ALASKA CALIFORNIA FLORIDA MID-PACIFIC NORTHEAST NORTHERN ROCKIES 

NORTHWEST ROCKY MOUNTAIN WASHINGTON, DC INTERNATIONAL 

705 SECOND AVENUE, SUITE 203 SEATTLE, WA 98104-1711 

T: 206.343.7340 F: 206.343.1526 E: eajuswa@earthjustice.org W: www.earthjustice.org

February 15, 2013 

Comments Via Electronic Mail 

Email: R10-Public_Comments@epa.gov and 

Body.Steve@epamail.epa.gov

Mr. Steve Body 

EPA Region 10 

Office of Air, Waste and Toxics 

Suite 900 

1200 Sixth Avenue 

Seattle, WA 98101 

Re: Docket No. EPA-R10-OAR-2010-1071

 Proposed Washington Regional Haze Rule 

 Comments of the National Parks Conservation Association 

Dear Mr. Body: 

 On behalf of the National Parks Conservation Association (“NPCA”), we submit these 

comments on EPA’s proposed partial approval and partial disapproval of elements of the 

Washington regional haze plan as well as EPA’s proposed federal implementation plan. 77 Fed. 

Reg. 76,174 (Dec. 26, 2012). The proposed rule is legally deficient and will not require all 

reasonable measures to protect the air quality of Washington’s national parks and wilderness 

areas. This comment letter addresses the deficiencies with the best available retrofit technology 

(“BART”) determinations for the Alcoa Intalco Works aluminum smelter (“Intalco”) and the 

Tesoro Refinery in Anacortes (“Tesoro”), the improper exemption of the Alcoa Wentachee 

Works (“Wenatchee”) from BART, and will address the lack of reasonable progress to address 

haze pollution in Washington. 

INTRODUCTION 

 Washington is home to three national parks, Mount Rainier, Olympic, and North 

Cascades National Parks, and five wilderness areas, Alpine Lakes, Glacier Peak, Goat Rocks, 

Mount Adams, and Pasayten Wilderness Areas. Washington is also home to the Mt. St. Helens 

National Monument and the Columbia River Gorge National Scenic Area. Our national parks 

and wilderness areas are iconic, treasured landscapes and Washington is rich in national parks 

and natural areas. Congress set aside these areas to protect our natural heritage for generations. 

These natural areas also generate millions of dollars in tourism revenue, provide habitat for a 

range of species, and provide year-round recreational opportunities for residents.1

 These special 

 

1

 NPCA, Economic Significance Report, available at

http://www.npca.org/assets/pdf/NPCA_Economic_Significance_Report.pdf; see also Headwaters 
Mr. Steve Body 

February 15, 2013 

Page 2 

places are designated “Class I areas” under the Clean Air Act (“CAA”) and as such, their air 

quality is entitled to the highest level of protection. Unfortunately that requirement and promise 

is unfulfilled because the air in most Class I areas, including in Washington’s most treasured 

natural areas, remains polluted by industrial sources. 

 

 To improve air quality in our most treasured landscapes, Congress passed the visibility 

protection provisions of the Clean Air Act in 1977, establishing “as a national goal the 

prevention of any future, and the remedying of any existing, impairment of visibility in the 

mandatory class I Federal areas which impairment results from manmade air pollution.” 42 

U.S.C. § 7491(a)(1). Manmade air pollution is defined as “air pollution which results directly or 

indirectly from human activities.” Id. § 7491(g)(3). In order to protect Class I areas’ “intrinsic 

beauty and historical and archeological treasures,” the regional haze program establishes a 

national regulatory floor and requires states to design and implement programs to curb hazecausing emissions within their jurisdictions.2

 Each state must submit for EPA review a state 

implementation plan (“SIP”) designed to make reasonable progress toward achieving natural 

visibility conditions. Id. § 7491(b)(2). 

 A regional haze SIP must provide “emissions limits, schedules of compliance and other 

measures as may be necessary to make reasonable progress towards meeting the national goal.” 

42 U.S.C. § 7491(b)(2). Two of the most critical features of a regional haze SIP are the 

requirements for installation of Best Available Retrofit Technology (“BART”) limits on 

pollutant emissions and a long-term strategy for making reasonable progress toward the national 

visibility goal. Id. § 7491(b)(2)(A); 40 C.F.R. § 51.308(d)(1)(i)(B). Under EPA regulations, 

regional haze SIPs should achieve natural visibility conditions in Class I areas by 2064, unless a 

state can demonstrate that meeting that deadline is not reasonable. 40 C.F.R. § 

51.308(d)(1)(i)(B). 

 BART controls must be installed on certain major stationary sources that were in 

existence on August 7, 1977 and that began operating after August 7, 1962, and that emit air 

pollutants that are reasonably anticipated to cause or contribute to visibility impairment at 

national parks, wilderness areas, wildlife refuges and other “Class I areas.” 42 U.S.C. § 

7491(b)(2)(A). In general, states have determined that a source is subject to BART if it is 

responsible for an impact on visibility in a Class I area of 0.5 deciview or more. See generally

40 C.F.R. Pt. 51, App. Y § III(1). BART must be installed and operated no later than five years 

after SIP approval. 40 C.F.R. § 51.302(c)(4)(iv). BART is an essential component of the 

regional haze program as it compels emissions reductions from older, disproportionately 

polluting sources that often have escaped control under other Clean Air Act programs. 

Additionally, pollution controls necessary to make reasonable progress toward attaining natural 

 

Economics, National Park Service Units: Economic Impacts of Visitation and Expenditures, 

available at http://headwaterseconomics.org/apps-public/nps-impacts/ (Olympic National Park 

received almost 3 million visits in 2010 and generated 1,673 local jobs). 

