The EPA's plan to bypass opposition to sewage sludge disposal

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This article was first published as "Bypassing Barriers With "Active" and "Passive" Public Relations"in PR Watch, Volume 2, No. 3, 3rd Quarter 1995. and "Sludge Backs Up: Merco's SLAPP Suit Fails in Texas" in PR Watch, Volume 4, No. 3, 2nd Quarter 1997. The original articles were authored by John Stauber and Sheldon Rampton and is used here with permission. As with all SourceWatch articles, feel free to edit and revise.

The EPA's plan to bypass opposition to sewage sludge disposal

The EPA's PR strategy for sludge was first outlined in a 40-page report published in 1981 with a classic bureaucratic title: "Institutional Constraints and Public Acceptance Barriers to Utilization of Municipal Wastewater and Sludge for Land Reclamation and Biomass Production." It warns that sludge farming projects may be blocked by small local groups who "feel their interests threatened."

To counter this opposition, the EPA advises project advocates to choose a strategy of either "aggressive" or "passive" public relations. "Aggressive public relations" uses "glossy brochures describing the project; open public meetings; presentations to specific interest groups; presentation of films about similar projects; local media coverage; technical education campaigns for the public and in schools; establishment of a hotline for quick response questions; and presentation of material stressing community benefits from the project." This approach, however, entails some risk: "A highly visible public relations campaign . . . would in itself alarm and harden opinion against the project."

In some communities, therefore, the EPA recommends "a passive public relations campaign" to introduce sludge farming. A "passive" campaign makes "little effort to reach out to particular segments or constituents of the public. Rather, information about the project [is] made available for individuals and groups which made the effort to obtain it." This secretive approach works best in small, rural communities "where the application site is relatively isolated."

Kelly Sarber, a PR specialist in sludge crisis management, offered her advice to other sludge marketers in a 1994 article titled "Campaign Tactics: How to Strategize for Successful Project Development." The article warns that "public opposition has taken its toll" on the sludge industry, which is experiencing "new, unprecedented levels of interest, discomfort and complaints from the public." To counter these stirrings of community self-determination, Sarber uses tactics that she attributes to sludge opponents, such as "creating photo opportunities, using a small number of vocal people to make it appear like a majority, and undermining messages through counter messages. . . . Countering the opposition without letting them determine the approval process is the most important goal of a good campaign manager."

To control the local media's coverage of the sludge issue, Sarber recommends "a pre-emptive strike" to "get positive messages out about the project before the counter-messages start." She advises sludge companies to identify and develop "several advocates or opinion leaders" who can persuade other community members. They should be careful, however, to avoid seeking early public support from local politicians, because "a local community can be very unforgiving of a political leader believed to have come to some type of conclusion about what is best for the rest of the community before anyone else has heard about the project. . . . A better positioning of the politician is to provide education . . . while promoting the importance of the community having 'an open mind' about the project."

Sarber is especially proud of her PR work in 1991--1992 for Enviro-Gro Technologies, a sludge hauler now operating under the name Wheelebrator. Sarber quietly approached business leaders and politicians in the rural town of Holly, Colorado (population 1,400), which Enviro-Gro had targeted as a dumping-site for New York City sludge. When the proper groundwork had been laid, the pro-sludge campaign struck like a blitzkrieg, quickly deploying "third-party" scientific advocates to assure local citizens of the safety of sludge.

Sarber bragged about stealing the media spotlight at a public meeting organized by opponents of sludge farming: "[Pro-sludge] advocates were placed directly on stage and demanded participation in the forum, which was granted. In addition, local advocates promoted the project through general grandstanding activities in the audience. . . . By targeting the press during the event, the spin of the story changed from an opposition meeting to one which showed that several farmers wanted to find out how they could get more biosolids. Rather than allowing the opposition to have a press 'success' in blasting the project, the media stories show support, with only a few dissenters. When Governor Romer of Colorado came out to throw a shovel full of New York City biosolids on a field, it was apparent that the initial siting of the project had been successful."

Flush With Victory

Kelly Sarber has fought on the front lines of several other sludge campaigns involving sludge disposal for New York City. In addition to Enviro-Gro, her employers have included the New York Organic Fertilizer Company and Merco Joint Venture, the major players in the Big Apple's billion-dollar sludge disposal game. The city has signed contracts totalling $634 million with Merco and New York Organic, in exchange for which the two companies have committed to haul away over a thousand tons per day of city sewage sludge.

New York has an especially messy history of waste disposal problems. In addition to sewage, the city used to dump its garbage into the ocean, and became notorious for instances of garbage washing ashore on nearby beaches. New York's practice of dumping sludge into the ocean first came under fire from the EPA in 1981, prompting the city to file a lawsuit arguing that ocean dumping was environmentally preferable to land-based alternatives.

