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EPA Targets Intel for Tighter Air Pollution Controls |
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Written by Jeff Radford
Corrales Comment
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Sunday, 07 February 2010 |
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Second in a series
The December 7-11 inspection of Intel’s air pollution records by
Dallas Region Environmental Protection Agency (EPA) officials was the
second step in a continuing enforcement action which could bring
changes in the way Intel is regulated.
Documents obtained by Corrales Comment and interviews with N.M. Air
Quality Bureau officials and Intel representatives indicate tighter
regulations may be imposed.
That could include more testing, monitoring or even daily or hourly limits on emissions of airborne industrial chemicals.
EPA’s findings from its December 2009 in-depth inspection are not
expected until summer, but Intel officials have already held
exploratory, pro-active discussions with Air Quality Bureau regulators
in Santa Fe about how any new controls might unfold.
Corrales Residents for Clean Air and Water (CRCAW) has demanded for
more than a decade that Intel’s air pollution permit from the N.M.
Environment Department’s Air Quality Bureau be re-written to require
continuous emissions monitoring, hourly and/or daily emissions limits
and other controls.
The citizens’ group that organized in 1993 has repeatedly called for
Intel’s permit as a “minor source” of air pollution be revoked and
re-issued with tighter “major source” regulations.
The December EPA inspection at Intel by two Dallas officials and two
consultants from Colorado was preceded by a January 29, 2009 formal
letter to Intel initiating the agency’s investigation for compliance
with the federal Clean Air Act.
Such letters are referred to as “114 letters,” indicating Section 114
of the federal Clean Air Act regarding regulatory action to assure
compliance with pollution control requirements.
N.M. Air Quality Bureau Chief Mary Uhl said January 20 such letters
“are typically tied to initiation of an EPA enforcement action. The
‘114 letter’ is a very detailed questionnaire about normal operations
and changes you’ve made in your operations.
“It’s the way that EPA, for lack of a better word, gets ammunition against their target for an enforcement action.”
Uhl said she understood that EPA-Dallas wanted more frequent
inspections and monitoring of Intel as well as short-term limits
on allowable emissions.
On January 21, Corrales Comment asked Intel officials to provide a copy
of EPA’s “114 letter” and the corporation’s response. Intel had not
complied at press time, but a similar request to the Dallas regional
office of the EPA was partially successful.
Dave Bary, EPA’s regional external communications director, e-mailed
copies of the January 29, 2009 letter and a subsequent August demand
for additional information. Bary said Intel’s responses to those
letters could not be released because they are “part of an enforcement
action.”
In the letters, EPA-Dallas’ Compliance Assurance and Enforcement
Division demanded detailed answers to 27 comprehensive questions
related to Intel-Rio Rancho’s air emissions.
The EPA “114 letters” to Intel contained the caveat that “We may use
any information submitted in response to this request in an
administrative, civil or criminal action.”
Intel Communications Manager Liz Shipley said February 1 that “Intel
has provided responsive information to the EPA’s request. The EPA has
not alleged any violations at this time.”
The questions are so comprehensive (covering any and all aspects of
potential emissions, seeking data from 1990 onward) that it is unclear
exactly on what EPA may be focusing.
Uhl was asked whether the EPA-Dallas enforcement action may have been
triggered by the investigation into Intel’s pollution by the federal
Agency for Toxic Substances and Disease Registry (ATSDR), whose draft
report was released about the same time EPA sent its January 2009 “114
letter.”
Uhl replied: “I have no idea what prompted it. We called EPA and said
‘hey, it would be nice if you told us that sources in our state were
getting this letter.’”
Uhl is thoroughly aware of the Intel air pollution issues. She directed
the bureau’s Corrales Air Toxics Study in 2002-04 which included
extensive air sampling and monitoring, pollution dispersion computer
modeling, and an acute and chronic public health analysis.
“The EPA’s request was extremely detailed,” Uhl noted. “Whoever wrote
this letter knew the semiconductor industry. We were impressed with the
details.”
Uhl was asked, based on her knowledge of the issues and of the regulatory process, what she thought EPA-Dallas is focusing on.
“The over-arching issue —and I think Intel would agree with this— is
whether this is a ‘major source’ or a ‘minor source.’ That was readily
apparent.
“There are very detailed technical questions about toxics, but you can
tell the flavor of it is: is this really a minor source of air
pollutants… is this permit appropriate?”
Back in the mid-1990s, the Air Quality Bureau staffer responsible for
writing the Intel air pollution permit, Jim Shively, was subject to
heavy political pressure to grant Intel its requested “minor source”
permit.
Shively, now retired, contended Intel’s operations and especially its
potential to emit large quantities of several highly toxic chemicals
should be regulated as a “major source” of air pollution.
But political pressure inside the N.M. Environment Department wrested
control of Intel’s permit away from Shively. Responsibility for writing
the kind of permit Intel wanted was given to another staffer who did so
with little delay.
