EPA Steps Up to the Plate

CORRALES COMMENT VOL.XXIX, No. 1 February 20, 2010
SHOULD INTEL BE REGULATED AS ‘MAJOR SOURCE’ OF AIR POLLUTION?
Written by Jeff Radford
Third in a series
The federal investigation into Intel’s air pollution —by the Agency for Toxic Substances and Disease Registry since 2004 and by the U.S. Environmental Protection Agency (EPA) since 2008— was triggered by persistent citizens’ complaints.
And probably by the change in presidential administration in Washington.
When N.M. Air Quality Bureau Chief Mary Uhl was asked January 20 what prompted EPA’s enforcement action leading to the in-depth inspection at the Intel-Rio Rancho site December 7-11, she replied, “It may have been, with this new administration, that staff at EPA felt that it’s time now to go forward with it.
“You know, the feeling that ‘We’ve been waiting eight years, and now it’s time to go.’”
The timing of EPA’s probe into air pollution problems at the Intel facility here also struck Corrales Mayor Phil Gasteyer when he read the EPA’s January 29, 2009 letter demanding air pollution information from Intel.
Gasteyer, who worked the halls of Congress for decades as a business representative, chuckled as he pointed out that the enforcement letter to Intel went out just nine days after Barack Obama was sworn in as president.
It’s not clear what, if any, changes will emerge in the way Intel is regulated for its around-the-clock emission of industrial chemicals.
An EPA spokesman in the Dallas regional office, David Bary, said the summary report on the December inspection would not be released until summer.
That is also about the time that the Atlanta-based Agency for Toxic Substances and Disease Registry (ATSDR) has said it will release its final report on the community health consultation regarding Intel pollution.
Responding to a Corrales Comment request for information about the EPA inspection, Bary said “The site visit was a response to several concerns expressed to us over the past several months from citizens living around the Intel facility. We decided it was prudent to conduct this inspection.”
The Dallas-EPA official said the inspection report will be used to “determine if any action is warranted.”
In Santa Fe, Uhl said she understood from EPA officials and from Intel managers that EPA investigators focused on whether it is appropriate for the Intel site here to be regulated as a “minor source” of air pollution.
EPA MAY DEMAND TIGHTER REGULATIONS FOR INTEL
Under EPA guidelines for enforcement of the federal Clean Air Act, “major sources” require closer regulation, more frequent monitoring and other oversight.
Intel fought long and hard to get its permit from the N.M. Air Quality Bureau changed to that for a “minor source” in the mid-1990s, primarily citing the need for operational flexibility to meet the fast-changing market for microprocessors.
Also at issue is whether the air pollution permit issued by the N.M. Air Quality Bureau should restrict the amount of toxic chemicals that can be emitted on an hourly or daily basis.
Since the “minor source” permit was issued in March 2000, Intel is just required to keep its emissions of regulated chemicals below a rolling annual average ceiling.
Those limits for Intel include 96.5 tons a year of volatile organic compounds (VOCs, mostly solvents) nine tons a year for any chemical on the EPA’s list of “hazardous air pollutants” (HAPs) and 24 tons a year for all HAPs combined, as well as limits for chemicals on the State of New Mexico’s “toxic air pollutants” (TAPs) list.
Presumably none of those limits would necessarily apply if Intel were regulated as a “major source.” It is staying under those limits that allows Intel to be regulated as a “minor source” of air
pollution.
N.M. Air Quality Bureau Chief Uhl said re-issuing Intel’s permit as a “major source” would not necessarily bring hourly or daily limits on emissions instead of the 12-month rolling average ceiling.
“Being a major source doesn’t necessarily mean there would be short-term limits,” she cautioned.
Uhl said she had been told by Intel managers that the EPA inspectors were concerned about “the lack of short-term limits and mid-term limits in the current permit.”
She asked EPA officials whether the enforcement action against Intel is part of a nation-wide effort for all semiconductor manufacturing facilities. “We were told this is just specific to this Intel site. It wasn’t specific to any other semiconductor facility anywhere in the country.”
It’s likely that EPA’s attention was drawn to the Intel-Rio Rancho operation as a result of the ATSDR’s investigation, initiated in 2004 by a petition filed with that agency by Rio Rancho realtor Marcy Brandenburg.
For years Brandenburg operated a small business near Intel where she suffered chronic illnesses she attributed to Intel’s fumes.
