Clean Water Current - February 25, 2011

February 25, 2011

NACWA Scores Key Victory on SSI Rule but Legal Action May Still Be Necessary

EPA released its final maximum achievable control technology (MACT) standards for sewage sludge incinerators (SSIs) on Feb. 23 with a pre-publication version of the rule now available. The rule will be published in the Federal Register in the next few weeks.

The most significant change from the proposal was the removal of the overly stringent “beyond the MACT floor” level of control for mercury, a direct result of NACWA’s advocacy over the past year and a half to improve the Agency’s understanding of sewage sludge and SSI operations. After taking NACWA’s input and data into account, revising its emission estimates, and looking at the true cost of controlling mercury at SSIs, EPA determined that the beyond the floor reductions were not cost-effective. Most of the cost impacts of the proposed rule were related to controls necessary to meet the beyond the MACT floor limit for mercury and NACWA is pleased that this key change alone will save municipalities more than $1 billion nationally in capital costs alone. Based on NACWA’s advocacy efforts, EPA acknowledged, in the final rule, that it underestimated the cost to remove mercury – and that actual SSI contributions of mercury to the environment are a third of the Agency’s initial estimate. EPA is now estimating that the total capital cost for implementing the entire rule would be $55 million dollars nationally, compared to their original estimate of $200 million. NACWA originally estimated cost at $1.3-1.6 billion dollars to meet the previously proposed mercury standard alone.

Although early indications were that EPA would voluntarily reconsider the SSI rule after finalizing it, the Agency chose instead to limit its reconsideration to the rules for boilers and commercial/institutional incinerators, stating that it had sufficient data and information to finalize the SSI rule. NACWA can still petition the Agency for reconsideration and is now thoroughly evaluating how the content of the final rule impacts the Association’s next steps regarding such a petition – and its planned legal challenge of the final standards.

While EPA had limited time to make revisions to the proposal, a number of substantial changes were made based on the comments submitted by NACWA and its members. Members are encouraged to review the final standards to determine how the changes may lessen the impacts of the rule for their utility.

NACWA’s initial review of the rule indicates that, in addition to the mercury issue, EPA also corrected some of its baseline emissions estimates and assumptions about SSI operation, resulting in changes to several of the other emission standards, making them less stringent. In a few instances, however, the standards were made more stringent than proposed. EPA also subcategorized the standards for both existing units and new units into multiple hearth and fluidized bed. Previously, only the existing unit standards were subcategorized.

The Agency also made several other revisions that were recommended by NACWA, including changes to reduce the monitoring burden, as well as removal of the sludge feed rate and moisture content operating requirements. There were numerous other changes of significance that NACWA will outline for its members following an in-depth, comprehensive review of the rule.

EPA also released its definition of solid waste rule on Feb. 23, which has been developed in parallel with the SSI MACT rule. As expected, the final rule states that the domestic sewage exclusion has never applied to sludges generated at publicly owned treatment works (POTWs) and defines biosolids that are combusted as a solid waste. In the final rule EPA reiterates that SSIs are primarily used to reduce the volume of the material, not recover energy, and that the burning constitutes discarding of a waste. EPA did further narrow the focus of its discussion of the definition to clarify that it would have no impact on other sludge management options, like land application, one of the major changes NACWA had requested. However, like the proposal, EPA continues to make a blanket determination that all sewage sludge would not meet the legitimate fuel standards due to its high level of contaminants when compared with a comparable, traditional fuel (i.e., coal). This determination means that sludge being burned in any kind of unit, including those that are expressly designed to recover energy, will be considered a solid waste. Such as determination will clearly have wide implications beyond the incinerator community.

NACWA is currently reviewing both rules to determine appropriate next advocacy steps, including potential legal challenges to the rules. The NACWA Board of Directors has previously approved NACWA filing challenges to the final rules if the Association determines that such actions are necessary. With regard to the SSI rule, NACWA is evaluating both an administrative petition for reconsideration to EPA, as well as a legal petition for review through the federal court system. One of NACWA’s key issues that has yet to be resolved, and would likely be the lead argument in any litigation over the final rule, is EPA’s lack of authority to regulate SSIs under Section 129 of the Clean Air Act. NACWA continues to believe that SSIs are more appropriately regulated under Section 112 of the Act. There is no immediate rush in terms of considering Association options given that the deadlines to file do not begin until the rule is published in the Federal Register, which itself is not expected for a few weeks.

