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By Elizabeth Dietzmann
For the past several years, I kept running into National Sanitation Foundation (NSF) American National Standards Institute (ANSI) Standard 40, the standard that governs residential wastewater treatment systems. This is not too surprising, when you consider the number of local and state governments that either have adopted NSF Standard 40 outright or refer to it in their ordinances. I have often worked with developers as well as communities who were debating on whether or not to use NSF Standard 40 approved technology. A couple of years ago, I finally decided to sit down and actually read NSF Standard 40. As an attorney, that made me curious about how exactly that standard had been developed and who was involved. I was told that the “Joint Committee,” whatever that was, was involved in developing NSF standards. So I started asking questions about NSF whenever I ran into someone who was involved with it. Admittedly, manufacturers had lots of complaints about NSF. At times it seemed like NSF was a lightning rod for controversy. Some of the complaints seemed legitimate, but they seemed to focus on the specifics of the testing protocols, most of which was quite frankly above my head. I will also say that the majority of the local regulators (as opposed to state health department folks) I questioned did not really know how the standards were developed either, even if they were intimately familiar with NSF Standard 40 itself. In addition to that, I was doing an increasing amount of work with clustered systems in rural communities, who were focused on nutrient removal. Informed community leaders often asked me about NSF Standard 40 and why their state, county, etc., did or did not require it and how they could develop regulations to force nutrient removal. When I read that NSF would be developing a nitrogen-removal standard, I started wondering how that standard would be developed and who was involved in the development.
As I mentioned in my last article, nitrogen removal is one of the water quality challenges facing the environmental community and it raises a host of subsidiary issues related to sampling, technology standards, and operations and maintenance (O&M). I also mentioned that an increasing number of manufacturers are responding to the regulatory pressure to remove nutrients by emphasizing the nutrient-removal capabilities of their systems. I assumed that the regulatory focus on nutrient removal combined with a multiplicity of manufacturers claims was what spurred NSF to develop a nitrogen-removal standard. But I still was not clear on the manner in which these wastewater standards, so heavily touted by some regulators, were initiated. (In fact, earlier in 2007 NSF did unveil NSF/ANSI Standard 245, a nitrogen standard that was an outgrowth of the EPA’s Environmental Technology Verification Source Water Protection Pilot Program. NSF describes it as a sort of addendum to Standard 40, which measures biological oxygen demand (BOD) and total suspended solids (TSS) but not nitrogen. Next to follow is phosphorus standard.)
So, my ongoing interest in nutrient removal and the increasingly complex O&M issues it was spawning seemed to inevitably lead me towards further exploration of the Joint Committee and development of voluntary consensus-based standards. Luckily, a good friend of mine had served on the Joint Committee for a number of years, and when he realized I was interested in the process of standards development as it was going to impact nutrient removal, he was nice enough to put me in touch with some other people who were even more directly involved with NSF. In September 2007 I attended my first NSF Joint Committee meeting. It was an eye-opening experience and I look forward to attending many more. I strongly encourage anyone who is as fascinated with the evolution of onsite wastewater regulation and technology as I am to consider becoming involved. That was one of the really surprising facts I learned about the entire process—how open it is to the public and how easy it is to become involved. I feel very strongly that as these voluntary standards become incorporated into state and local regulations, we need to be cognizant of and participate in the development process.
Before I attended the meeting, however, I did some homework. As I learned, NSF International, formerly the National Sanitation Foundation, is an independent, not-for-profit, non-governmental organization founded in 1944, which focuses on development of standards, product testing, and certification services in the areas of public health, safety, and protection of the environment. Development of standards for wastewater technology is just a tiny fraction of the work NSF does. In 1991 NSF received accreditation by ANSI for its product certification programs. Basically, this allowed NSF to develop standards that could be labeled as ANSI standards, provided that a specific process was followed in the development of the standard. But what is ANSI, and what is this process? And who cares if a standard meets ANSI requirements?