Shively blasted the outcome as a “sham permit,” using the EPA’s own
terminology and criteria. (See Corrales Comment Vol.XXII, No. 23,
January 24, 2004 “Intel’s Air Pollution Permit a ‘Sham,’ Says Former
Regulator”)
Shively, program manager for the bureau’s new source permitting
section from June 1994 to March 2001, backed up that assessment in a
highly-charged letter to N.M. Environment Secretary Ron Curry dated
January 5, 2004.
His indictment of the process that approved the controversial pollution
permit was based on his own experience as he struggled in vain to
produce an enforceable permit for Intel’s Rio Rancho operations.
After he retired from the bureau, Shively was no longer under a
prohibition against speaking out about the inadequacy of Intel’s air
pollution permit. He held a news conference January 19, 2004 to explain
why he feels the microchip manufacturer got a permit that does not
protect the health of residents near the Intel plant.
Intel didn’t want to be held accountable for its emission of
pollutants, Shively said, so they refused for more than five years to
accept a regulatory permit that would have required close monitoring
and short-term emission limits.
“The term ‘sham permit’ is actually a term used by the Environmental
Protection Agency to describe a permit that is impractical and
unenforceable,” he said.
Intel’s air pollution permit is unenforceable, Shively explained,
“because it all comes down to these calculations to determine emission
rates. These calculations are based on ‘emissions factors’ that Intel
provides. But we never could figure out where these numbers came from.
“It is reliance on these emission factors that I think is just out of
whack,” the veteran air quality specialist concluded. “It’s hard to
have much confidence in the reported emissions number if you can’t
verify it.”
Back in 2004, Shively insisted Intel’s air pollution permit had to be withdrawn and developed anew.
“First and foremost, the permit needs to be re-done. There are
provisions in the permit to rescind it and re-open it. All three of the
criteria for re-opening the permit apply,” he said.
But from that day to now, the political hierarchy within State government has declined to take that corrective step.
Shively said the political courage within NMED to call for corrections
was lacking. “In my gut, I think they know this permit is not right and
needs to be re-opened. But I don’t think they want to go there.
“To re-open this permit is not a safe thing for them to do. There’s a
risk involved [for NMED officials]. This is a large, influential
corporation, and there’s a risk involved if you mess with them.”
Days after he retired, Shively wrote a letter to N.M. Environment
Secretary Curry outlining his concerns about the Intel permit.
In his letter, Shively gave reasons why he considers the current air
pollution permit to be a sham, as defined by a federal policy
memorandum.
“The Intel permit (No. 325M9) is a ‘sham’ based on an EPA memo dated
June 13, 1989, and the process that produced it was a farce,” Shively
wrote.
“The permit is impractical and unenforceable. This has been repeated
and emphasized many times and by many people during the review process
and since.”
Shively’s 2004 letter said he had supplied the names of 16 other former
NMED employees who shared his concerns about the Intel permit and how
it was approved.
Shively said the permit “is written with the emission factors provided
by Intel that have never been independently validated. The department
cannot determine Intel’s air emissions, nor can the factors or
emissions be determined with any real confidence or precision.”
The result, Shively pointed out, is that “Intel can’t be found in
violation of the emission limits in the permit. Only Intel knows the
origin or validity of the factors.”
Intel’s Permit No. 325-M9, approved in March 2000 to cover the massive
Fab 11-X expansion, is based almost entirely on calculating emissions
of industrial pollutants, rather than measuring them. Those
calculations are based on “emission factors,” or multipliers, generated
at Intel’s research and development facility in Oregon.
Documents and notes in the bureau’s files on the Intel permit as far
back at 1994 reveal that Shively repeatedly sought independent
verification of those emissions factors.
Unless the bureau had some means of checking or validating the
emissions factors, he said, state regulators were left only with
Intel’s word that emissions do not exceed limits set in the permit.
Intel Communications Manager Shipley refuted that in a statement
February 1. “Intel conducts quarterly emissions testing under the
supervision of NMED which validates our calculated emissions,” she
pointed out.
Shively’s January 2004 letter to Secretary Curry slammed the
Environment Department for caving in to Intel’s pressures. “This
permit, like many others, was granted due to pressure from the
permittee, but worse than that, by an inappropriate desire internally
to accommodate them to any extent possible. These actions reflect
poorly on the entire bureau, and as a result, it has become severely
compromised and lacks integrity and credibility.”
The former chief permit writer concluded his letter by urging Secretary
Curry to re-open Intel’s air permit. “The department needs to rescind
and re-issue the permit and conduct the review appropriately and in
such a way that people know what is done, how it’s done and why it’s
done.”
Shively’s letter to Curry was apparently triggered by requests by
Corrales Comment to interview him on Intel’s air permit. In the opening
paragraph, Shively wrote, “This letter is a follow-up to a meeting I
had with [NMED Division Director] Jim Norton and [NMED public affairs
director] Jon Goldstein on October 24, 2003 regarding the Intel air
quality permit and Air Quality Bureau problems in general.
