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October 10,2012 wRrrER,s DrREcr LINE

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rstoll@loley.com EMAIL

FOLEY & LARDNER LLP

Vrn fl¡,r.¡o DFr,rv4nv nnu E-MAIL

Ms. Lisa Jackson

Administrator, U.S. EPA

Room 3000, Ariel Rios Building

1200 Pennsylvania Avenue, N. W.

MailCode: ll0lA

Washington,DC 20460

Re: Petition for Reconsiderdtion Under Clean Air Act Q307(d),(7)(B)

Dear Ms. Jackson:

On behalf of my client Dyno Nobel Inc., I am filing the enclosed "Petition for

Reconsideration of the Final Rule forNew Source Performance Standards forNitric Acid Plants,"

whioh was published at77 Fed. Reg. 48433, Aug.14,2012.

You will see that I am copyin g (vía e-mail) varíous personnel in your Office of Air and

Radiation and Office of General Counsel. We look forward to meeting with those personnel in

hopes that appropriate revisíons to the final rule might be secured.

Very truly yours,

Richard G. Stoll

cc: (via e-mail)

Ms. Gina McCarthy

Mr. Peter Tsirigotis

Mr. Nathan Topham

Mr, Steve Fruh

Mr. Scott Jordan

A-and-R Docket No. EPA-HQ-OAR-201 0-0750

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Docket No. EPA-HQ-OAR-2010-0750

77 Fed. Reg. 48433, August 14,2012

I. Introduction

Pursuant to clean Air Act section 307(d)(7)(B), Dyno Nobel Inc, ("DNI")

petitions the EnvironmentalProtection Agency ("EPA") to reconsider portions of

EPA's "New Source Performance Standards Revíew for Nitric Acid Plants,"

published as a final rule in the Federal Register on August 14,2012. See 77 Fed.

Reg.48433 (Aug. 14,2012). Iü/e will hereafter refer to this rule as the "NAP

Rule."

DNI is a supplier of industrial explosives and blasting services

headquartered in Salt Lake City, Utah. DNI owns and operates several nitric acid

plants ("NAPs") in the United States that are subject to regulation under the NAP

Rule.

The NAP Rule (codified in 40 c.F,R, part 60, subpart Ga) establishes a

nitrogen oxide ("NOx") limit of 0.50 lb/ton of nitric acid produced, as a 30-day

emission rate calculated based on 30 consecutive operating days, This NOx limit

applies not only to "new" nitric acid plants, but also to any modifìcation or

reconstruction commencing after October 14,2011. The 0.50 lb/ton limit is based

on data showing such a standard is achievable by NAPs using selective catal¡ic

reduction ("SCR") to control NOx.

DNI is a member of The Fertilizer Institute (TFI), and DNI representatives

participated actively in the TFI advocacy on the NAP Rule, including TFI's written

comments of November 28,201 1 and followup submissions. In particular, DNI

provided significant input into the portions of the TFI comments dealing with nonselective catal¡ic reduction ("NSCR") technology, and the inappropriateness of

applying a 0.50 lb/ton limit to modifications and reconstructions at NAPs that

utilize NSCR technology (hereafter, "NSCR NAPs").
II. TFI's Comments on Proposed NAP Rule

EPA proposed the 0.50 lb/ton limit for all NAPs (both SCR and NSCR,

including modifications and reconstructions), on October 14,2011,76 Fed. Reg.

63878. In the TFI comments of November 28,2011, we made the following

points:

1. EPA stated in its proposed NAP Rule that it was "uncertain" whether

NSCR NAPs could meet the 0.50 lblton limit, as EPA had not reviewed any CEMS

data showing that any (much less an appropriate representative sample) NSCR

NAPs could meet the 0.50 lblton limiü

2. EPA had not evaluated additional steps NSCRNAPs undergoing

modifications/reconstructions would need to take to meet the 0.50 lb/ton limit, how

such steps could affect operations and emissions, and the compliance costs of such

steps;

3, EPA could not legally assume CAA g I l l "achievability" of the 0.50

lbiton limit for NSCR NAPs undergoing modification/reconstruction based on data

from SCR NAPs, as there are significant and fundamental differences between

NAPs using the two different technologies, More particularly, TFI explained in

some detail:

The atypical nature of the Test Plants is at its starkest when compared to

NAPs (typically older plants) that employ NSCR. Not only do none of the

Test Plants use NSCR, but, as EPA long ago recognized, NSCR is not an

end of the pipe controltechnology, as some would describe SCR.