2 See H.R. Rep. No. 95-294, at 203-03 (1977). 
Mr. Steve Body 

February 15, 2013 

Page 3 

visibility can be imposed as reasonable progress controls on both BART sources and sources not 

subject to BART. 42 U.S.C. § 7491(g)(1). The haze requirements in the Clean Air Act present 

an unparalleled opportunity to protect and restore regional air quality by curbing visibilityimpairing emissions from some of the nation’s oldest and most polluting facilities. 

Implementing the regional haze requirements promises benefits beyond simply 

improving views. Pollutants that cause visibility impairment also harm public health. For 

example, oxides of nitrogen (“NOx”) are a precursor to ground-level ozone which is associated 

with respiratory disease and asthma attacks. NOx also reacts with ammonia, moisture and other 

compounds to form particulates that can cause and/or worsen respiratory diseases, aggravate 

heart disease, and lead to premature death.3 Similarly, sulfur dioxide (“SO2”) increases asthma 

symptoms, leads to increased hospital visits, and can also form particulates.4

 NOx and SO2 

emissions also harm terrestrial and aquatic plants and animals through acid rain as well as 

through deposition of nitrates (which in turn cause ecosystem changes including eutrophication 

of mountain lakes).5

 

 Unfortunately, instead of acting on Congress’s direction, the states and EPA have 

repeatedly dragged their feet in implementing the visibility protection provisions. Now, EPA 

proposes a plan that will still not meet the basic requirements of the Clean Air Act, leaving the 

air in Washington’s parks and wildernesses dirty for years to come. 

I. THE PROPOSED BART DETERMINATION FOR THE INTALCO ALUMINUM 

SMELTER IS UNLAWFUL. 

The Alcoa Intalco Works is a BART-eligible aluminum smelter located at Cherry Point 

near Ferndale, Washington. Intalco emits NOx, SO2, and particulate pollutants that significantly 

and adversely affect the air quality in Olympic National Park, as well as five other Washington 

Class I areas. 77 Fed. Reg. at 76,814, 76,191. Intalco’s visibility impact on Washington’s Class 

I areas stems primarily from sulfur dioxide emissions from the potlines. 

After finding that the state of Washington overestimated the cost of pollutant controls for 

Intalco’s potlines, EPA conducted its own BART analysis and concluded that limestone slurry 

forced oxidation (“LSFO”) would reduce Intalco’s SO2 pollutant emissions by 95%, improving 

visibility by more than 1 deciview at Olympic National Park and more than .5 deciviews at each 

 

3

 EPA, Particulate Matter, available at http://www.epa.gov/air/particlepollution/health.html. 

4

 EPA, Sulfur Dioxide, available at http://www.eap.gov/air/sulfurdioxide/health.html. 

5 See, e.g., National Park Service, 

http://www.nature.nps.gov/air/Pubs/pdf/reviews/pnw/PNWfinalreport1.pdf ; 

http://www.nature.nps.gov/air/Permits/aris/olym/impacts.cfm 

http://www.epa.gov/acidrain/effects/index.html. 
Mr. Steve Body 

February 15, 2013 

Page 4 

of 5 other Class I areas. 77 Fed. Reg. at 76,191. EPA found LSFO to be reasonable and within 

the cost-effectiveness range of other BART determinations. Id. After considering the five 

statutory factors for determining BART, EPA finds LSFO is BART, but then relieves Intalco of 

having to comply with the statute and install BART controls for SO2 because Intalco claims it 

cannot afford the controls “and remain a viable entity.” Id. Instead of proposing controls that 

would reduce emissions by 95%, EPA proposes a mere 20% reduction in SO2 emissions, 

achieved in part by limiting the sulfur content of fuel at Intalco. Id. at 76,192-93. 

A. EPA’s Proposed BART Decision for Intalco Fails to Comply With the Public 

Notice Requirements of the Clean Air Act. 

Absent the affordability claim, EPA states that “LSFO would be BART.” 77 Fed. Reg. at 

76,191. EPA proposes less stringent controls because of an affordability analysis based in large 

part on information and underlying analysis and reasoning that EPA has refused to disclose. In 

general, EPA does not “show its work” with respect to its affordability conclusion. It is 

impossible for the public to understand and comment on EPA’s affordability analysis because 

critical information is not available. 

As for information underlying EPA’s conclusion, there are only a handful of documents 

in the record that purport to be relevant to EPA’s conclusions regarding the affordability of 

pollution controls at Intalco. One document is a June 2012 economic analysis provided by 

Alcoa; Attachment 2 is claimed as confidential business information and withheld from the 

docket for this rulemaking. Letter from Robert Wilt, Alcoa to Dennis McLerran, EPA Region 10 

(June 22, 2012), Attachment 2, EPA Docket ID No. EPA-R10-OAR-2010-1071-0045. The 

second document is a consultant’s report. RTI International, Intalco BART SO2 Affordability 

Assessment: Final Report (Nov. 2012) EPA Docket ID No. EPA-R10-OAR-2010-1071-0054. 

It appears that Alcoa first claimed that it could not afford BART controls in June of 2012 

and that EPA’s analysis was conducted in response to Alcoa’s request and based on the 

information Alcoa provided in its letter to EPA. The critical information in Alcoa’s June 2012 

letter—specifically, Attachment 2—has been redacted from the public docket. The RTI Report 

primarily limits its analysis to the energy price sensitivity issue and, as discussed below, fails to 

disclose certain facts that the report itself deems of importance in determining the profitability of 

the Intalco facility. EPA’s failure to disclose critical information regarding its proposal to 

excuse Intalco from BART means that we are unable to provide meaningful comment on Alcoa’s 

claims that the company cannot afford LSFO controls and EPA’s decision to accept that 

contention. This is a violation of a number of basic tenets of the Clean Air Act and federal 

administrative law. 

