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EPA Explains Why No HAPs Limit Here |
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Written by Jeff Radford
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A citizens’ lobbying effort is getting under way —again— to change a
state law that prevents air pollution regulators from setting limits on
emission of toxic chemicals.
In the wake of the N.M. Environmental Improvement Board’s (EIB) rulings
last month upholding approval of a new air pollution permit for Intel,
villagers are weighing another attempt to rid New Mexico of its
self-imposed prohibition against setting tighter emissions limits.
In the 1970s, state legislators apparently passed a law that prevents
establishing regulations more stringent that federal standards.
Obviously intended as a pro-industry policy to encourage economic
development, no one really anticipated back in the early 1970s that
Intel would build the world’s largest microchip factory on a mile-long
site between Corrales and Rio Rancho.
Since the early 1990s, Intel has emitted hundreds of tons of toxic
chemicals into the air, leading to numerous health complaints by
downwinders.
But the federal government has never gotten around to setting limits on
specific chemicals designated Hazardous Air Pollutants (HAPs), and
therefore state air quality regulators can’t either, due to the
Legislature’s “no more stringent than federal” policy.
As it stands, federal regulations apparently allow a polluter such as
Intel to emit any amount of HAP up to 10 tons a year into the air
regardless of how lethal such releases may be.
And since nothing in federal law says Intel can’t release all 10 tons
of the most lethal chemical all at once, naturally state regulators
can’t prohibit that either… because it would be more stringent than
federal requirements.
The vulnerability of Corrales and Rio Rancho residents to such high
levels of HAPs came to light dramatically during testimony by two
Corrales scientists at the July EIB hearing.
At the hearing, testimony by retired Sandia Labs physicist Allan
Beattie and retired Los Alamos chemist Fred Marsh was ruled irrelevant
even though it demonstrated that villagers here could be killed by
levels of HAPs allowed by Intel’s new permit.
Calculations by Marsh and Beattie were not disputed at the July 12-14
hearing. Instead EIB members ruled that state regulators have no
authority to set limits for release of any specific HAP. Therefore any
arguments urging such limits were not considered pertinent.
Federal regulations require only that Intel not emit more than 10 tons
a year of any given HAP (without regard to toxicity) nor more than 25
tons a year of all HAPs combined.
Corrales Residents for Clean Air and Water (CRCAW) and Southwest
Organizing Project (SWOP) have argued that yearly averaging of such HAP
emissions allows Intel to release dangerous, short-term “spikes” of
such chemicals that can cause serious health problems.
CRCAW has argued consistently for the past five years that hourly,
daily and monthly limits must be written into Intel’s air permit.
Contacted by Corrales Comment, air quality regulators for the U.S.
Environmental Protection Agency in Dallas make it clear they are not
standing in the way of hourly, daily or monthly limits on HAPs.
“It should be noted that there is no EPA restriction that would prevent
New Mexico from issuing permits with daily, hourly and/or monthly
limits,” said Robert Todd, of the EPA-Dallas air permitting staff.
Todd responded to three questions.
Comment: Is it true there really are no hourly, daily or monthly limits
on individual HAPs, regardless of extreme toxicity? Has EPA just never
gotten around to issuing limits or even guidelines, or is there some
other reason why such limits don’t exist beyond yearly caps?
Todd: “Under the Clean Air Act, EPA’s authority to require controls on
sources like the Intel facility is limited to requiring a
pre-construction review of those new facilities that will be “major”
sources of one or more of the listed HAPs.
“Our understanding of Intel’s project is that it will not result in
emission levels more than the 10/25 ton per year amount that would
require a review.”
[The term “10/25 ton per year” refers to the limit of 10 tons per year
for any given HAP and 25 tons per year for all HAPs combined.]
Comment: Will new regulations for “major sources” of air pollution include hourly, daily or monthly limits on individual HAPs?
Todd: “Permits issued under Title V of the Clean Air Act require the
listing of all applicable requirements for the site and sufficient
monitoring to assure compliance. At this time, most federal and state
standards are performance-based in nature, and do not directly address
hourly, daily or monthly limits.”
[“Performance-based” means en-forceable agreements to handle HAPs in a
prescribed manner and to operate equipment using such a HAP in an
approved fashion.]
Comment: Does the State of New Mexico have no authority to issue its own daily, hourly or monthly limits on HAPs?
Todd: “It is best to defer to the N.M. Environment Department in this
matter, but I believe the NMED can issue permits with these types of
limits. It should be noted that there is no EPA restriction that would
prevent New Mexico from issuing permits with daily, hourly and/or
monthly limits.”
The N.M. Environment Department responded to questions about HAPs limits through Richard Goodyear, in its Air Quality Bureau.
Goodyear said it was his understanding that EPA had earlier intended to
promulgate standards for emissions from microchip factories classified
as major sources of air pollutants, but that effort was abandoned after
it seemed nearly all such facilities would likely install control
equipment that kept them under the threshold for regulation as major
sources.
He explained his understanding of why there are no hourly, daily or
monthly limits on HAPs. “EPA really is not at fault,” he said. “Their
intention was not to impose emissions limits on HAPs. They had for
years and years provided guidelines called ‘New Source Performance
Standards’ for facilities that addressed emission of chemicals like
carbon monoxide and nitrogen oxides, but those had not been set for
HAPs.”
Goodyear said the Clean Air Act Amendments of 1990 introduced “National
Emissions Standards for HAPs (NESHAPs). But they, too, were set up as
“performance-based” standards, and relied on prescribed handling and
operation of equipment using HAPs, not on quantities of the chemicals
that could be released other than the yearly limits.
And in the absence of federal restrictions on individual HAPs, state
regulators have been prohibited by the “no more stringent than federal
standards” policy set by the State Legislature, he explained.
“In the State Statute at 74-2-5 paragraph c(2) it says that regulations
adopted by the Environmental Improvement Board may prescribe standards
of performance for emission of HAPs, but that those standards shall be
no more stringent than, but at least as stringent as, required by
federal standards of performance and shall be applicable only to
sources subject to such federal standards of performance.
“Because EPA has the NESHAPs, our State Statute says we cannot go beyond that,” Goodyear said.
He said that provision has been in State Statute since the mid-1970s.
He thinks it came about after a court case between the Environment
Department and Public Service Company of New Mexico.
He said officials in the Air Quality Bureau had discussed whether the
“no more stringent than” provision ought to be changed, but no action
had been taken by the department to amend it.
“To change State law, of course, anybody can lobby legislators to do
that. But the legislative process is a very complicated beast.”
About five years ago, CRCAW and other public interest groups launched a
lobbying campaign aimed at overturning the “no more stringent than
federal” law.
Although the groups had some success in moving the measure through the
legislative session, in the end their “Turquoise Skies” initiative was
not successful.
CRCAW’s Amy Rice said in late July a new campaign may begin soon to get that law changed. |
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