NACWA Letter to Administrator Jackson 

May 24, 2011 

Page 1 of 2 

EXECUTIVE COMMITTEE

PRESIDENT

Jeff Theerman

Executive Director

Metropolitan St. Louis

Sewer District

Saint Louis, MO

VICE PRESIDENT

David R. Williams

Director of Wastewater

East Bay Municipal 

Utility District

Oakland, CA

TREASURER

Suzanne E. Goss

Government Relations Specialist

JEA (Electric, Water & Sewer)

Jacksonville, FL

SECRETARY

Julius Ciaccia, Jr.

Executive Director

Northeast Ohio Regional 

Sewer District

Cleveland, OH 

PAST PRESIDENT

Kevin L. Shafer

Executive Director

Milwaukee Metropolitan 

Sewerage District

Milwaukee, WI

EXECUTIVE DIRECTOR

Ken Kirk

May 24, 2011 

Honorable Lisa P. Jackson 

Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Ms. Gina McCarthy 

Assistant Administrator, Office of Air and Radiation 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Mr. Peter Tsirigotis 

Director, Sector Policies and Programs Division 

Office of Air Quality Planning and Standards 

U.S. Environmental Protection Agency 

Research Triangle Park, NC 27711 

Richard Ossias, Esq. 

Associate General Counsel for the Air and Radiation Law Office 

Office of General Counsel (Mail Code 2344A) 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

Re:Petition for Reconsideration a Petition for Reconsideration a Petition for Reconsideration and Stay of the Standa nd Stay of the Standards of Performance for rds of Performance for 

New Stationary Sources and Emission Guidelines for Existing Sources: 

Sewage Sludge Incineration Units; Final Rule, 76 Fed. Reg. 15372- . 15372-15454 

(March 21, 2011) (March 21, 2011) 

Dear Administrator Jackson: 

Please find enclosed the above-referenced petition by the National Association of 

Clean Water Agencies (NACWA) for reconsideration and stay of the newly 

promulgated emission limitations and other requirements under Clean Air Act 

§ 129 applicable to sewage sludge incineration units. 
NACWA Letter to Administrator Jackson 

May 24, 2011 

Page 2 of 2 

Without action by EPA to correct the flaws in these new regulations, the emission limitations and other 

requirements affecting sewage sludge incinerators will have unjustified and substantial negative impacts on the 

municipalities and public clean water authorities who rely on incineration as the most economically and 

environmentally sound alternative for managing biosolids in numerous cities and towns across the United 

States. 

Please contact me or Mr. Chris Hornback at (202) 833-9106 or chornback@nacwa.org to discuss any questions 

regarding the enclosed petition. 

Sincerely, 

Ken Kirk 

Executive Director 

Encl. 

cc: Nancy Stoner, U.S. Environmental Protection Agency 
U.S. ENVIRONMENTAL PROTECTION AGENCY 

IN RE: PETITION FOR RECONSIDERATION AND STAY OF THE STANDARDS OF PERFORMANCE 

FOR NEW STATIONARY SOURCES AND EMISSION GUIDELINES FOR EXISTING SOURCES:

SEWAGE SLUDGE INCINERATION UNITS; FINAL RULE

76 FEDERAL REGISTER 15372-15454 (MARCH 21, 2011) 

DOCKET NO. EPA-HQ-OAR-2009-0559 

I. INTRODUCTION 

Pursuant to section 307(d)(7)(B) of the Clean Air Act (“CAA”), 42 U.S.C. § 7607(d)(7)(B), the 

National Association of Clean Water Agencies (“NACWA”) petitions the U.S. Environmental 

Protection Agency (“EPA” or “Agency”) to reconsider the final Agency action titled “Standards 

of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: 

Sewage Sludge Incineration Units,” 76 Fed. Reg. 15372 (Mar. 21, 2011), establishing emission 

limitations and other requirements under CAA § 129 applicable to sewage sludge incinerators 

(“SSI”) (the final rule is referenced herein as the “SSI Rule”). NACWA also requests that EPA 

stay implementation of the SSI Rule pending the reconsideration process and promulgation of 

regulations replacing the SSI Rule. 

NACWA is a voluntary, non-profit association whose current membership includes 270 

municipalities and public clean water authorities. NACWA’s members operate nearly 1,000 of 

the nation’s publicly-owned treatment works (“POTWs”), which collectively serve the majority 

of the sewered population of the United States. NACWA’s members own and operate 

approximately 110 – roughly half – of the SSIs affected by the SSI Rule. 

For over 40 years, NACWA has maintained a leadership role in legal and policy issues affecting 

the public authorities responsible for cleaning the nation’s wastewater. NACWA is at the 

forefront of the development and implementation of scientifically based, technically sound, and 

cost-effective environmental programs for protecting public and ecosystem health. 

NACWA and its members have long been advocates for maintaining the flexibility local 

communities need to choose the biosolids management approaches (namely incineration, land 

application or landfilling) that work best within the economic and environmental constraints 

unique to each locality. Congress’ intention to recognize and encourage that flexibility is 

expressly embodied in § 405(e) of the Federal Water Pollution Control Act, 33 U.S.C. § 1345 

(“CWA”) (“The determination of the manner of disposal or use of sludge is a local 

determination”). However, EPA’s approach to regulating biosolids incineration under the SSI 

Rule gives no attention to the statutory factors required to be considered in order to balance CAA 

regulation with maintaining incineration as an environmentally beneficial and economically 

viable option for these communities. 
As detailed in this petition, the CAA § 129 standards: (1) exceed EPA’s authority to regulate 

SSIs under the CAA, (2) fail to satisfy the fundamental achievability test under both CAA 

§§ 112 and 129 for establishing a maximum achievable control technology (“MACT”) floor 

level of control, (3) lack a rational basis in the rulemaking record, and (4) fail to consider and 

respond to numerous significant comments and criticisms of the standards. As a result, the final 

rule imposes numerous unlawful and unjustified standards, including: 

• imposing overly stringent MACT floors for all SSIs without regard to their major source 

or area source classification as would be required under CAA § 112; 

• imposing MACT floor controls on non-HAP pollutants without the statutory authority to 

require such controls; 

• failing to establish subcategories recognizing fundamental class and use differences 

among SSIs, such as infrequently used backup units; and 

• ignoring data showing variability in biosolids feed characteristics that affect the overall 

performance of each individual SSI – and thus affecting the overall achievability of the 

standards. 

For the reasons explained below, EPA has not given NACWA meaningful opportunity to 

comment on, and therefore opportunity to influence the outcome of, many issues that are of 

central relevance to the SSI Rule, including the Agency’s rationale for regulating SSIs under 

CAA § 129, the critical impact of biosolids fuel characteristics in determining SSI emissions, and 

revised standards that were not included in the proposed rule. Because the flaws in the SSI Rule 

are fundamental and pervasive – implicating the legal authority for the rulemaking, the selection 

of pollutants for which standards may be established, the selection of SSI subcategories, and 

numerous other aspects of the rule – it is impossible to carve-out and maintain segments of the 

SSI Rule that are not infected with serious legal and technical errors. If EPA initiates the 

requested reconsideration process, it will necessarily touch on essentially every aspect of the SSI 

Rule by potentially eliminating standards for non-HAP pollutants, altering the subcategorization 

scheme for MACT floor calculations, and including significantly more and more representative 

data in the standard setting process. 

Given the magnitude of these problems, NACWA requests reconsideration and stay of the entire 

SSI Rule, so that we can work with EPA to correct errors through an appropriate and legally 

defensible notice-and-comment rulemaking process. NACWA also requests that EPA initiate 

this reconsideration process to address potentially inconsistent, overlapping and unnecessary 

requirements from and among the SSI Rule and Part 503 regulations. Rationalizing and 

streamlining the differing sets of requirements applying to SSIs is essential to provide regulatory 

clarity and reduce burdens on municipalities and clean water agencies and should not wait until 

some unspecified future rulemaking. See 76 Fed. Reg. at 15376/2-3. 

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II. STANDARDS FOR RECONSIDERATION AND STAY OF THE SSI RULE 

Under CAA § 307(d)(7)(B), EPA must convene a proceeding for reconsideration of a final 

Agency action if a person raising an objection can demonstrate that it was “impracticable to raise 

the objection” within the period for public comment and the “objection is of central relevance to 

the outcome of the rule.” The rulemaking requirements under § 307(d) apply to the SSI Rule. 

See CAA § 307(d)(1)(C) and (D). EPA also has independent and inherent authority under both 

§§ 129 and 112 to initiate a rulemaking to address legal and technical errors in the SSI Rule, and 

to re-set the effective date to allow time to promulgate a corrected rule. 

EPA has included new provisions and new major legal interpretations in the final SSI Rule. 

