What A Difference A New Administration Makes

CORRALES COMMENT VOL.XXVIII, No. 24 February 6, 2010

EPA TARGETS INTEL FOR TIGHTER AIR POLLUTION CONTROLS
Written by Jeff Radford
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.”

DALLAS-EPA INVESTIGATING POLLUTION COMPLIANCE

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.”

SHOULD INTEL BE REGULATED AS ‘MAJOR SOURCE?’

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.

TIGHTER REGULATIONS AHEAD FOR INTEL?

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.