“This meeting was prompted by a reporter’s request for an interview
with me prior to my retirement on December 31, 2003. The reporter made
the request because I was a program manager of the New Source Review
permitting unit of the Air Quality Bureau from June 1994 until March
2001.
“The reporter was denied the interview, and I requested the meeting
with Jim Norton to at least inform him of how I expected the interview
to go.”
Corrales Comment filed a Freedom of Information Act request with NMED
in October 2003 to be allowed to interview Shively. NMED officials
continued to thwart access to Shively until his retirement at the end
of 2003.
The U.S. Environmental Protection Agency (EPA) document to which
Shively referred in his letter to Curry defining what constitutes a
“sham permit” was issued by the EPA’s Office of Air Quality Planning
and its Office of Enforcement and Compliance Monitoring. The memo is
entitled “Guidance on Limiting Potential to Emit in New Source
Permitting.”
The memo and a related EPA document explain that air pollution permit
writers must guard against “sham permits” for big industrial operations
(like the Intel facility above Corrales) which seek to be regulated as
a “minor source” of pollution.
Intel’s Permit No. 325-M9 (modification number 9) is, in fact, a permit to be regulated as a “minor source.”
A crucial consideration was the facility’s over-all “potential to
emit;” how much toxic material could be released? Emissions potential
from the Intel-Rio Rancho plant —the world’s largest microchip
facility— are enormous.
The federal guidance also makes it clear that the permit can avoid
becoming a “sham” only if it contains sufficient requirements to be
federally enforceable.
When Shively was in charge of writing the permit for Intel, he fought
to require Intel to install continuous emissions monitoring equipment,
so that NMED compliance officers would know at all times what level of
emissions were coming from the facility. He also fought against Intel’s
insistence on permit conditions that set yearly averages, rather than
hourly or daily, emissions limits.
A draft version of Permit No. 325-M9 produced by Shively called for
continuous emissions monitoring and other safeguards. When it was
released for public review August 20, 1998, it was roundly supported by
residents and citizens’ groups but strenuously opposed by Intel.
That 1998 draft was quickly withdrawn and the more “flexible” permit
Intel sought, without short-term emissions limits, without verifiable
emissions factors and without continuous emissions monitoring, was
approved in March 2000.
The permit which NMED approved was challenged by Southwest Organizing
Project (SWOP), the N.M. Environmental Law Center and Corrales
Residents for Clean Air and Water.
For their appeal to the N.M. Environmental Improvement Board, the
citizens’ groups called in a California-based air pollution specialist,
Jim Tarr, for expert testimony.
“I have been in this business a long time, and I get around the United
States from time to time on these issues,” said Tarr, president of
Stone Lions Environmental Corporation. “I work with a lot of state and
local agencies.
“From what I see here, the regulatory effort by the State of New Mexico
really stands out in my mind. It’s the worst I’ve ever come in contact
with.
“By that I mean, in this particular case, the Environment Department
has clearly abdicated its responsibility which is to protect the people
who live around this facility.”
(See Corrales Comment Vol. XVII, No. 16, October 10, 1998, “‘Air Regulators Worst I’ve Seen,’ Consultant Says.”)
In May 1993, Dallas-Region EPA officials instructed the N.M. Air
Quality Bureau to regulate Intel-Rio Rancho as a major source of air
pollution. That determination was meant to overturn the bureau’s
decision that the rapidly expanding operations here would not fall
under federal regulations for “prevention of significant deterioration”
of air quality.
(See Corrales Comment Vol.XIII, No. 8, June 11, 1994 “EPA Sees Intel as Major Pollution Source”)
The concern then was not about the quantities of federally identified
Hazardous Air Pollutants and volatile organic compounds that
would be released, but rather combustion byproducts from the new
gas-fired boilers in the huge complex’s “energy center.”
How that got resolved, and how Intel got its “minor source” regulations, is illustrative.
When Intel first submitted data to the Air Quality Bureau on operation
of the 12 big boilers, it used the manufacturer’s specifications for
expected emissions. But those numbers indicated Intel would qualify as
a “major source” of air pollution, so Intel claimed the specifications
were erroneous.
Initially the new equipment was calculated to emit 433 tons a year of
such combustion byproducts as nitrogen dioxide, carbon monoxide and
sulphur dioxide. EPA’s “prevention of significant deterioration”
of air quality rules had a threshold of 250 tons a year. Above that the
“major source” regulations set in.
When the discrepancy was pointed out, Intel scurried to correct its
submission to show that its new emissions would be less than 215 tons,
not 433, well less than the 250-ton threshold.
But then EPA oversight analysts in Dallas pointed out that the
appropriate threshold level was really 100 tons a year, not 250. So
Intel went back to its computer models to illustrate that its emissions
would be under 100 tons, not just under 215 tons.
EPA-Dallas was not satisfied, but asserted it was up to the N.M. Air
Quality Bureau to accept or reject the revised calculations.
The Air Quality Bureau went along with Intel’s assertions. |
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