Approval and Promulgation of Air Quality Implementation Plans; Idaho Amalgamated Sugar Company Nampa BART Alternative

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a revised Best Available Retrofit Technology (BART) determination for The Amalgamated Sugar Company, LLC (TASCO) facility, located in Nampa, Idaho. On June 22, 2011, the EPA approved Idaho's regional haze state implementation plan (SIP), including its BART determination for the TASCO facility, as meeting the visibility protection requirements of the Clean Air Act (CAA). On June 29, 2012, the State submitted a regional haze SIP revision, including a new BART determination for the TASCO facility that consisted of a stricter emission limit for oxides of nitrogen (NO_X), a stricter emission limit for particulate matter (PM), and an alternative control measure (BART Alternative) to replace the previously approved BART determination and emission limit for sulfur dioxide (SO₂). The EPA is fully approving this SIP revision.

DATES:

Effective Dates: This final rule is effective May 28, 2014.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2010-0581. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the State and Tribal Air Programs Unit, Office of Air Waste and Toxics, EPA Region 10, 1200 Sixth Avenue, Seattle, WA 98101. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Steve Body, EPA Region 10, Suite 900, Office of Air, Waste and Toxics, 1200 Sixth Avenue, Seattle, WA 98101. The phone number is (206) 553-0782 and email at body.steve@epa.gov.

SUPPLEMENTARY INFORMATION:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act, CAA, or Clean Air Act mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words Idaho and State mean the State of Idaho.

Table of Contents

I. Background Information

II. Response to Comments

III. Final Action

IV. Statutory and Executive Orders Review

I. Background Information

In the CAA Amendments of 1977, Congress established a program to protect and improve visibility in the national parks and wilderness areas. See CAA section 169A. Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze. See CAA section 169B. The EPA promulgated regional haze regulations (hereafter the “RHR”) in 1999 to implement sections 169A and 169B of the CAA. These regulations require states to develop and implement regional haze SIPs to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas (Class I areas). 64 FR 35714 (July 1, 1999); see also 70 FR 39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).

The RHR requires each state's regional haze SIP to contain emission limitations representing BART and schedules for compliance with BART for each source subject to BART, unless the state demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions. A state may opt to implement or require participation in an emission trading program or other alternative measure rather than require sources subject to BART to install, operate, and maintain BART.

On April 16, 2007, Idaho submitted to the EPA for approval, new and revised rules that provide the Idaho Department of Environmental Quality (IDEQ) the regulatory authority to address regional haze and to implement BART. The EPA approved these rules on June 9, 2011. 76 FR 33651. Idaho submitted to EPA a regional haze SIP to meet the requirements of 40 CFR 51.308 on October 25, 2010 (2010 RH SIP). The 2010 RH SIP covered the planning period from 2008 through 2018 and, among the other required elements, included a BART determination for the TASCO facility. On June 22, 2011, the EPA approved the BART-related provisions of Idaho's 2010 RH SIP, including the final BART determination for the TASCO facility. 76 FR 36329. That approval incorporated by reference the September 7, 2010 TASCO Tier II Operating Permit No. T2-2009.0105 (2010 TASCO Tier II Operating Permit) that contained the BART emission limits for the TASCO facility. On November 8, 2012, the EPA took final action to approve the remaining elements in the 2010 RH SIP. 77 FR 66929. Thus, Idaho's 2010 RH SIP is fully approved.

On June 29, 2012, Idaho submitted revisions to the 2010 RH SIP that address BART for the fossil fuel-fired Riley boiler at the TASCO facility (2012 RH SIP). The 2012 RH SIP contains: A revised NO_X BART determination with a more stringent NO_X emission limit; a more stringent PM BART emission limit; and a BART Alternative to replace the federally approved SO₂ BART determination. In addition to the more stringent NO_X and PM emission limits for the Riley boiler, the BART Alternative relies on control of NO_X emissions from two non-BART-eligible boilers at the TASCO facility. The BART Alternative also takes into account emission reductions resulting from the permanent shutdown of three coal-fired pulp-dryers. The revised NO_X BART determination and emission limitation, more stringent PM emission limitation, and the BART Alternative are contained in a revised Tier II Operating Permit, T2-2009.0105, issued to TASCO on December 23, 2011 (2011 TASCO Tier II Operating Permit). Idaho included the permit as part of the 2012 RH SIP. On June 28, 2013, 78 FR 38872, EPA proposed to approve the revised NO_X BART determination and emission limitation, to approve the revised PM BART emission limitation, to vacate the previously approved SO₂ BART determination, and to approve the BART Alternative. Additional details regarding the revisions are explained in the June 28, 2012 Federal Register notice and in Idaho's 2012 RH SIP. As explained below, the BART Alternative and revised permit result in greater reasonable progress toward natural visibility conditions than the improvement expected from the previously approved BART determination. Therefore, the EPA is taking final action to approve the 2012 RH SIP as proposed.

