INTEL'S AIR POLLUTION PERMIT A "SHAM," SAYS FORMER REGULATOR

 

Corrales Comment Newspaper

January 24, 2004

By:  Jeff Radford (Editor)

Third in a series

Intel’s current air pollution permit is a sham, according to the N.M. Air Quality Bureau official who oversaw development of the permit over a five-year period until he was removed from the case under political pressure.

Jim Shively, program manager for the bureau’s new source permitting section from June 1994 to March 2001, makes that assessment in a highly-charged letter to N.M. Environment Secretary Ron Curry dated January 5.

His indictment of the process that approved the controversial pollution permit is based on his own experience as he struggled in vain to produce an enforceable permit for Intel’s Rio Rancho operations.

Now that he is retired from the bureau, as of January 1, Shively is no longer under a prohibition against speaking out about the inadequacy of Intel’s air pollution permit. He held a news conference January 19 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.

And 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."

"My position was that those emissions factors were unreliable."

"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."

But he thinks the political courage within NMED to call for corrections is 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."

He called the current regulatory process for Intel "sloppy, because you can’t say with any degree of confidence what their emissions really are."

Days after he retired, Shively wrote a letter to N.M. Environment Secretary Ron Curry outlining his concerns about the Intel permit. His objections were well known within the department for the past decade.

In his letter to the cabinet secretary, 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 letter says he has supplied the names of 16 other former NMED employees who share 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.

Shively’s January 5 letter to Secretary Curry slams 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 concludes 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 for this series of articles. 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 reporter¹s 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 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.

Intel¹s Permit No. 325-M9 (modification number 9) is, in fact, a permit to be regulated as a "minor source."

A crucial consideration is what the facility’s over-all "potential to emit" is; 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.

The bureau’s Intel permit file in Santa Fe contains more references to concerns by Shively and others that the permit modification sought amounted to a "sham permit."

A November 9, 1994 memo written by Intel¹s Sarah Chavez, states the situation clearly. "NMED is concerned that this does not become a sham permit, and that emissions are verifiable, and that they be able to determine compliance in a timely manner."

Those are precisely the concerns stated in Shively’s January 5, 2004 letter to NMED Secretary Curry.

Chavez’s memo continues: "Intel clarified that they will keep verifiable records and will determine emissions for each of the fuel firing units on a monthly basis. Intel will also keep a rolling annual average to ensure that they do not exceed the ton-per-year limits, and that they remain a minor source."

The Chavez memo states that NMED officials [Shively among them] were similarly concerned that conditions in the permit for limitations on federally classified "hazardous air pollutants" and State listed

"toxic air pollutants" also would constitute a "sham".

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 (CRCAW).

For their appeal to the N.M. Environmental Improvement Board, the citizens’ groups called in a California-base 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 I¹ve 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.")

But after refusing to consider technical testimony by CRCAW’s retired Los Alamos chemist Fred Marsh, and retired Sandia Labs physicist Alan Beattie, the Environmental Improvement Board, composed of political appointees, upheld the March 2000 permit.

The January 5 Shively letter to NMED Secretary Curry and Corrales Comment’s thwarted questions for Shively were on the agenda for the January 12 Corrales Air Toxics Task Force meeting.

Using an EPA grant, the task force has guided an air pollution study for the past year to determine what seems to be making Corrales and Rio Rancho residents sick. A final report, including a health risk assessment, is expected in March.

The January 12 task force meeting was attended by NMED Division Director Jim Norton. After Shively’s letter to Curry was read, Norton was asked to respond to the allegation that the Intel permit is a "sham" Norton dismissed Shively’s assessment as "just one of around a dozen people’s perspectives." He added: "These concerns were raised a lot during the preparation of this permit," but ultimately NMED concluded that conditions in the current permit were adequate and proper.

"The department made its decision and it has been upheld all the way along," through a ruling by the N.M. Court of Appeals.

"We don¹t believe the permit is a sham. We believe it is enforceable," Norton added. "We don¹t have any reason to believe Intel is not in compliance with its permit."

A list of 19 questions Corrales Comment submitted to NMED for Shively were also attached to the task force agenda sheet as well as the department’s response.

One of those questions asks, "When he worked on 325-M9, did Shively accept or reject the permit’s dependence on Intel-generated ‘emissions factors’ to determine compliance? What was Shively’s recommended alternative, if any?"

The NMED reply was, "The department accepted the use of emission factors as part of the permit."

At his January 19 news conference in Corrales, Shively further explained his concerns about the permit finally issued.

One of the flaws in the kind of "minor source" permit Intel has, he said, is that it does not set lower emissions limits for chemicals that are more hazardous than others. Intel’s permit treats all hazardous chemicals equally, allowing release of up to 10 tons per year of even the most dangerous toxins--without any assessment of the health consequences of such releases.

CRCAW’s Fred Marsh, who attended Shively’s news conference, explained he problem this way. "They could release the annual allowable limit in one day or one hour and they would not violate the permit.

"For instance, Intel is allowed to release 5.9 tons of phosgene in 12 months time." He noted that phosgene is an extremely deadly toxin used in Chemical warfare.

"They could release that 5.9 tons in a day or an hour and it would kill thousands and thousands of people. Intel could say, ‘we didn’t violate our permit,’ and that would be true."

Without continuous emissions monitoring and dependence on calculations using emissions factors rather than actual measurements, Shively said, it is difficult to know for sure how much of which kinds of toxins are coming out of Intel¹s stacks at any given time.

Shively’s draft of the Intel permit which called for continuous emissions monitoring was withdrawn "because Intel didn¹t want it."

Cost of such a system may have been a deterrent, he admitted. "It wouldn’t have been cheap, but the accountability would have been there."

Asked if he thought accountability was something Intel didn¹t want, Shively replied, "Yeah."