She joined Corrales Residents for Clean Air and Water (CRCAW) and followed the proceedings and findings of the EPA-funded Corrales Air Toxics Study which the Air Quality Bureau’s Mary Uhl directed in 2002-04.
That $600,000 study was abruptly halted in spring 2004 when Uhl reported that a consultant’s air pollution plume modeling results showed Intel’s pollution was traced to nearby residents’ homes at the time they reported illnesses.
Such a finding was unacceptable politically. Cabinet level officials within Governor Bill Richardson’s administration huddled to find a way through the dilemma.
(See Corrales Comment Vol.XXIII, No. 5, April 24, 2004 “Late Report Links Illnesses to Intel Emission Plume” and Vol.XXIII, No. 9, June 19, 2004 “Cabinet Secretaries Don‘t Believe Air Problem”)
When the N.M. Secretary of Health and the N.M. Secretary of the Environment intervened at a public meeting in Rio Rancho in June 2004 to settle and close down the Corrales Air Toxic Study embroglio, there were many red faces —some from embarrassment, some from anger.
Within weeks, Brandenburg filed a petition with ATSDR asking for an independent investigation of what seemed to be causing chronic and acute illnesses which sufferers attributed to Intel’s air pollution.
After years of intermittent work on the Corrales community health consultation, including pouring over the mountains of data and testimony from the Corrales Air Toxics Study, ATSDR issued a draft report in January 2009. Since then the agency has been incorporating public comment on the draft.
Release of that draft ATSDR report in early 2009 coincides roughly with EPA-Dallas’ initiation of the enforcement action against Intel.
Prior to release of the draft, Brandenburg had been told by members of the ATSDR team that it would include discussion on the suitability of the “minor source” permit issued to Intel by the N.M. Air Quality Bureau.
Brandenburg said she was told members of the team were concerned about the adequacy of the permit.
But when the ATSDR draft report came out, it contained no mention of the agency’s doubts about the suitability of Intel’s “minor source” permit.
Corrales Comment interviewed the team about that discrepancy when it held public input sessions on the draft in February 2009.
TOXICS AGENCY DISCUSSED INTEL WITH EPA
ATSDR team leader Peter Kowalski said then it had discussed the Intel permit with EPA-Dallas officials while the document was in draft form, but that the agencies had concluded that the adequacy of the permit was a regulatory matter. Since ATSDR is only advisory in mission, not
regulatory, it was decided that matter would be left to EPA.
As ATSDR’s Debra Gable explained in a February 10, 2009 interview, “One of the particular requests from the petitioner was that we look at, evaluate, the air permit. That is something that we take very seriously, so one of the things we did as part of our process was to talk to our Office of General Counsel.
“Our counsel felt that for us to really look into a facility’s permit that is regulated by another agency may be somewhat outside of the authority given to us by congressional mandate. So for that reason we could not do a lot of evaluation of the permit. That is for the State of New Mexico and the U.S. Environmental Protection Agency.”
Shortly thereafter, EPA’s compliance enforcement action began with its January 29, 2009 letter to Intel invoking Section 114 of the Clean Air Act.
Earlier this month, Corrales Comment contacted ATSDR leader Kowalski about its role in EPA’s decision to target the Intel-Rio Rancho facility.
On February 9, Kowalski replied, “ATSDR informed EPA Region 6 about the ongoing community concerns about the Intel-New Mexico facility, but we do not know the specific basis for the EPA inspection.”
Kowalski added his team will include in its final community health consultation “any pertinent inspection report findings… if the EPA report is released before the ATSDR’s document.”
But, he noted, he did not expect to receive an advance copy of the EPA inspection report.
In an interview January 21, Intel officials Sarah Chavez, Thom Little and Liz Shipley were asked whether a change in regulations through a “major source” permit would be acceptable.
“It would be a lot of work for us, but would it change the operation? I don’t know that I can fully answer that,” Chavez said.
No other Intel site in the United States operates with a “major source” permit, she said, and the only such permit with which she is familiar actually has less conditions than Intel’s current “minor source” permit from the Air Quality Bureau.
CHANGE IN INTEL AIR PEMIT COULD HOLD RISKS
Chavez and Little questioned whether residents near Intel who have called for a “major source” permit really understood what the implications might be.
They acknowledged such a permit might have short-term emissions limits, but it could also allow even more emissions over all.
