' or, .45 pounds per acre . 40 C .F .R . § 257 .
3-5(a) (1) (ii) (2007) ."

"Brobst opined in a letter that the McElmurrays' land was not contaminated . AR 1230-1240 . Because
Brobst concluded that Augusta's data sets were the most
"complete and reliable," he used its information ,
and did not consider (or find any particular fault with) the information provided by the McElmurrays."
"Perhaps more importantly, Brobst admitted that one of the McElmurrays' fields contained about forty to
fifty times the allowable lifetime loading level of cadmium . AR 2652 .34." "Other evidence of record calls
into question the fairness and objectivity of the EPA's opinions with respect to the sludge land application
program .
The administrative record contains evidence that senior EPA officials took extraordinary steps
to quash scientific dissent, and any questioning of the EPA's biosolids program ."

These court findings had grave implications for the lawsuit * CASE NO. 3:06-CV-16(CDL) against EPA's JOHN
WALKER, PH.D.;and the authors of the

"Relators contend that Defendants Miller, Gaskin, Walker, and Brobst failed to disclose personal conflicts of interest as
required by the FGCA. (Id. at ¶ 32.) Thus, according to Relators, Defendants violated the FCA by presenting a false or
fraudulent grant application for the purpose of obtaining research money from EPA." "EPA ultimately approved the
grant and Defendants commenced the Risse project. On December 19, 2001, Defendants submitted “the Gaskin
paper,” a paper outlining their research, for publication in the Journal of Environmental Quality.4 In addition to outlining
the results of the Risse project, the Gaskin paper presented Defendants’ conclusions that Augusta’s land application
program complied with federal and state environmental laws and was a safe and effective method for disposing of
sewage sludge. Relators dispute these conclusions and assert that Defendants “knew that . . . all of their data[] . . .
were unreliable, false, or fabricated[,]” and that “all of the conclusions in the Gaskin paper, which were based on these
knowingly false, fabricated and misleading scientific data, were also false and/or misleading.”"

EPA's "Defendants
Walker and Brobst seek dismissal based upon qualified immunity."  "the face of the Complaint
makes clear that Relators cite to these documents in order to support the factual allegation that land application is not
a safe and effective means of disposing of sewage sludge. In other words, Relators use the publicly disclosed
documents to factually discredit Defendants’ research and allege that Defendants’ conclusions were wrong. This,
however, is not the “allegation” Relators assert against Defendants. Relators do not allege that Defendants violated
the FCA because their research was wrong. Instead, Relators maintain that Defendants violated the FCA
because they knowingly based their research on false and fraudulent data and knowingly used that data to support
their claims for federal research funds."  "They also allege that Defendant Walker “was directly involved from
the beginning in representing Augusta’s unreliable and false historical data as scientifically credible.” (Compl. ¶ 37.)
According to Relators, “Defendant Walker suggested to Defendant Miller that he should just ‘estimate’ the historical
application rates[,]” and “[t]his representation was made in the Gaskin paper . . . .” (Id.)"

"In addition to the common defenses asserted by all Defendants,
Walker and Brobst maintain that they must be
dismissed because they have qualified immunity.
They argue that at all relevant times they were acting within their
discretionary authority as employees of EPA. The qualified immunity defense provides government officials
performing discretionary functions with complete protection from damages liability “‘insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” "Thus,
the Court must accept that Defendants Walker and Brobst knowingly caused false grant applications to be submitted to
the EPA, which clearly violates the FCA. Since “[t]he [qualified immunity] defense is designed to protect ‘all but the
plainly incompetent or those who knowingly violated the law[,]’” Morse v. Frederick, __ U.S. __, 127 S. Ct. 2618, 2640
(2007) (internal citation omitted),
the Court finds that Defendants Walker and Brobst are not entitled to
qualified immunity.

The question is, why has Congress allowed this to continue since 1994?
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