Appendix — National-Southwire Aluminum Co. v. United States Environmental Protection Agency

2 Supreme Ceurt, U.S.

FILED

JUN 23 1988 |

8 B 3 1 9) JOSEPH & SPANIOL, JR.

CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

NATIONAL-SOUTHWIRE ALUMINUM COMPANY,

Petitioner,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY,

LEE A. THOMAS, Administrator, and

JACK E. RAVEN, Regional Administrator,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX CTO

PETITION FOR WRIT OF CERTIORARI

Chester R. Babst Ill, Esquire

Babst, Calland, Clements & Zomnir, P.C.

Two Gateway Center

Pittsburgh, Pennsylvania 15222

(412) 394-5400

Counsel of Record for Petitioner

National-Southwire Aluminum Company

\“%

No.

NATIONAL-SOUTHWIRE ALUMINUM COMPANY,

Petitioner,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY,

LEE A. THOMAS, Administrator, and

JACK E. RAVEN, Regional Administrator,

Respondents.

APPENDIX A TO PETITION FOR WRIT OF CERTIORARI

Petitioner, National-Southwire Aluminum

Company, by its attorneys Babst, Calland, Clements &

Zomnir, P.C., files the following Appendix C for the

above-captioned Petition for Writ of Certiorari.

Respectfully submitted,

ade left

Chester R. Babst Ill, Esquire

Babst, Calland, Clements & Zomnir, P.C.

Two Gateway Center

Pittsburgh, Pennsylvania 15222

(412) 394-5400

Counsel of Record for Petitioner

National-Southwire Aluminum Company

TABLE OF CONTENTS

APPENDIX C Page

EPA Region IV, “Technical

Support Document for the

Revision to Kentucky's §111(d)

Plan for Controlling Fluoride

Emissions from Existing Primary

Aluminum Reduction Plants”

ey cana ed ee wees 53a

Technical Support Document for the

Revision to Kentucky's §111(d) Plan for

Controlling Fluoride Emissions from

Existing Primary Aluminum Reduction Plants

Introduction

On April 3, 1986, the State of Kentucky submitted to

EPA a revision to their 111(d) plan for controlling

fluoride emissions from existing primary aluminum

reduction plants. This revision included a change in

the regulations which apply to National Southwire

Aluminum Company (NSA) in Hawesville, Kentucky.

NSA is the only aluminum plant in the State which

uses a wet scrubbing system to remove gaseous

fluoride emissions, and is thus the only facility

affected by this 111(d) plant revision.

The original Kentucky plan for controlling fluoride

from existing primary aluminum reduction plants was

approved by EPA on May 26, 1982 (47 FR 22955). The

plan regulated the two existing aluminum plants in

the State (one of which was NSA) and included

Kentucky’s air pollution control regulation 401 KAR

61:165 (Existing Primary Aluminum Reduction Plants).

This rule contained, among other requirements,

emission standards for particulates and gaseous

fluorides. Since NSA utilized a wet scrubbing system,

it was limited to 1.0 pounds of gaseous fluoride

emissions per ton of aluminum produced (1Ib/ton Al)

through the primary control system, and to 3.25

pounds of gaseous fluorides per hour (1lb/hr) through

any potroom roof monitor. NSA was also subject to a

particulate standard of 0.01 grains per standard cubic

foot (gr/scf). The other primary aluminum plant

utilized a dry scrubbing system; it was subject to a

total fluoride emission limit of 1.9 Ib/ton Al (with

certain exceptions made for emissions up to 2.5 Ib/ton

Al when the control system was properly operating).

The New Source Performance Standard (NSPS) for this

type of aluminum reduction plant is 1.9 pounds of

total fluoride per ton of aluminum produced.

53 a

The NSA plant was originally constructed in the late

1960's. Since dry scrubbing technology was not

commercially available at that time, the company

installed wet scrubbers to control both particulate

emissions and gaseous fluorides. After several years

of operation, it became evident that the wet

scrubbing system was not an effective means of

controlling particulates. Thus, in 1979, NSA installed

— dry electrostatic precipitators (ESPs) to more

fficiently capture the particulate matter in the

primary control gas stream. The wet scrubbers were

used after the ESPs to further control gaseous fluoride

emissions. Several years later, during a maintenance-

related shutdown of the wet scrubbing system, NSA’s

ambient monitors detected no drastic change in

ambient fluoride levels as a result of not scrubbing

the exhaust gases. In 1983, the company asked the

State for an exemption from 401 KAR 61:165 so they

could permanently shut down their scrubbers. Since

the State believed this shutdown would not cause a

violation of the State’s ambient fluoride standard,

they granted the exemption and pursued a revision to

their federally-approved 111(d) plan.