The Clean Air Act forbids EPA from promulgating a rule that relies in whole or in part 

on information that has not been placed in the public docket. 42 U.S.C. § 7607(d)(6)(C). 

Furthermore, Congress intended that the public have a meaningful opportunity to comment on a 

proposed rule. Id. § 7607(d)(5), (h). Courts have also consistently rejected agency attempts to 

shield foundational documents from public scrutiny, finding that such actions violate the law by 
Mr. Steve Body 

February 15, 2013 

Page 5 

depriving the public of an opportunity for meaningful review and comment. See e.g. Ober v. 

EPA, 84 F.3d 304, 314 (9th Cir. 1996) (EPA improperly failed to afford public comment on 

document submitted by the state that was plainly relevant to EPA’s SIP decision); Idaho Farm 

Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1402-03 (9th Cir. 1995) (criticizing the failure to afford 

review and comment on a map and report that the agency relied on and that was critical to the 

agency’s decision.); Air Transport Ass’n v. FAA, 169 F.3d 1, 7 (D.C. Cir. 1999) (“[E]ven in the 

informal rulemaking context, we have cautioned that the most critical factual material that is 

used to support the agency’s position on review must have been made public in the proceeding

and exposed to refutation.”) (emphasis added); see also Gerber v. Norton, 294 F.3d 173, 179-81 

(D.C. Cir. 2002). 

EPA has failed to identify any support in the Clean Air Act that permits EPA to ignore 

the requirements in the Clean Air Act for public review and comment on all aspects of EPA’s 

SIP decisions and on documents that EPA relies on for those decisions. To the extent that EPA 

purports to rely on guidance to withhold documents critical to EPA’s decision, that guidance6

must give way in the face of the plain statutory requirements of the Clean Air Act and case law. 

Further, to the extent that Intalco seeks special treatment and exemption from the “best” 

emission controls as determined by EPA as required under the Clean Air Act’s visibility 

protection program, Intalco and EPA must disclose the information underlying Intalco’s request, 

and EPA’s determination, to the public and EPA must substantiate its decision. By withholding 

a critical document that directly relates to the dispositive factor supporting EPA’s proposed 

decision, EPA has deprived the public of a meaningful opportunity to comment on the proposed 

decision. 

B. The Proposed Reliance on an Affordability Analysis to Excuse Intalco from 

BART Is Inconsistent with the Law and Arbitrary and Capricious. 

In support of its proposed decision, EPA relies on a provision in the BART guidelines 

that in “unusual circumstances,” EPA may take “into consideration the conditions of the plant 

and the economic effects of requiring the use of a given control technology.” 40 C.F.R. pt. 51 

App. Y § IV(E)(3) (emphasis added); see also 77 Fed. Reg. at 76,191-93 (relying on the 

affordability provision to reject LSFO as BART in favor of less stringent controls). EPA’s 

guidance further provides that only where the effects are judged to have a severe impact on plant 

operations, may they be considered in the technology selection. 40 C.F.R. pt. 51 App. Y § 

IV(E)(3). The guidance does not define what circumstances are “unusual” or “severe” and it is 

not clear how this assessment differs from the cost-effectiveness analysis. The statutory BART 

factors provide that costs of compliance are a consideration in determining BART as well as the 

remaining useful life of the pollutant source. 42 U.S.C. § 7491(g)(2). Those factors are part of 

EPA’s cost-effectiveness analysis and EPA has acknowledged that the Clean Air Act does not 

include a requirement to consider “affordability.” 77 Fed. Reg. 72,512, 72, 539 (Dec. 5, 2012). 

 

6

 The affordability provision in the BART guidelines state that an affordability review “must 

preserve the confidentiality of sensitive business information.” 40 C.F.R. pt. 51, App. Y § (IV) 

(E)(3). 
Mr. Steve Body 

February 15, 2013 

Page 6 

By overlaying an additional ill-defined “affordability” factor on top of the cost-effectiveness 

analysis, EPA appears to be creating a potentially broad BART exemption that runs counter to 

the statutory obligation to restore visibility to natural conditions in Class I areas on a reasonable 

timeline. Id. § 7491(b)(2)(A).

Even if the affordability provision in the BART guidelines is consistent with the Clean 

Air Act, EPA’s reliance on the affordability provision here is inconsistent with EPA’s approach 

to BART determinations around the country. Given this inconsistency, the unprecedented use of 

the affordability provision to reject controls that would otherwise qualify as BART is arbitrary 

and capricious. 

Over the last several years, EPA has reviewed scores of BART determinations, including 

for electric generating units (“EGUs”). In many cases, EPA has proposed and/or finalized 

BART determinations that have contributed to power plants shutting down because the EGU was 

no longer profitable enough after accounting for the costs of pollution controls. For example, 

EPA proposed a federal implementation plan containing a BART determination for the 

Danskammer Generating Station in New York, 77 Fed. Reg. 24,794, 24,812-15 (April 25, 2012) 

(proposing to disapprove the sulfur dioxide BART determination and proposing a federal 

implementation plan). In December 2012, the company that owns Danskammer then announced 

that, as a result of several factors, the plant would be retired and demolished.7

 Similarly, EPA 

issued a federal implementation plan for units 3 and 4 of the Northeastern Station power plant in 

Oklahoma requiring an SO2 limit of .06 lbs/MMBtu. 76 Fed. Reg. 81,727, 81,729 (Dec. 28, 

2011). The Public Service Company of Oklahoma, which owns Northeastern Station, announced 

it will retire unit 4 in 2016 and will retire unit 3 in 2026.8

Moreover, EPA has incorporated enforceable shut-down commitments for some EGU 

units as part of a regional haze rule. For example, EPA proposed BART determinations for five 

units at the Four Corners Power Plant. 75 Fed. Reg. 64,221 (Oct. 19, 2010). The owner of units 

1-3 then announced intentions to retire the units, resulting in EPA issuing a final BART rule 

requiring Four Corners to either meet stringent emissions limits at all five units or retire units 1-3 

and meet emissions limits at the remaining units. 76 Fed. Reg. 10,530 (Feb. 25, 2011); 76 Fed. 