In the 1980s, however, the EPA found that New York's ocean dumping sites had suffered heavy degradation, including bacterial contamination of shellfish, elevated levels of toxic metals, and accumulations of metals and toxic chemicals in fish.In 1988, Congress passed the Ocean Dumping Reform Act, requiring a complete end to ocean dumping by June 1991 and imposing fines of up to $500,000 per day if New York failed to comply.

As the city scrambled to meet the deadline, Merco and New York Organic used both "aggressive" and "passive" PR to persuade small towns in other states to take their sludge. Their efforts met with mixed success. Alabama residents shut off all attempts to export New York sludge to their pastures, and Merco's efforts in Oklahoma failed in four towns. In Thomas, Oklahoma (population 1,244), news of Merco's interest triggered what town mayor Bill Haney described as a "civil war." Within two weeks after the plan went public, state officials had received over 200 angry letters from Thomas residents, prompting the Oklahoma legislature to unanimously pass a moratorium prohibiting land application of sludge that contains "significantly higher" levels of heavy metal than sludge produced in the state.

Friends in Low Places

In her work as an "environmental media consultant," Sarber faced questions that went beyond issues of nitrogen content and pH balance. She was called upon repeatedly to deny allegations that her employers were engaged in environmental violations, influence peddling and organized crime.

Merco came under criticism, for example, when it was discovered that one of its partners, Standard Marine Services, belonged to the Frank family barge empire, a group of companies labeled by the state as New York Harbor's worst polluter. Standard Marine owed over $1 million in taxes and judgments and was forced to drop out of Merco after it was unable to get financial bonding.

In 1992, Newsday reported that New York deputy mayor Norman Steisel, whose duties included oversight of the city's sludge program, was a partner in New York Organic Fertilizer Co., and noted that the brother of New York Senator Alfonse D'Amato was a partner in the law firm that negotiated New York Organic's contract with the city. A probe was launched to investigate possible influence-peddling, and company spokesperson Sarber promised that "we will cooperate fully."

A few months later, Alphonse D'Arco, a former boss for the Luchese crime family, testified during a June 1992 murder trial that two Merco partners--the John P. Picone and Peter Scalamandre & Sons construction firms--had paid $90,000 a year in payoffs to the Luchese family. In separate but corroborating testimony, D'Arco and Gambino family turncoat Salvatore ("The Bull") Gravano also described Picone's involvement in a sweetheart deal involving bid-rigging and manipulation of New York labor unions to benefit the Gambino, Genovese, Luchese, Colombo and Bonanno crime families. Picone and Scalamandre were unavailable for comment, but Sarber was brought out to state that her employers "have had no business or personal relationships with any of these people."

In 1994, Newsday reported that Merco was using the Cross Harbor Railroad to ship its sludge, even though Salvatore Franco, a major Cross Harbor investor, had been banned for life from the waste industry in New Jersey. In response to a reporter's inquiry, spokesperson Kelly Sarber said Merco had no idea that Franco was involved with Cross Harbor.

Walk Softly and Carry a Big Slick

On December 10, 1991, Newsday reported that "stealth is New York City's new weapon in its war on sludge. The city has decided to make a secret of where it plans to ship tons of the sewage gunk beginning next month. It hopes to secure permits for sludge disposal in some towns before the local gadflys can get all riled up about it. Thus, the names of towns where New York Organic Fertilizer . . . has applied for sludge permits are strictly hush-hush. . . . The city . . . wants to avoid a political circus such as the one in Oklahoma, where three towns rejected another New York plan for sludge because they feared it could carry everything from AIDS to organized crime with it."

Bowie, Arizona (population 400), was one of the communities targeted with "passive public relations" in 1992, when Bowie resident Ronald K. Bryce received state approval to apply 83 million pounds per year of New York sludge on his cotton fields. The rest of the community found out about the plan when someone overheard a conversation in a restaurant in the summer of 1993, shortly before the first deliveries of sludge were scheduled to begin. Bryce had received his permits without public hearings or even public notice. Arizona Daily Star reporter Keith Bagwell sought an explanation from Melanie Barton, a solid waste official with the Arizona Department of Environmental Quality. "Our approval was based on guidelines, which are like rules but without the public comment," Barton said.

Further inquiry by Bagwell discovered that over 100 million pounds of sludge from Arizona's own Pima County sewers had also been spread on area farms since 1983. EPA regulations had enforced limits for only one metal and one chemical in the sludge, even though Pima County sewage treatment superintendent Donald Armstrong admitted that the county sewer system received wastes from about 1,500 industries, roughly half of which use toxic chemicals. Tests showed that the Pima County sludge contained over 80 "priority pollutants," including dioxin, phenol and toluene, along with high levels of cadmium, lead and other toxic heavy metals.

Actually, the Arizona sludge was relatively clean compared to the stuff being shipped in from New York. "Sludge from San Diego, Los Angeles or New York you have to look at carefully--it's different in highly industrialized areas," said Ian Pepper, a soil and water science professor involved in studying Pima County's sludge-use program.

