» Clean Water Current Archive

March 5, 2010

NACWA Makes Headway with EPA on Regulatory Status of Biosolids, Incineration

NACWA met Thursday with senior EPA staff from the air, waste and water offices to discuss ongoing Agency rulemaking efforts that have the potential to impact the regulatory status of biosolids and sewage sludge incinerators (SSIs).  NACWA’s chief concern has been that EPA’s carefully crafted balance among the three media offices with regard to the regulation of biosolids could be upended by the rules under development by the air and waste offices.  There are two rulemakings underway which NACWA is seeking to ensure do not adversely impact clean water agencies.  First, the Office of Resource Conservation and Recovery (ORCR) is working to develop a regulatory definition of non-hazardous solid waste.  Second, this definition will be used by EPA’s air office to determine how several categories of incinerators, including SSIs, will be regulated under the Clean Air Act (CAA), either under the more stringent CAA Section 129 maximum achievable control technology (MACT) standards or the more flexible Section 112 program.  NACWA, through the use of Targeted Action Funds, has consistently been making the case that biosolids should not be included in the definition of solid waste currently under development – and that the Clean Air Act (CAA) specifically directs EPA to regulate SSIs under Section 112, not 129.

Preliminary indications from ORCR last summer were that biosolids that are combusted would be deemed a solid waste for regulatory purposes – meaning that SSIs would be regulated under Section 129.  Based on ORCR’s preliminary determination, EPA’s air office, on a parallel track, has been working to develop 129 standards of performance for SSIs.  Several court-ordered deadlines are driving this issue and EPA feels it is obligated to finalize 129 standards for SSIs by December of this year.  ORCR’s proposed definition of non-hazardous solid waste must be signed by April 15, in order for the air office to meet its deadlines on several other, unrelated incinerator rulemakings.  Since January of 2009, however, NACWA has made significant headway with EPA, articulating the impacts of including biosolids in the definition of solid waste and the major consequences for communities that incinerate, should SSIs be regulated under Section 129.

The Case for Regulation under CAA Section 112
During this week’s meeting, NACWA reiterated a number of points from its September 2009 letter  to the Assistant Administrators for the three offices.  First and foremost, NACWA believes that EPA has overlooked the clear language in the CAA that publicly owned treatment works (POTWs) must be regulated under Section 112.  For reasons that are unclear, EPA has handled SSIs on a separate track from treatment plant air emissions under the CAA.  The definition of ‘treatment works’ in the Clean Water Act and EPA’s regulations implementing that Act are clearly broad enough to encompass SSIs.  In fact, EPA’s construction grant program, which provided funding specifically linked to that definition of ‘treatment works’ has been used to construct and upgrade SSIs.  Accordingly, NACWA believes that EPA must regulate the entire POTW, including any SSIs, under Section 112.  NACWA also continues to assert that SSIs do not combust solid waste, as specifically required by the CAA for 129 regulation.

On the solid waste side of the issue, NACWA remains concerned that any EPA statement that biosolids are a solid waste could not only have implications for incineration, but could spill over and impact other management options like land application.  Of primary concern to EPA’s waste office and ORCR is its ability to retain authority over biosolids under its imminent hazard provisions in Section 7003 of the Resource Conservation and Recovery Act.  NACWA detailed during the meeting how ORCR can craft a regulatory definition of non-hazardous solid waste that excludes biosolids managed under the Part 503 regulations.  EPA has done this in the past, specifically excluding biosolids managed under Part 503 from its Part 257 solid waste regulations, and NACWA believes the Agency must again exclude biosolids from its new definition to preserve the careful balance among the air, waste and water programs and avoid duplicative regulation for biosolids.  Creating a regulatory exclusion from the new definition for biosolids managed under Part 503 will preserve EPA’s 7003 authority, avoid any of the unintended consequences associated with the solid waste stigma for biosolids, and ensure that SSIs are properly regulated under Section 112 of the CAA.  NACWA received positive feedback on this point when Matt Hale, Director of EPA’s ORCR, made it clear that the Agency understands NACWA’s concerns and the potential for unintended consequences.

EPA faces a court ordered deadline of April 15 to propose several major CAA regulations relating to incineration and ORCR plans to release its proposed definition of non-hazardous solid waste at the same time.  NACWA will continue to discuss the issue with EPA staff between now and April 15 and is preparing to develop comments when the proposal is released.

