Subject: Court decision - Georgia - re: McElmurray v. USDA - cotton = food chain crop = Cadmium =
Superfund level - PCBs > 5000 ppm ! Brobst -EPA - sludge program: unreliable, fraudulent data
Date: 3/1/2008 4:15:07 P.M. Pacific Standard Time
p. 7 of 45
"While it may seem odd at first blush, the parties agree that cotton is a food-chain crop. It is common for cows to be fed
cotton hulls after the cotton lint is removed from the plant (and people consume beef and dairy products), and
cottonseed oil is a common ingredient in many snack foods that people eat, like potato chips . AR 1262 . Moreover,
there is substantial evidence that cotton is not an economically viable crop without considering the marginal value of
cottonseed. AR 1049-SO & 1055-56 ."
p. 14 of 45
"DISCUSSION
The issue presented in this case concerns whether the McElmurrays' land was contaminated by sludge applications
such that the soil was unsafe for growing food-chain crops . The only dispute presented in this case concerns whether
the McElmurrays' land was too polluted to use . The agency has never disputed the question of causation ; and the
evidence of record supports a finding that causation was established ."
p. 15 of 45
"According to the deposition testimony of Hugh Avery, Augusta's sewage sludge land application supervisor
beginning in 1984, the City's sludge application data going back to 1979 were inaccurate, and the records predating his
tenure were "in shambles." AR 2604-05. "
Specifically, Avery testified that the records were incomplete and missing critical information about which fields received
sludge applications . AR 2604 .
p. 16
"The final EPD report based on Larson's investigation found that " [t] he sludge regulations are based on a well run
pretreatment program which is not the case in Augusta. The sludge is highly corrosive . . . ." AR 1670. The repor t
recommended that the plant be shut down immediately.
p. 17
"Dr. Lewis Goodroad, Plaintiff's expert soil scientist, reported that Augusta manipulated its data by averaging lab
results over several months in an attempt to reduce the levels of metals present in the sludge .
"In January 1999, the City rehired Saxon to create a record of sludge applications that did not exist previously ."
p. 18
"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. "
Goodroad reported that 18 .9 million gallons of sludge had been applied to Plaintiffs' fields but was not
recorded by Augusta. AR 0650 .
p. 19
40 C.F .R . § 257 .3-5 (2007). . This federal regulation governs allowable cadmium and polychlorinated
biphenyl ("PCB") limits . Plaintiffs contend that this violation is plain evidence of contamination of Plaintiffs'
land and the unsuitability of the property for the production of food-chain crops .
p 21
"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) .
P. 22
"Still, Augusta's data indicated that cadmium and molybdenum levels on the McElmurray farm
were above regulatory limits in certain instances, in amounts ranging from 37% to 1400% . AR 0352-53 . Hall opined
that the high concentration of molybdenum in the McElmurrays' silage was particularly serious, given the time
that had elapsed since the sludge was placed on the land "
P. 23
"Because the University scientists failed to test for molybdenum, the researchers' advice to apply lime to raise
the soil's pH level, and thereby limit crop toxicity, was faulty or incomplete. "
P. 25
"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 ."
"Many fields contained annual cadmium deposits that were two or three times the federal limit . "
p. 26
"Other specific evidence showed that heavy metals were 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 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. Selenium 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
p. 27
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. See 40 C .F .R . 257 .3- 5
"7
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 .
P. 28
"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 .
"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 ."
p. 34"
"Perhaps more importantly, Brobst (Robert Brobst, US EPA BIRT - Biosolids Incident Response Team) admitted that
one of the McElmurrays' fields contained about forty to fifty times the allowable lifetime loading level of cadmium.".
p. 35
". Because Brobst concedes that his conclusion is based on Augusta's unreliable, and to some extent, invented, data,
Brobst's finding has little merit on
its own ."
"On December 31, 2003, Plaintiffs submitted an affidavit from Hugh Kaufman, a senior policy analyst at the EPA, to
the State Committee in an effort to rebut Brobst's position . Kaufman explained that he had been involved with testing
and
evaluating the McElmurrays' land, and opined that the McElmurrays' land was contaminated, and unfit for growing
food-chain crops . AR 1478, 1487-1489, & 1548."
p. 36
"On January 28, 2004, Barry Breen, the EPA's Principal Deputy Administrator, wrote a letter to the FSA explaining
that Kaufman' s affidavit was not the official view of the EPA, and that Mehan's letter was the agency's position. "
"Yet, there is no evidence that Mehan ever reviewed the Plaintiffs' applications, other data in the administrative record,
or
any of the reports detailing the sewage sludge applications on Plaintiffs' land from 1979 to 1990 . AR 2663 . USDA
employee Carey allowed that Mehan made no specific finding that the McElmurrays' land was not contaminated . "
The EPA's unexplained rejection of Kaufman's position, in favor of the largely irrelevant Mehan letter shows that
the decision was not based on substantial evidence . It was arbitrary and capricious for the USDA to defer to Mehan's
letter as a technical determination or a written factual finding . Sierra Club v. Martin , 168 F.3d 1, 4-7 (11th Cir .
"To the extent that the USDA relied on Brobst's opinions, that was arbitrary and capricious because Brobst did not
consider all the relevant data . "
p. 38
"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 ."
p. 39
"Lewis (Dr. David Lewis) explained that he had worked at the EPA for thirty-one years, and was forced to resign. in May
2003
because his biosolids research was at odds with official EPA policy. AR 1619. Lewis testified before Congress that the
EPA had politicized scientific research at the agency, and utilized unreliable and fraudulent data to support the
continuation of the sludge land application program. "
p. 44
"Because the record supports Plaintiffs' petition for farm subsidies, the Court reinstates the original decision
of the FSA State Committee, and directs the USDA to grant the McElmurrays' application for prevented planting credits .