These changes violate administrative law principles of notice-and-comment rulemaking unless 

EPA can show that the changes are a “logical outgrowth” of the proposed rule – i.e., that the 

public “should have anticipated that the change was possible, and thus reasonably should have 

filed their comments on the subject during the notice-and-comment period.” Environmental 

Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005). 

In addition to initiating a reconsideration process, NACWA also requests that EPA stay the SSI 

Rule pending review and promulgation of replacement regulations. Section 307(d)(7)(B) 

contains authority for EPA to stay the effective date of an action for up to three months during 

the reconsideration process. In addition, § 705 of the Administrative Procedure Act (“APA”), 

5 U.S.C. § 705, provides independent authority for EPA to postpone the effective date of a 

rulemaking when the Administrator “finds that justice so requires.” Similarly, §§ 129(a)(5) and 

301(a) of the CAA give EPA authority to undertake a process of correcting the SSI Rule and to 

establish a parallel stay where the stay is necessary to preserve the status quo so as to ensure that 

the correction is a complete cure, especially to keep communities from wasting scarce public 

resources attempting to comply with a defective rule. 

The issues raised in this petition meet the standards for reconsideration and stay of the SSI Rule 

under both CAA § 307(d)(7)(B) and APA § 705, as well as CAA §§ 129(a)(5) and 301(a). 

Therefore, NACWA urges EPA to take all necessary action to stay the SSI Rule and to initiate a 

new rulemaking to develop replacement regulations addressing NACWA’s objections. 

III. GROUNDS FOR RECONSIDERATION 

A. EPA’s Rulemaking Process 

Pursuant to an order entered in Sierra Club v. Johnson, 444 F. Supp. 2d 46 (D.D.C. 2006), the 

District Court for the District of Columbia established a series of deadlines by which EPA was to 

complete certain duties under CAA §§ 112(c)(3), (c)(6) and (k)(3), including adopting standards 

for SSIs. Prior to the comment period on the SSI Rule, the deadline for taking action under the 

District Court’s order was extended to January 16, 2011 to allow EPA additional time to develop 

the SSI Rule. 

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Through pre-proposal meetings and written submissions to EPA, NACWA and several of its 

members submitted a wide range of information on POTWs and SSIs, including, critically for 

this petition, information regarding the regional, seasonal and daily variability of biosolids 

composition as evidenced by metals concentration data available through the CWA Part 503 

program, the effect such variability has on emissions from biosolids incineration, and 

information on the technical limitations of applying add-on control devices to SSIs. 

After EPA issued its proposed SSI rule,1 NACWA submitted additional information during the 

comment period reinforcing its earlier submissions to the Agency and raising numerous 

objections and recommendations for improvements. NACWA’s comments on the proposed SSI 

rule totaled about 500 pages, including over 200 pages of narrative comments and approximately 

300 pages of technical support. 

Several NACWA members, including the following POTWs and municipalities, also submitted 

detailed comments and data on the proposed rule: 

• Northeast Ohio Regional Sewer District (“NEORSD”) 

• City of Palo Alto (CA) 

• Central Contra Costa (CA) Sanitary District 

• Metropolitan St. Louis (MO) Sewer District 

• City of Greensboro (NC) 

• Green Bay (WI) Metropolitan Sewerage District 

• City of Indianapolis (IN) 

• City of Columbus (OH) 

• Hampton Roads (VA) Sanitation District (“HRSD”) 

• City of Vancouver (WA) 

Together, NACWA and its members submitted over 750 pages of information and analysis 

demonstrating numerous legal, procedural and technical flaws in the proposed rule. 

 

1

 See “Proposed Standards of Performance for New Stationary Sources and Emission Guidelines for Existing 

Sources: Sewage Sludge Incineration Units,” 75 Fed. Reg. 63260 (Oct. 14, 2010). 

Page 4 of 25 
Eight days later, on December 7, 2010, EPA filed a motion asking the District Court to extend 

the deadline for completing the SSI Rule to July 15, 2011. EPA’s initial and reply memoranda 

and the declarations submitted in support of EPA’s motion2

 demonstrated the Agency’s belief 

that it could not produce defensible rules for SSI units any sooner than July 15, 2011. To support 

its claim, EPA pointed to the over 80 individual substantive comments received on the SSI rule 

and the need to review and respond to all of these comments. See Declaration of Panagiotis E. 

Tsirigotis (“Tsirigotis Decl.”) ¶¶32 and 48 (Encl. A, Exh. 6). 

NACWA, as an intervenor in the Sierra Club case, supported EPA’s motion, arguing that EPA 

needed at least the additional time requested in order to consider and respond to comments and to 

deal with the implications of those comments in revisions to the proposed rule. While EPA 

noted in its December 7 motion that it did not currently plan to re-propose the SSI rule, see EPA 

Memo pp. 3-4 (Encl. A) and Tsirigotis Decl. ¶48 (Encl. A, Exh. 6), that “plan” was clearly 

formulated before any review, or at least any serious review, of all comments on the SSI Rule. 

See Supplemental Declaration of Panagiotis E. Tsirigotis (“Tsirigotis Supp. Decl.”) ¶32 (Encl. B) 

(EPA had reviewed “some” comments on the SSI Rule as of January 3, 2011, the date Mr. 

Tsirigotis’ supplemental declaration was signed). Ultimately, the District Court extended the 

deadline for action on the final SSI Rule approximately one month – to February 21, 2011. 

B. EPA’s Final SSI Rule 

Likely due in part to the fact that EPA had less than 12 weeks from the end of the comment 

period to finalize the SSI Rule, the SSI Rule and EPA’s preamble and response to comments 

document inadequately responded – and in several instances did not respond at all – to critical 

issues raised by NACWA. The preamble to the SSI Rule also contains a new and surprising 

explanation of EPA’s thinking on the central legal issue of whether SSIs are subject to regulation 

under CAA § 129. 

While we recognize that EPA might have corrected such errors given more time, the SSI Rule 

nonetheless contains demonstrably unlawful requirements that cannot withstand judicial review. 

Granting NACWA’s petition would allow the additional time needed for EPA to develop a better 

understanding of this sector and the manner in which Congress intended for biosolids 

incineration to be regulated by overlapping CAA and CWA programs. Furthermore, EPA can 

still fully and fairly meet its obligations under CAA §§ 112(c)(3) and (c)(6) by regulating SSIs 

under § 112(d). 

 

2

 See enclosed “EPA’s Memorandum in Support of Motion to Amend Order of March 31, 2006” (“EPA Memo”) 

and exhibits thereto (Encl. A), and “EPA’s Reply Memorandum in Support of Motion to Amend Order of March 

31, 2006” (“EPA Reply Memo”) and exhibits thereto (Encl. B). 

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The issues that are the subject of this petition fundamentally affect the legal defensibility and the 

implementability of the SSI Rule, as well as the impact the SSI Rule will have on NACWA’s 

members and other owners and operators of SSIs. 

NACWA has timely filed a petition for review challenging the SSI Rule.3 In addition, NACWA 

seeks EPA reconsideration of the following specific aspects of the SSI Rule: 

1. EPA’s new rationale for regulating SSIs under CAA § 129 instead of CAA § 112 

is invalid. 

In pre-proposal submissions and in comments on the proposed rule, NACWA raised a 

comprehensive set of arguments as to why EPA is required under CAA § 112(e)(5) to establish 

emission standards for SSIs under § 112 instead of § 129. These arguments can be summarized 

as follows: 

• Section 112(e)(5) requires EPA to promulgate standards under § 112(d) applicable to 

“publicly owned treatment works (as defined in title II of the Federal Water Pollution 

Control Act [33 U.S.C.A. § 1281 et seq.]).” 

• The broad definition of “treatment works” in Title II of the CWA (and in EPA’s 

implementing regulation) includes “any devices and systems used in the ... treatment, 

recycling, and reclamation of municipal sewage” and includes “any works ... used for 

ultimate disposal of residues resulting from such treatment” and, thus, encompasses SSIs 

at POTWs. 

• NACWA provided examples of SSIs constructed and upgraded using CWA Title II 

construction grants, for which federal funding would have been illegally authorized by 

EPA were SSIs not within the CWA definition of “treatment works.” 

• SSIs are physically and operationally integrated into the specific POTWs they serve and 

are an essential part of the solids treatment process. Without their SSIs, these POTWs 

could not continue to operate unless they switch to another biosolids management option, 

which is a major undertaking involving physical changes to the POTWs. 

• EPA has repeatedly taken the position that SSIs as a source category are to be regulated 

under CAA § 112. Our comments provided references to such statements (formal and 

informal) from 1992 through 2002. 

 

3

 See enclosed Petition for Review and Rule 26.1 Disclosure Statement (Encl. C) filed on May 6, 2011 with the 

U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”). 