II. Response to Comments

We received one comment letter, from the National Park Service, on the proposed action. The comments can be summarized into three elements: (1) Whether selective catalytic reduction (SCR) is technically feasible; (2) whether the incremental cost of SCR was properly considered; and (3) whether the emission reductions from the permanent shutdown of three pulp dryers are surplus for purposes of the BART Alternative.

Comment: The commenter requests that the IDEQ and the EPA reconsider the original BART determination for the Riley boiler and evaluate the technical feasibility of selective catalytic reduction (SCR) or in the alternative, provide additional justification for why SCR was eliminated from consideration.

The commenter asserts that SCR is technically feasible and economically reasonable. In regards to the technical feasibility of SCR, the commenter argues that tail-end SCR (reheating an exhaust gas stream to proper temperature) has been in use around the world for decades. The commenter states that neither Idaho nor the EPA made any showing that tail-end SCR would not be technically feasible at TASCO. Instead, the EPA relied upon Idaho's analysis, which concluded: “[I]nstallation after the baghouse would not provide adequate exhaust temperature for SCR to function properly. . . . Thus, the 2012 RH SIP submittal finds that LNB is the only technically feasible NO_X control technology for the Riley Boiler.”

The commenter concludes that if the only issue preventing application of tail-end SCR at TASCO is temperature, then EPA should investigate the cost of reheating the gas stream—which is typical for tail-end SCR, turning the issue into one of economic feasibility. Neither Idaho nor the EPA addressed how the cost of reheating the gas stream impacts the economic feasibility of SCR.

Response: EPA disagrees with the commenter that SCR is BART for the Riley boiler. We do not think that it is necessary to evaluate Idaho's conclusion that the installation of SCR to the Riley boiler is technically infeasible in order to reach this conclusion. Assuming for the sake of argument that SCR is technically feasible, Idaho adequately demonstrated in its 2010 RH SIP that the high incremental cost-effectiveness and low incremental visibility improvement associated with SCR, when compared with low NO_X burners with overfire air (LNB/OFA), precluded SCR's selection as BART. Adjusting these calculations to take into account the stricter NO_X emission limit in Idaho's 2012 RH SIP would increase the incremental cost and reduce the incremental visibility improvement of SCR even further. Finally, if Idaho or EPA were to investigate the additional cost of reheating the gas stream, as the commenter suggests, the only possible result would be a conclusion that SCR is less economically feasible.

Comment: The commenter questions our reliance on the use of incremental costs (for determining cost-effective controls), which the commenter states are subject to manipulation by the introduction of invalid control strategies that bias the analysis against higher-performing control strategies. The commenter states that in this case, when the LNB/OFA option is eliminated due to technical infeasibility (as presented in the 2012 SIP), the incremental cost between SCR and LNB shrinks to $7,327/ton which, in its view, is not a significant enough incremental difference to justify rejecting SCR.

The commenter also claims that the EPA and Idaho have placed undue weight on incremental costs and states that because of the exponential nature of pollution control costs versus removal efficiency, incremental costs will always exceed average costs. The commenter further asserts that the EPA has provided no guidance on what an acceptable incremental cost might be, other than to say in the BART Guidelines:

The average cost (total annual cost/total annual emission reductions) for each may be deemed to be reasonable. However, the incremental cost (total annual cost A-B/total annual emission reductions A-B) of the additional emission reductions to be achieved by control B may be very great. In such an instance, it may be inappropriate to choose control B, based on its high incremental costs, even though its average cost may be considered reasonable. (Emphasis added by commenter)

The commenter provides examples from North Dakota and Oregon to support its claim that in this case, the incremental cost of SCR over LNB is $7327/ton (as calculated by the commenter), and this incremental cost, in combination of an average cost-effectiveness of $3768/ton, is reasonable.

