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 20, 2014

Comments Via Electronic Mail

Email: R10-Public_Comments@epa.gov

Mr. Steve Body EPA Region 10 Office of Air, Waste and Toxics (AWT-107) 1200 Sixth Avenue, Suite 900 Seattle, WA 98101

Re: Docket No. EPA-R10-OAR-2010-1071 Approval and Promulgation of Implementa tion Plans; State of Washington; Regional Haze State Implementation Plan ; Federal Implementation Plan for Best Available Retrofit Technology for Alcoa Wenatchee

Dear Mr. Body:

On behalf of the National Parks Conserva tion Association (“NPCA”), we submit these comments on EPA’s supplemental Federal Register notice concerning the Washington Regional Haze State Implementation Plan (“SIP”), 78 Fed. Reg. 79,344 (Dec. 30, 2013). In the supplemental notice, EPA announces the availabili ty of new information regarding the best available retrofit technology (“BART ”) determinations for Alcoa’s Intalco aluminum smelter and for the Tesoro oil refinery; EPA also proposes to find that the Alcoa Wenatchee smelter is subject to BART, and proposes a federal implemen tation plan containing BART limits for the Wenatchee facility. While we support EPA’s c onclusion that Alcoa Wenatchee is subject to BART, EPA should clarify some of the supporting calculations, and improve the monitoring and enforceability of the emissions limits. Finall y, we reiterate and incorporate by reference our prior comments opposing the proposed BART dete rminations for the Intalco and Tesoro

facilities. 1

I. THE PROPOSED BART DETERMINATI ON FOR TESORO IS INCONSISTENT

WITH THE REGIONAL HAZE STATU TE AND APPLICABLE REGULATIONS.

In the prior Federal Register notice, EPA proposed to approve past SO2 reductions at

seven non-BART units at Tesoro as an alternat ive to NOx BART controls at the five units subject to BART. 2 The supplemental notice announces th e availability of new visibility

1 Letter from Janette Brimmer, Earthj ustice to Steve Body, EPA (Feb. 15, 2013).

2 77 Fed. Reg. 76,174, 76,196 (Dec. 26, 2012).Mr. Steve Body February 20, 2014 Page 2

modeling of the proposed bette r than BART alternative. 3 In our comments on the prior, proposed rule, we criticized EPA for proposing to approve a BART alternative without first conducting visibility modeling. While we co mmend EPA for commissioning the visibility modeling, the better-than-BART alte rnative still suffers from the same legal flaws. The statute forbids EPA from authorizing an alternative to BART where the alternative fails to generate surplus emissions reductions. Here, past SO2 re ductions undertaken in order to comply with other provisions of the Clean Ai r Act (“CAA”) were improperly used as an alternative to NOx

BART reductions. If the NOx c ontrols are not required as BART, they should be required as reasonable progress controls.

A. The Clean Air Act forbids EPA from allo wing a source to escape BART controls without securing a va lid exemption.

The proposed BART alternative is unlawful because the plain language of the CAA mandates that each SIP “contain such emission limits, schedules of compliance and other measures as may be necessary to make reasonab le progress toward meeting the national goal [of attaining natural visibility c onditions] . . . including” BART. 4 The statute provides that EPA’s regulations “shall require” each SIP to contain various elements, and those elements must include BART. The statute specifies the only ci rcumstances in which EPA may exempt a source from BART, and those circumstances do not apply here. 5 Further, the CAA provision that allows some limited exemptions from BART make s plain that the exemp tion is available only upon EPA’s determination that the source does not, or will not, by itself or in combination with other sources, emit an air pollutant which is anti cipated to cause impairme nt of visibility in a

Class I area. 6 EPA may exempt a facility from the source-specific BART requirements of the CAA only where the Federal Land Managers co ncur with the EPA determination of an exemption. We are not aware of any such concur rence from the Federal Land Managers here.

In short, the statute instructs states to i ssue SIPs requiring BART, and provides a process for exempting a source from BART. The statut e does not authorize EPA to allow a source to escape its BART obligations other th an through the exemption process.

B. Even if a BART alternative were permi ssible, the past SO2 reductions required by another CAA program are not surplus emi ssions reductions available for use as a

BART alternative.