The revision, as submitted to EPA on April 3, 1986,

contains several changes to 401 KAR 61:165. First, the

State has increased the allowable gaseous fluoride

emission limit for NSA’s primary control system from

1.0 Ib/ton Al to 290 Ib/hr (13.18 Ib/ton Al). The limit

on particulate emissions will remain unchanged.

Secondly, they have added a minimum stack height

requirement for the primary control system. This

height of 400 feet is the height of the current primary

control system stack at NSA. It was included in the

regulation solely to ensure that NSA will not use a

lower stack. Use of a lower stack could cause an

increase in ambient fluoride levels because less

dispersion would occur. The stack is not subject to

EPA's recent stack height regulation revisions because

it was built prior to January 1, 1971, and is considered

to be “grandfathered”. Third, the State has deleted

54a

the definition of “wet scrubbing plant” because it is

no longer needed. Every instance where the words

“wet scrubbing plant” appeared in 401 KAR 61:165,

the State has replaced them with the words “primary

aluminum reduction plant other than a dry scrubbing

plant”. Fourth, the State has added a provision which

states that a physical change in the plant (or in the

method of operation of the plant) which occurs in

order to comply with the new emission limit is not

considered to be a “modification”. All of the above

revisions to 401 KAR 61:165 are acceptable except for

the exemption of NSA from “modification” status.

These rule changes and the criteria for their

approval/disapproval will be discussed in subsequent

sections.

Approval Criteria for New Emission Limit

Under §111{d) of the Clean Air Act and Subpart B of

40 CFR Part 60, states are required to develop plans

for controlling designated pollutants from

designated facilities. Designated pollutants are

pollutants which are not criteria or hazardous

ey pe (as listed under §108 or §112 of the Act),

ut for which standards of performance for new

sources have been established under §111(b). A

designated facility is an existing facility which emits a

designated pollutant and which would be subject to a

New Source Performance Standard for that pollutant

if the facility were new.

EPA has drawn a distinction between designated

pollutants which may endanger public health and

those for which adverse effects on public health have

not been demonstrated. The Administrator has

determined that fluoride emissions from primary

aluminum plants may cause adverse effects on public

welfare but that they do not pose a threat to public

health. For health-related pollutants, state emission

standards must ordinarily be at least as stringent as

the corresponding EPA guideline emission limits.

However, for aclee cand pollutants, states may

55 4

apply less stringent Ser okra when those

requirements are justified by economic factors or

physical limitations.

Under current EPA requirements, states have been

given substantial flexibility in establishing plans for

the contro! of welfare-related pollutants such as

fluorides. This policy is stated in 40 CFR 60.24(d) as

follows:

Where the Administrator has determined

that a designated pollutant may cause or

contribute to the endangerment of public

welfare but that adverse effects on public

health have not been demonstrated,

States may balance the emission

guidelines, compliance times, and other

information provided in the applicable

guideline document against other factors

of public concern in establishing emission

standards, compliance schedules and

variances.

Although this flexible policy applies to the original

deveiopment of 111(d) plans, similar criteria may be

considered when reviewing revisions to existing state

regulations for welfare-related pollutants.

Kentucky has justified their request for a more lenient

gaseous fluoride emission limit through cost figures,

process descriptions and an environmental impact

assessment. EPA has reviewed this documentation

against the factors contained in the guideline

document and has found that the State’s request is

adequately justified by economic, technical and other

related criteria.

Recommended Control Technology

EPA’s guideline document (EPA 450/2-78-049b,

December 1979) sets out the recommended

technology for controlling particulate and gaseous

56 a

fluorides from existing primary aluminum reduction

plants. The prescribe aire emission controls are

not expressed in terms of emission limitations, but as

equipment specifications for achieving a certain ievel

of control. EPA’s guideline document emphasizes

that the installation of fluoride controls in existing

plants varies greatly in capital expenditures and

operating costs. Therefore, actual control

requirements must be specific to the plant and tailor-

made for it. The guidelines further state that control

officials should carefully study costs, ambient impacts

and energy requirements before requiring improved

control on any particular facility.

The primary aluminum reduction process results in

two types of emissions: those which are captured by

the hood system and are vented through the primary

control device (primary emissions) and those which

elude the hood system and exit the building through

the roof monitors (secondary emissions). EPA has

determined that the best control for existing

aluminum plants is an effective hooding system (to

minimize secondary emissions) in combination with

primary removal equipment. Most plants do not (and

are not required to) control secondary emissions. NSA

does not have secondary emission controls, but Is

subject to a gaseous fluoride emission standard for

their eight roof monitors, as well as to a total limit on

visible emissions from the plant. Total fluoride

emissions from the aluminum process consist of both

particulate fluorides and gaseous fluorides.