Response: The BART Guidelines suggest that states calculate and consider incremental cost-effectiveness in combination with average cost-effectiveness when considering whether to eliminate a control option. 40 CFR part 51, Appendix Y, (IV)(D)(4)(e). However, as stated previously, BART determinations are based on the consideration of five factors, cost of compliance being only one of the five. The RHR requires that compliance costs be weighed, among other factors, against the visibility improvement achieved from each particular control technology.

Further, it appears that the commenter improperly calculated the incremental cost-effectiveness of SCR over LNB. The commenter reports a value of $7327/ton by using the original performance of LNB in the 2010 RH SIP, rather than the revised, more stringent NO_X emission limit in the 2012 RH SIP. The commenter's calculation appears to assume a 50% control efficiency for LNB with an emission reduction of 521 ton/yr from the base case of 1042 ton/yr. Using the revised emission limit of 147 lb/hr, the emission reduction from LNB is 632 ton/yr, and represents a control efficiency of 60%. When the incremental cost is calculated based on SCR cost and emission reduction compared to the original LNB costs and new LNB performance of 147 lb/hr, the incremental cost-effectiveness of SCR over LNB is $9982/ton.

The Oregon example provided in the comments, which states that, “Oregon DEQ established a cost/ton threshold of $7300/ton based upon the premise that improving visibility in multiple Class I areas warrants a higher cost/ton than where only one Class I area is affected.” does not demonstrate Idaho inappropriately considered cost of compliance. See footnote 1 of the comments. Additionally, as noted below in the discussion of visibility improvement, use of SCR over the proposed BART limit of 147 lb/hr would only provide for a 0.03 dv improvement on the 22nd best day over three years at the Class I area most impacted by TASCO. The commenter's examples do not demonstrate that Idaho's decision regarding cost-effectiveness is unreasonable.

Idaho determined that the cost effectiveness of SCR at $3768/ton is a reasonable cost for the TASCO facility. However, Idaho calculated the incremental cost of SCR over LNB/OFA at $10,245/ton and determined that the cost for an additional 15% increase in removal efficiency is relatively high. See 2010 RH SIP Chapter 10, Section 10.5.1. We also note that the annualized cost for SCR, as used in Idaho's calculation, does not take into account the added cost for design, installation and operation of equipment that would be necessary to re-heat the exhaust gases after the baghouse. Nor did this calculation account for increased emissions from the exhaust gas re-heater. Thus, the incremental cost-effectiveness value of SCR over LNB is likely to be even greater.

The EPA also considered the incremental cost along with the degree of expected improvement in visibility from SCR and the visibility improvement expected from the revised NO_X BART determination. In the 2012 RH SIP, Idaho provided a revised visibility analysis and compared the visibility improvement expected to result using the new, more stringent NO_X emission limit for LNB to the visibility improvement expected from SCR. Table 1 below shows the emission reductions for LNB with the new emission limit and SCR at the Class I area most impacted by the TASCO facility, the Eagle Cap Wilderness Area. Table 1 also shows the visibility improvement over base year conditions for each technology.

Table 1 shows that the incremental visibility improvement of SCR over the new LNB BART is 0.03 dv. An incremental cost of $9982/ton as discussed previously and an incremental improvement of just 0.03 dv at the most impacted Class I area clearly support SCR's elimination as BART. These values are both outside the ranges that states and EPA have found to be reasonable in other actions. The commenter has provided no information to suggest that either of these values were calculated incorrectly.

Comment: The clear implication of EPA's advice in the BART Guidelines is that incremental costs become a deciding factor only if they greatly exceed average costs. For TASCO, the incremental cost is less than double the average cost—this is well below the order of magnitude presented in the BART Guidelines example, and is relatively low when compared to other incremental cost analyses. If Idaho and EPA are to use incremental costs to eliminate a control option, it should be clear how those incremental costs are excessive when compared to incremental costs that have been accepted elsewhere. EPA should also explain what its threshold for an acceptable incremental cost is, and how it arrived at that threshold.

