Federal Register I Vol. 58, No. 32 I Friday, February 19, 1993 I Rules and
Regulations, page 9262 --
503 preamble

CERCLA Liability

Questions have been raised about conditions under which sewage sludge
disposed at a Superfund site might give rise to liability under the
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA).

Section 107 of CERCLA generally imposes liability for cleanup costs on,
among others, persons who own or operate facilities at which hazardous
substances are disposed. Section 107 liability extends to the costs of cleanup
necessitated by a release or threat of release of a hazardous substance,
However, section 101[22] defines “release” to exclude the “normal
application of fertilizer.”

If the placement of sludge on land were considered to be “the normal
application of fertilizer,” that placement could not give rise to liability under
CERCLA. Today’s rule, as previously noted, establishes standards for sewage
sludge when applied to the land for a beneficial purpose [i.e., as a fertilizer
substitute or soil conditioner). Sludge placed on the land for such beneficial
purpose and applied in compliance with the requirements for land
application of sewage sludge provided in SS 503.13(b) (2) and (4, § 503.14 and
S 503.15 (where applicable) of the final rule today, and in accordance with
accepted agricultural practices using appropriate application rates, which
constitutes the normal application of fertilizer, does not constitute a
“release.

Under CERCLA, potection from liability is also provided when there is
a release of a CERCLA hazardous substance and the release occurs
pursuant to Federal authorization, Thus under CERCLA, in defined
circumstances, the application of sewage sludge to land incompliance
with a permit required by section 405 of the Clean Water Act is a Federally
permitted release as defined in CERCLA. Recovery for response costs or
damages under section 107 of CERCLA is not authorized for Federally
permitted releases. The Act defines Federally permitted releases as, among
others, discharges in compliance with an NPDES permit under section 402 of
the Clean Water Act. (See, Idaho v. Hanna Mining Co. 699 F. Supp. 827 (D.
Idaho 1987) (State cannot recover under CERCLA for damages resulting from
releases authorized by NPDES permit) affd, 882 F.2d 392 (9th Cir. 1989)).
Consequently, releases of hazardous substances from the land application of
sewage sludge authorized under and in compliance with an NPDES permit
would constitute a Federally permitted release.