On March 11, the Administrative Regulations Review Subcommittee will consider a set of revisions to Energy and Environment Cabinet regulations that weaken protections for farmers, farmland and the public from the application of contaminated sludges from municipal wastewater treatment plants.

Called “biosolids,” the sludges remaining from city treatment of residential, commercial and industrial wastes contain nutrients of value to crops and for growing livestock forage. They may also contain heavy metals and chemical contaminants with no value to agriculture, including contaminants that are taken up into the food chain and may harm the health of livestock, the safety of crops and the health of the consuming public.

Kentucky farmers, already in difficult economic circumstances in a “cheap food” economy that undervalues their essential work and the importance of their crop and livestock production, often use these sludges as fertilizers as a cost-cutting measure in lieu of commercial fertilizers.

And they rely on the cabinet to require permits and set standards and enforce testing requirements on these city treatment plant sludges to assure that if the sludge is sold or given to farmers for use as fertilizers it will not damage the productivity of their farmlands, contaminate their crops, or harm their livestock and ability to sell those products.

The land application of sewage sludges from cities has been subject to regulation by the cabinet for many years. Those cities have also been subject to federal regulations known as the 503 Regulations, adopted by the U.S. Environmental Protection Agency (EPA) in 1992.???

Complaints from a few cities of alleged delays in getting approvals for land applying their sewage sludges led to the enactment of Senate Bill 213 by the General Assembly in 2023.? SB 213 required the cabinet to revise its regulations to adopt standards “in conformance” with federal regulations that require routine monitoring for only nine pollutants.?

According to EPA’s own Inspector General in a 2018 report, EPA has failed to study the risks of and to set standards and require monitoring for 352 other pollutants detected in sludges by EPA, including 61 designated as acutely hazardous, hazardous or priority pollutants in other programs. The report concluded that EPA’s controls over the land application of sewage sludge (biosolids) may not fully protect human health and the environment.?

The cabinet’s proposed administrative regulations go much further than necessary to address SB 213 and significantly weaken accountability for applying this category of special wastes to Kentucky land. The cabinet’s regulations, if finalized without significant improvement, will result in:

• Less accountability for cities with respect to their wastewater treatment plant sludges that are land applied;
• Greater risk of contamination of farmland and potentially of crops and livestock;
• Creation of a new generation of state superfund sites where future remedial costs could be imposed on farmers and cities for cleanup of any lands where contaminated sludges were applied.

The cabinet knows that so-called “forever chemicals,” PFAs and PFOAs, are likely to be present in the sewage treatment plant sludges of cities whose municipal wastewater treatment plants (MWWTPs) accept industrial and commercial wastewaters in addition to residential and institutional wastewaters.

The key flaw among many is that there is no requirement for city testing of the sludges prior to land application for all known contaminants and no obligation to inform farmers if these sludges contain pollutants that may harm their health or land and soil productivity.

The cabinet knows that the EPA is moving forward to establish standards to limit public exposure to these forever chemicals due to known and suspected adverse health outcomes.

Yet despite this knowledge, the cabinet is moving forward with regulation changes that fail to require cities to test the sludges thoroughly and to inform farmers of the contents and that also fail to limit the land application of contaminated sludges. These regulations invite repetition of catastrophic situations such as have occurred in other states from such land applications, and which caused Maine to ban such actions.

The key flaw among many in the proposed regulations is that there is no requirement for city testing of the sludges prior to land application for all known contaminants of concern, including emerging contaminants such as PFAs and PFOAs, and no obligation to inform farmers if these sludges contain, in addition to nutrients, pollutants that may harm their health or land and soil productivity, and at what levels they are present.? The only thing that the city must tell the farmer is that the “biosolids may contain constituents from an industrial pretreatment program.” What pollutants are present and how much, are not required to be tested for or shared even if known.

And when that contamination of farmland occurs, it will be only by happenstance that it? is discovered, and there will be no obligation under these proposed regulations, to remedy the contamination.?The burden of the contamination of land and groundwater resources will fall on the farmer, and not the cities whose systems generated the sludges.

The cabinet admits that it is aware of instances in other states where long-term application of biosolids containing emerging contaminants has been “determined to be impactful to public health and the future viability of the land on which it was applied.” Yet knowing this, it proposes to allow that practice here until and unless federal rules are developed that limit such practices.

The?interests of the farming community in assuring that the sludges that they get from the cities are not contaminated with PFAs and other chemicals that have no agricultural use or value — but have a real and proven potential for contamination of land, crops, and livestock — is being sacrificed to accommodate the short-term interests of cities in cheaper disposal of their wastewater treatment sludges.?

The long-term interests of the cities and of the commonwealth — in the protection of farmers and farmland, public health, and avoidance of future cleanup liability — are served by shelving the proposed regulations and proposing a more responsible and vigorous set of requirements for testing and informed consent.

The short-term interests of the cities in finding a way to inexpensively dispose of their municipal wastewater treatment sludges appears in the proposed regulations to have trumped the protection of public health, the environment, agricultural land and those who receive and apply the wastes.??

If the cities cannot control or address the contamination through pretreatment or other means to assure that the sludges they sell or give to farmers are?in fact?only “nutrient-rich,” “organic,” and will “improve” or “maintain” productivity of the soils — rather than contaminate and render them unusable — then the cities should utilize other more responsible and accountable approaches to special waste management.