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."