Sludge Watch ==> August GA manipulated and falsified data on sludge farm contamination

[Maureen Reilly]

Sludgewatch Admin:


Dairy farms received sewage sludge from Augusta Georgia. The sludge 
contaminated their fields and crops.  The farmers won lawsuits against the 
City of Augusta.
Look at the shocking story of how these farmers were treated by the sludge 
industry, the City, the USDA.

The court ruling is exerpted below.
The complete transcript of the report will be in the next post .

..................................................................

http://chronicle.augusta.com/stories/030208/cit_189463.shtml


City Ink
By Sylvia Cooper| Columnist
Sunday, March 02, 2008



(...)

Governments are not above hiding, destroying and manufacturing records. I 
have even known officials who have literally, and I do mean literally, sat 
on federal court orders to buy time.

Take the McElmurrays' case to recoup losses caused by their land being 
poisoned by sludge from the city's wastewater treatment plant.

Last week, U.S. District Judge Anthony A. Alaimo blasted the city, the U.S. 
Department of Agriculture and the Environmental Protection Agency for the 
city's falsification of documents and the two federal agencies for buying 
into it.

We quote briefly from Judge Alaimo's ruling in the McElmurrays' favor.

"... Augusta manipulated its data by averaging lab results over several 
months in an attempt to reduce the levels of metals present in the sludge. 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. In 
January 1999, the city rehired Saxon to create a record of sludge 
applications that did not exist previously. Saxon prepared sludge 
spreadsheets in 1999 which showed cumulative loading calculations for the 
first time in the 20-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."

This happened before City Administrator Fred Russell , Mayor Deke Copenhaver 
or any of the current commissioners came on the scene. But Mr. Saxon is an 
assistant director in the city's utilities department.


...........................................................................

R. A. McELMURRAY, III, CIVIL ACTION
R. A. McELMURRAY, JR. ,
RICHARD P. McELMURRAY, and
EARL D . McELMURRAY,


Plaintiffs ,


V.
UNITED STATES DEPARTMENT OF
AGRICULTURE ,
Defendant . NO. CV105-159
O R D ER
Plaintiffs, R. A. McElmurray, III, R. A. McElmurray,
Jr., Richard P. McElmurray, and Earl D. McElmurray
(collectively, the "McElmurrays"), filed the above-captioned
case against the United States Department of Agriculture
("USDA"), seeking judicial review of an administrative
decision, which denied the McElmurrays' application for. a
"prevented planting" federal farm subsidy .
Presently before the Court are the parties' cross-
motions for judgment on the administrative record. Because
the agency's decision was arbitrary and capricious,
Plaintiffs' motion will be GRANTED and Defendant's motion
will be DENIED.

..........

Evidence related to the pH level of the soil also
supports Plaintiffs' position that the land was too polluted
to grow crops for human consumption . 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) .


Plaintiffs' evidence shows that sewage sludge with
cadmium concentrations of between 4 .2 ppm (January 1980) and


1200 ppm (February 1990) were deposited on Plaintiffs'
farmland for ten years. Many fields contained annual
cadmium deposits that were two or three times the federal
limit . AR 1132-1157 . According to the information supplied
by Augusta, the pH level of the sludge and soil mixture at
the McElmurrays' farm was below the 6 .5 minimum
consistently . These figures were accepted as credible by
Plaintiffs and their experts, and the EPA, which relied on


25



Augusta's data only in reaching its conclusions in this


case . AR 892-913 .
Another factor supporting Plaintiffs' argument that the


land was contaminated is that certain metals react to the
soil's pH level differently. Augusta advised the
McElmurrays to keep the pH level of their soil elevated, to
attenuate the effect that certain heavy metals would have on
their crops . Generally, most metals will accumulate from
the soil into the plants grown thereon when the soil has a
low pH level. However, molybdenum and arsenic are the
exception to this rule . AR 1783 . According to experts
retained by both parties , molybdenum accumulates in plants
more easily and directly when soil pH levels are high . AR
0345 & 0411. As a result , Augusta's suggestion that


applying lime to raise the pH level would mollify any
contamination concerns was misleading or incomplete . AR
0348 .