Reg. 51,620 (Aug. 24, 2012). Similarly, the approved BART determination for the TransAlta 

Centralia Generation plant here in Washington requires TransAlta to retire or end use of coal at 

 

7

 Dynegy, Press Release (Dec. 2010), available at http://www.dynegy.com/news/newsrelease?newsurl=http%3A%2F%2Fphx.corporateir.net%2Fphoenix.zhtml%3Fc%3D147906%26amp%3Bp%3DRssLanding%26amp%3Bcat%3D

news%26amp%3Bid%3D1765883. 

8

 Public Service Company of Oklahoma, Press Release (Sept. 26, 2012), available at

https://www.psoklahoma.com/info/news/viewRelease.aspx?releaseID=1309; Public Service 

Company of Oklahoma, Press Release (Apr. 24, 2012), available at

https://www.psoklahoma.com/info/news/ViewRelease.aspx?releaseID=1241.
Mr. Steve Body 

February 15, 2013 

Page 7 

its two units in 2020 and 2025 respectively. 77 Fed. Reg. 72,742 (Dec. 6, 2012). And the 

Oregon SIP includes retirement requirements for the Boardman facility. In each of these 

instances, the EGU determined that shut-down was more economical than compliance with 

BART. EPA has not explained how the situation with Intalco is different. 

In these and other BART determinations, EPA has confronted factual situations similar to 

the scenario that is allegedly present here: EPA applies the proper statutory five-factor analysis 

to determine BART and compliance with BART might then make an already uneconomic or 

marginally-economic facility even less competitive, in turn causing the facility to retire. We are 

not aware of any other BART determination in which EPA has relied on the ill-defined 

“affordability” provision to reject the controls that would otherwise qualify as BART. EPA 

conducted an affordability analysis for a sugar beet processing facility in Idaho, but concluded 

that the facility could in fact afford BART controls. See 76 Fed. Reg. 36,329, 36,334-36 (June 

22, 2011). EPA has rejected claims by other facilities that they cannot afford controls. See, e.g., 

77 Fed. Reg. at 72,539-42 (concluding that there is no evidence that the Apache power plant in 

Arizona cannot afford BART controls). EPA has reviewed BART determinations for units in 

several industries, across the country, and Intalco is the only BART determination where a 

company is being excused from complying with the law on the grounds that the company cannot 

“afford” to follow the law. 

EPA has acknowledged that the “BART guidelines specifically allow, but do not require, 

affordability to be considered when determining BART.” 76 Fed. Reg. at 36,334; see also 77 

Fed. Reg. 72,512, 72,539 (Dec. 5, 2012) (“[N]either the CAA nor the RHR requires states or 

EPA to consider the affordability of controls . . .”). Given that EPA is not required to consider 

affordability, EPA must exercise its discretion rationally and explain why it makes different 

decisions when faced with what appear to be similar facts. Absent any such explanation, the 

decision to rely on the affordability provision here is arbitrary and, if finalized, would be 

unlawful. 

C. EPA’s Affordability Analysis Should be Redone in Light of Facts Absent from 

the RTI Report and Intalco’s New Long-Term Power Agreement. 

 As noted above, it is difficult to impossible for the public to review and understand 

EPA’s “affordability” analysis and conclusion excusing Intalco from LSFO BART requirements 

because critical information upon which EPA relied is missing from the public record. And, 

even in the RTI Report, key facts for RTI Report’s analysis are absent.9

 

 

9

 As to the information that is supplied, RTI notes that Alcoa has adequate cash-on-hand (which 

has increased from 2010 to 2011) to pay for the LSFO outright, although it would use 7.8% of 

Alcoa’s cash on hand. Should Alcoa choose to borrow to fund LSFO controls, RTI’s use of a 

7% rate appears based on EPA’s Control Cost Manual. The Control Cost Manual suggests this 

rate for publicly-funded, not privately-funded projects. For projects such as that at Intalco, the 

Manual makes plain it is more appropriate to assess the actual site-specific rate that would apply. 

It is unclear from the RTI report what that is—given current interest rates it could be 
Mr. Steve Body 

February 15, 2013 

Page 8 

 First, the RTI report uses a cost/sales ratio as part of its assessment of how affordable 

something is to a company. It gives a range of 6% to 20% for Intalco and LSFO noting that 

lower numbers are better. However, entirely missing from the report is what ratio is “affordable” 

and what is not and what the underlying frame of reference is—is the ratio a global benchmark, 

or a national, or a regional one? There is no information anywhere in the RTI report about what 

these percentages actually mean or what is even desirable (other than “lower” and arguably the 

entire range is “lower”), nor is this information provided anywhere in EPA’s decision that 

complying with the law is not “affordable” for Intalco. This part of the RTI report therefore 

provides no support in that it only provides an opaque conclusion, not reviewable by the public. 