Even if it were lawful for EPA to approve an alternative to BART, EPA’s proposed determination does not satisfy its own legal test for a BART alternative, 40 C.F.R. § 51.308(e)(2)-(4). The past SO2 redu ctions are not eligible to be a BART alternat ive because the

3 78 Fed. Reg. at 79,354.

4 42 U.S.C. § 7491(b)(2)(A).

5 Id. § 7491(c).

6 Id. § 7491(c)(1).Mr. Steve Body February 20, 2014 Page 3

regional haze rule requires any al ternative to be “surplus to those reductions resulting from measures adopted to meet requirements of th e CAA as of the baseline date of the SIP.” 7 It is our understanding that the past SO2 re ductions at Tesoro were undert aken to comply with the PSD provisions of the Clean Air Act. Accordingl y, the past SO2 reductions achieve no surplus reductions and are not eligible to be a BART alternative under 40 C.F.R. § 51.308(e)(2)(iv).

Furthermore, the proposed BART alternative is inconsistent with prior EPA comments suggesting that reductions at non-BART units that were undertaken in order to ensure compliance with the NAAQS cannot be traded for reductions at BART units. When Wisconsin was developing its regional haze SIP, EPA cr iticized proposed trading between BART and nonBART units at the same facility. 8 In support of its objections, EPA relied on guidance developed for the economic incentives program (“EIP”), wh ich 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 we ll as reductions included in the relevant SIP. 9

EPA should object to the proposed BART alterna tive at Tesoro for the same reasons that it objected to the proposal in Wisconsin. The pa st sulfur dioxide emissions requirements have been incorporated into the Wa shington SIP and relied upon in or der to meet CAA requirements outside of the regional haze program, and ther efore the past SO2 reductions are not “surplus” within the meaning of the EIP. Therefore, Tesoro’s past SO2 emissions reductions are not surplus for purposes of the BART requirements and are not available to satisfy the NOx BART requirements. Furthermore, BART is a polluta nt-specific requirement and failing to control emissions of a pollutant woul d significantly weaken BART determinations and the haze

program.

C. NOx controls should be imposed as reasonable progress controls if they are not required as BART.

If EPA approves the prior SO2 reductions at Tesoro’s non-BART units as an “alternative” to BART, EPA should still require un it-specific NOx controls on the five units as reasonable progress controls. EP A considers four factors for th e purposes of reasonable progress controls: the cost of compliance, the time n ecessary for compliance, energy and non-air quality environmental impacts of compliance, and the remaining useful life of the source. 10 All four factors weigh in favor of finding that the NOx limits are reasonable pr ogress controls: the

7 40 C.F.R. § 51.308(e)(2)(iv).

8 Letter from Cheryl L. Newt on, EPA Region 5 to Bill Bauman n, Wisconsin Department of Natural Resources (Sept. 16, 2011), attached Comments at 3; see also 77 Fed. Reg. 11,928, 11,934 (Feb. 28, 2012).

9 EPA, Improving Air Quality with Ec onomic Incentive Programs at 35 (2001), available at http://www.epa.gov/ttn/oarpg/ t1/memoranda/eipfin.pdf.

10 42 U.S.C. § 7491(g)(1).Mr. Steve Body February 20, 2014 Page 4

technologies are cost-effective; a reasonable compliance deadline can be established; there are no significant energy and non-air qu ality environmental impacts fr om these technologies; and the remaining useful life of these units does not weigh against impos ing these controls. 11
Additionally, the NOx controls s hould be required as reasonable progress measures because none of Washington’s Class I areas is on track to meet EPA’s presum ptive goal of attaining natural visibility conditions by him 2064. 12

II. EPA SHOULD STRENGTHEN THE MONITORING AND ENFORCEABILITY

PROVISIONS OF THE WENATC HEE BART DETERMINATION.

We support EPA’s conclusion that the Alcoa Wenatchee smelter is subject to BART. However, EPA should clarify or strengthen seve ral elements of the proposed BART limits for

the Alcoa Wenatchee smelter. Fi rst, there appears to be a disc repancy between the baseline SO2 emissions and emissions reduced through LFSO at Po tline 5. The Federal Register notice states

that Potline 5 has a baseline emission s rate of 1000.8 tons of SO2 per year. 13 However, the supporting BART analysis appears to assume th at an LFSO scrubber could reduce emissions by 1955 tons per year, 14 which would be greater th an the annual, baseline em issions. If there is not some legitimate reason for the discrepancy, we ur ge EPA to ensure that baseline emissions and the potential emissions reductions are compatible. 15

Second, EPA should consider ways to monito r and make more easily enforceable the proposed BART emissions limits. Most of the un its at Alcoa Wenatchee do not have continuous emissions monitoring systems (“CEMS”), and for many of the units, EPA is proposing limits

based on the content of the fuel or emissions per unit of production. We believe that the approach most likely to lead to actual emissions reductions and to im prove visibility is to require

CEMS and set limits on actual emissions. The discussion below focuses on the two units—the anode bake furnace and Potline 5—that are respon sible for most of the emissions from Alcoa

Wenatchee.