Rather, a NAP that employs NSCR is designed differently because the

NSCR is built into, and is an integral part of, the operation of the NAp,

particularly in terms of heat balance and energy generation for other parts

of the NAP. NAPs with an NSCR must keep temperatures elevated in

order to create the reductive environment within the unit that eliminates

both Nox and Nzo, In order to ensure that temperatures and pressures are

adequate for this reductive environment, the NSCR is placed upstream of

the tail gas expander. These expanders will malfunction above the

temperatures they are designed to handle, and because NSCR reactions are

extremely exothermic, any increased NOx destruction and associated

temperature increases related thereto could cripple the expander, and thus,

the entire NAP, The Test Plants do not face these conditions, limitation or

the ability to modify their operations, or their attendant ímpacts on

emissions.
The foregoing conclusively showed, in TFI's view, that EPA could not meet

the mandates of Nøf 'l Lime Ass'n v. EPA,627 F,2d 416 (D.C. Cir. 1980)

and Sierra Club v. Costle,657 F.3d 298 (D.C, Cir. l98l) requiring that the data

relied upon in setting an NSPS must be sufficiently'orepresentative of potential

industry-wide performance." Id. at377. TFI accordingly urged EPA to establish a

separate standard for NSCR NAPs undergoing modifì ation or reconstruction.

III. EPA's Final R

Mo d i fica ti ons/Reco n stru ctio ns

In the final rule, EPA rejected TFI's request for a separate limit for NSCR

NAPs undergoing modifications or reconstructions. In rejecting TFI's request,

EPA offered no substantive response to the second and third basic points TFI had

raised in its comments summarized above.

That is, EPA made no effort to analyze and account for the impacts and costs

of NSCR NAPs having to comply with the 0.50 lb/ton limit when undertaking

modifications or reconstructions, in response to TFI's second basic point. And

EPA offered no response to TFI's third basic point about the significant and

fundamental differences between SCR and NSCR NAPs which affect NSCR

NAPs' ability to comply with the 0,50 lb/ton limit if undertaking a modification or

reconstruction,l

Rather, EPA's entire rationale for refusing TFI's request is that EPA now

believes NSCR NAPs (or "at least some" of them) can meet the 0.50 lb/ton limit.

As EPA explained:

Although the limit of 0,50 lb NOX/ton acid is based on

the data for SCR, NSPS do not require the use and installation of a

specific control device, Whether NSCR can meet the levels achievable by

SCR over a long term was an area of uncertainty at proposal. At

proposal, the long term CEMS data from 2 NSCR plants (PCS Ceismar

Train 4 and Agrium Sacramento) indicated that neither plant was

achieving the 0.50 lb NOX/ton limit. After proposal, we evaluated

I EPA reprinted this portion of the TFI comments in its RTC as "Comment 5.1," on page

20, But in its "Response to Comments 5.1-5.5" on pages 23-24 of the RTC, EPA responds to

several points but not TFI's point set forth in part 3 above.
continuous NOX emission data from Dyno Nobel-St Helens

(which uses NSCR) that showed a maximurn 30 day emission rate of 0.21

ib NOX/ton acid, Also, we had monthly data from JR Simplot

(another nitric acid plant with NSCR) that ranged from 0.15 to 0.36 lb

NOX/ton acid. Although the data from JR Simplot are not

directly comparable to continuous NOX emission data (hour by

hour), there is a strong probability that this source also could comply

with 0.50 lb NOX/ton acíd. Therefore, we conclude the

standard of 0.50 lb NOX/ton acid limit is achievable for at

least some NAPs using NSCR.

