First let me say that this is not the first victory for these Georgia farmers. They both won jury verdicts against the City of Augusta. A jury verdict is a good thing when it goes your way and when you can bank it, but jury verdicts are normally not explained. The verdict "We find for the plaintiff" doesn’t say why. A case like McElmurray v. USDA is powerful because the judge writes an opinion and carefully explains his reason for ruling the way he did. That opinion then acts as a road-map or a warning with respect to future litigation on those issues.

1979 -- think of it.  These are the Guinea pig farms of the whole national BS experiment.  This was well before the Part 503 regulations.  The irony here is that you just know that in 1979 these farmers thought all of that BS was like free honey flowing straight from the hive. Free fertilizer! Think how excited they must have been: "Do the numbers, dude, we’ll save tens of thousands of dollars a year!," you can hear them congratulating themselves on such a brilliant decision, just like so many farmers in Appomattox, Bedford, Campbell, and Buckingham counties in Va. are patting themselves on the back today. And, no doubt, just like the farmers in Va. have found, the initial crop yields from the sludged Georgia fields were very impressive. But after a decade of slinging BS onto their land, things in south Georgia began to go, well . . . south.

In 1990, after a decade of sludging,  McElmurray started having trouble with his crops. He tested the land for aluminum and found it was high. So he cut off the BS, but he kept planting crops and kept feeding the crops to his dairy cows. What else could he do? Cows gotta’ eat. It was not until 1998 when his crop failed completely and his cows were dying all across his farm that he brought in various experts to test the land more comprehensively. Only then did he realize the extent of the mess: his land had been turned into a toxic waste dump by the Augusta BS. Too bad he didn't pay more attention to his momma when she said:  "If it sounds too good to be true, baby, it probably is."

How bad was it? Based on the findings of fact made by Judge Alaimo in the USDA case, here are some values from samples from the McElmurray farm. Arsenic 44.2 ppm (> 2x the EPA limit); antimony 96.8 ppm (EPA limit = 4 ppm); cadmium 6.41 ppm (> 3x the EPA limit); selenium 5.4 ppm (EPA limit = 2 ppm); thallium 51.6 ppm (EPA limit = 2 ppm), PCBs 5000 ppm (EPA limit = 2 ppm). Chlordane, aluminum, and molybdenum were also at toxic levels; the amounts not given in the order. (A most interesting exclusion from the list of ingredients in this toxic soup was the super-toxic carcinogen dioxin, which very often present with heavy metals. There is no comment in the judge’s order as to whether dioxin was measured and not present, or not measured.)

Then they teamed up and filed a whistle blower suit (aka "qui tam") against Augusta in US District Court for the Northern District of Ga., alleging that Augusta knowingly misrepresented its compliance with state and federal BS laws in order to obtain federal money. The federal court in Atlanta booted that case out. The problem was that if the whistle you blow is based on public documents, you’re not a proper whistle blower under the federal law. Basically, you’ve got to be an insider with inside information. The court never, technically, reached the merits of the case, but the judge's 41 page opinion left little doubt that Augusta was a skunk. The US Circuit Court of Appeals (11^th Circuit) affirmed -- not the skunk part, but the decision to boot the case.

The US gov’t then climbed on board. Uncle Sam, Boyce, McElmurray, and David Lewis, (every sludge warrior’s hero) filed another qui tam, but this time in the U.S. District Court for the middle district of Ga. Qui Tam II was not filed against Augusta – it was filed against the sludge-happy goats at the EPA, including John Walker. The University of Georgia (aka "The Bulldogs") was also sued, including a number of Bulldog faculty members, who are going to need a real bulldog before this whole thing is over.  

The allegations in Qui Tam II were that the Bulldog people obtained federally funded research grants to study BS, but their grant applications were based on falsified and fraudulent data. In other words they lied to get federal money to do a "study" the EPA could use to sink the McElmurray and Boyce lawsuits -- sounds like obstruction of justice to me, if the allegations turn out to be true.  According to the Complaint, Walker contacted the UGa researchers Miller, Gaskin, Risse and Tollner and asked them to produce some data that could be used to discredit the Boyce and McElmurray suits against Augusta. The alleged idea was that these academics would apply for an EPA grant to do the study, which, of course would be guaranteed to be funded. This is what they did in June of 1999. They got the cash and their "study" was published before the end of 2001. And – hey, you guessed it – the Bulldogs’ paper concluded that Augusta’s BS land application program complied with federal and state environmental laws and was a safe and effective method for disposing of BS. [Excuse me a sec’ while I throw up, because I’ve already read Judge Alaimo’s opinion which sets forth what Augusta was spreading on the farmers’ land . . . OK, I’m back.  Read on.] Then the Bulldogs used their flatulent data – oops, sorry, that’s fraudulent data --  as a basis for applying to the EPA for even more money. Sounds like if you keep Walker happy, hd can get you all the grant money you want.  Talk about honey flowing out of a honey-pot.