Therefore, the primary control equipment should be

designed to remove both constituents) The most

typically used primary control equipment is a wet or a

ry scrubbing system. ESPs can also be used, but are

less effective in controiling the gaseous portion of

total fluoride emissions.

National Southwire Aluminum - Present Control

Options

57 a

The current control technology being used at NSA

consists of hooding, multicyclones, dry ESPs and wet

scrubbers (in that order). This combination has shown

to be an overly effective means of controlling total

fluoride emissions, but has also resulted in

exhorbitant control costs. In an effort to cut

production expenses, NSA has asked the State to

allow them to shut down the wet scrubbing system.

This would leave the primary control system as

consisting of collection hoods, multicyclones and dry

ESPs. This control combination has also shown to be

an effective means of controlling fluoride emissions

(at a reasonable cost). A third option available to the

company would be to install a dry scrubbing system.

The use of wet scrubbers as a sole means of

controlling fluorides has already been shawn to be

ineffective and is therefore not a viable control

option.

Justification for New Emission Limit

National Southwire has requested a relaxation in the

gaseous fluoride emission standard as it applies to

their facility. By allowing 290 Ib/hr to be discharged

from the primary control system, the State will be

allowing NSA to remove their wet scrubbing system

and still comply with the requirements of 401 KAR

61:165. The State has submitted an economic

justification for the approval of this new limit, as well

as the data to show that the new limit will not cause

any ambient problems.

A Cost Analysis

in the table below, capital and annualized costs are

given for the various control options available to NSA.

The costs for the various control scenarios were

derived by NSA and submitted to EPA with the State's

111(d) plan revision. EPA's typical control costs were

taken from the guideline document (p. 8-4). All cost

figures have been adjusted to 1985 dollars using the

Engineering News Record Construction Cost Index

58a

(ENR, Vol. 216, No. 12, March 20, 1986, p. 107), and

are based on a production rate of 212,000 tons of

aluminum per year (TPY Alj. See Appendix | for

detailed cost calculations.

Control Cost Comparisons

Capital Annualized Costs

Control Option (198S5/annual tonAl) (1985$/ton Al)

NSA-ESPs + Wet

Scrubbers 247.74 24.73

NSA - ESPs 180.42 14.25

NSA - Dry

Scrubbers 142.74 8 09

EPA - Guideline

Controls 119.24 5.00

All of the above control scenarios have costs which

exceed EPA's typical (or expected) control costs. NSA

is currently operating both the ESPs and the wet

scrubbers. Although the initial capital cost associated

with that equipment has already been expended, the

operation of the control equipment costs NSA $24.73

per annual ton of aluminum produced. This is nearly

five times EPA’s typical annualized control costs. NSA

has requested (through this 111(d) plan revision) that

they be allowed to operate the ESPs without the wet

scrubbers. The annualized cost of operating the ESPs

‘has been estimated at $14.25 per ton of aluminum

produced This value also exceeds EPA's typical costs,

59 a

EL eee

but the operation of just the ESPs would provide a

significant cost savings for the company Although

the capital and annualized costs for the installation

and operation of dry scrubbers are less than for the

previous two options, the company would have to

totally rework their primary control system. They

would also be forced to spend the initial capital to

purchase new controls when they already have

sufficient controls installed. NSA has also claimed

that for certain process-related reasons, dry scrubbing

is not a realistic control alternative. Because dry

scrubbing allows the reuse of fluorides in the

production process, other materials such as iron and

silicon are also introduced. This compromises the

purity of the aluminum produced by NSA and is

unacceptable when considering the demands of the

aluminum market.

Thus, from an economic standpoint, NSA has already

spent and will continue to spend over and above

what is expected for controlling total fluoride

emissions from their plant. The relaxation of NSA‘s

gaseous fluoride emission limit is consistent with

EPA’s handling of 111(d) plant relaxations. Since

NSA’s future control costs (for the ESPs only) would

not drop below EPA’s guideline costs, the new

emission limit of 290 lb/hr appears to be approvable.

B. Ambient Analysis

NSA has also justified the relaxation of their primary

control emission standard by assessing the air quality

impact of the increase in gaseous fluoride emission

levels. By removing the wet scrubbers (and changing

allowable emissions from 1.0 Ib/ton Al (22 Ib/hr) to

290 Ib/hr (13.18 Ib/ton Al)) the company has estimated

that an additional 1174 TPY of gaseous fluorides will

be vented to the atmosphere. NSA has shown

through ambient monitoring data and modeling

analyses that this increase in emissions will not have a

harmful effect on the environment.

60a

Although EPA has not adopted a federal ambient air

quality standard for fluorides, the State of Kentucky

has. This standard is based on the ambient

concentrations which could cause adverse effects on

vegetation. It specifies maximum 1-month, 1-week,

24-hour and 12-hour average concentrations. The

maximum 12-hour average standard is 4.5 parts per

billion (ppb).