Those questions led me to learn a bit about ANSI. ANSI is also a not-for-profit, non-governmental entity which claims to be the only body that coordinates the US voluntary standardization and conformity assessment system. According to the ANSI Web site “ANSI-accreditation signifies that the standards developer is committed to an open, fair and time-tested consensus process that benefits stakeholders and the American public.” Consensus, as defined on the ANSI website,means, “Substantial agreement has been reached by directly and materially affected interests categories. This signifies the concurrence of more than a simple majority, but not necessarily unanimity. Consensus requires that all views and objections be considered, and that an effort be made toward their resolution.” According to ANSI, NSF’s written procedures for the development and approval of proposed American National Standards must meet ANSI’s due process and consensus requirements and must reflectopenness,balance, lack of dominance,discrete interest category definitions,public comment opportunity, and cconsideration of views and objections.
OK. I was a bit skeptical. OK. I was a lot skeptical. This all sounded great but I have seen firsthand how stakeholder groups work—or don’t work. The Joint Committee is supposed to take industry, regulatory, and user members, all of who have different goals, and resolve their differences in the development of these voluntary standards. And the Joint Committee is an integral part of the ANSI process, because according to ANSI the Joint Committee forms task groups that are the building blocks for development of a standard. According to a recent NSF newsletter, after a task group has completed its work, any new standard or revision that it proposes must receive consensus approval from the Joint Committee as a whole. During the voting process any negative ballots must be circulated to all committee members and adjudicated according to NSF’s standard development policies.
Once a new standard or revision is approved by the Joint Committee, the proposal is sent to the NSF Council of Public Health Consultants (CPHC). “The CPHC consists of representatives of professional organizations, federal and state regulatory officials, academic institutions, and other nationally or internationally recognized individuals who have demonstrated leadership in public health and environmental fields. “ They have to sign off on the standard as well.
At the same time that all this is going on, revisions to NSF/ANSI standards are also circulated for public comment and are published in ANSI’s Standards Action at http://www.ansi.org. Again, according to the online documents, only if all of these requirements are met will ANSI give approval to a new or revised standard. With all of this in mind, I was extremely curious to attend my first Joint Committee meeting. It was Mark Twain who said that anyone who appreciates the law or sausage should never watch either being made. With a process this complex, I was not sure I wanted to watch a standard be developed.
I have to say I was extremely impressed by the dedication of the Joint Committee members and by the opportunities for public participation. Let’s face it—even though these are voluntary standards, there is an inherent tension between manufacturers of technology and regulators. I was certainly aware of this from many conversations I had had over the years with members of both communities outside of the Joint Committee meeting. And while I do not know enough yet to be familiar with the nuances of discussions/debates/disputes that have gone on for years between the different groups, I did realize that there was a tremendous opportunity for public participation both at the annual meeting and via phone in task groups. Mike Hoover, from North Carolina State University, the chair of the Joint Committee meticulously called on every member of the public in attendance whenever they wanted to offer input on an issue. In fact, they were usually invited to join a task group if there was a topic that was of particular interest to them.
I have actually joined the Field Performance Verification Protocol Task Group, chaired by Don Alexander, of the Virginia Office of Environmental Health Services. This task force is in the process of developing a protocol that would allow manufacturers to enroll in a field-verification program. Ultimately this could lead to development of an actual standard. And possibly that standard could someday impact the way in which technologies that remove nitrogen are certified to perform in the field. I would also like to close with the idea that unless some entity sets voluntary consensus-based standards, we run the risk of ending up with huge quality assurance/quality control issues.
We also run the risk of even more patchwork regulation and confusion over nutrient removal technology standards among consumers, regulators, and manufacturers. For example, a lot of expense and effort is going into an evaluation of nitrogen removal systems for the The New Jersey Pinelands. Theoretically, reference to an existing nitrogen standard would simply that task.
Clearly there is a need for voluntary consensus-based standards in this field and just as clearly, no system is perfect. There is no way that all of the stakeholders will ever be happy, but that is supposed to be the sign of a good compromise! In any event, I am looking forward to my continued involvement in the process as a member of the Joint Committee.
Elizabeth Dieztmann is an attorney for AquaLaw PLC and can be emailed at Elizabeth@aqualaw.com.
OW - January/February 2008
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