Said Little: “Obviously the public has a perception that having a major source permit would have a series of conditions that are beneficial.
“But I wonder if there are things that the community wouldn’t like in a major source permit? There could be a potential down-side.”
Chavez added, “One of the things the community needs to look at is if Intel were a major source, we don’t have to keep our emissions under 96.5 tons, right?” referring to the current annual limit for volatile organic compounds emissions.
“We could say ‘We’re going to emit 200 tons,’ or whatever the number would be.”
Comment: And you wouldn’t have to use the incinerators to burn off the VOCs.…
Chavez: “No, that’s right.
Comment: But in reality, you probably would.
Chavez: “We may, but again, if that’s the path it takes, there are other options we could probably take without having pollution control equipment operating.
“I mean, Thom’s right. What are the things that you lose that we have in our permit today if we were a ‘major source?’”
Little returned to the prospect that Intel might be allowed to release even more pollutants than it does now. From the community’s perspective, he suggested it might be advisable to consider the down-side of a “major source” permit: Intel might get to release much more of some pollutants than under the “minor source” permit.
“So it might be: ‘Be careful what you ask for,’” Little cautioned.
It’s also possible that the “minor source” permit could be retained while other restrictions are
imposed. Generally, however, state statutes do not allow more stringent regulations on air pollution than set by federal law and regulations.
Among other implications, that means even if state regulators are aware of dangerous substances being used at Intel, they are not allowed to set restrictions unless those compounds are already listed by EPA as “hazardous air pollutants” or allowed to be controlled under the N.M. “toxic air pollutants” program.
Uhl said other states, such as Texas and California, do have health-based standards for a wide range of chemicals not on the federal HAPs list. “Texas has a really comprehensive list of thousands of chemicals, but that is not in our regulations.”
Asked what process exists to import some of those additional controls for use in New Mexico, Uhl replied, “We would have to go to our Environmental Improvement Board and get those substances on our list.”
That is a cumbersome process, she said, adding she is not aware that any such attempt has ever been made.
But a similar process through the N.M. Environmental Improvement Board is now under way. A petition was entered to adopt regulations to reduce emissions of greenhouse gases to 25 percent below their 1990 levels by the year 2020. The request drew quick and stiff opposition. Several businesses and state legislators filed suit in January to block any action by the board.
Still, Uhl is cautiously optimistic that tighter air quality rules may be coming. She even hinted it might be time to take a fresh look at the Intel air pollution data generated through the aborted 2004 Corrales Air Toxics Study.
“The State put a lot of resources into that Corrales Air Toxics Study and so did EPA. Of course, the outcome was not the best for the community or the best for the Environment Department.
“But sometimes there has to be a little time that passes between these things, and then you can come back with a fresh view.”
Uhl was asked whether she thinks that is what’s happening now.
“I think so,” she replied. “I think it is with the new Obama administration. Sometimes it takes a leader to say ‘It’s okay to do these things,’ for people [regulators] to step outside the box.
“That’s what EPA has right now.”
‘NO HEALTH-BASED STANDARDS FOR TOXICS’
Given her agency’s decades of inspections and tracking of pollution from Intel, Uhl was asked whether the Air Quality Bureau is any closer to determining what may be causing nearby residents to blame Intel for their illnesses?
That’s not really something the bureau does, she explained. “But the question is: who does do that?” she added.
“Around the nation, people are getting sick and I know that the Centers for Disease Control has worked with EPA on such studies. It’s really hard to make that connection, because you’ve got so many other factors such as lifestyles that it’s very difficult to pin-point air as the sole reason why people are getting sick.
“But we are not really charged with making a determination like that. We don’t have the authority to say that something is making people sick.
“We do have the authority to say, ‘This facility is exceeding national health-based standards for one of the criteria air pollutants,’ but the toxics are not included in that.
“There are no criteria for those toxic chemicals.”
National ambient air quality standards have been set for just six “criteria air pollutants:” carbon monoxide, sulfur dioxides, nitrogen oxides, lead, ground-level ozone and particulate matter.
Even so, she said, her bureau was headed down the path of finding the source of health problems through the Corrales Air Toxic Study and the risk assessment that was supposed to conclude it.
And when ATSDR was called in, they too “made a stab at it just as we did with the Corrales Air Toxics Study. But they are not a regulatory agency, so even if they were to say ‘Intel’s making
people sick,’ they don’t have any way to do anything about it.”