Other specific evidence showed that heavy metals wer e
found at levels that were above the regulatory limits on the
McElmurrays' farm, making the land unfit for food grown for
human consumption . On one piece of property alone, antimony
levels registered at 96 .8 ppm, while the regulatory limit
was 4 ppm. Arsenic registered at 44 .2 ppm, more than twice


26



the amount allowed by law . Cadmium was found at a level of


6 .41 ppm, which was more than three times the level deemed
safe under the law. Selinium registered at 5.4 ppm,


although the cleanup standard provided under the law was set


at 2 ppm. Thallium was found at 51.6 ppm on that particular


piece of property, although the regulatory limit is 2 ppm.'


AR 1801-03 . The levels were similar on other parcels farmed


by the McElmurrays. AR 1803-06 . 8


At oral argument, the McElmurrays noted that the


administrative record showed that Augusta's lab reports


demonstrated that PCBs were placed on their land at a level


in excess of 5,000 ppm, even though the allowable limit


under EPA standards was 2 ppm . See40 C.F.R . 257.3-5


According to the evidence contained in the administrative record,
Thallium is quite dangerous to dairy herds. AR 0916. Plaintiffs
maintain that Thallium was used as a catalyst by NutraSweet in making


its sweetener, and NutraSweet was the largest user of the Augusta sewer
system during the 1980s . AR 1808 . The McElmurrays contend that the
City did nothing to limit large or illegal dumping, like that by
NutraSweet . A 1998 EPD audit provided some support for this contention,
finding that "[t]here are no local limits for conventional pollutants"


at the Messerly plant . AR 1669 .


a
This portion of the administrative record ;discusses the limits


allowed under Georgia law. At oral argument, Plaintiffs' attorney
conceded that federal law controlled, but reported that Georgia law was
coextensive with federal requirements in this respect . Although counsel
for Defendant expressed no opinion about the applicability or the
relevance of state law, the Government's lawyer did not disagree that
the relevant state and federal standards were the same .


27



(2007) . The government has not disputed that
characterization of the evidence, and it is supported by the
administrative record. AR 0535 .


Moreover, Plaintiffs submitted evidence that the sludge
contained hazardous levels of chlordane, and that it was
applied to their land from 1980 to 1985, even though it was
banned in 1978 . AR 843-883 & 1109-57 ; Velsicol Chemical
Co ., et al . : Consolidated Heptachlor/Chlordane Cancellation
Proceedings, 43 Fed. Reg. 12,372, 12,373 (March 24, 1978) .
Plaintiffs cite the following additional sources as evidence


that the sludge was applied to their land in violation of
federal law: AR 0329-85, 0623-837, 1064-1073 ;see40 C.F.R.
Part 257, 40 C.F.R. Part 261, 40 C.F.R. Part 258, Appendix


I and II .


The evidence in the administrative record shows that the
McElmurrays' land is contaminated and unfit for growing
food-chain crops . Plaintiffs maintain that they would have
violated the law by planting crops, putting human health and
welfare at risk . The McElmurrays submit that the high
mortality level experienced by their dairy herd is proof of
the dangers associated with planting food crops on their


land.


28



The court concludes that the evidence of contamination
on the McElmurrays' land was substantial, and the data
provided by Augusta was flawed.
R. A. McELMURRAY, III, CIVIL ACTION
R. A. McELMURRAY, JR. ,
RICHARD P. McELMURRAY, and
EARL D . McELMURRAY,


Plaintiffs ,


V.
UNITED STATES DEPARTMENT OF
AGRICULTURE ,
Defendant . NO. CV105-159
O R D ER
Plaintiffs, R. A. McElmurray, III, R. A. McElmurray,
Jr., Richard P. McElmurray, and Earl D. McElmurray
(collectively, the "McElmurrays"), filed the above-captioned
case against the United States Department of Agriculture
("USDA"), seeking judicial review of an administrative
decision, which denied the McElmurrays' application for. a
"prevented planting" federal farm subsidy .
Presently before the Court are the parties' cross-
motions for judgment on the administrative record. Because
the agency's decision was arbitrary and capricious,
Plaintiffs' motion will be GRANTED and Defendant's motion
will be DENIED.

..........

Evidence related to the pH level of the soil also
supports Plaintiffs' position that the land was too polluted
to grow crops for human consumption . 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) .