The USDA got involved when McElmurray applied for some federal freebie money. You see, after it was clear that McElmurray’s land was contaminated beyond all reasonable use, he applied to the USDA for federal payments farmers can get to compensate them for land that can no longer be farmed.  You know how there are all of these federal programs that take tax money out of people’s pockets and give it to farmers for not growing things. My own family in Kentucky used to get paid for not growing tobacco.  I think they called it the "land bank" program, maybe because an empty piece of land turns into a piggy-bank.  In fact, it seems like as long as they're giving away free tax money not to grow stuff, the feds ought to be paying all the pot-heads not to grow marijuana and solve that whole problem straight away. Anyway, McElmurray wanted a piece of this free money.

The USDA turned down McElmurray’s application. The reason for turning him down was that the USDA determined that Augusta’s BS did not contaminate the McElmurray farm. What was the basis of that determination? You guessed it – it was study done by the UGa academics and funded by Walker and the EPA.  What a screw-job!  Walker uses EPA funds to pay the Bulldog academics to write a phony "scientific" article concluding that Augusta's disgusting BS program was fine, and then the USDA uses that article as "proof" to deny McElmurray his benefits.

Screw-job.  At least that’s what Judge Alaimo determined it to be, although not quite in those words. Judges mince words, almost always.  It’s just part of the job. To be a judge you have to be able to figure out polite ways to say bad things about people in order to maintain the dignity of the court.  Personally, I can think of no worse torture than to have just convicted, for instance, a kidnapper or kiddy-raper and have to sit on the bench and say, with dignity, "You are not a nice man."  When dignity gets in the way of the truth, you gotta’ make a choice, and mine would be a different one.  I would last on a bench less than 30 seconds. So in reversing the USDA’s decision not to feed McElmurray the free money, Judge Alaimo didn’t call the Augusta morons "morons," or the EPA clowns "clowns," but these sentiments can be found between the lines.  With good reason Judge Alaimo has been referred to as a Southern gentleman judge, and one of the best.

In an earlier Spew I suggested that you can tell how a judge is going to rule in a BS case just by reading the first paragraph of the order.  If he uses "biosolids," the sludgers are going to be smiling. If he uses "sludge," keep reading. This judge used "sludge" almost exclusively, so I kept reading.  Here’s a bullet list of the facts and conclusions in Judge Alaimo’s order, the bold emphasis is mine:

• "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 ."
  
  
• "An employee of the USDA, Tommy Weldon, agreed that it ‘would be hard to come to a conclusion [regarding contamination] based on [Augusta's] data[,]’ because of the City's "sloppy record-keeping and inaccurate data ."
  
  
• "There is also evidence that the City fabricated data from its computer records in an attempt to distort its past sewage sludge applications. . . . In other instances, there is evidence that Augusta altered its records to show that the sludge was applied to different, incorrect fields."
  
  
• "Hall [McElmurray’s expert] reported that Augusta allowed companies to dump industrial waste into an open pit at the Messerly plant, and that the City failed to monitor the amount and type of waste being dumped into the pit while the McElmurrays were receiving sludge.  Hall also faulted the plant's managers for failing to keep records showing when and where dangerous contaminants were placed on the McElmurray land."
  
  
• "[T]he City's data shows that the sludge contaminant concentrations became highly erratic, with extreme metal concentration spikes, beginning in 1986."
  
  
• "[H]igh concentration of molybdenum in the McElmurrays' silage was particularly serious, given the time that had elapsed since the sludge was placed on the land . The McElmurray samples were taken in 1998, eight years after Plaintiffs halted the land application program."
  
  
• "[A]fter the City learned about high concentrations of molybdenum in its sludge, it failed to notify researchers at the University of Georgia about the presence of this heavy metal . . "
  
  
• "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."
  
  
• "[S]ewage 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 ."
  
  
• "[M]olybdenum accumulates in plants more easily and directly when soil pH levels are high . As a result , Augusta's suggestion that applying lime to raise the pH level would mollify any contamination concerns was misleading or incomplete."
  
  
• "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 . 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 . The levels were similar on other parcels farmed by the McElmurrays . . . 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 . . . .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."
  