Response: There is no incremental cost threshold for BART that applies in every case. As explained above, a BART decision is made case-by-case, considering all five factors. In the TASCO facility case, the State calculated the cost-effectiveness of SCR to be $3768/ton, and we calculated the incremental cost-effectiveness of SCR over LNB (with the new emission limit) to be greater than $9982/ton. We recognize that standing alone the differential between average and incremental cost-effectiveness may or may not justify rejecting the technology. However, because a BART determination is based on consideration of a number of factors, neither the incremental cost nor the average cost-effectiveness value alone should determine BART. In this case, the incremental visibility improvement is important. Considering the Eagle Cap Wilderness Area, the Class I area most impacted by the Riley boiler, NO_X BART with an emission rate of 147 lbs/hr will reduce the 98% day impact from 1.4 dv to 0.64 dv, while SCR with an emission rate of 37 lb/hr would reduce it to 0.61 dv. See Idaho 2010 RH SIP, Appendix F, TASCO Nampa BART Determination Table 34. While SCR may result in an increased visibility improvement, the incremental improvement between LNB and SCR is just 0.03 dv, too small to justify the more stringent control technology's high incremental cost.

Comment: The commenter says that taken at face value, it looks like the proposal is for a greater NO_X reduction in exchange for a lesser SO₂ reduction from the only BART source, the Riley boiler. The commenter believes that the “new information” presented by Idaho requires a re-analysis of tail-end SCR.

Response: We do not understand how the above comment applies to the proposed BART Alternative for the Riley boiler. The SO₂ BART Alternative consists of:

• Installing and operating LNB on the non-BART Babcock and Wilcox (B&W) boilers #1 and #2 with a combined emission limit of 103 lb/hr; and
• Permanently shutting down three pulp dryers.

The BART Alternative does not involve NO_X reductions from the Riley boiler, so the technical feasibility of SCR is not relevant to the BART Alternative.

Comment: The commenter expressed concern that credit for emission reductions achieved by the shutdown of the pulp driers may not be “surplus” and therefore not allowed under the RHR if these units were shut-down as a result of another regulatory action under the CAA (i.e., compliance with the NAAQS for PM₁₀). The comment notes that the EPA refers to permitting actions which required shutdown of the pulp dryers and requests clarification as to why such requirements were necessary and asks that the EPA confirm that these reductions are truly surplus in the RHR context.

Response: We have confirmed that the emission reductions that will result from the BART Alternative are surplus. The RHR requires that emission reductions resulting from an alternative measure must be “surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP.” 40 CFR 51.308(e)(2)(iv). When promulgating this requirement in 1999, the EPA explained that emission reductions must be “surplus to the Federal requirements as of the baseline date of the SIP, that is, the date of the emissions inventories on which the SIP relies.” See 64 FR 35714, 35742. See also 70 FR 39143 (explaining that “[W]hatever the origin of the emission reduction requirement, the relevant question for BART purposes is whether the alternative program makes greater reasonable progress.”) The Idaho RH SIP relies on emission inventories from 2002. See Idaho 2010 SIP, Section 8.1. Thus, reductions resulting from any measure adopted to meet requirements of the CAA after 2002 are considered “surplus” under 40 CFR 51.308(e)(2)(iv). Therefore, the emission reductions from the NO_X control from B&W boilers #1 & #2 as proposed in the State's permit, along with the shutdown requirements for the pulp dryers, are indeed surplus.

III. Final Action

The EPA is vacating our previous approval of the State's NO_X and SO₂ BART determinations and emission limits for the TASCO facility and approving Idaho's 2012 RH SIP submittal that includes a revised BART determination and emission limit for NO_X and a revised PM emission limit, vacates the previously approved SO₂ BART determination, and approves the BART Alternative for SO₂. Specifically we are approving the 2011 TASCO Tier II Operating Permit, T2-2009-0105, issued by Idaho on December 23, 2011, conditions 1.2 (including the table of Regulated Emission Point Sources), permit conditions 3.2, 3.3 (first paragraph only), 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.11, 3.13, 3.14, 3.15, 3.16, and 4.1. The EPA is approving new BART emission limitations for NO_X and the revised emission limits for PM. The EPA is also approving the BART Alternative at the TASCO facility because it provides for greater overall reasonable progress.

IV. Statutory and Executive Orders Review

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 27, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Visibility, and Volatile organic compounds

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart N—Idaho

2. Section 52.670 is amended as follows:

a. In paragraph (d) by removing the entry for “The Amalgamated Sugar Company LLC—Nampa Factory, Nampa, Idaho” and adding in its place the following entry for “The Amalgamated Sugar Company LLC—Nampa Factory, Nampa, Idaho.”

b. In paragraph (e) by adding one entry to the end of the table.

The additions read as follows:

3. Section 52.672 is amended by adding paragraphs (g)(3) and (4) to read as follows: