Clean Water Current Archive

September 12, 2008

Senate Briefing Canceled After Controversial Letter by Anti-Biosolids Advocates Surfaces

A Sept. 11 oversight briefing on biosolids in the Senate Environment and Public Works (EPW) Committee was canceled abruptly after the committee learned that land application opponents were using the event to force a quick settlement in a lawsuit.  The committee announced the cancellation at 10 p.m. on Sept. 10 after learning of a letter sent Sept. 3 by lawyers representing retired EPA scientist David Lewis and a Georgia farmer, Andy McElmurray, two staunch biosolids opponents, scheduled to testify before the committee.  The letter used the scheduled briefing as a tool to coerce a rapid settlement in a lawsuit they had filed against the University of Georgia (UGA) Research Foundation and individual UGA officials over the biosolids issue.  The letter was leaked to the press, and the briefing was then canceled.

“…[p]lease be advised that … David Lewis and Andy McElmurray, have been called to testify before the United States Senate Environment and Public Works Committee about the potential harms of the land application of sewage sludge,” the letter said.  “In preparation for the hearing we have realized that it will be a significant event that will bring the issues in this lawsuit to the national level and elevate our client’s claims.”  The letter went on to say that the intervening time presented a “very brief window of time to resolve this case in a way that circumstances will not permit from henceforth, which is why we are taking this very unusual step.”  The letter pointed out that Sen. Johnny Isakson, from Georgia, sits on the committee and called on the defendants to sign a draft letter agreeing with statements that EPA had fabricated data relating to the safety of land applying biosolids.  A quick settlement to the case would allow Lewis and McElmurray “to praise UGA for its handling of this matter at the Senate Hearings,” the letter said.

Lewis and McElmurray filed a lawsuit in 2006 seeking $200,000 in damages regarding what they claimed was fabricated data regarding the safety of land applied biosolids.  McElmurray has claimed that biosolids spread on his land in the 1970s killed his cattle.  After the hearing was canceled, a number of biosolids opponents, including McElmurray, held a press conference excoriating cities for continuing to rely on land application as a disposal method, referring to the “out of control water lobby” and comparing them to “Holocaust deniers.”

NACWA views the initial switch from a hearing to a “briefing”— which occurred last week — and the subsequent cancellation of the briefing as significant victories and has long maintained that such a hearing/briefing was unnecessary given the consistent record of safety regarding land application practices.  In numerous correspondences with the committee, NACWA argued that while a hearing was not needed, if one were scheduled, it was important that it be balanced and allow for municipalities and scientists to testify to the clear data and science demonstrating that land applying biosolids is safe, environmentally sound, and cost effective.

NACWA Receives EPW Committee Staff’s Promise to Work Together in Future
After the briefing was canceled, NACWA contacted the committee and expressed strong concerns about how the situation was handled and about the cancellation itself noting that the Association’s witness went to great time and expense to prepare testimony and come to town.  Committee staff indicated they planned to make it up to the clean water community by holding an oversight hearing on wastewater issues next year and looked forward to working more closely with NACWA on these important issues in the future.

What had been originally scheduled as a formal hearing on Sept. 11 in which former NACWA President Christopher Westhoff, an assistant city attorney and public works general counsel for Los Angeles, had been chosen to testify by the Republicans, evolved into a less formal “briefing” after concerns were raised that Westhoff’s testimony would focus too much on Los Angeles’ lawsuit with Kern County.  Westhoff, who is recognized for his expertise and more than two decades of experience in the biosolids arena, did not plan to focus on the lawsuit, but rather on how the city of Los Angeles and the state of California manage their biosolids and provide a national perspective on the proven safety of land application.  The switch from hearing to briefing also prompted Ben Grumbles, EPA assistant administrator for water, to cancel his participation, but the agency submitted a written statement largely supportive of land application.

Central Davis Sewer District, Utah, Came to Testify on Behalf of NACWA
In an effort to provide credibility and balance to the hearing-turned-briefing, NACWA worked with committee staff to identify a municipal witness that both sides could agree on.  The committee preferred a witness from either the District of Columbia Water and Sewer Authority (DC WASA), in Washington, D.C., or Central Davis Sewer District (CDSD) in Kaysville, Utah, both NACWA member agencies.  It was agreed that Leland Myers, the manager of the CDSD would fly to Washington and provide the municipal perspective.  Westhoff flew in from Los Angeles to be present at the briefing as well.

The other five or six witnesses who had been invited by the Democratic majority, with the exception of Grumbles, are outspoken opponents of land application.  The EPW hearing has been in the works since several biased and misleading stories by the Associated Press (AP) ran in various newspapers earlier this year.  NACWA has been working with both the committee’s majority and minority staff to ensure a balanced panel of witnesses, specifically seeking to ensure a municipal perspective that could testify about the steps clean water agencies must take to meet the stringent Part 503 requirements for biosolids land application under the Clean Water Act.  More than half of the 7.2 million tons of biosolids generated each year are beneficially reused through land application for agronomic, silvicultural, and/or land restoration purposes.  These requirements are solidly based on scientific study and have been shown time and again to provide strong protections for public health and the environment.

In his planned testimony, Myers said land application was the most environmentally sound method for managing his district’s biosolids, and that the local citizens “line up” to buy the product for use on their lawns.  NACWA also submitted a prepared statement with Myers’ testimony emphasizing that the method used for managing biosolids — whether land application, incineration, landfilling, or other option — should be a local decision.

“First and foremost, it must be understood that the current management and disposal of biosolids throughout the United States is done within the parameters of a strict regulatory regime, established under the Clean Water Act, which has repeatedly been proven to be scientifically sound and environmentally safe,” NACWA’s statement said.  “It is critical that municipalities continue to have the maximum flexibility envisioned by Congress in the Clean Water Act to decide the best method for managing biosolids.”

NACWA will be working closely with the EPW Committee to ensure such unnecessary activity does not take place again and that the views of the clean water community are clearly articulated and understood.