 Second, the RTI report makes clear that a long-term power contract with the Bonneville 

Power Administration at the IP rate for power would make a difference in the affordability 

analysis. The RTI report notes that at the time the report was done, no such contract existed and 

its prospect was uncertain and maybe even unlikely for the amount of power necessary for 

Intalco to run all three potlines (the most economical option for the facility.) However, again 

there is a piece of information missing. The RTI report never discloses, nor again is it disclosed 

anywhere in EPA’s final decision, what amount of power at the IP rate is actually necessary for 

Intalco to run all three lines nor does the RTI report bother to analyze whether LSFO is 

affordable if Intalco is able to obtain long-term power for at least two of the lines and other 

power for the third. The RTI report repeatedly stops short of offering the detailed information 

necessary to actually support its sweeping conclusions in the introduction. This is particularly 

important in light of developments immediately after the issuance of RTI’s report. 

 The apparently determinative fact upon which the RTI report bases its conclusions—the 

existence of a long-term power supply contract—substantially changed 20 days before EPA 

published its proposed decision for Intalco BART and less than a month after RTI issued its 

report. RTI’s report makes clear that a long-term commitment to a supply of power at the IP rate 

is key to Intalco’s profitability. The report appears to conclude that with that kind of power 

supply and the improving market for aluminum,10 the plant can be profitable, even with LSFO. 

RTI’s conclusion in this regard is, like so much of its report, not entirely clear as it appears to 

hedge the precise impact of a long-term contract probably because it stated there was no such 

commitment in place at the time of the report and RTI seemed to think (oddly in light of events) 

that such a contract may not be likely. It is plain that the RTI report concludes that whether there 

is a long-term power supply contract affects affordability. Then, on December 7, 2012, less than 

a month later, Intalco signed a 10 year electric supply agreement with Bonneville Power for 300 

megawatts of power (a huge amount of power—reported as about one-quarter the power supply 

for all of Seattle City Light) at a low rate. According to Alcoa’s own press release and various 

 

substantially lower than 7% which in turn makes a significant difference in the cost of the 

controls. The affordability conclusions of RTI are not adequately explained. 

10 Alcoa’s 2011 10-K filing with the Securities and Exchange Commission, the most recent 

available, confirms the improving market for aluminum and resulting significant improvements 

in Alcoa’s financial situation in 2011 as a result. 
Mr. Steve Body 

February 15, 2013 

Page 9 

press accounts, this meant that the Intalco facility could stay open and fully operational. See

attached Alcoa press release and copies of press stories from The Bellingham Herald, and 

Azom.com (an industry news site.) Further, the agreement included a commitment by Alcoa to 

invest $35 million in capital improvements to the Intalco facility during the next seven years. Id. 

It appears from the information that EPA has put in the public record, that a primary foundation 

for its conclusion that LSFO at Intalco is not affordable was factually incorrect at the time EPA 

issued its proposed decision. 

 EPA should not finalize its decision to relieve Intalco of the obligation to comply with 

LSFO as BART and should instead revise its decision regarding affordability and require LSFO 

controls on SO2 emissions from Intalco. Overall, based on the only information that EPA makes 

available to support its decision that Intalco cannot “afford” to comply with the Clean Air Act, 

EPA’s conclusion does not comply with EPA’s regulation, is not adequately supported, and is 

arbitrary and capricious. 

II. THE PROPOSED TESORO BART ALTERNATIVE DOES NOT COMPLY WITH 

STATUTORY AND REGULATORY REQUIREMENTS. 

Pollution from the Tesoro Refinery near Anacortes, Washington significantly impairs 

visibility in Olympic National Park and five additional wilderness areas in Washington. NPCA’s 

concerns center on five BART-subject units at Tesoro where EPA has allowed Tesoro to avoid 

BART for NOx through a recent proposal from Tesoro. The five units in question are boiler 

number two, unit F-304, and the four heaters, F-6650, 6651, 6652, and 6653. 77 Fed. Reg. at 

76,196. Tesoro’s 2008 BART analysis originally recommended unit-specific BART 

determinations for these five units. See Letter from Don J. Sorensen, Tesoro to Phyllis Baas, 

Washington Department of Ecology (Feb. 8, 2008). The Washington Department of Ecology 

rejected these controls as not cost-effective because it wrongly assumed the refinery’s next 

turnaround would come after the first BART implementation period. 77 Fed. Reg. at 76,196. 

EPA has rectified this error and proposes to disapprove Washington’s BART determinations for 

these units. We support this disapproval. 

However, very late in the process and just before EPA took action, Tesoro proposed a 

BART “alternative” to EPA that excused Tesoro from complying with BART requirements for 

these units. See Letter from Mike Johnson, Tesoro to Dennis McLerran, EPA Region 10 at 1 

(Nov. 5, 2012), EPA Docket ID No. EPA-R10-OAR-2010-1071-0029. EPA has proposed 

approving Tesoro’s late proposal. 

A. EPA Has Not Demonstrated That the Alternative Will Improve Visibility More 

Than Source-Specific BART Determinations. 

The fundamental legal requirement for an alternative to BART is a demonstration that the 

alternative will make greater reasonable progress than BART. 40 C.F.R. § 51.308(e)(2)(i). This 

must be demonstrated by the clear weight of evidence. Id. § 51.308(e)(2)(i)(E). EPA has 

recommended that a BART alternative should be judged by comparing the visibility 
Mr. Steve Body 

February 15, 2013 

Page 10 

improvement from BART to the visibility improvement from the BART alternative. EPA 

cautioned against relying on comparisons of emissions reductions only because many factors 

influence the visibility effects of emissions. 

In order for an alternative to BART program to be adequate, it must demonstrate, among 

other things, that it provides “greater reasonable progress” than would BART. 40 CFR 

51.308(e)(3). This demonstration can be offered in two ways. In the first case, the “distribution 

of emissions” must be substantially similar under BART and the alternative program; in addition, 

the alternative measure must provide “greater emissions reductions.” In line with BART 

determinations that are pollutant specific, clearly this requirement contemplates emissions 

reductions of the same pollutant, e.g., NOx emissions for NOx emissions. Indeed, if this were 

not the case, the result would be ludicrous—opening the door for trading non-equivalent 

pollutants. A reduction of one ton of NOx does not necessarily have the same visibility impact 

as one ton of SO2, PM, or other pollutants, and moreover this relationship varies depending on 

site-specific circumstances. 

