Legal Aspects of Sludge Treatment and Disposal in Israel
Green Blue White, Vol. 38
Tzvi Levinson and Tal Tzafrir, Advocates
Sewage sludge is the (more) solid fraction of treated effluent. The sludge inevitably contains all the insoluble substances present in the treated effluent that could not be manually removed. The result is that sludges differ as a function of the effluent treated, and, consequently, the uses to which they may environmentally be put to. Our interest here is to describe the legal framework that governs the usage of sludge. That is a rather easy task for, shockingly enough (or not), Israeli legislation does not (specifically) address the matter of sludge at all. For example: the Local Authorities Act (Sewage) 1962 provides a framework for the collection and treatment of wastewater, yet stops short of completing this life-cycle – namely, specifying what is to be done with the products of the treatment process. A notable exception is §15 according to which “a local authority may, subject to the provisions of the Water Law 1959 … sell its sewage water … ” (our emphasis). Sludge is not mentioned in a word even. Certain pieces of legislation partially fill this gap to address aspects of treated effluent: the People’s Health Rules (Treating Wastewater Intended for Irrigation) 1981 and the People’s Health Regulations (Setting Standards for Wastewater) 1992. Again, not a breath as regards sludge. Only recently we find the Water Regulations (Metals and Other Pollutants) 2000 that provide in §3(f) that “a person shall not dispose of sludge from his plant except in accordance with the Businesses Licensing Regulations (Disposal of Hazardous Substances’ Waste) 1990”. However, a “plant” for the purpose of these regulations is narrowly defined as “a place where there is surface treatment [of products] by rinsing … ”. Sewage sludge clearly does not come within this scope. All the same let us note that these regulations are the only piece of legislation that cared to define “sludge”. A basic tenet of jurisprudence is that whatever is not manifestly forbidden is, without further ado, allowed. Applying this rule to our case we may conclude, at this point, that since no restrictions are set as regards the usage, or disposal, of sludge, it may be put to any usage whatsoever, or may be disposed of at the discretion of its owner. (A word of caution is needed here: certain other provisions may still apply and alter this preliminary finding – e.g.: the prohibition on water pollution in §20B of the Water Law 1959) Customarily, we distinguish between 3 types of sludge, according to their usage: agricultural, ordinary disposal and hazardous. Statutory guidance is found only as regards hazardous sludge and then only indirectly. The Businesses Licensing Regulations (Disposal of Hazardous Substances’ Waste) 1990 define “waste” as “a substance, of every kind, containing a hazardous substance, that is being disposed of from a plant, or is intended for disposal”. The regulations further provide that waste is to be disposed of by sending it to the Ramat-Hovav facility (§2(a)). Nothing, it seems, may escape the embrace of such a wide-ranging definition. Let us, however, illuminate certain aspects of the adequacy of this mechanism. First: note that there are no threshold limits as to the hazardous contents of the sludge. This means that a tonne of sludge containing 1mg of mercury, for example (definitely a hazardous substance) is to be treated the same as one containing 1kg. A solution may be found in the way the regulations define a “hazardous substance”: “a substance, with a UN number as detailed in the Orange Book, in any state, and as described in the first part of the first addendum to the Supervision over Products and Services Decree (Transportation Services and Towing Services) 1979”. However, whatever guidance the decree could provide (and there is legal doubt as to its applicability in the first place) is now lost, as the decree was abolished recently and replaced by the Transportation Services Regulations 2001 that remain silent on this matter. Second: on the other hand, certain heavy metals, of themselves, may not be considered as “hazardous substances” yet their presence in sludge is, undoubtedly, detrimental to agricultural land. Third: a WWTP may wish to utilise its sludge – say, compost it on its premises and sell it as a product. That is, the plant does not wish to dispose of the sludge – a required element for the constitution of a substance as waste. In this case we may claim that the regulations do not apply – a rather absurd conclusion since nothing whatsoever was changed in the contents of the sludge or its hazardous properties. Whereas chaos reigns in regard to hazardous sludge, there is a statutory void as regards the 2 other types of sludge. It could be expected though that regulatory authorities step in to fill this void with some kind of administrative guidance, or use the discretion allowed them by statutory instruments. However, to the best of our knowledge, none was issued. The Ministry of Environment has prepared draft regulations – the Water Regulations (Prevention of Water Pollution) (Usage and Disposal of Sludge) (3/2001) – that allow the usage of sludge as fertilizer upon demonstration that it does not contain viruses and parasites’ ova. The draft regulations also set maximum allowed concentrations for 7 heavy metals. Sludge that does not conform with these requirements is to be disposed of by land-filling at an approved site, or, if it contains a “hazardous substance” (again, at any concentration) – sent to Ramat-Hovav. The draft regulations, it must be noted, address sludge of certain sources only: “municipal” effluent (the term “municipal” is not further defined) and wastewater originating in livestock and food industry. From a different angle: the draft regulations DO NOT target sludge created in processes of pre-treatment of wastewater in industrial installations. Our experience indicates that the Ministry of Environment sets a requirement in the Business License to the effect that this sludge be disposed of as per the Businesses Licensing Regulations (Disposal of Hazardous Substances’ Waste) 1990.