77 Fed. Reg. at 48436-7,

Thus, EPA resolved the issue over whether it believed NSCR NAPs could

meet the 0.50 lb/ton limit by reliance on CEMS data it evaluated "after proposal"

of the NAP Rule. This data is from one of DNI's NAPs, and is the only hourly

CEMS data that shows compliance with the 0.50 lb/ton limit by a NSCR NAP.

The only other information cited by EPA is monthly data from a JR Simplot NAP

that in EPA's (unexplained) opinion created a "strong probability" that NAP could

comply with the 0,50 lb/ton limit.

IV. ReconsideratÍon Is Necessarv In This SituatÍon

Section 307(dX7XB) of the CAA provides that EPA shall grant

reconsideration when the petitioner:

[C]an demonstrate to the Administrator that it was

impracticable to raise [an] objection [during the period

for public comment] or if the grounds for such objection

arose after the period for public comment ... and if such

objection is of central relevance to the outcome of the

rule.

The standards for reconsideration are most clearly met in this situation.

First, neither DNI, TFI, nor any interested party had any notice whatever from the

proposed NAP rule that EPA would utilize CEMS data from DNI's Oregon plant

as the primary basis for supporting the NAP Rule's application to NSCR NAPs and

rejecting our request for a separate limit, As EPA most clearly states in its final

preamble, EPA evaluated this data "after proposal."
If EPA had included this data and rationale in its proposed rule, DNI, TFI,

and others would have had the opportunity to file comments showing that the DNI

Oregon plant is for several key reasons not representative of overall industry

performance among U.S. NSCR NAPs. We will explain this in Section V below.

Thus, as contemplated by CAA $307(dX7)(B), the grounds for our objection

"arose after the period for public comment,"

Second, as contemplated by CAA $307(dX7)(B), our objection is most

certainly "of central relevance to the outcome." We will explain in Section V

below that the DNI Oregon plant is far from representative of overall industry

performance among U.S. NSCRNAPs. This means that the only hourly CEMS

data showing a NSCR NAP in compliance with the 0.50 lb/ton limit is not

representative, and accordingly shows how the NAP rule is arbitrary and

capricious as it applies to NSCR NAPs under CAA $ I I I and the D.C. Circuit case

law referenced above.

V. The DNI Oregon Blant Is Not Renresentative Of Overall Jndustrv

Performance Among U.S. NAPs

The Dyno Nobel Oregon NAP is not representative of NSCR NAPs

throughout the United States for at least three significant reasons: First, it is a very

smallplant, Second, the NAP was purposely built for the sole function of

scrubbing emissions from an on-site urea plant-it was not designed to be

sustainable as a NAP ín its own right. Third, the fuel to the NSCR reactor is

unusual. Each of these reasons is discussed in detail below.

A. Plant SÍze

The Oregon NAP produces only 70 tons of nitric acid per day, This facility

may be the smallest NAP in the United States. In contrast, the next smallest plant

operated by DNI is 1.78 times bigger. The largest plant operated by DNI is more

than7.5 times bigger. Further, DNI operates small facilities when compared to the

rest of the industry: World scale NAPs typically produce more than 1000 tons of

nitric acid per day, Thus, extrapolating results from the Oregon NAP to the rest of
the industry is tantamount to conducting experiments on a laboratory scale and

surmising the results would apply to an industrial scale plant.'

A number of factors may favor the small scale facility that may not apply to

the typical NSCR NAP. For example, the geometry and relative condensate flow

rate in the absorber tower should favor better NOX absorption. Additionally, the

flow to the NSCR Reactor should result in better mixing of reactants in a way that

cannot be duplicated at a larger scale.

B. Purposely Built as a Pollution Control Device

The Oregon NAP was built as a control device coupled to the urea plant. No

nitric acid is produced for sale. The urea plant on the site (which is the commercial

reason for the existence of the DNI Oregon facility) produces tail gas consisting of

relatively low purity ammonia. Nitric acid is produced to react with the low purity

ammonia, forming ammonium nitrate and ensuring that the ammonia in the tail gas

stream is not vented to the environment. The urea plant cannot operate at full rate

without the small NAP being on-line.