For the anode bake furnace, EPA estima tes a CEMS would cost approximately $40,000, 16
which is a reasonable amount given that the anode bake furnace em its approximately 250 tons of

11 See Letter from Don J. Sorensen, Tesoro to Phyllis Baas, Washington Department of Ecology (Feb. 8, 2008).

12 Washington SIP submittal, Table 9-4 at p. 9-38.

13 78 Fed. Reg. at 79,349 (Table 1).

14 EPA, Alcoa Wenatchee LSFO Cost Analys is—FINAL, Docket ID No. EPA-R10-OAR-2010-

1071-0099.

15 Additionally, EPA provided a PDF of the L FSO analysis, rather than providing the spreadsheet. We urge EPA to provide the spreadsh eet in the future so that commenters are better able to evaluate EPA's analysis.

16 EPA, Alcoa Wenatchee LSFO Cost Analys is—FINAL, Docket ID No. EPA-R10-OAR-2010-Mr. Steve Body February 20, 2014 Page 5

SO2 per year. 17 Furthermore, instead of limiting the su lfur content of the coke, EPA could limit the tons of SO2 emitted per month based on the produc tion capacity of the unit. With respect to NOx emissions, 18 EPA should limit NOx emissions per month, based on the production capacity, rather than setting the limit based on a fuel requirement. Setting a limit on actual emissions furthers the statutory goal of improving visibility, whereas a li mit on fuel content can lead to higher emissions if the unit increases production. This is a concern give n the statement in the record that if production at Alcoa’s Intalco smelter becomes unaffordable, Alcoa may shift production to other smelters, which could include the Wenatchee smelter. 19 We support EPA’s proposal to lower the existing PM limit to .01 gr/dsc f. However, we note that recent test data indicates that the facility ha s been, and could, meet an even lower PM limit of .005 gr/dscf. 20

For Potline 5, EPA proposes a BART limit e xpressed as pounds of SO2 per ton of aluminum produced, per month. 21 Potline 5 has the highest SO2 emissions of any BARTeligible unit at the Wenatchee facility, 22 but it does not currently have a CEMS. To gather more accurate data on the unit’s actual missions, and to ensure compliance with any emissions limit, EPA should require installation of a CEMS and express the emissions limit in terms of SO2 emitted per month, as a rolling 30-day average. Additionally, the NOx emission limit is based

on an emissions factor from Alcoa’s Intalco f acility, and the data supporting that emissions factor do not appear to be in the record. 23 EPA should either make publicly available the data supporting the emissions factor or require periodic st ack tests in order to verify the unit’s emissions. Finally, we support retaining the existing PM limit of .005 gr/dscf.

CONCLUSION

We adopt and incorporate by reference our comments on the prior proposal explaining

that the BART determination for Alcoa’s Intalco facility is unlawful. Likewise, EPA’s proposal to approve a BART alternative at Tesoro is in consistent with the stat utory command to require BART and is inconsistent with EPA guidance on which emissions reduc tions qualify as surplus

reductions that can be used in lieu of re quiring BART. Even if EPA approves the BART alternative for Tesoro, NOx controls should be re quired as reasonable prog ress controls. Finally,

1071-0099.

17 78 Fed. Reg. at 79,349.

18 Id.

19 Id. at 79,354.

20 PM Test Results Ecology Data Summar y, Docket ID No. EP A-R10-OAR-2010-1071-0156 at 3 (noting that every test sample, except fo r one, indicated emissions below .005 gr/dscf).

21 78 Fed. Reg. at 79,352.

22 Id. at 79,349.

23 Alcoa, Cover e-mail and Alcoa Comments 10- 17-2013 at p. 2, Docket ID No. EPA-R10-OAR2010-1071-0159.