NH Finalizes New “Sludge” Regulations

On December 17th, the NH Dept. of Environmental Services (NHDES) completed the final major step of the rulemaking process for new rules governing biosolids, short paper fiber, and other “sludges” in New Hampshire.  The final proposed Env-Wq 800 rule was reviewed and approved by the Joint Legislative Committee on Administrative Rules.  Gretchen Rule presented the final rule on behalf NHDES, and representatives of NEBRA, the City of Nashua, and Resource Management, Inc. provided testimony generally accepting of the new rule, with some concerns.

The final rule looks quite similar to the rule that has been in effect for the past ~5 years.  Its core requirement is the certification, through rigorous testing and documentation, of “sludge” quality.  It includes permitting for facilities that manage wastewater solids and other sludges and sites where Class B biosolids and some other materials (e.g. short paper fiber) are utilized.  The quality standards (e.g. for concentrations of metals), remain the same – the most stringent in New England.  Land application standards – setbacks, depth to groundwater, timing, stockpiling, etc. – also remain very stringent.

Significant positive changes in the new rule include:

·      exempting sludge management activities that are incidental to the operation of water treatment facilities permitted under RSA 485,

·      not automatically requiring public hearings for facility and site permits,

·      expanding the time in which renewal applications can be filed,

·      eliminating application information, testing, and reporting that have been shown to be unnecessary (e.g. testing for analytes never found at significant levels in biosolids),

·      basing how many samples are required on how much sludge is produced,

·      extending the duration of site permits and facility permits from 5 years to 10 years, and

·      adding a no-fee renewal process for sludge quality certifications (SQCs).

And, based on the advancing science on phosphorus (P), the rule supports determining application rates based on P, taking into account water-soluble P instead of total P.  This stipulation is integrated with UNH Cooperative Extension guidance, including the state’s agronomic rate calculation worksheet.

Concerns with the final rule include:

·      Reclamation – which involves one-time applications of biosolids, short paper fiber, and sometimes other residuals – remains unviable in the state.   There are two reasons: a) the rule limits the one-time application rate to 1500 lbs. N / acre, which generally does not allow for a properly engineered topsoil layer, and b) groundwater monitoring, which is prohibitively expensive.   Neighboring states – MA and VT – have active land reclamation programs.  This is a valuable and productive use for biosolids.  NHDES staff said they would consider further discussions on this matter.

·      There remain several requirements for managing and tracking Class A products.  This makes no sense and should not be required for the highest quality materials, such as mature compost and heat-dried fertilizer.  These materials are as safe as any other soil amendments in the marketplace.  The Department’s concern is that some Class A products are not as stable and user-friendly.  Other states, such as Texas, have created a separate category for these (“AB biosolids” in the recently-adopted Texas regulations).  NHDES may have considered this kind of arrangement, but stakeholders were not enthusiastic about it. 

·      There are some restrictions in the rule on the uses of water treatment residuals for reducing phosphorus availability.  This is an emerging beneficial use option with significant environmental benefits, and the rule significantly restricts it.

·      The rule includes an agglomeration of layered-on requirements and language that, in sum total, result in a disincentive to recycle.  NEBRA argued that NHDES should encourage this important form of recycling by making the rules protective of public health and the environment, but without additional or duplicative restrictions.  NHDES responded that the Legislature has not mandated encouragement of biosolids recycling, and the final rule reflects the Department’s overly cautious approach.

NEBRA Involvement

NEBRA staff and members were involved throughout the rulemaking process, providing comments on each version of the draft regulation and at the public hearing in summer 2015.  NEBRA member Shelagh Connelly, Chair of the NHWPCA Legislative Committee, helped lead NEBRA’s efforts, strongly articulating biosolids professionals’ concerns and achieving several significant changes to the final rule.   

For example, throughout the rulemaking process, NHDES was insisting on requiring trucks carrying biosolids and other residuals to have large labels saying “sludge.”  This was seen as necessary to alert emergency personnel of the contents of the vehicle.  But, as Ms. Connelly pointed out, such labels are not required for other materials routinely transported on highways in the state, and this requirement would just bring extra negative attention and confusion about biosolids and other residuals.  NHDES removed the requirement.

In its final comments on the rule, to JLCAR on December 17th, NEBRA stated:  "We extend our appreciation to DES staff for the process that brought forth these new regulations.  We applaud them for hosting an open and informative process of stakeholder engagement over the past 18 months.  Our thanks goes especially to Michael Rainey, who has tirelessly and carefully worked to craft what he believes to be a workable but highly protective regulation.  Mike has extensive knowledge and experience, and the State has been fortunate to have had his involvement on biosolids management and regulation for more than two decades.

Copies of NEBRA comments are available on the NEBRA Reg/Leg Committee member-only page or by contacting the NEBRA office.