Thus, the nitric acid plant functions without regard to maximizing acid

purity or production rate. It accordingly has relative vessel sizes and flow rates

that would never be duplicated ín a typical NSCR l.tAP which is designed for

commercial acid production. We believe this pollution control device function is

unique among NAPs in the U.S.

C. Unusual Fuel

By far the most significant difference between the Oregon NAP and any

other NSCR NAP of which we are aware is that purge gas from the on-site

ammonia plant is used as fuel. As the Oregon ammonia plant is small, recovering

hydrogen from its purge gas is uneconomic. Thus, the fuel flowing to the NSCR

reactor is 65%o hydrogen,

2 Simplot's CAA Section I l4 response (in the docket for the NAP Rule) indicates that the

Simplot Helm plant ís rated at 280 TPD and its average production is 231 TPD. Thus, this facility (for

which EPA has no hourly CEMS data) is also smaller than the typical NSCR NAP facility,.
In contrast, four of the sev€n NSCR NAPs operated by DNI utilize methane

as fuel, as is the common industry practice, The remaining two NSCR NAPs use

an ammonia plant purge gas stream, but in those situations the stream has been

stripped of hydrogen-this purge gas is only I 2%o hydrogen. (These situations

involve large ammonia plants, unlike the Oregon plant. It is important for large

ammonia plants to recover and use the hydrogen in the purge gæ because it

significantly contributes to the long term sustainability of these ammonia plants.)

The Oregon plant is thus unique among all of DM's NSCR NAPs in its use

of hydrogen-rich fuel and so far as we know, is unique in this manner among all

U.S. NSCR NAPs. The use of hydrogen for fuel in an NSCR NAP will produce

significantly lower NOx emissions for several reasons,

First, hydrogen will ignite in the NSCR reactor at 450oF. Methane (the

major component of natural gas) will not ignite until the reactor inlet temperature

reaches 900"F, This is significant because the NSCR reactor outlet temperature

must be held below 1250"F in order to ensure that downstream equipment

(particularly the hot gas expander) is not damaged by the heat. Heat is generated

in the NSCR reactor by the combustion of oxygen remaining in the tail gas. The

maximum allowable oxygen content for a NAP utilizing natural gas in the NSCR

reactor is 1.2% (the outlet temperature increases 250"F lo/oO2). Conversely, a

hydrogen fueled NSCR reactor operating at a 450oF inlet temperature can tolerate

3Yo oxygen in the tail gas. This is significant because the hìgher oxygen

concentration drives the conversion of NO to NO2 in the absorber, The NO2 is

absorbed in water to form nitric acid, resulting in lower NOx levels at the inlet of

the NSCR reactor and, thus, lower outlet NOx.

In addition, the reaction kinetics are more favorable when hydrogen-rich fuel

is used. As explained in Johnson-Matthey's abatement catalyst application

literature: "The catalyst formulation is particularly important when methane is used

as the reductant because the methane molecule is difficult to oxidize due to its high

stability." Johnson-Matthey, Application Fact Sheet, Case No. 601: Nitric Acid

Plant NOx Abatement, at 4-5 (2006),located at http:/iect.ir.n%talysts.com/pdfslibrarylApplicationo/o20F-actYo20Sheeto/o29601%20-
To summarize, plants that must use natural gas as fuel to the NSCR reactor

are penalized by thermodynamics and kinetics. They simply cannot be compared

to a highly unique plant like the DNI Oregon plant that utilizes a stream rich in

hydrogen for fuel.

V. Conclusion

For all the foregoing reasons, we request that EPA grant reconsideration of

the NAP Rule as it applies to modifications and reconstructions of NSCR NAPs.

R espectfully submitted,

Richard G. Stoll

Foley & Lardner LLP

Washington Harbour

3000 K Street, NW

Suite 500

rWashington, DC 20007 -5109

Phone: 202-295-4021

Fax: 202-672-5399

E-mail: rstoll@foley.com

Counsel to DNI

Dated: October 10,2012