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In the proposed rule, the sum total of EPA’s statements on this topic was that it “has taken the 

position in its regulation of POTW under the Clean Air Act that section 112(e)(5) does not apply 

to SSI units and for this reason did not regulate them in its POTW section 112(d) emission 

standards.” 75 Fed. Reg. at 63264. EPA offered nothing more than this single conclusory 

sentence, and similarly failed to provide any elaboration on the issue when it promulgated 

regulations under § 112(d) for POTWs. Thus, it goes without saying that nothing in the 

proposed rule fairly put NACWA or other interested parties on notice that EPA was developing a 

new legal interpretation – to be unveiled with the final SSI Rule – for why it believes SSIs must 

be regulated under § 129. 

In the final SSI Rule, EPA for the first time grounded regulation of SSIs under § 129 on a 

reading of the CAA that: (1) § 112(e)(5) is merely a scheduling provision that “simply identifies 

the date by which EPA must issue emissions standards for POTW,” (2) that the decision in 

NRDC v. EPA, 489 F.3d 1250 (D.C. Cir. 2007) “precludes” EPA from regulating SSIs under 

§ 112(d), and (3) that EPA “does not have the discretion” to regulate SSIs except under § 129. 

See 76 Fed. Reg. at 15383/2-3. This rationale is fundamentally different from the rationale 

suggested by EPA’s statement at the proposal stage that it “has taken the position” that 

§ 112(e)(5) “does not apply” to SSIs and that EPA is proposing a § 129 based rule “for this 

reason.” The final SSI Rule is apparently the first time EPA has asserted such an interpretation 

of the statute, and EPA certainly failed to put the interested public on notice of this novel reading 

in the proposed rule. EPA’s failure to explain what it believed to be the legal basis for its 

proposed standards deprived commenters of the ability to engage the Agency on its faulty 

reading of § 112(e)(5) and of the NRDC decision in order to achieve a different outcome in this 

rulemaking. 

Furthermore, EPA nowhere explains (1) how its new interpretation squares with the clear 

directive in § 112(e)(5) for the Administrator to set emission standards under § 112(d), (2) how it 

implicitly reached the conclusion that SSIs are not covered by the expansive CWA definition of 

“treatment works” incorporated into CAA § 112(e)(5), (3) how its new interpretation is legally 

possible in light of the numerous SSIs built and improved using CWA Title II funds, nor (4) how 

EPA’s new interpretation squares with the examples NACWA provided of previous Agency 

rulemakings and policy statements. EPA’s failure to address these and many other comments 

also violates the requirement under CAA § 307(d)(6)(B) to include in the SSI Rule “a response 

to each of the significant comments, criticisms, and new data submitted” in order to establish a 

complete record on judicial review. 

EPA’s view that it was compelled to promulgate standards for SSIs under § 129 is undoubtedly 

of central relevance to the outcome of the SSI Rule. It resulted in, for example, imposition of 

MACT floor level standards for all SSIs without regard to major/area source distinctions, 

emission standards for pollutants not subject to regulation under § 112, and in other requirements 

(e.g., siting analyses and operator training) which are mandatory under § 129 and not under 

§ 112. EPA is obligated under § 307(d)(7)(B) to grant reconsideration under these 

circumstances, and we believe there is a substantial likelihood that changes will be made to the 

SSI Rule if EPA takes the opportunity to engage these issues. 

Page 7 of 25 
2. EPA failed to collect sufficient data to reliably determine the MACT floors. 

NACWA submitted comments pointing out several ways in which EPA’s rulemaking process 

was fundamentally flawed from the outset. Starting with EPA’s decision to circumvent the 

Paperwork Reduction Act and Office of Management and Budget review by limiting its 

information collection to only nine of the roughly 118 POTWs operating SSIs, the Agency’s fast 

track approach to rulemaking ensured that EPA would not have sufficient data for its 

rulemaking. The sizes of the SSI subcategories dictate that the existing source MACT floors 

would reflect the performance of the best eight fluidized bed incinerators (“FBIs”) and the best 

18 multiple hearth incinerators (“MHIs”). See Revised MACT Floor Analysis for the Sewage 

Sludge Incinerator Source Category (January 2011) (“Revised MACT Floor Memo”) at 6. Even 

after collecting additional data from state agencies, EPA had data from only six FBIs and some 

of those units were not tested for all pollutants. The MHI database also lacked data from 12 

percent of the MHI units for seven of the nine pollutants to be regulated. Thus, even assuming 

the improbable, that all of the data collected came from the top performing 12 percent of the 

subcategory, EPA’s truncated data collection effort fell short of generating the emissions 

information necessary to calculate the MACT floors. 

The quality and quantity of the data that EPA used to set the MACT standards are of central 

relevance to the development of the final SSI Rule. NACWA commented on the inadequate 

database and provided significant additional data for EPA to consider during the rulemaking 

process. Thus, NACWA was surprised when EPA’s Revised MACT Floor Memo indicated in 

January 2011 after the close of the public comment period that the final emission standards were 

established based on data from as few as four and no more than six of the 60 FBIs identified by 

EPA. MHI units had emission limitations based on data from less than 4 percent of the 144 units 

in that subcategory. Section 129 of the CAA does not allow EPA to stop short of collecting 

sufficient emissions information. As EPA acknowledges: 

While Congress adopted identical language describing the MACT floor 

calculation in section 129(a)(2) as it did in section 112(d)(3), the latter section 

includes a provision stating that the floor for existing sources cannot be less 

stringent than “the average emission limitation achieved by the best performing 

12 percent of the existing sources (for which the Administrator has emissions 

information)[.]” Section 129, however, simply states that the existing source floor 

cannot be less stringent than the average emission limitation achieved by the best 

performing 12 percent of the existing sources in the category. Therefore, while 

EPA believes Congress intended for the MACT floor calculation under each 

section of the Act to be the same, this difference in the text of the two provisions 

requires us to establish the MACT floor for section 129 source categories based 

on the best performing 12 percent of sources in the category. Because EPA does 

not have that data at this time, the statistical technique described below is the only 

manner in which we can establish the existing source floor on that basis. 

See Revised MACT Floor Memo at 8 (emphasis added). In view of this critical difference in 

statutory language, EPA must take the additional time necessary to collect sufficient data to set 

MACT standards. This is not a case where EPA tried and failed to collect the requisite data. 

Page 8 of 25 
Instead, EPA decided not to obtain stack test data from the required minimum number of SSIs 

based on expediency. EPA’s rush through rulemaking also resulted in the Agency disregarding 

data provided by NACWA and its members that would have helped fill some of these data gaps 

if the Agency had taken the time to evaluate the data and made reasonable requests for 

supporting information. This is a violation not only of the database requirements established by 

§ 129 for making MACT floor determinations, as acknowledged by EPA, but also of the 

fundamental requirement underlying § 129 for rational decisionmaking. See CAA § 307(d)(9), 

42 U.S.C. § 7607(d)(9); Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 861-62 (D.C. 

Cir. 2001). See generally NRDC v. EPA, 194 F.3d 130, 136 (D.C. Cir. 1999). Reconsideration 

is an appropriate administrative step to facilitate the collection and review of all available data to 

fill the gaps in EPA’s database. 

3. EPA failed to use data from EPA’s 40 C.F.R. Part 503 program and from stack 

tests outside of the limited data gathered from only nine POTWs in early 2010. 

EPA has additional data in its possession that should be used to determine the emission rates 

achieved by the best performing sources under the full range of operating conditions. EPA relies 

solely on stack test data to set standards for a source category that does not have a significant 

amount of historic stack test data for the relevant pollutants. As a result, EPA’s database relies 

heavily on data from the 17 stack tests performed over a few months in early 2010 in response to 

its information collection request to nine SSI facilities. These data cannot represent the emission 

profiles of the large population of SSIs – or even the profiles of the tested units themselves – 

over time since a handful of stack tests from a single time period do not reflect the intense 

geographic variability in biosolids characteristics among POTWs nor do they account for 

seasonal and daily variability of biosolids characteristics within a POTW. Thus, EPA’s approach 

fails both the test of rationality, see Cement Kiln Recycling Coalition, 255 F.3d at 861-62, and 

the test of achievability undergirding § 129, as explained below. 

a. Failure to engage in rational decisionmaking. 

NACWA in its comments urged EPA to look at all of the available data – particularly biosolids 

concentration data available for all POTWs under EPA’s Part 503 regulations – to understand 

that variability and to incorporate an analysis of Part 503 data into the MACT floor 

determinations. We pointed out that POTWs are required to track and report metals data in their 

biosolids year-round and during all periods of operation and, therefore, EPA already had all the 

Part 503 data it needs to examine variability for metals. As an illustration of the magnitude of 

variability encountered by POTWs, NACWA’s comments included the following example of 

monthly average metals concentrations from two facilities owned by NEORSD showing that 

average metal concentrations within a single plant varied by a factor of three or more over this 

12-month period: 

Page 9 of 25 
2009 Monthly Average Biosolids Concentrations (mg/dry kg) 

(NEORSD Southerly and Westerly POTWs)

Cadmium Lead Mercury 

Southerly Westerly Southerly Westerly Southerly Westerly 

January 7.95 13.25 62.23 97.00 0.68 0.44 

February 8.45 11.95 75.60 123.10 0.77 0.41 

March 8.90 14.46 84.94 141.20 0.69 0.34 

April 9.11 14.96 67.93 123.00 0.84 0.37 

May 10.40 12.97 87.16 145.95 0.78 0.36 

June 4.60 7.94 99.54 204.30 1.24 0.77 

July 4.46 7.92 123.15 218.55 1.24 0.92 

August 4.78 9.08 114.10 188.23 3.12 0.59 

September 5.13 8.12 103.41 183.93 2.08 0.87 

October 3.99 7.19 94.33 129.27 0.98 0.63 

November 4.14 6.22 82.78 104.81 0.91 0.58 

December 3.80 5.97 74.66 97.55 1.38 0.40 

In response to these concerns, EPA reached the utterly implausible conclusion that single stack 

tests in the winter of 2010 from nine different facilities in nine different states “represents 

sufficient variation in regions, climates, and populations that adequately incorporates variability 

in wastewater treatment systems across the U.S.” 76 Fed. Reg. at 15391/2-3. This conclusion is 

indefensible on its face, and is in obvious tension with representations EPA made to the District 

Court in the Sierra Club case. In its memoranda supporting its motion for additional time, EPA 

stated that in order to complete the SSI rulemaking it must address several new issues raised 

during the comment period, including variability of sludge characteristics. See EPA Reply 

Memo at 21. Mr. Tsirigotis’ supplemental declaration elaborated that, with respect to the 

variability issue: 

[EPA] would need to make appropriate revisions to the proposed emissions 

standards, including re-evaluating the regulatory impact analysis, variability 

analyses, and the levels of the standards themselves. In particular, we would plan 

to analyze information regarding the variability of sludge content, determine 

whether that analysis warrants any revisions to the variability incorporated into 

the proposed standards, and calculate revised MACT floors, as appropriate. 

Tsirigotis Supp. Decl. ¶34b. However, in the SSI Rule EPA does not even attempt to reconcile 

this conclusion with the large quantity of Part 503 data available to it. Instead, EPA states that 

“there is not enough information to determine whether it would be appropriate to incorporate 

variability in sludge feed into the rule,” and attempts to defend its failure to analyze Part 503 data 

by saying that EPA requested additional data “but did not receive adequate sampling data from 

the best performing sources.” Id. at 15391/3. 

If EPA was claiming that it did not receive sludge metals concentration data from the POTWs it 

contends are the best performing sources, then EPA’s claim simply is not true. If, instead, EPA 

was merely claiming that commenters did not enclose their Part 503 data in their comments, 

then the obvious explanation is that POTWs already routinely submit these data to EPA and so 

commenters did not reasonably expect to have to resubmit data already in EPA’s possession. If 

EPA tried and had difficulty retrieving data from Agency files, the proper response would have 

Page 10 of 25 
been to contact commenters to request additional copies of these data. See Tsirigotis Supp. Decl. 

¶34a (justifying an extension until July 15, 2011 because, among other things, EPA needs to 

contact commenters to get additional information on data submitted during the comment period). 

That did not happen. 

As part of this reconsideration request, NACWA encloses a summary and analysis of data from 

January 2005 to as late as December 2010 showing monthly biosolids metals (Cd, Pb and Hg) 

characteristics from 25 POTWs using SSIs.4 Fifteen of these POTWs operate SSIs that EPA 

considers to be among the best performing units – including the City of Greensboro (NCTZ 

Osborne), Allegheny County (PA) Sanitary Authority, Upper Blackstone (MA) Water Pollution 

Abatement District, Central Contra Costa (CA) Sanitary District, Metropolitan District Hartford 

(CT), Ypsilanti (MI) Community Utilities Authority, Wayne Township (NJ) Sewer Authority, 

Indianapolis (IN) Sewer Authority, two POTWs operated by the Metropolitan Council (MN) 

Environmental Services, and five POTWs operated by HRSD. 

Cadmium in Biosolids (mg/dry kg) 

(2005-2009)

POTW 

25th

Percentile Minimum Median Maximum 

75th

Percentile 

CCCSD (CA) ND ND ND ND ND 

Wayne Twp. (NJ) 1.6 1.1 2.2` 17.3 2.8 

Hartford (CT) 2.0 0.3 2.6 8.0 3.1 

Greensboro (NC) 2.4 1.3 5.6 22.1 7.7 

Upper Blackstone (MA) 5.3 3.2 6.0 11.0 6.8 

ALCOSAN (PA) 0.5 0.0 0.7 19.1 1.3 

St. Paul Metro MCES (MN) 1.2 0.8 1.5 32.2 2.7 

Williamsburg HRSD (VA) 1.0 0.5 1.5 5.0 3.0 

Army Base HRSD (VA) 2.8 1.0 4.0 8.0 5.0 

Boat Harbor HRSD (VA) 3.0 1.0 3.0 9.0 4.0 

Chesapeake Elizabeth HRSD (VA) 1.5 0.5 2.0 5.0 3.0 

Virginia Initiative HRSD (VA) 1.5 0.5 3.0 5.0 3.0 

Seneca MCES (MN) 0.4 0.2 0.7 46.0 1.3 

Belmont Indianapolis (IN) 1.4 1.0 1.8 4.1 2.4 

Ypsilanti (MI) 3.5 2.0 5.3 15.0 6.1 

NOTE: For monthly data below the detection limit, one-half the detection limit was used in calculations. 

ND is used when over 90 percent of the data are below the detection limit and the artificial value would significantly 

distort actual variability. 

 

4

 All of the enclosed data were generated pursuant to the Part 503 regulations and were previously submitted to the 

POTWs’ respective permitting authorities. Enclosure D contains example Part 503 reports for NEORSD’s 

Southerly and Westerly POTWs in the same form as originally submitted to the permitting authorities. 

Page 11 of 25 
Lead in Biosolids (mg/dry kg) 

(2005-2009) 

POTW 

25th

Percentile Minimum Median Maximum 

75th

Percentile 

CCCSD (CA) 0.8 0.3 8.6 54.9 15.1 

Wayne Twp. (NJ) 31.9 25.8 39.0 82.4 45.6 

Hartford (CT) 57.6 30.0 69.2 194.0 80.6 

Greensboro (NC) 17.9 6.4 24.5 39.1 30.6 

Upper Blackstone (MA) 48.0 31.0 58.0 160.0 70.0 

ALCOSAN (PA) 52.0 15.0 66.2 233.0 79.1 

St. Paul Metro MCES (MN) 27.3 19.2 30.4 97.1 37.4 

Williamsburg HRSD (VA) 15.0 6.0 18.5 49.0 23.3 

Army Base HRSD (VA) 36.8 22.0 46.0 130.0 67.8 

Boat Harbor HRSD (VA) 37.0 17.0 42.0 184.0 49.3 

Chesapeake Elizabeth HRSD (VA) 19.0 11.0 26.0 137.0 36.3 

Virginia Initiative HRSD (VA) 39.5 12.0 45.0 84.0 54.0 

Seneca MCES (MN) 4.0 3.0 4.8 20.0 5.7 

Ypsilanti (MI) 9.2 0.0 15.9 73.6 23.8 

NOTE: For monthly data below the detection limit, one-half the detection limit was used in calculations. 

Mercury in Biosolids (mg/dry kg) 

(2005-2009) 

POTW 

25th

Percentile Minimum Median Maximum 

75th

Percentile 

CCCSD (CA) 0.61 0.40 0.75 14.65 1.09 

Wayne Twp. (NJ) 0.40 0.05 0.71 3.40 0.96 

Hartford (CT) ND ND ND ND ND 

Greensboro (NC) 0.20 0.03 0.36 1.70 0.68 

Upper Blackstone (MA) 0.71 0.60 0.87 1.80 1.37 

ALCOSAN (PA) 1.00 0.74 1.13 2.31 1.42 

St. Paul Metro MCES (MN) 0.35 0.19 0.50 3.49 0.64 

Williamsburg HRSD (VA) 0.30 0.10 0.30 0.70 0.50 

Army Base HRSD (VA) 0.60 0.30 0.70 6.40 0.90 

Boat Harbor HRSD (VA) 0.40 0.20 0.50 0.90 0.60 

Chesapeake Elizabeth HRSD (VA) 0.70 0.30 0.85 1.90 1.00 

Virginia Initiative HRSD (VA) 0.40 0.30 0.50 1.90 0.63 

Belmont Indianapolis (IN) 0.03 0.01 0.04 0.60 0.05 

Ypsilanti (MI) 0.43 0.03 0.59 1.80 0.78 

NOTE: For monthly data below the detection limit, one-half the detection limit was used in calculations. 