The regulations provide only one other path to demonstrating greater reasonable progress, 

which is to perform modeling to demonstrate that visibility does not decline in any Class I area 

and there is an overall improvement in visibility. Here, contrary to its own advice and guidance, 

EPA did not model the visibility improvement from the proposed BART alternative and compare 

that to the visibility improvement from source-specific NOx BART. Instead, EPA simply 

compared emissions reductions, noting that the claimed BART “alternative” had reduced sulfur 

dioxide emissions by 1068 tons per year, which exceeded the 466 tons per year expected from 

source-specific NOx BART limits. 77 Fed. Reg. at 76,197. EPA has not performed the 

appropriate modeling. Instead, it asserts that monitoring data is sufficient to determine the 

relative impacts of NOx and SO2 from Tesoro. EPA’s argument consists of just one sentence: 

“In Washington Class I areas, sulfates contribute significantly more than nitrates to visibility 

impairment (see SIP Submittal chapter 5) and it is likely that more SO2 converts to sulfate than 

NOx does to nitrate.” 77 Fed. Reg. 76,196. 

EPA has not justified its assertion that the SO2 reductions would “result in greater 

reasonable progress than would requiring BART for NOx” on the relevant sources. EPA 

provides no support for its statement that more sulfur dioxide from these units converts to sulfate 

than nitrogen oxide converts to nitrates; moreover it is directly contrary to what EPA has been 

told by the National Park Service about the relative impact of SO2 and NOx on wintertime haze 

in cooler, damper climates like that in Olympic National Park. See National Park Service 

comments, February 15, 2013, p. 8 of attachment. It is precisely such complexities that led EPA 

to recommend modeling visibility improvement rather than relying on emissions reductions 

alone when comparing BART to an alternative. 

Without additional analysis, the presence of more sulfates than nitrates does not 

necessarily indicate that one ton of SO2 has more or less of an impact than one ton of NOx. The 

chemistry involved is very complex and can cause non-linear outcomes. For instance, reductions 

in one visibility-causing pollutant can, at times, increase the visibility impairment associated 
Mr. Steve Body 

February 15, 2013 

Page 11 

with another pollutant, or have little impact at all.11 Modeling can capture many of these 

complex interactions under different scenarios, whereas monitoring data only reflects the end 

result. Moreover, monitoring data doesn’t indicate the relative contribution of pollutants from 

the facility in question; it reflects a multitude of sources. 

EPA also fails to consider the facility-specific modeling that Tesoro performed. 

Geomatrix, BART Determination Modeling Analysis Tesoro Anacortes Refinery (2008).12

Although the 2008 modeling does not explore the circumstances or impacts of the proposed 

BART alternative, it does illustrate further that a facility-specific analysis is needed even if NOx 

and SO2 can be legally traded. Tesoro’s 2008 modeling illustrates the impacts of two scenarios: 

baseline conditions, and BART as Tesoro originally proposed it. In each of these scenarios, the 

results indicate that per ton, NOx contributes more to visibility impairment than SO2 (see Table 

1 below). 

Emission Rates 

(Max 24-Hour 

Emission Rates in 

lb/hr) 

% Contribution 

(Mean Value for 98th

Percentile Days) 

% Contribution 

Per Ton 

SO2 NOx SO2 NOx SO2 NOx 

BASELINE 871.4 457.1 58.4 40.7 134.0 178.1 

2008 Proposed 

BART 863.4 240.0 73.3 26.0 169.8 216.7 

Table 1. Modeling results from Tesoro’s 2008 BART determination.13 

This modeling cannot be applied directly to the proposed BART alternative scenario (for 

one thing, it only includes BART-eligible units). But it does indicate that for Tesoro’s 

emissions, NOx may be having a greater per ton impact on visibility; EPA cannot simply assume 

otherwise. 

Tesoro’s report highlights another issue with EPA’s blanket assertion that SO2 emissions 

are more important than NOx emissions: seasonality. As the report notes, “the highest changes 

to extinction are predicted” under nitrate-dominated wintertime conditions.14 Thus reductions to 

 

11 For example, reductions in SO2 can lead to increases in available ammonium, and, if the area 

is ammonia-limited, potentially increases in the formation of ammonium nitrate. See, e.g., 

Stationary Source NOx and PM Emissions in the WRAP Region: An Initial Assessment of 

Emissions, Controls, and Air Quality Impacts. Final Report of the WRAP Market Trading 

Forum at IV-11 (Oct. 1, 2003). 

12 Tesoro’s original modeling report does not appear to be in the docket. This modeling report 

should be included in the record for this decision. 

13 See Tables 2-1, 2-2, 4-4, and 4-5. 

14 Id. at 10. 
Mr. Steve Body 

February 15, 2013 

Page 12 

SO2 may not result in reducing the greatest predicted visibility impacts. Modeling would 

provide a more definite answer. 

Evidence indicates that the issue is more complicated than EPA’s unsubstantiated 

assertion would indicate. Similarly, Tesoro’s letter proposing the BART alternative contains 

nothing to demonstrate that the proffered SO2 emissions will in fact lead to greater reasonable 

progress than BART, instead focusing squarely on the tons of reductions of dissimilar pollutants. 

The regulations require comparisons of tons of the same pollutant and do not appear to 

contemplate trading different pollutants. Even if such a trade were legally permissible in theory, 

EPA has not demonstrated on this record that the past reductions in sulfur dioxide emissions will 

improve visibility more than nitrogen oxide BART controls would. 