Senate Begins Chemical Security Consideration; DHS Drafts Legislation

The Senate is moving forward with its consideration of the reauthorization and expansion of the Chemical Facility Anti-Terrorism Standards (CFATS) program.  The Committee on Homeland Security & Government Affairs held a hearing this week after the introduction of legislation by Senator Susan Collins (R-Me.), Ranking Member of the committee.  The bill would reauthorize the current CFATS program for five years without making many changes, thereby maintaining the exemption for water and wastewater infrastructure. Rand Beers, Acting Deputy Assistant Secretary for Infrastructure Protection, testified at the hearing on behalf of the Department of Homeland Security (DHS).  As part of his testimony, Beers informed the panel that DHS is currently drafting its own legislation to reauthorize the program and a draft proposal could be provided to Congress as early as this spring.  The DHS draft bill is expected to include controversial “inherently safer technology” (IST) requirements and may include water provisions, as well.

Last November, the House of Representatives passed comprehensive chemical security legislation, The Chemical and Water Security Act of 2009 (H.R. 2868), that included broad changes to the CFATS program including implementation of IST, the addition of water sector security, and civil suit enforcement provisions.  When pressed on the Administration’s position on the House bill at the hearing, Beers said there are many similarities between the Administration’s priorities and H.R. 286; however, DHS has concerns over the citizen suit provisions that could compromise sensitive security information.  Peter Silva, Assistant Administrator for Water at EPA also testified on behalf of the Administration and both he and Beers re-emphasized that EPA would remain the lead agency with jurisdiction over water security matters; EPA would utilize DHS risk assessment tools and performance standards for water and wastewater facilities; and, where possible, implementation of IST provisions would remain with state primacy agencies.

Including IST requirements in Senate legislation could be a difficult task due to a lack of Democratic support. The legislation introduced by Senator Collins does not contain IST provisions and has the support of Democratic Senators Mark Pryor (Ark.) and Mary Landrieu (La.).  In addition, Senators Carl Levin (D-Mich.) and Tom Carper (D-Del.) voiced serious reservations regarding IST requirements at the hearing – increasing the likelihood that the program will be extended in its current form and leaving the water and wastewater community exemption intact.  NACWA will continue to voice the clean water community’s position throughout this process and to ensure the least onerous outcome possible.

Trust Fund Effort Garners Momentum, Co-Sponsors Now Total 30

NACWA continues its efforts to build support for H.R. 3202, The Water Protection and Reinvestment Act of 2009.  In recent weeks, NACWA staff has been working to target members on the House Transportation & Infrastructure (T&I) Committee to increase support for the bill and build momentum for its consideration by the Committee.  As a result of these efforts, last week Representative Tim Bishop (D-N.Y.) agreed to co-sponsor the bill, bringing the total number of co-sponsors to 30 – including eight co-sponsors from the T&I Committee.

Last week, NACWA staff met with the offices of Representatives Harry Mitchell (D-Ariz.), Tom Boswell (D-Iowa), Chris Carney (D-Pa.), Phil Hare (D-Ill.), Mazie Hirono (D-Hawaii), John Hall (D-N.Y.), Nick Rahall (D-W.V.), Tim Walz (D-Minn.) and Laura Richardson (D-Calif.) to discuss the legislation and gain their support.  As we continue to work to build support for this legislation, we encourage our Members to touch base with their congressional delegations to urge them to co-sponsor the bill.  Should you have any questions regarding NACWA’s efforts, or on how to most effectively engage your congressional delegation, please don’t hesitate to contact John Krohn at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Based on NACWA’s Request, AA for Water to Hold Regular Meetings with Muni Groups

In a September 9, 2009 meeting with Assistant Administrator for Water Peter Silva to discuss NACWA’s priority issues, the Association provided Silva a letter  outlining the Association’s advocacy priorities and stating “NACWA strongly urges you to consider holding a monthly meeting with key representatives from national municipal organizations, including NACWA, on water sector issues — similar to the industry “coffees” that your office has traditionally participated in.”  NACWA learned this week that Silva and key EPA staff have agreed to hold bimonthly meetings with key municipal wastewater and water organization staff for the remainder of this Administration.  This demonstrates EPA’s and the Administration’s commitment to transparency in its policy-making and the importance of the municipal community’s perspective on water quality and drinking water issues.  The first such meeting has been scheduled for April.  NACWA will provide updates to its membership on relevant discussions from these meetings as appropriate.

Register Now for these Important NACWA Offerings

• NACWA’s Flow Series Web Seminars (March 10, June 9 and September 8)
• 2010 National Environmental Policy Forum (April 18-21, 2010)

Additional information and online registration can be found at www.nacwa.org.