During the period of March 1983 to March 1984, NSA

was granted an exemption by the State to operate

without their wet scrubbing fluoride removal system.

During that period, the company collected ambient

fluoride data at eight sites around their facility. This

data showed no detectable increase in ambient

fluoride concentrations over similar monitoring data

collected while the scrubbers were in operation

(1980-1982). Furthermore, the measured

concentrations never exceeded ambient standards

except for a few scattered violations over the four

years which occurred on plant property, 800 meters

from the stack. These violations occurred under both

control scenarios (scrubbers off and scrubbers on) and

are irrelevant as far as EPA is concerned, because

there is no federal ambient standard for fluorides.

The company has also performed a vegetative analysis

to document that the increase in fluoride emissions

from their plant wil! not cause a detrimental effect on

the foliage in the area.

NSA also presented modeling results to show that the

new emission limit will not endanger the

environment. An Industrial Source Complex Short-

Term Model was used, assuming a fluoride emission

rate of 350 Ib/hr (approximately 20% greater than the

290 Ib/hr allowable limit). Modeling results predicted

the highest impact to be 2.598 ug/m3 (12-hour

average) at a distance of 11 kilometers from the

source. That value is only 71% of the State's ambient

air quality standard. Because €111(d) of the Clean Air

Act does not establish any ambient standards, the

61a

modeling performed by NSA is legally irrelevant.

However, it does provide an indication of the

insignificant environmental effects of this 111(d) plan

revision.

Disapproval of “Modification” Provision

As part of this 111(d) plan revision, the State of

Kentucky has revised the “Applicability” portion of

401 KAR 61:165 to state that a change in potroom

operations (eg. scrubber shutdown) at NSA would not

be considered a “modification” for the purposes of

New Source Performance Standards. If the shutdown

of the scrubbers was classified as a “modification”,

then the source would become subject io the New

Source Performance Standard (NSPS) for primary

aluminum reduction plants (40 CFR Part 60, Subpart S)

and be required to meet more stringent federal

control requirements than are allowed under §111(d)

(40 CFR Part 60, Subpart B). (See Appendix II for a

more detailed description of this argument.)

It has been argued, based upon various provisions in

40 CFR Part 60, that since 40 CFR 60.28 provides for

the relaxation of emission standards in 111(d) plants,

EPA must have intended that existing facilities could

increase their emissions up to the relaxed standards

without triggering the applicability of New Source

Performance Standards. Such an argument is clearly

contrary to the controlling statutory provisions of

§111. Under that Section, any physical change in, or

change in the operation of, a facility that increases

emissions is a modification that triggers NSPS

applicability. Further, nothing in §111(d) authorizes

EPA to approve a state’s rules that could exempt an

existing facility from the other provisions of Section

111. For this reason Kentucky's provision for

exempting NSA’s “change in operation” from

“modification” status is unapprovable.

The disapproval of this paragraph does not mean that

a state cannot relax its 111(d) standards through a

62a

plant revision, nor does it mean that existing sources

cannot benefit from such a relaxation. Existin

sources that were never able to meet a §111(d

standard would obviously benefit from a relaxation

of that standard. Thus, if National Southwire had

been emitting 290 Ib/hr of fluoride before the date

the NSPS for primary aluminum reduction plants was

aha 6 the relaxation EPA is approving would

ring the facility into compliance with the §111(d)

plan, and NSPS would not be triggered because there

would be no increase in emissions.

Conclusion

Except for the revisions to Section 1 of 401 KAR

61:165 ( Applicability), the plan revision for National

Southwire Aluminum is approvable under the

provisions of §111(d) of the Clean Air Act and 40 CFR

Part 60, Subpart B. Although NSA is justifiably

allowed to remove their wet scrubbers under §111(d),

they may do so only at the risk of becoming subject to

more stringent emission standards. For, under 40 CFR

60.14(e), NSA would be undergoing a “modification”

and would be subject to the NSPS for primary

aluminum plants found in 40 CFR Part 60, Subpart S.

63 a

CERTIFICATE OF SERVICE

| hereby certify that | served three true and

correct copies of the foregoing Appendix to be

mailed first class, postage prepaid, this 19th day of

August, 1988 upon:

Solicitor General

Department of Justice

Washington, D.C. 20530

Brian Faller, Attorney

Environmental Defense Section

Land and Natural Resources Division

U.S. Department of Justice

Post Office Box 23986

Washington, D.C. 20026-3986

Earl C. Salo, Esquire

Office of General Counsel

U.S. Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20460

Chester R. Babst III, Esquire

Babst, Calland, Clements & Zomnir, P.C.

Two Gateway Center

Pittsburgh, Pennsylvania 15222

(412) 394-5400

Counsel of Record for

National-Southwire Aluminum Company