ND is used when over 90 percent of the data are below the detection limit and the artificial value would significantly 

distort actual variability. 

Page 12 of 25 
These data and the monthly average data summarized in Enclosure D strongly illustrate the 

significant variability in metals concentrations among POTWs and within a POTW over 

relatively short time periods.5

 For example, the enclosed monthly Part 503 data show: 

• Average metals concentrations in biosolids feed vary significantly at all these POTWs. 

The data show average Cd concentrations ranging from a minimum of 0.2 mg/dry kg to a 

maximum of 46 mg/dry kg at the Seneca (MN) POTW, from 1.3 up to 22.1 mg/dry kg at 

the Greensboro (NC) POTW, and from 0.1 up to 33.1 mg/dry kg at the Metropolitan St. 

Louis Sewer District Bissell Point POTW. By way of example, an FBI (Unit ID ES-1) at 

the Greensboro POTW was selected by EPA as the best performing unit to set the NSPS 

MACT floor for Cd and was among the units used in calculating the MACT floor for 

existing sources. Yet this POTW experienced among the most significant variability in 

Cd concentrations in biosolids during the period 2005-2009, as demonstrated by the 

enclosed Part 503 data. Furthermore, Cd concentrations nearest the time when 

Greensboro performed its stack testing in response to EPA’s ICR were close to the lowest 

levels recorded over the five years of monthly data (i.e., at or less than the 25th percentile 

concentration). Yet EPA did not consider this variability at all in its MACT floor 

calculations nor in setting the level of the final standards. 

• Average Pb concentrations ranged from 6.4 up to 39.1 mg/dry kg at the Greensboro 

POTW and from 31 up to 160 mg/dry kg at the Upper Blackstone (MA) POTW, both of 

which operate the SSIs used by EPA to set the NSPS MACT floor for Pb. Yet based on 

the available Part 503 data both of these POTWs were at or below the 25th percentile 

average concentration for Pb during the period leading up to the ICR stack testing. 

• Average Hg concentrations ranged from a low of 0.4 up to 14.65 mg/dry kg at the Central 

Contra Costa (CA) POTW, which was used to set both the new and existing source 

MACT floors for Hg. Yet again, the average Hg concentrations were approaching the 

five-year minimum and were less than one-half of the 75th percentile average in the 

period before stack testing took place. Looking at other POTWs, average Hg 

concentrations vary by a factor of 56 at the Greensboro POTW and by more than 90 

times at the Metropolitan St. Louis Sewer District LeMay POTW. 

• Biosolids characteristics are unique to a POTW even within the same geographic region – 

for example, the Metropolitan St. Louis LeMay plant registered its highest Cd 

concentration over a five-year period (2005-2009) in the same month (April 2008) that 

the Metropolitan St. Louis Bissell Point plant registered its lowest Cd value over the 

same five-year period. 

 

5

 This variability is evident even though the monthly averages generated from Part 503 data necessarily mask even 

more significant short term variability. 

Page 13 of 25 
• Biosolids characteristics vary significantly based on seasonal events and even day-to-day 

activities within the POTW – by example, the HRSD Boat Harbor plant registered its 

lowest Pb value (17 mg/dry kg) over a five-year period in October 2009 and its highest 

value (184 mg/dry kg) one month later. 

As with the Part 503 data, EPA also refused to consider stack test data submitted by commenters 

who provided summaries of test results demonstrating that the proposed emission limits were not 

supported by sound data. EPA did not use these data simply because commenters did not 

include a complete stack test report in their comment submission. Id. at 15387/2-3. Again, the 

proper response from EPA would have been to contact the commenters to obtain the backup 

report information so EPA could verify the data that was submitted. See Tsirigotis Supp. Decl. 

¶34a. Taking this step is even more important under circumstances such as these where EPA is 

attempting to set MACT floors using such an inadequate database. 

Moreover, NACWA has verified that some (and maybe most) of the nine facilities targeted by 

EPA’s ICR submitted their stack test results using EPA’s electronic reporting system, and thus 

never submitted the stack test reports. It is clearly improper for the Agency to use only the data 

it wants and to disregard contrasting information by selectively applying more stringent data 

validation requirements. 

We request that EPA use all available data to expand the MACT floor dataset to include the 

statutorily mandated minimum number of units within each subcategory and to account for the 

inherent variability in biosolids characteristics as revealed in the Part 503 data. EPA’s failure to 

use such a significant amount of data showing the variability and the likely impact on SSI 

emissions is irrational and undoubtedly affected the level of both the new and existing source 

emission standards. 

b. Failure to satisfy the achievability requirement of CAA § 129. 

The failure to use adequate data had a profound impact on EPA’s ability to demonstrate that the 

SSI standards are in fact achieved by the best performing units over all expected operating 

conditions. For example: 

• It appears that all of the MHIs operated by HRSD will not achieve one or more existing 

source standards, despite being selected as among the top performing units for several 

pollutants, due to variable conditions that affect inlet biosolids concentrations and similar 

factors not accounted for in EPA’s database. These problems include trying to achieve 

the NOx emission limitations for existing sources without add-on pollution control 

devices, which have never been demonstrated as effective for MHIs.6 HRSD observes 

that the need to find a workable solution for controlling NOx emissions for the MHIs at 

 

6

 See Declaration of Mr. Norman E. LeBlanc, Director of the Department of Water Quality for the Hampton Roads 

Sanitation District, Para. 5 (“HRSD Declaration”) (Encl. E). 

Page 14 of 25 
its Boat Harbor POTW is anomalous since this SSI is considered by EPA to be among the 

best performing sources for both NOx and CO. HRSD Declaration ¶5. In addition, 

HRSD predicts that the MHIs at its Virginia Initiative POTW cannot reliably achieve the 

standards for Cd, Pb, and dioxins/furans. Id. 

• Four FBIs among the “best performing” units used to set the NSPS MACT floors either 

do not achieve or barely achieve the existing source standard for dioxins/furans. These 

include an FBI operated by the City of Greensboro and three FBIs operated by 

Metropolitan Council Environmental Services. The achievability of the existing source 

standard is highly suspect since these units do not employ controls for dioxin/furan 

emissions. 

• EPA adopted a significantly revised MACT floor standard for Hg after correctly 

concluding that the proposed beyond-the-floor standard was flawed in several respects. 

However, despite EPA’s assumption that all existing FBIs will be able to achieve the 

MACT floor Hg limits without additional controls, NACWA has identified at least two 

utilities that believe their units cannot achieve the 0.037 mg/dscm Hg standard without 

add-on carbon controls (carbon adsorption or activated carbon injection [“ACI”]), 

technologies that EPA has agreed are unproven on SSIs and present serious operational 

problems such as corrosion and plugging/fouling. See 76 Fed. Reg. at 15393/2-3. 

NACWA and several other commenters objected to EPA’s stringent pollutant-by-pollutant floor 

setting approach. We explained that the flaws in EPA’s approach are most evident when 

considering the inverse relationship between CO and NOx emissions. EPA’s only response to 

this issue was to observe that “... it is incumbent upon the SSI facility to determine whether 

combustion conditions can be adjusted to meet both standards and, if not, install NOx controls as 

necessary ... .” 76 Fed. Reg. at 15386/2. EPA admits that there are only limited data on SSIs 

with FGR, that no SSIs currently use SNCR or SCR, and that there are reasons to believe that 

such controls may not be effective or reliable for SSIs. However, EPA never attempts to deal 

with this issue and merely concludes that the Agency: 

... [does] not know of [a] technical reason why [these NOx control technologies] 

could not be used. Given the limited data available on SSI units with FGR, we 

could not definitely determine how effective the technology was on SSI units. 

However, we also do not know of a technical reason why they could not be used, 

if necessary, to meet NOx limits, and commenters did not provide any reasons 

they could not be used. 

Id. To the contrary, NACWA commented on the difficulties experienced by the two utilities that 

use add-on controls for Hg, where both experienced severe abrasion and corrosion problems 

shortly after installation. In addition, for ACI to be effective, the high exhaust gas temperatures 

leaving the incinerator must be cooled to roughly 350 degrees F with heat exchangers and waste 

heat boilers, and a contact chamber is required to ensure sufficient time for adsorption. On the 

Page 15 of 25 
other hand, since carbon adsorption units are located after the wet scrubber, the exhaust gas 

temperature have high moisture content that must be dried (by increasing the exhaust gas 

temperature) to ensure adsorption. We believe these same conditions present efficiency and 

reliability problems for other types of add-on controls (including NOx controls) and EPA should 

fairly consider whether such controls have been demonstrated for SSIs. The “achievability” 

mandate in both CAA §§ 112 and 129, and fundamental principles of rational rulemaking, 

require EPA to demonstrate that there are methods available for well-operated SSIs to achieve all 

applicable standards simultaneously and under the full range of normal operating conditions. 

