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 Implementation 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 Conservation 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 availability 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 implementation plan containing BART limits for the 

Wenatchee facility. While we support EPA’s conclusion 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. Finally, we reiterate and incorporate by reference our 

prior comments opposing the proposed BART determinations for the Intalco and Tesoro 

facilities.1

 

I. THE PROPOSED BART DETERMINATION FOR TESORO IS INCONSISTENT 

WITH THE REGIONAL HAZE STATUTE 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 alternative to NOx BART controls at the five units 

subject to BART.2

 The supplemental notice announces the availability of new visibility 

 

1

 Letter from Janette Brimmer, Earthjustice 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 better 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 commend EPA for commissioning the visibility 

modeling, the better-than-BART alternative 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 reductions undertaken in order to comply with 

other provisions of the Clean Air Act (“CAA”) were improperly used as an alternative to NOx 

BART reductions. If the NOx controls are not required as BART, they should be required as 

reasonable progress controls. 

A. The Clean Air Act forbids EPA from allowing a source to escape BART controls 

without securing a valid 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 reasonable progress toward meeting the national goal [of 

attaining natural visibility conditions] . . . 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 circumstances 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 makes plain that the exemption 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 anticipated to cause impairment 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 concur with the EPA determination of an 

exemption. We are not aware of any such concurrence from the Federal Land Managers here. 

In short, the statute instructs states to issue SIPs requiring BART, and provides a process 

for exempting a source from BART. The statute does not authorize EPA to allow a source to 

escape its BART obligations other than through the exemption process. 

B. Even if a BART alternative were permissible, the past SO2 reductions required by 

another CAA program are not surplus emissions 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 reductions are not eligible to be a BART alternative 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 alternative to be “surplus to those reductions resulting from 

measures adopted to meet requirements of the CAA as of the baseline date of the SIP.”7

 It is our 

understanding that the past SO2 reductions at Tesoro were undertaken to comply with the PSD 

provisions of the Clean Air Act. Accordingly, 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 criticized 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”), which 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.9

 

EPA should object to the proposed BART alternative at Tesoro for the same reasons that 

it objected to the proposal in Wisconsin. The past sulfur dioxide emissions requirements have 

been incorporated into the Washington SIP and relied upon in order to meet CAA requirements 

outside of the regional haze program, and therefore 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 pollutant-specific requirement and failing to control 

emissions of a pollutant would 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 unit-specific NOx controls on the five units as 

reasonable progress controls. EPA considers four factors for the purposes of reasonable progress 

controls: 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.10 All four 

factors weigh in favor of finding that the NOx limits are reasonable progress controls: the 

 

7

 40 C.F.R. § 51.308(e)(2)(iv). 

8

 Letter from Cheryl L. Newton, EPA Region 5 to Bill Baumann, 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 Economic 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 quality environmental impacts from these technologies; and the 

remaining useful life of these units does not weigh against imposing these controls.11 

Additionally, the NOx controls should be required as reasonable progress measures because none 

of Washington’s Class I areas is on track to meet EPA’s presumptive goal of attaining natural 

visibility conditions by him 2064.12 

II. EPA SHOULD STRENGTHEN THE MONITORING AND ENFORCEABILITY 

PROVISIONS OF THE WENATCHEE BART DETERMINATION. 

 We support EPA’s conclusion that the Alcoa Wenatchee smelter is subject to BART. 

However, EPA should clarify or strengthen several elements of the proposed BART limits for 

the Alcoa Wenatchee smelter. First, there appears to be a discrepancy between the baseline SO2 

emissions and emissions reduced through LFSO at Potline 5. The Federal Register notice states 

that Potline 5 has a baseline emissions rate of 1000.8 tons of SO2 per year.13 However, the 

supporting BART analysis appears to assume that an LFSO scrubber could reduce emissions by 

1955 tons per year,14 which would be greater than the annual, baseline emissions. If there is not 

some legitimate reason for the discrepancy, we urge EPA to ensure that baseline emissions and 

the potential emissions reductions are compatible.15

Second, EPA should consider ways to monitor and make more easily enforceable the 

proposed BART emissions limits. Most of the units 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 improve 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 responsible for most of the emissions from Alcoa 

Wenatchee. 

For the anode bake furnace, EPA estimates a CEMS would cost approximately $40,000,16

which is a reasonable amount given that the anode bake furnace emits 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 Analysis—FINAL, Docket ID No. EPA-R10-OAR-2010-

1071-0099. 

15 Additionally, EPA provided a PDF of the LFSO analysis, rather than providing the 

spreadsheet. We urge EPA to provide the spreadsheet in the future so that commenters are better 

able to evaluate EPA's analysis. 

16 EPA, Alcoa Wenatchee LSFO Cost Analysis—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 sulfur content of the coke, EPA could limit 

the tons of SO2 emitted per month based on the production 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 limit on fuel content can lead to 

higher emissions if the unit increases production. This is a concern given 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/dscf. However, we note that recent test data 

indicates that the facility has been, and could, meet an even lower PM limit of .005 gr/dscf.20

For Potline 5, EPA proposes a BART limit expressed 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 facility, 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 stack 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 inconsistent with the statutory command to require 

BART and is inconsistent with EPA guidance on which emissions reductions qualify as surplus 

reductions that can be used in lieu of requiring BART. Even if EPA approves the BART 

alternative for Tesoro, NOx controls should be required as reasonable progress controls. Finally, 

 

1071-0099. 

17 78 Fed. Reg. at 79,349. 

18 Id.

19 Id. at 79,354. 

20 PM Test Results Ecology Data Summary, Docket ID No. EPA-R10-OAR-2010-1071-0156 at 

3 (noting that every test sample, except for 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.