  
• "USDA employees Ronald Carey and Tommy Weldon also asked Robert Brobst, a member of the EPA's Biosolids Incident Response Team ("BIRT") , about the contamination averments made by the McElmurrays.  In response, Brobst opined in a letter that the McElmurrays' land was not contaminated. . . .Brobst provides scant support for his determination that the land was not contaminated . Although his letter cites to some data in support of that conclusion, he never explains where such data were found, or how he arrived at such figures.  It is difficult, if not impossible, to evaluate the trustworthiness of such a conclusion without this information."
  
  
• "Brobst admitted that he did not evaluate the data presented in support of Plaintiffs' applications for prevented planting credit . 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 . . . . 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."
  
  
• "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."
  
  
• "Lewis wrote a research paper with University of Georgia scientists that linked chemical irritants from airborne dusts, as a result of sewage sludge applications, to children's illnesses . . . Walker also distributed an anonymous twenty-eight page critique of Lewis' research, which had not been peer reviewed, and contained false scientific arguments aimed at discrediting Lewis."
  
  
• "On May 28, 2003, the EPA forced Lewis to resign for publishing articles in the leading scientific journal Nature, which were critical of the EPA's biosolids policies. . . The distribution of the false scientific reports by Walker caused University of Georgia officials to scrap their plans to hire Lewis after he left the EPA."

• One is tempted to extend this case to all BS applications and make a blanket statement that BS is not safe. That would be over-stating the case for a number of reasons.  For instance, we don’t know whether Augusta is representative of all waste treatment facilities or not.  Nevertheless, the USDA case should be cited to contest the sludgers' blanket statements that BS is safe.
   
  
• No humans were harmed in this case.  As far as we know.  But it appears that milk produced by McElmurray's cows was high in at least thallium, and that milk went into the market.  Of course, once all the cows died, that wasn't a problem.  A hard way to fix a problem.
  
  
• Waste treatment operators will lie if they have to in order to protect their rear-ends. While the publicity from this case may increase the number of lawsuits against waste treatment operators, those suits won't be easier to win.  For one thing all the treatment facilities across the country will all be scrambling like mad to clean up their records. Flushing [get it?] out the forged data is going to be a lot harder.
  
  
• The highest concentrations of many metals were not found at the soil surface. You have to take core samples and check the levels further down in the dirt because the stuff leaches downwards – where the root tips are, which is where the toxins are absorbed into the plants.  But don't think that the metals stop there.  The metals not taken up by plants and put into the food-chain continue to leach down, until eventually they reach the ground water.
  
  
• Given the depth at which the metals were found and the extent of the acreage – 2200 acres – McElmurray’s farm is probably a write off for generations to come. Maybe centuries. How do you remove and replace 4 feet of soil from 2200 acres? According to the 2005 JLARC Report from the Va. General Assembly, almost 400,000 acres are permitted for BS in Va. So let me re-phrase the question for any politicians who may be reading this: How do you remove and replace 4 feet of soil from 400,000 acres?
  
  
• The worst effects McElmurray saw did not come until years after the sludging stopped, probably because over time the metals continue to be concentrated downwards in the soil with leaching. When the vertical level of the high concentrations reaches the root tips, it’s Katie bar the door.  Then the metals show up in the milk, dead cows, etc.  A sludged field is a time-bomb.
  
  
• The contamination was not uniform. There were "hot spots" in the sludged fields, and some fields were worse than others. As C.W. Williams often says, not all sludge is equal. Spot checking railroad or truck containers of BS before it is spread is absolute folly. To ensure the BS is safe, every single container would have to be tested for at least 10 -15 metals – plus about 200 organic compounds, bacteria, endotoxins,  prions, and viruses. The cost would be prohibitive, and it should be borne by the farmer.  It's their land that's being protected by the testing.  If McElmurray had had to shoulder that cost before putting down the BS in 1979, he would moaned and groaned about how unfair it is to deny farmers free fertilizer, and he would have stayed with what he was using.  But he would have a farm to pass on to his children today.
  
  
• Sludge farmers have to be educated with this story. It needs to be pushed right up their noses, in necessary. Most BS is probably not as bad as Augusta’s, but that only means that it will take 2 decades instead of 1 for the metals to accumulate to the point that the problems will be obvious. By then it will be too late.
  
  
• It is absolutely mandatory that all sludged land be entered into the county land records as having been sludged. Otherwise dishonest farmers will ruin their land for farming and pass it on to land-greedy developers, who will pass it on to unsuspecting home buyers. This has already happened in at least one case in California.