The second development is a final consent decree in which the EPA agreed with environmental groups to propose revisions to the New Source Performance Standards (NSPS) for kraft pulp mills. In a complaint filed with a U.S. district court in December 2011, the groups said the EPA had not reviewed the sector’s NSPS for 25 years even though the Clean Air Act (CAA) requires reviews every 8 years. According to the complaint, the 1986 NESHAP placed emissions limits on only particulate matter and total reduced sulfur, but new technologies allow the control of multiple other pollutants of concern.
NSPS
Much of the impetus behind the complaint against the EPA originated with Port Townsend Airwatchers, an organization based near a major kraft pulp mill in Washington State. The group was joined in the complaint by the Center for Biological Diversity, the Environmental Law and Justice Clinic, and Greenpeace; collectively they demanded that the EPA fulfill its mandatory duty to review the NSPS for new and modified kraft pulp mills.
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The complaint noted that the existing NSPS failed to regulate multiple air pollutants, including volatile organic compounds, sulfur dioxide, nitrogen oxides, carbon monoxide, methanol, acetone, methyl ethyl ketone, acetaldehyde, and carbon dioxide, and other GHGs. Because the required reviews were not conducted, the groups argued, the current NSPS does not reflect technologies that have become commercially available since the standards were originally written and that are effective in controlling air pollutants believed to endanger public health. The NSPS must by law reflect “the degree of emissions limitation achievable through the application of the best system of emissions reduction which (taking into account the cost of achieving such reduction and any non-air-quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.”
The groups also stated that an NSPS review and its revision trigger EPA’s obligation to publish guidelines for designated pollutants from existing sources. These guidelines, which must be promulgated concurrently or after proposal of an NSPS, must be used by the states to develop plans for limiting emissions from existing sources. Among other things, guidelines must include information on the best demonstrated control technology for designated pollutants. Therefore, guidelines constitute one way the CAA regulates existing, as opposed to new or modified, industrial pollution sources, and “their promulgation is crucial to protect human health and welfare and the environment,” stated the groups. The guidelines for kraft pulp mills have not been issued since 1979, noted the complaint.
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In the consent decree, the EPA committed to reviewing the kraft pulp NSPS and signing for publication one of, or a combination of, three actions no later than May 15, 2013:
- A proposed rule containing revisions to the kraft pulp NSPS
- A proposed determination not to revise the NSPS
- A determination that review is not appropriate in light of readily available information on the efficacy of the standard
Furthermore, under the decree, if the EPA signs a proposed rule or a proposed determination not to revise the NSPS, then, no later than March 14, 2014, the Agency must sign a final rule revising the NSPS or a final determination not to revise it.
The complaint against the EPA and the consent decree are available at http://www.biologicaldiversity.org/news/press_releases/2012/pulp-mills-08-27-2012.html.