In short, EPA has not actually examined Tesoro’s proffered “alternative,” has not 

conducted visibility modeling for the BART alternative and source-specific BART, and has not 

supported its assertion that sulfur dioxide from these units converts to sulfates more than 

nitrogen oxide converts to nitrate. The relevant material in the record from the National Park 

Service and EPA undermines EPA’s assumption that a comparison of sulfur dioxide and nitrogen 

oxide emissions reductions accurately indicates the relative visibility improvement from those 

reductions. EPA must prove by the clear weight of evidence that the BART alternative will 

make more reasonable progress toward natural visibility conditions than would BART. EPA has 

not made that demonstration on this record, and therefore should not finalize this BART 

alternative. 

B. EPA’s Proposal Is Inconsistent With EPA Guidance Given To Wisconsin 

Regarding The Requirements For BART Alternatives. 

EPA proposes to approve a BART alternative that would use past emissions reductions, 

carried out to comply with requirements separate from the haze requirements, at seven nonBART units in lieu of requiring source-specific BART for five BART units. 77 Fed. Reg. at 

76,196. Under 40 C.F.R. § 51.308(e)(2)(iv), a state that seeks to use an alternative program in 

lieu of BART must demonstrate not only that the alternative achieves greater reasonable progress 

toward reaching natural visibility conditions at Class I areas but also that “the emission 

reductions resulting from the emissions trading program or other alternative measure will be 

surplus to those reductions resulting from measures adopted to meet requirements of the CAA as 

of the baseline date of the SIP.” Our understanding is that EPA’s proposal here would allow 

Tesoro to substitute earlier reductions in sulfur dioxide emissions, undertaken to ensure 

compliance with the NAAQS through PSD requirements, for nitrogen oxide BART limits at five 

BART units. 15 This proposal is inconsistent with prior EPA comments suggesting that 

 

15 The improvements that Tesoro previously undertook to reduce sulfur in its refinery fuel gas 

produced a de facto reduction in SO2 emissions from any unit that burned it, regardless of 

whether the limit was extended to that unit or not. The only true change here—as reflected in 

EPA’s summary BART chart—is eliminating the option to use fuel oil in the subject units which 

can use it (only five of the seven). However, no information is provided to evaluate the impact 
Mr. Steve Body 

February 15, 2013 

Page 13 

reductions at non-BART units that were undertaken in order to ensure compliance with the 

NAAQS cannot be traded for reductions at BART units.

In 2011 comments on the draft Wisconsin regional haze plan, EPA noted that because the 

BART guidelines do not address trades between BART sources and non-BART sources, such 

trades should be addressed in accordance with EPA’s economic incentive program (“EIP”) 

policy. Letter from Cheryl L. Newton, EPA Region 5 to Bill Baumann, Wisconsin Department 

of Natural Resources (Sept. 16, 2011), attached Comments at 3 [hereinafter EPA Comments on 

Wisconsin RH SIP]; see also 77 Fed. Reg. 11,928, 11,934 (Feb. 28, 2012). The EIP defines 

surplus emissions reductions to mean reductions that are not otherwise relied on in any of several 

programs, including reductions made to ensure compliance with the NAAQS, as well as 

reductions included in the relevant SIP. EPA, Improving Air Quality with Economic Incentive 

Programs at 35 (2001), available at http://www.epa.gov/ttn/oarpg/t1/memoranda/eipfin.pdf. In 

Wisconsin, EPA objected to trading between BART and non-BART units at the same facility 

based upon EPA’s EIP policy. 

To determine whether past emissions reductions of one pollutant are considered surplus 

for the purposes of satisfying BART requirements for another pollutant, EPA relies on the EIP 

guidance. To the extent that the past sulfur dioxide emissions requirements have been 

incorporated into the Washington SIP and relied upon in order to meet applicable requirements, 

those reductions are not “surplus” under the EIP. Therefore, Tesoro’s past SO2 emissions 

reductions are not surplus for purposes of the BART requirements. The past SO2 emissions 

reductions at the seven non-BART units cannot be used to satisfy the NOx BART requirements 

for the five units in question. 

Furthermore, the Washington SIP indicates that the SO2 reductions have already been 

considered part of BART: “Other recent emission reduction projects at the plant are being 

recognized as part of BART. The primary projects [include]...improvements to the efficiency of 

the refinery fuel gas system to remove sulfur from the fuel gas.”16 These reductions cannot be an 

alternative to BART if they are already considered part of BART by the state. 

C. NOx and SO2 Emissions Reductions Should be Imposed at Tesoro as Reasonable 

Progress Controls. 

Regardless of whether EPA can approve prior SO2 reductions under another Clean Air 

Act requirement as an “alternative” to BART, EPA should still require unit-specific NOx 

controls on the five units as reasonable progress controls. As part of their regional haze plans, 

each state must establish reasonable progress goals for the best and worst visibility days at each 

Class I area within its borders. 40 C.F.R. § 51.308(d)(1)(i)(A). The regional haze rule 

establishes a presumptive goal of attaining natural visibility conditions by 2064, id. § 

 

of this change. 

16 Washington SIP Submittal, p. 11-15. 
Mr. Steve Body 

February 15, 2013 

Page 14 

51.308(d)(1)(i)(B), and states that proposed to meet the statutory goal at a later date must 

demonstrate that attaining natural visibility by 2064 is not reasonable. Id. § 51.308(d)(1)(ii). 