Given, however, that EPA lowered the mercury limits in the final rule, NACWA is also prepared for the possibility that some activist groups may file their own legal challenge to the rule objecting to the reduced mercury limits. In such a scenario, NACWA would likely need to intervene to defend EPA's decision to make the mercury emissions limits less stringent and more cost-effective. NACWA is also deeply concerned about the impacts of the definition of solid waste rule both on SSIs and potentially other forms of biosolids management, and is actively evaluating a legal challenge to this rule as well.
NACWA will convene a conference call with its SSI members to explore next steps soon, and will be conducting a more thorough review of the more than 800 pages comprising the two rules, providing members with more details, as well as updates on developments as they unfold.

NACWA’s New Money Matters White Paper, Tri-fold Now Available Online

NACWA is pleased to provide members with the opportunity to preview and download two new offerings that are part of the Association’s Money Matters — Smarter Investment to Advance Clean Water campaign. The first is a white paper, Two Sides of the Same Coin . . . Increased Investment & Regulatory Prioritization, which takes an economist’s approach in exploring the trend of declining federal investment and increased regulatory compliance costs – linking both to some disturbing data on the apparent reversal of some of the water quality gains clean water agencies have achieved in the decades following the 1972 enactment of the Clean Water Act. The second document is a glossy tri-fold that can be used as a compelling leave-behind document that summarizes the findings of the white paper. These documents will provide a foundation for next week’s Money Matters Summit & Fly-In and they underscore the need for a new approach to regulatory prioritization while seeking sound solutions, as well, to the underlying challenge of aging clean water infrastructure. Both of these documents are intended to be used in tandem with the original Money Matters two-pager to help paint a comprehensive picture of the very real challenges municipalities face in terms of Clean Water Act compliance and increasingly difficult affordability challenges. NACWA will be forwarding the tri-fold soon to all members via a separate Member Update. For those of you travelling to DC for the Summit next week, we look forward to having an engaging and productive meeting.

NACWA Reviewing Final EPA Rule on Boiler Emissions

Part of the suite of air rules that EPA finalized this week, the National Emission Standards for Hazardous Air Pollutants (NESHAP) for industrial, commercial, and institutional boilers at area sources, may also impact some NACWA members. This rule is separate from the SSI issue (see related story) and establishes emissions standards for large boilers, with a heat input capacity greater than 10 million British thermal units per hour (MMBtu/hr). Only work standards are required for small boilers, consisting of tune-ups every two years.

Although the Association is still reviewing the final NESHAP, it appears that several issues that NACWA raised in its comments on the proposed rule last year were addressed in the final rule. NACWA requested clarification on the definition of gaseous fuel boilers, which are exempt from the emissions standards. The Association also asked that boilers that usually operate on biogas, but must also use other fuels on certain occasions, be included in this category of boilers. EPA stated during a February 23 conference call with stakeholders that this issue had been addressed in the final rule, but was unable to provide any details. NACWA and its Air Quality Workgroup will review the final rule and determine if the Association needs to submit comments again as part of the reconsideration that EPA is moving forward with regarding this rule.

Peak Performance, Excellence in Management Award Applications Are Now Available

Don’t miss out on these opportunities to be recognized! NACWA is currently accepting applications for the 2010 Peak Performance Awards and 2011 Excellence in Management Recognition Program. All eligible member agencies are encouraged to submit their nomination as soon as possible. As announced in Member Update 11-01, the Peak Performance Awards program acknowledges member agency facilities for excellence in wastewater treatment as measured by their compliance with their National Pollutant Discharge Elimination System (NPDES) permit requirements.

In addition, Member Update 11-02, outlines NACWA’s Excellence in Management Recognition Program which recognizes the significant achievements of NACWA member agencies in the utility management arena.

The deadline for submissions to both the Peak Performance Awards and Excellence in Management Recognition Program is April 8, 2011. Visit NACWA’s website for more information on the Peak Performance Awards program and Excellence in Management Recognition Program, and apply today!

NACWA Clean Water Careers Features Key Employment Opportunities

NACWA’s Clean Water Careers page features employment opportunities at wastewater agencies nationwide, and is consistently one of NACWA's most-visited pages. Current postings include:

• Deputy Director, Water Pollution Control Plant, City of San Jose, Calif.
• Deputy General Manager, Hillsboro, Ore.
• Commissioner, Division of Water, Cleveland, Ohio
• Manager, Mechanical Maintenance, Washington, DC
• Process Engineer, Olathe, Kansas

To place an employment advertisement on our website, please call Robin Davis, NACWA’s Director of Marketing and Print Management, at 202/533-1802 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it to advertise today.