Proposed Consent Decree for Review of the Kraft Pulp New Source Performance Standard (NSPS)

On September 14, 2012, U.S. EPA issued a notice regarding a proposed consent decree to resolve a lawsuit seeking to compel U.S. EPA to review the existing Kraft Pulp New Source Performance Standard (NSPS) promulgated as 40 CFR Part 60, Subpart BB.  Filed on December 6, 2011 by the Center for Biological Diversity, Greenpeace, Inc., and Port Townsend Airwatchers, the lawsuit details a complaint alleging the failure of U.S. EPA to review and, if appropriate, revise the NSPS.  Explicitly, the plaintiffs claim that although U.S. EPA is required to review the NSPS every eight (8) years, it has not done so since 1986.  As a result, the plaintiffs claim the Subpart BB requirements, which were originally promulgated in 1978, are not sufficiently stringent and enforce control methods based on outdated emission levels.  The proposed consent decree would establish deadlines for the U.S. EPA to take action. 

Specifically, the proposed consent decree would require U.S. EPA to review Subpart BB no later than May 15, 2013, and sign for publication one or a combination of the following: (1) A proposed rule containing revisions to Subpart BB, (2) a proposed determination not to revise Subpart BB; or (3) sign for publication a determination that review is not appropriate.  In addition, the proposed consent decree mandates that if U.S. EPA signs a proposed rule or a proposed determination, then no later than March 14, 2014, U.S. EPA must sign one or a combination of the following: (1) A final rule containing revisions to Subpart BB; or (2) a final determination not to revise Subpart BB.  Finally, the proposed consent decree requires that, within 10 business days following signature of the proposed or final rules or determinations, U.S. EPA must forward the signed document(s) for publication in the Federal Register.

A thirty (30) day public comment period, originally scheduled to end on October 15, 2012, will be extended to parties not explicitly named in the litigation.  Based on these comments, U.S. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if new information indicating such consent is inappropriate is discovered.  Official copies of the consent decree may be accessed via www.regulations.gov.  In addition, comments may be submitted and viewed using the same website address. 

Subpart BB regulates total reduced sulfur (TRS) emissions from pulp mill sources (e.g., digester system, brown stock washer system, multiple-effect evaporator system, recovery furnaces, etc.) and particulate matter (PM) emissions from recovery furnaces, smelt tanks and lime kilns.  Because Subpart BB has not been reviewed in over 25 years, there is a relatively high probability that if reviewed, the standards for TRS and PM emissions will be tightened and additional pollutants may be regulated (e.g., nitrogen oxides (NO_X) and sulfur dioxide (SO₂)).  A recent precedent was set during the last revisions to 40 CFR part 60 Subpart F for Portland cement plants, which was expanded to include stringent standards for new, reconstructed, or modified facilities.  The progress and ultimate resolution of the consent decree should be monitored closely by potentially affected sources. Stay tuned for details as they develop.