The CAA requires consideration of four factors when determining reasonable progress: the cost 

of compliance, the time necessary for compliance, energy and non-air quality environmental 

impacts of compliance, and the remaining useful life of the source. 42 U.S.C. § 7491(g)(1). If 

pollution controls will reduce visibility impairment at a Class I area (or areas) and meet all of the 

four statutory factors, EPA has approved such controls as reasonable progress controls. See, e.g., 

77 Fed. Reg. 20,894, 20,897 (Apr. 6, 2012) (setting reasonable progress controls for the 

Antelope Valley Station in North Dakota). 

None of Washington’s Class I areas are on track to meet EPA’s presumptive goal of 

attaining natural visibility in 2064. While Washington’s SIP submittal might come close to 

achieving the uniform rate of progress for a few Class I areas, most notably Goat Rocks and 

Mount Adams Wilderness Areas, other Class I areas will be hundreds of years behind the 

uniform rate of progress. For example, the State estimates that it will be nearly 700 years before 

the Pasayten Wilderness attains natural visibility, more than 300 years before Olympic National 

Park returns to natural visibility conditions, and over 200 years before North Cascades National 

Park and Glacier Peak Wilderness achieve the statutory goal of natural visibility conditions. 

Washington SIP submittal, Table 9-4 at p. 9-38. EPA proposes to approve a plan that will 

improve visibility at a far slower rate than EPA’s presumptive uniform rate of progress. 77 Fed. 

Reg. at 76,204. 

Given that the Class I areas affected by Tesoro’s NOx emissions are not on track to meet 

the uniform rate of progress, and after considering the four statutory factors, EPA should approve 

low NOx burners plus SNCR at boiler 304, low NOx burners at units F-6650 and 6651, and 

ultralow NOx burners at units F-6652 and 6653 as reasonable progress controls. The record 

indicates that all four of the statutory factors favor imposing these technologies as reasonable 

progress controls. The technologies are cost-effective; a reasonable compliance deadline can be 

established; there are no significant energy and non-air quality environmental impacts from these 

technologies that would preclude their selection; and the remaining useful life of these units does 

not weigh against imposing these controls. See Letter from Don J. Sorensen, Tesoro to Phyllis 

Baas, Washington Department of Ecology (Feb. 8, 2008). Thus, at a minimum, EPA should 

approve these NOx emission reduction requirements as necessary reasonable progress controls. 

 Furthermore, to the extent that they are not already required, the SO2 reductions that are 

being offered in trade for the BART-related NOx reductions should clearly be considered 

reasonable progress. They require basically no changes on the part of the facility. As appropriate 

reasonable progress measures, they are not available to substitute for the required BART 

reductions. 

D. EPA Fails to Evaluate BART for Tesoro’s Flare. 

EPA notes that Tesoro’s flare, unit X-819, is subject to BART, but fails to evaluate any 

BART measures to reduce emissions from it. Tesoro’s underlying BART analysis appears to 
Mr. Steve Body 

February 15, 2013 

Page 15 

consider some measures, but does not discussing implementing a flare minimization plan, such 

as have provided significant reductions from flares in the Bay Area Air Quality Management 

District in California.17 We ask that EPA evaluate BART for this unit, including consideration 

of flare minimization efforts to reduce emissions from this unit. 

III. NPCA ADOPTS THE COMMENTS OF THE FOREST SERVICE THAT ALCOA 

WENATCHEE WORKS MUST BE SUBJECT TO BART. 

 Alcoa also maintains a facility in Malaga, Washington, the Alcoa Wenatchee Works. 

SO2 pollutant emissions from Wenatchee’s potlines were demonstrated to adversely affect 

visibility in the Alpine Lakes Wilderness. While initial modeling demonstrated that Wenatchee 

was subject to BART, Ecology decided to redo the modeling analysis with a fine grid model, 

ultimately using the results of the fine-grid model to exempt Wenatchee from BART. The Forest 

Service and EPA repeatedly informed Ecology that use of the fine-grid model, which tends to 

underestimate or mask effects from haze pollutant sources, was unacceptable and that it could 

not be used to exempt Wenatchee from the Clean Air Act BART requirements. EPA’s own 

modeling expert, Herman Wong, repeatedly objected to the use of the fine-grid model pointing 

out that use of the model is not supported by EPA’s own guidance and that use of the model is 

inconsistent with modeling for determination of BART-subject sources throughout the U.S. That 

lack of consistency is particularly troubling. Inexplicably and entirely contrary to the record 

here, EPA’s proposed decision fails to include a BART analysis and requirement for Wenatchee. 

 NPCA adopts the most recent comments of the U.S. Forest Service, dated February 13, 

2013 and the National Park Service comments, dated February 15, 2013, on this matter and notes 

that all memos, emails and other documents referenced in the Forest Service and National Park 

Service comments, including all earlier communications to Ecology on this matter, must be 

included in the record for EPA’s decision here. NPCA urges EPA to reject the unacceptable 

fine-grid model and to perform a full BART analysis and impose BART pollutant controls on 

SO2 emissions at Wenatchee. 

CONCLUSION 

NPCA urges EPA not to finalize the Washington haze SIP in its current form. EPA has 

inappropriately excused Intalco from meeting BART requirements without substantiation and 

without allowing public review of critical information, despite clear notice and comment 

requirements in the Clean Air Act. EPA is proposing to allow Tesoro to escape its NOx BART 

obligations on thin assumptions regarding the impact of Tesoro’s pollutant emissions on haze in 

Olympic National Park and other areas. EPA has allowed Wenatchee to escape BART 

requirement through the use of an inappropriate model that does not accurately reflect 

Wenatchee’s impact on the Alpine Lakes Wilderness. EPA’s proposed decisions for these 

 

17 See, e.g., the BAAQMD’s information on flare minimization: 

http://www.baaqmd.gov/Divisions/Compliance-and-Enforcement/Refinery-FlareMonitoring.aspx.