This is clear from an examination of the text and purpose of CAA § 129. 

Congress intended the regulatory mandate of § 129(a) to operate so as to: (1) identify those 

forms of emission control that have been demonstrated to produce maximum reductions in 

emissions of HAPs and other § 129 pollutants when applied to particular units; (2) press all new 

and existing units of the same type from the standpoint of basic design (i.e., within each 

subcategory) to achieve at least the same reduced level of emissions; and (3) preserve, protect 

and enhance the economic vitality of the national economy. To carry out that mandate, EPA 

must calculate MACT floors based on emission test data from the requisite number of best 

performing units and also reasonably determine that the resulting MACT floor is not merely 

indicative of some inherent emission feature of the units deemed best performing, which feature 

cannot be replicated by other units in the subcategory. EPA can make such a demonstration by 

showing that some technically feasible means of achieving the floor is generally available to the 

units within the subcategory, as demonstrated by actual use within the subcategory. Otherwise, 

if as is the case here EPA were to base the floors only on a tiny amount of test data, without fully 

examining inherent variability in emission characteristics and the limitations of control 

technologies, it could produce standards which many units in the subcategory – even the units 

used to set the MACT floors – have no hope of achieving with in-use demonstrated control 

technology. This approach may pressure POTWs to abandon incineration, contrary to the 

congressional vision for (1) MACT-based technology standards, which is to identify and spread 

the use of best controls within a category or subcategory, not to interfere with fundamental 

design choices, and (2) maximizing the prerogatives of local communities to choose the form of 

sludge disposal best suited to their local circumstances, as required by CWA § 405(e). 

Section 129 provides strong textual evidence that Congress authorized EPA to set a floor only at 

a level which units within a subcategory generally have some means of achieving as a technical 

matter, as demonstrated by actual usage within the subcategory. In implementing § 129, EPA 

must give full effect to that textual evidence. See Whitman v. American Trucking Association, 

Inc., 531 U.S. 457, 485 (2001) (“EPA may not construe the statute in a way that completely 

nullifies textually applicable provisions meant to limit its discretion”). A key piece of such 

evidence is § 129(a)(3), which in relevant part requires EPA to base standards on “methods and 

technologies for removal or destruction of pollutants before, during or after combustion ... .” 

Not mentioned, or even suggested, are changes to the basic design of the “unit” in question. 

Page 16 of 25 
Similarly, § 129(a)(2) is also an expression of this mandate, in that it requires EPA to set the 

floor for new units at the level representing the “degree of reduction in emissions” that is not less 

stringent than the emissions control that is “achieved in practice by the best controlled similar 

unit ... .” The phrases “degree of reduction in emissions,” “achieved in practice,” and “best 

controlled similar unit” all suggest the application of control measures to pollutant-emitting 

equipment. For existing units the floor is to be set at the average level actually “achieved” by the 

“best performing” 12 percent of “units.” 

In crafting the § 129 standard-setting process, Congress took sources, such as SSIs, as a given 

and envisioned that the standards EPA generated would stimulate the application of “methods 

and technologies for removal or destruction of pollutants” from such sources, without mandating 

changes to the fundamental design of the “unit.” In other words, Congress sought to control 

§ 129 emissions by forcing the application of pollution control measures without upsetting the 

basic choice as to the design of the pollution source. If EPA, however, were to base a floor only 

on emission data, without examining the features that drive emission performance of units within 

the subcategory and the availability of demonstrated control technology for the types of units to 

be regulated, it could end up setting a floor which would operate to force changes in the 

fundamental design of equipment and the systems of which they are a part. That would be 

contrary to the textual thrust of § 129(a). 

Section 129(a) follows a fundamental conceptual orientation on the part of Congress which is 

universal to all of the technology-based standard-setting processes dictated by the CAA. Several 

provisions other than § 129 call for the establishment of technology-based emission standards for 

stationary sources, namely: § 111 (NSPS), § 112 (NESHAP), § 165 (Best Available Control 

Technology for certain new construction projects), § 172(c)(1) (Reasonably Available Control 

Technology for existing sources as control by State Implementation Plans), and § 173 (Lowest 

Achievable Emission Rate for certain new construction projects). In each case, the basic 

approach is to set a benchmark based on the application of available and “demonstrated” control 

technology, without fundamentally compromising the freedom to choose the basic design of their 

purpose-serving equipment – here incinerators for biosolids management. There is no sign in the 

CAA that Congress intended § 129 to operate differently or to authorize EPA in setting § 129 

standards to encroach fundamentally on that basic freedom. Furthermore, § 101(b)(1) declares 

that an overarching purpose of the entire CAA is “to protect and enhance the quality of the 

Nation’s air resources so as to promote the public health and welfare and the productive capacity 

of its population.” If EPA were to set floors under § 129 solely on the basis of limited emissions 

data, without regard to the cause-and-effect relationship between available proven controls and 

emission rates, inevitably that approach would defeat that purpose by compromising the Nation’s 

productive capacity. 

Finally, no court decision has addressed squarely whether EPA may set a floor solely on the 

basis of emission data, without regard to the existence of a proven means of achieving the floor. 

The D.C. Circuit in Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007) (“Brick MACT”), did not 

Page 17 of 25 
address that issue squarely. As characterized by EPA in its June 2010 Boiler MACT proposal, 

the closest the court came to addressing that issue was to rule that “[f]loors for existing sources 

must reflect the average emission limitation achieved by the best-performing 12 percent of 

existing sources, not levels EPA considers to be achievable by all sources.” 75 Fed. Reg. at 

32009-10 (emphasis added). That is a different issue. An individual source within a particular 

subcategory may not be able to achieve a floor, for cost or other reasons not directly germane to 

setting the floor, even when a proven means of control is available to it from a technological 

standpoint. The Brick MACT case does not call into question EPA’s obligation to demonstrate 

that a proven means of control is available and that the floor is a reasonable expression of the 

performance of that means of control. 

In the SSI Rule, EPA set the floors on such a limited snapshot of data – data that do not even 

represent the performance of the “best performing” units or “best controlled” unit over time – 

and failed to demonstrate that there are proven technologies available to SSIs for achieving the 

floors. This does not inevitably lead, as EPA claims, to setting standards based on a lowest 

common denominator. Rather, if EPA were to determine that there are no such means of control, 

it would have to subcategorize further in order to group units with similar biosolids 

characteristics or, if that is not practicable, base the standard on an engineering or work practice. 

Here, EPA failed to look beyond the scanty emission data it used to identify the “method [or] 

technology” of emissions control that expresses the true emission performance of the best 

performing units. As the Part 503 data reveal, the emission limitations in the SSI Rule reflect 

snapshots of particular points in the oscillations of all the factors – in particular the composition 

of inlet biosolids – that determine emission performance and not the average performance of 

identifiable control “methods [or] techniques.” Thus the SSI Rule floors are based on numerical 

happenstance at the moment one of 17 stack tests was performed, as opposed to statisticallysound averages of the actual performance of control technologies, taking variability of known 

factors into account. 

c. Summary and conclusion. 

In sum, EPA has not taken into account the large amount of available data showing that the 

limited floor database is not representative of variations in biosolids feed characteristics and 

foreseeable SSI operations. Although NACWA pointed out inherent difficulties of using add-on 

controls on SSIs, EPA has failed to identify any demonstrated path to compliance for the utilities 

that must treat wastewater flows containing elevated metals and for utilities that cannot 

simultaneously achieve the CO and NOx standards through combustion adjustments alone. 

NACWA and its members are still studying these issues and fully expect to identify additional 

SSIs that cannot achieve the standards using controls that have been demonstrated for SSIs. 

EPA is obligated to grant reconsideration in order to consider all of the available data and to 

ensure that each of the final standards is achievable by the best performing units under all 

reasonably foreseeable operating conditions. 

Page 18 of 25 
4. The SSI Rule does not consider subcategories other than FBIs and MHIs. 

EPA’s proposed and final rules address emission limits for only two subcategories of SSIs – 

FBIs and MHIs – based on incinerator design. After the public comment period closed, 

NACWA learned of a stoker/grate type design that is also being used at some POTWs. Based on 

the information NACWA has gathered, this type of design has previously been used in Europe 

and has recently been selected at a limited number of POTWs in the United States. This type of 

unit consists of a stoker bin feed system, combustion chamber, reciprocating grates, under- and 

overfire air fans and ash removal system. It requires a significantly drier biosolids – typically 90 

percent solids compared to the 25-40 percent solids combusted in MHIs and FBIs. A convection 

belt dryer is used to dry the dewatered biosolids feed. At least one application of this 

stoker/grate design also has a heat recovery system that provides 70-80 percent of the energy 

necessary to operate the sludge feed dryer and other systems. 

The stoker/grate type design has a number of features that affect emission characteristics and that 

differ significantly from the MHI and FBI designs. Unlike MHIs, the stoker/grate type design 

has under- and overfire systems and does not incorporate a drying zone in a combustion 

chamber. Because the stoker/grate design uses a much drier biosolids material, it is likely that 

these designs require less auxiliary fuel than MHIs and that operating temperatures would be 

more stable making the stoker/grate design less sensitive to variations in moisture content and 

other fuel characteristics. Because the stoker/grate applications of which we are aware include a 

biosolids drying process, there would also be significantly less moisture in the exhaust gas 

stream. FBIs, on the other hand, have air injection zones that increase combustion efficiencies 

and reduce particulate emissions, and many have internal afterburning zones that increase 

residence time to reduce CO, HC, and PM emissions. Stoker/grate designs do not share these 

characteristics. 

NACWA was not aware of the stoker/grate design at the proposal stage. EPA also apparently 

was not aware of this technology, since the proposed rule does not discuss it and there are no 

emission data on this type of incinerator in the rulemaking docket. Absent EPA’s consideration 

of this design, there is considerable uncertainty as to whether stoker/grate designs are or will 

become subject to emission limitations under the SSI Rule. This uncertainty creates a difficult 

environment for the POTWs who are already using this technology and for many more POTWs 

who may wish to evaluate this technology for future use. 

5. EPA’s new source standards for MHIs were neither proposed nor subject to 

public review and comment, and may not be achievable using proven 

technology. 

As discussed above, EPA’s proposed rule recognized two subcategories based on incinerator 

design. However, EPA initially abandoned all subcategorization in proposing emission limits for 

new SSIs. Instead, EPA proposed that the MACT floor for all new and modified SSIs would be 

based on the top performing FBI unit. As a result, EPA did not calculate MACT floors or 

Page 19 of 25 
propose standards based on the best performing MHI. NACWA and other commenters objected, 

pointing out that EPA’s approach failed to recognize differences in emission performance that 

are inherent in the design of MHIs and would effectively subject new and modified MHIs to 

unachievable emission limitations. 

EPA reversed course in the SSI Rule and promulgated separate new source performance 

standards for MHIs and FBIs. However, in doing so EPA never made the suite of emission 

limits for new MHIs available for public review and comment. This means that public review 

and input was not available for EPA’s choice of the five SSIs that were used to set the MACT 

floors, nor was the public given the opportunity to comment on the data and calculations EPA 

used to set the floors. 

The failure to provide adequate notice and comment on the new source standards is not merely 

objectionable as to process. Based on study by utilities since the final rule was published, it 

appears that many new/modified MHIs, particularly those with elevated and variable metals 

concentrations in biosolids, will have trouble achieving the NSPS for some pollutants without 

add-on controls that are not demonstrated for use on MHIs. For example, NEORSD predicts that 

its existing MHIs, if modified as defined under the SSI Rule, could not achieve the new source 

Hg limits without employing ACI. EPA has agreed that ACI is not a proven technology on 

MHIs and that the only known applications on other incinerator types have experienced serious 

operational and reliability problems. Here again, EPA’s failure to provide for public comment 

(e.g., through a notice of data availability and supplemental comment period) and failure to 

consider data on variability has produced no known means for these SSIs to comply with the SSI 

Rule. 

6. The MACT floor database for dioxin/furan emissions is dominated by stack test 

measurements that are too low for EPA to establish defensible numerical 

standards. 

After the SSI Rule was promulgated, EPA issued its notice of proposed rulemaking to establish 

emission standards under § 112(d) for the coal- and oil-fired utility sectors.7

 In its preamble to 

the Utility MACT proposal, EPA proposes to use work practice standards, instead of numeric 

emission limits, for non-dioxin/furan and dioxin/furan organic HAP because the majority of the 

test measurements in EPA’s MACT floor database were at or below the EPA test method 

detection limit (“MDL”). Due to the uncertainty obtaining accurate measurements of emissions 

at such low levels, EPA concluded that it “considers it impracticable to reliably measure 

emissions from these units.” 76 Fed. Reg. at 25040/1. 

 

7

 See “National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam 

Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-CommercialInstitutional, and Small Industrial-Commercial-Institutional Steam Generating Units; Proposed Rule,” 76 Fed. 

Reg. 24976 (May 3, 2011) (“Utility MACT”). 

Page 20 of 25 
To support its approach EPA noted that 1,552 of the 2,334 (67 percent) test runs for dioxin/furan 

organic HAP from electric utility steam generating units (“EGUs”) contained data below the 

MDL for one or more congeners. For the non-dioxin/furan organic HAP, EPA noted that 

between 57-89 percent of the test data contained values below the MDL. Finally, EPA pointed 

out that in several cases, all of the data for a test run were below the MDL and in only a few 

instances were all the data above the MDL. Id. at 25040/1-2. EPA also looked at whether the 

low dioxin/furan test measurements can be explained by the presence of sulfur, noting that 

formation of dioxins/furans may be inhibited when the sulfur-to-chlorine ratio in flue gas is 

greater than 1.0. Id. at 25023/3. 

EPA’s approach to standard setting in the Utility MACT context raises important new reasons to 

reconsider the dioxin/furan limits in the SSI Rule. EPA established numeric dioxin/furan 

emission limitations for SSIs based on a dramatically less robust dataset, with significantly 

greater measurement uncertainty than is exhibited by the Utility MACT database. For example, 

data from five of the six test runs (83 percent) in the database used to set the dioxin/furan floor 

for new SSIs were below the MDL. Thus, in light of EPA’s recent response in the Utility MACT 

to data below detection limits, the MACT floor database for new MHIs does not contain any data 

that are not obscured by unacceptable measurement uncertainty, while the database for new FBIs 

contains at most one test run that produced usable data. The database backing the existing 

source standards is nearly equally flawed. Data from 20 of the 30 (66.7 percent) test runs in the 

existing source MACT floor database were below the MDL, including 11 of the 15 (73 percent) 

FBI test runs for FBIs and 9 of the 15 (60 percent) test runs for MHIs, resulting in a grand total 

of 10 test runs producing data above the MDL. 

It also appears that, as with utility EGUs, elevated sulfur-to-chlorine ratios may explain the very 

low levels of dioxin/furan emissions from SSIs. For example, biosolids managed at the POTWs 

owned by NEORSD typically exhibit a sulfur-to-chlorine ratio much greater than 1-1, with a 

ratio as high a 10-1 having been reported. The elevated sulfur-to-chlorine relationship is also 

exhibited in the flue gases from the six MHIs serving these POTWs, with SO2 emissions 

generally exceeding HCl emissions from these SSIs by several orders of magnitude. 

Based on the foregoing, EPA should reconsider the dioxin/furan standards to address the 

acknowledged measurement error and should consider using a work practice standard in lieu of 

numerical emission limits. 

7. The SSI Rule contains new performance test specifications that likely cannot be 

achieved by some SSIs. 

EPA originally proposed operational requirements related to sludge feed rates but eliminated 

those requirements in the final SSI Rule based on comments that the feed rates would not be 

achievable for some SSIs, would artificially change permitted feed rates and would force some 

SSIs to conduct performance tests at nearly 100 percent of the unit’s rated capacity. However, 

EPA added a new requirement that SSIs must be operated at 85 percent of their maximum 

permitted capacity during each compliance test run. 

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The new performance test specification is not achievable for POTWs that do not generate 

sufficient biosolids on a continuous basis and that do not have adequate storage capacity to 

maintain a sufficient quantity of biosolids to meet the 85 percent permitted capacity requirement. 

This problem is particularly acute for longer test runs, such as the four hour tests required under 

the dioxin/furan standards. If EPA were to maintain the 85 percent capacity requirement, 

utilities will have to extend their performance testing over multiple days, at greater costs, in 

order to conduct the required number and duration of tests at such a high capacity. EPA should 

reconsider this test requirement and allow utilities to select lower feed rates for performance 

testing. 

IV. GROUNDS FOR STAY 

The Administrator has clear authority under CAA § 307(d)(7)(B) to postpone the effective date 

of the SSI Rule for an initial three month period if reconsideration is granted. Such a stay is 

appropriate based upon the same grounds underlying EPA’s decision to grant reconsideration. 

In addition, EPA may further postpone the effective date of the SSI Rule under APA § 705 

where “justice so requires” to allow for judicial review. NACWA has timely filed a petition for 

review with the D. C. Circuit challenging the SSI Rule; and, as detailed below, fundamental 

principles of justice and of sound government strongly support granting a stay. 

Furthermore, as mentioned above, CAA §§ 129(a)(5) and 301(a) give EPA authority at any point 

in time to undertake a process of correcting a § 129 rule and to establish a parallel stay where the 

stay is necessary to preserve the status quo so as to ensure that the correction is a complete cure, 

especially to keep communities from wasting resources in complying with a legally defective 

rule. Section 301(a) authorizes EPA to issue such rules as are necessary to carry out its CAA 

functions, one of which is to ensure that the standards are lawful and that the regulated 

community is not forced to comply with unlawful requirements. See, e.g., 76 Fed. Reg. 4780, 

4800/3 (Jan. 26, 2011) (implying that § 301(a) is a source of stay authority, but concluding that 

the exercise of that authority was not appropriate in the case at hand). Here, a stay is necessary 

to assure a complete correction of the legal defects in the SSI rulemaking and to avoid the 

potential for irreversible impacts on POTWs that incinerate biosolids. 

First, there is a very real risk that refusal to stay the SSI Rule will lead to significant 

environmental harm. Because several of the emission limitations (e.g., the NSPS/EG for Hg and 

dioxins/furans) are so stringent and EPA has so far failed to account for the inherent variability 

of biosolids characteristics, some municipalities predict that no viable control technologies exist 

that will allow them to incinerate in compliance with the rule. Other POTWs predict that they do 

not have the space and other facilities to retrofit their MHIs. Without an assurance of 

reconsideration and a stay of the SSI Rule, these municipalities may be forced to make a choice 

now whether to abandon incineration and start the conversion to landfilling. 

The impacts of switching away from incineration are practically irreversible and are magnified 

precisely because landfilling is not an environmentally or economically attractive option for 

utilities who currently incinerate. Utilities who choose to switch are extremely unlikely to 

switch back if EPA later promulgates a defensible SSI rule because they will have eliminated 

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their incineration systems and invested millions in new treatment equipment, biosolids storage, 

and truck loading facilities. See HRSD Declaration ¶8. As pointed out in NACWA’s comments, 

the increased diesel exhaust emissions from thousands of new daily truck trips travelling, in 

some cases, more than 100 miles one-way to the nearest landfill will exceed emissions from 

incineration and are far more difficult and costly to monitor and control. The harm is magnified 

when one also considers the resulting methane emissions from landfills, increased consumption 

of fuel for transportation, additional traffic congestion, wear and tear on city streets and other 

impacts on communities. EPA failed to consider these impacts during the rulemaking, and 

failure now to grant a stay may irretrievably commit some communities to higher costs for less 

environmentally beneficial biosolids management options. 

Second, absent a stay, a legal interpretation adopted and defended recently by EPA will operate 

to cause additional irreparable and unjustifiable harm, even if EPA or the D.C. Circuit ultimately 

agrees with NACWA that the SSI Rule is legally defective. At the same time that EPA signed 

and published the SSI Rule, it also signed and published § 129 standards for commercial and 

industrial solid waste incineration units (“CISWI”). See 76 Fed. Reg. 15704 (Mar. 21, 2011). In 

the preamble to its CISWI rule, EPA responded to comments on the so-called “MACT-onMACT” issue – i.e., whether EPA may lawfully include in newly promulgated MACT floor 

calculations the emission levels that incinerators were forced to achieve by virtue of unlawful 

predecessor MACT standards that the D.C. Circuit had remanded in response to EPA’s 

confession of error. In the CISWI preamble, EPA contended that it must use the MACT-onMACT approach by virtue of the literal language of § 129. Id. at 15721-22. While NACWA 

disagrees with EPA’s position, that position nonetheless sets the stage for a profound and 

irreversible impact on POTWs with SSIs. If EPA refuses to stay the SSI Rule, inevitably some 

POTWs will install the add-on control technology necessary to come into compliance with the 

SSI Rule standards, assuming compliance is possible at all. If ultimately EPA repeals those 

standards during reconsideration (or if the D.C. Circuit vacates and remands the SSI Rule back to 

EPA), then, according to EPA’s current interpretation of § 129, the performance of SSIs that 

installed new controls will be part of the MACT floor database when it comes time to reestablish the MACT standards. The fact that these controls were added solely due to the 

previous unlawful standards is apparently irrelevant in the Agency’s view of § 129. For 

example, new and modified units that were forced to install controls to achieve illegal new

source standards could become the factual predicate for setting the floors for existing sources. 

There is an obvious irreversible impact arising from the ratcheting down of future MACT 

standards by virtue of a prior unlawful rulemaking. Aside from the question of whether the text 

of the CAA supports EPA’s MACT-on-MACT interpretation or whether Congress intended such 

an unjust outcome, EPA plainly has the power under APA § 705 and CAA §§ 129(a)(5) and 

301(a) to keep it from happening by issuing a stay pending reconsideration. 

Third, a large number of municipalities and public clean water authorities will suffer significant 

economic harm unless a stay is granted. Retrofitting SSIs with the necessary add-on control 

equipment is a costly and time-consuming process. Many POTWs are being forced to start 

planning and procurement activities immediately in order to identify compliance gaps, locate 

capital project funding sources, acquire the necessary engineering services and equipment, and to 

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complete the major infrastructure and control equipment installations required for most FBIs and 

many MHIs. New sources must comply with the SSI Rule essentially upon startup, and existing 

sources have up to five years to complete capital planning, construction of new building space 

and acquisition/installation of several new types of add-on control equipment. Municipalities, as 

governmental entities, face the added challenge of longer-term financial planning requirements 

and uncertain financing options as state and local budgets and jobs are cut in the current 

economic environment. 

Even by EPA’s own estimation, dozens of municipalities and public authorities will be forced to 

start spending public funds and committing other scarce resources to planning, engineering and 

procurement of additional building space, add-on control devices and other equipment in order to 

try to meet the present emission standards. Like many others, HRSD has already started 

incurring significant costs in an effort to comply with the SSI Rule. They have estimated that it 

will cost at least $60 million in capital costs alone to retrofit the five primary MHIs at its 

POTWs. See HRSD Declaration ¶7. This estimate assumes that all five POTWs will eliminate 

their current ‘backup’ MHI units because it is not possible to upgrade these units given space and 

financial constraints. 

As the other examples provided throughout this petition illustrate, we believe EPA has greatly 

overestimated the number of SSIs that can comply with the SSI Rule without substantial new 

investments, and therefore has greatly underestimated the economic impact of the SSI Rule. 

It is indisputable that EPA has the authority to stay the SSI Rule pending reconsideration even 

after it takes effect. First, the last sentence of § 307(d)(7)(B) assumes that EPA would first 

decide to reconsider and then, either simultaneously or subsequently, issue a three month stay. 

EPA’s decision to reconsider, however, could occur after the rule in question takes effect. 

Implicitly, therefore, EPA may issue a stay of effectiveness after the initial effective date. Once 

the stay is in place, the SSI Rule would no longer be in effect, and then EPA could use its powers 

under APA § 705 and under CAA §§ 129(a)(5) and 301(a), individually or collectively, to 

postpone the new effective date. Indeed, EPA has had no trouble following this procedure in 

recent years in situations where the initial effective date has passed. See, e.g., 76 Fed. Reg. 

17548 (Mar. 30, 2011) (see also several Federal Register notices cited therein all related to rules 

for inclusion of fugitive emissions in PSD/NSR applicability determinations for plant 

modifications); 76 Fed. Reg. 13514 (Mar. 14, 2011) (relating to CAA § 112 standards for 

chemical manufacturing area sources). 

Alternatively or in combination with the statutory authority above, EPA has the authority upon 

reconsideration to re-set the initial effective date of the SSI Rule as improvidently established in 

the first place. This could be implemented as a direct final rule soon after granting 

reconsideration to avoid the consequences discussed above and a new effective date promulgated 

in the same rulemaking that adopts replacement regulations for SSIs. 

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V. CONCLUSION 

For the foregoing reasons, NACWA urges EPA to reconsider the SSI Rule and to stay or re-set 

the effective date and implementation of the SSI Rule pending completion of the reconsideration 

process and promulgation of replacement regulations. If the issues raised by NACWA are not 

addressed in changes to the SSI Rule, it will lead to very significant unintended and unjustifiable 

impacts on the cities and towns that rely upon incineration as the most viable means for 

managing biosolids and on those municipalities that have invested in energy recovery using this 

important renewable energy source. 

NACWA and its members appreciate EPA’s serious reconsideration of these issues, and we look 

forward to assisting the Agency in meaningful reform to the SSI Rule. 

May 24, 2011 

Respectfully submitted, 

NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES

1816 Jefferson Place, NW 

Washington, DC 20036 

Jeffrey A. Knight 

Peter H. Wyckoff 

PILLSBURY WINTHROP SHAW PITTMAN LLP 

2300 N Street, NW 

Washington, DC 20037 

(202) 663-9152 

jeffrey.knight@pillsburylaw.com

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