His assessment was confirmed by Ian Michaels, a spokesman for the New York City Department of Environmental Protection, who estimated that the city had 2,000 unregulated companies discharging industrial waste into the sewers, but admitted that his department had "no way of knowing how many . . . there are."

Despite this information, Ronald Bryce began spreading New York sludge on his farm in Bowie on April 5, 1994. Town residents complained that the state allowed him to spread millions of pounds of sludge before receiving any test results on the incoming material. Tests on the April shipment were finally completed in July, showing that the New York sludge contained petroleum hydrocarbons at 14 to 22 times the level at which state regulations require a cleanup from oil and gasoline spills. The tests also showed fecal coliform bacteria at 33.5 times the limit allowed under federal law.

"That sounds more like untreated sludge," said Laura Fondahl, an engineer at the EPA's San Francisco office. "It couldn't be land-applied--it would have to go to a municipal landfill, a dedicated sludge-only landfill, or to a treatment plant. Those are binding rules." Nevertheless, Bryce was allowed to resume spreading on his farmland in August 1994.

When Push Comes to Sludge

After Merco's rejection in Oklahoma, it turned to the Mexican border town of Sierra Blanca (population 500), one of the poorest towns in one of the poorest counties in Texas. Once again, citizens quickly mobilized to protest Merco's plans to spread sludge on desert grazing land--nine miles from a planned repository for nuclear waste from power plants in Maine and Vermont.

The town's sludge war hit the national airwaves in 1994 when it was featured on TV Nation, a satiric show hosted by investigative filmmaker Michael Moore. TV Nation accompanied a trainload of New York sludge cake from New York to Sierra Blanca, and aired bitter complaints from local residents interviewed on the dusty streets of Sierra Blanca. "You can smell it all over, and I don't see why New York has any right to dump their shit on us," one woman said angrily. Another added, "We've gotten a lot of allergies. People who have never had allergies in their lives have come up with a bunch of stuff like that."

The program also interviewed Hugh Kaufman in his Washington office. "This hazardous material is not allowed to be disposed of or used for beneficial use in the state of New York, and it's not allowed to be disposed of or used for beneficial use in Texas either," Kaufman said. "What you have is an illegal 'haul and dump' operation masquerading as an environmentally beneficial project, and it's only a masquerade. . . . The people of Texas are being poisoned."

The purpose of the program, according to a memo written by a TV Nation staffer, was to document "the socioeconomics of waste, about who gets--literally--shat upon." It featured footage of Sierra Blanca residents who complained about odors from the sludge operation, and interviewed EPA whistleblower Hugh Kaufman, who described the ranch as "an illegal haul and dump operation" and said "the people of Texas are being poisoned."

Soon after the show aired, Merco filed a lawsuit seeking $33 million in damages from Kaufman and TV Nation's producer, Sony Entertainment Pictures, Inc., accusing them of "defamatory and disparaging statements . . . made with actual malice and a reckless disregard for the truth." The lawsuit complained that Merco had spent about $600,000 in direct public relations efforts to establish good will in Texas, half of which had been lost as a result of the program. Kaufman has counter-sued for $3 million.

In the past, Kaufman has blown the whistle on toxic contaminations of Love Canal and Times Beach, Missouri. Under the Reagan administration, he took on EPA Administrator Anne Burford, who was forced to resign after being found in contempt of Congress for not turning over documents. Burford's assistant administrator, Rita Lavelle, served four months in jail for lying to Congress.

"This issue is much bigger," Kaufman said, "because this is obstructing a criminal investigation of companies affiliated with organized crime involved in the illegal disposal of waste with an illegal contract at great taxpayer expense. The Burford-Lavelle thing was just using superfund for political shenanigans--determining which site would be cleaned up or not cleaned up based on politics." In Sierra Blanca, he said, "We're talking about government basically taking a dive for organized crime during an open criminal investigation."

After a year of litigation, a Texas jury awarded actual damages in the paltry amount of $2, plus $5 million in punitive damages.

Upon appeal, however, the circuit judges found that Merco had failed to prove its case. "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication," they stated. "That evidence is lacking here. . . . Merco presented no proof that TriStar and Kaufman knew, or should have known, that any part of the 'Sludge Train' broadcast was false. Indeed, Merco failed to show any part of the broadcast actually was false." [1]

In defense of its position, Merco cited experts who argued that land application of sewage sludge is a safe practice, and argued that the program should not even have interviewed Kaufman, on grounds that he was a "renegade" notorious for his "whistleblower" activities at the EPA. The judges, however, ruled that "expert opinions are merely that--opinions. Moreover, because an 'expert' endorses a certain practice does not mean all reasonable debate on the merits or safety of that practice is foreclosed."

"TriStar and Kaufman are not liable for defamation because they refused to corroborate the Merco party line," the judges concluded. "Defamation law should not be used as a threat to force individuals to muzzle their truthful, reasonable opinions and beliefs. To endorse Merco's version of defamation law would be to disregard . . . constitutional protections."

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