Plaintiffs' evidence shows that sewage sludge with
cadmium concentrations of between 4 .2 ppm (January 1980) and


1200 ppm (February 1990) were deposited on Plaintiffs'
farmland for ten years. Many fields contained annual
cadmium deposits that were two or three times the federal
limit . AR 1132-1157 . According to the information supplied
by Augusta, the pH level of the sludge and soil mixture at
the McElmurrays' farm was below the 6 .5 minimum
consistently . These figures were accepted as credible by
Plaintiffs and their experts, and the EPA, which relied on


25



Augusta's data only in reaching its conclusions in this


case . AR 892-913 .
Another factor supporting Plaintiffs' argument that the


land was contaminated is that certain metals react to the
soil's pH level differently. Augusta advised the
McElmurrays to keep the pH level of their soil elevated, to
attenuate the effect that certain heavy metals would have on
their crops . Generally, most metals will accumulate from
the soil into the plants grown thereon when the soil has a
low pH level. However, molybdenum and arsenic are the
exception to this rule . AR 1783 . According to experts
retained by both parties , molybdenum accumulates in plants
more easily and directly when soil pH levels are high . AR
0345 & 0411. As a result , Augusta's suggestion that


applying lime to raise the pH level would mollify any
contamination concerns was misleading or incomplete . AR
0348 .


Other specific evidence showed that heavy metals wer e
found at levels that were above the regulatory limits on the
McElmurrays' farm, making the land unfit for food grown for
human consumption . On one piece of property alone, antimony
levels registered at 96 .8 ppm, while the regulatory limit
was 4 ppm. Arsenic registered at 44 .2 ppm, more than twice


26



the amount allowed by law . Cadmium was found at a level of


6 .41 ppm, which was more than three times the level deemed
safe under the law. Selinium registered at 5.4 ppm,


although the cleanup standard provided under the law was set


at 2 ppm. Thallium was found at 51.6 ppm on that particular


piece of property, although the regulatory limit is 2 ppm.'


AR 1801-03 . The levels were similar on other parcels farmed


by the McElmurrays. AR 1803-06 . 8


At oral argument, the McElmurrays noted that the


administrative record showed that Augusta's lab reports


demonstrated that PCBs were placed on their land at a level


in excess of 5,000 ppm, even though the allowable limit


under EPA standards was 2 ppm . See40 C.F.R . 257.3-5


According to the evidence contained in the administrative record,
Thallium is quite dangerous to dairy herds. AR 0916. Plaintiffs
maintain that Thallium was used as a catalyst by NutraSweet in making


its sweetener, and NutraSweet was the largest user of the Augusta sewer
system during the 1980s . AR 1808 . The McElmurrays contend that the
City did nothing to limit large or illegal dumping, like that by
NutraSweet . A 1998 EPD audit provided some support for this contention,
finding that "[t]here are no local limits for conventional pollutants"


at the Messerly plant . AR 1669 .


a
This portion of the administrative record ;discusses the limits


allowed under Georgia law. At oral argument, Plaintiffs' attorney
conceded that federal law controlled, but reported that Georgia law was
coextensive with federal requirements in this respect . Although counsel
for Defendant expressed no opinion about the applicability or the
relevance of state law, the Government's lawyer did not disagree that
the relevant state and federal standards were the same .


27



(2007) . The government has not disputed that
characterization of the evidence, and it is supported by the
administrative record. AR 0535 .


Moreover, Plaintiffs submitted evidence that the sludge
contained hazardous levels of chlordane, and that it was
applied to their land from 1980 to 1985, even though it was
banned in 1978 . AR 843-883 & 1109-57 ; Velsicol Chemical
Co ., et al . : Consolidated Heptachlor/Chlordane Cancellation
Proceedings, 43 Fed. Reg. 12,372, 12,373 (March 24, 1978) .
Plaintiffs cite the following additional sources as evidence


that the sludge was applied to their land in violation of
federal law: AR 0329-85, 0623-837, 1064-1073 ;see40 C.F.R.
Part 257, 40 C.F.R. Part 261, 40 C.F.R. Part 258, Appendix


I and II .


The evidence in the administrative record shows that the
McElmurrays' land is contaminated and unfit for growing
food-chain crops . Plaintiffs maintain that they would have
violated the law by planting crops, putting human health and
welfare at risk . The McElmurrays submit that the high
mortality level experienced by their dairy herd is proof of
the dangers associated with planting food crops on their
land.


28

The court concludes that the evidence of contamination
on the McElmurrays' land was substantial, and the data
provided by Augusta was flawed.