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Letter from NRDC to EPA


1. The Intel project is predicated on waiving the permitting requirements for construction of a new manufacturing plant and for plant modifications in exchange for facility-wide air emissions caps that are said to provide environmental performance superior to what would result had the facility undergone normal permitting. However, EPA and Intel have provided no data or analysis to demonstrate that the proposed caps do, in fact, represent superior environmental performance. Under the proposal, hazardous air pollutant emissions from plant expansions or new equipment may also exceed what would be required of the new equipment had normal permitting requirements applied.


TRI data indicate that the proposed limit on emissions of inorganic hazardous air pollutants (HAPs) may not guarantee even standard performance for the industry. In 1993, all but one facility in the semiconductor manufacturing industry reported emissions below the proposed cap on inorganic HAPs. Only three facilities in the industry released more than half of the proposed cap in 1993.

3. TRI and AIRS data demonstrate that, under the proposed emissions caps, the facility could be in the 90 (most polluting) percentile for its industry for VOC and organic HAPs. Such emissions may still be consistent with state-of-the-art technology, if the facility is larger than 90 percent of other facilities in the industry. However, as mentioned above, no such engineering or pollution prevention analysis has been performed.

If the key benefit from this agreement is "state of the art" performance, then the Project must demonstrate that the caps do, in fact, require the "state of the art." This initial analysis should be undertaken by the stakeholder group, using independent technical resources, and consist of a pollution prevention analysis of the current facility and basic benchmarking relative to other facilities engaged in the same activities. The proposed emissions caps, especially the inorganic hazardous air pollutant caps, should be adjusted as appropriate, given the findings of this analysis. In order to ensure that future emissions increases continue to provide superior performance, the air emissions limits should include a requirement that Intel certify that emissions per unit of production has not increased as a result of plant expansions or modifications. Most importantly, the agreement should create an ongoing dialogue with the stakeholder group, providing independent technical resources, so that there is a continuing consensus that the facility's operation and expansion incorporate real pollution prevention that benefits all populations. Stakeholders should be open to well-supported technical analyses from Intel that show the need for proposed emissions limits and Intel should be open to implementing pollution prevention opportunities that show environmental, technical, and economic merit.

4. There are no provisions to ensure that process modifications under the air emissions cap would not shift risk from the environment to the workplace, thus omitting a critical component of superior environmental performance. As a result, the proposal fails to meet the critical Project XL criterion that prohibits shifting risk from one population to another.

Clearly, any pollution prevention analysis should examine how to minimize impacts on the workplace environment as well as external emissions. The initial pollution prevention analysis and the ongoing pollution prevention analysis would necessarily examine materials efficiency and safety, both of which can have significant pay-offs for the workplace environment. The stakeholder group must find creative methods of incorporating worker input any pollution prevention analysis; many pollution prevention experts have shown that worker input can significantly improve the quality and results of pollution prevention work. Similar to ensuring that emissions per unit of production do not increase, the agreement should include a commitment that new equipment will not increase worker exposure per unit of work.
5. The proposed air pollution caps are intended to accommodate not only the full operation of current plant equipment but also the emissions from an entire, unbuilt second manufacturing plant. As such, it is highly unlikely that the proposed caps pose any effective limitation on emissions from current operations.

6. The proposal would allow Intel to construct a second manufacturing plant of any kind. This is of concern because the project has no information or analysis regarding the type or magnitude of the emissions or risks from this new facility.

7. Although the proposal contains voluntary recycling goals, there are no commitment for toxics use reduction, chemical accident risk reduction, or integrating pollution prevention into product and process design.

The initial pollution prevention analysis should be used to set appropriately aggressive caps for VOCs and for HAPs to ensure superior performance for the current equipment. Higher emissions limits should not be available until production is substantially increased. The facility's emissions limits should increase no more than is consistent with a commitment to ensure superior environmental performance for the combined new and existing equipment. Provisions to increase emissions limits should create clear incentives for designing pollution prevention into plant expansions and modifications. Moreover, emissions per unit of production should continually improve; at a minimum, the pollution efficiency ratio (pounds of emissions per unit of production) should not increase a result of plant expansions and modifications. Moreover, emissions per unit of production should continually improve; at a minimum, the pollution efficiency ratio (pounds of emissions per unit of production) should not increase as a result of plant expansions or modifications. The ongoing stakeholder dialogue, with independent technical resources, should continue the pollution prevention analysis of the facility and expansions. The agreement must ensure that minimizing environmental impacts is a measurable goal of the design process for new equipment and processes for the facility. Since, at present, there is no information regarding the plant expansion, there is no way of determining how to achieve superior environmental performance from the expansion. Integrating an open pollution prevention process into planning the facility expansion may serve as a substitute for such an analysis. If this is also impractical, then it may be necessary to exclude the expansion from the proposed agreement.

8. The agreement proposes to replace current limits on specific hazardous air pollutants with a HAP emissions cap that would allow the facility to trade currently permitted emissions of less toxic hazardous air pollutants (HAPs) for emissions of more toxic hazardous air pollutants - thus, process changes and expansions could significantly increase risks from HAP emissions. This flatly ignores the orders-of-magnitude differences between the toxicity of the compounds of the HAP list. As such, the proposal sharply departs from requiring superior environmental performance. This also represents a dangerous departure from Agency policy that HAP compliance must not represent an increase in risk to human health and the environment.

9. Risk assessment is poorly equipped to allay concerns regarding the trading and overall level of HAP emissions: State-of-the-science risk assessment tools cannot be used to accurately characterize aggregate risk from a mixture of exposures. As such, the proposed analysis is unable to compare the risk from one mixture of HAPs to that from another mixture.

10. Moreover, the proposed risk assessment contains basic flaws. The proposed risk assessment used Arizona's one-hour air quality criteria to verify the protectiveness of annual emissions limits - a highly questionable comparison. Since the facility is only required to meet the limits on a annual basis, HAP emissions could cause an exceedance of the one-hour guideline for days, weeks, possibly months, as long as by the end of the year the total emissions did not exceed the annual limits. More importantly, although the primary risk to the community for many compounds is chronic exposure, the risk assessment may not protect against chronic risk for some or all contaminants, since the results are judged against short-term exposure - and in some cases, occupational - standards. In addition, the proposed risk assessment appears to ignore risks from indirect exposure and from HAPs that bioaccumulate, which is the primary concern for many of the HAPs compounds.

11. Contrary to the Executive Order on environmental justice, the risk assessment assumes no background exposure - that the background concentrations of HAPs is zero.

Internecine issues complicate even a crude risk assessment for the wide variety of emissions scenarios that could occur under the proposed agreement. Moreover, risk assessment does nothing to demonstrate that the proposed emissions represent "state of the art" performance for a given activity. Superior environmental performance is best assured by continuous pollution prevention analysis that is open to stakeholders with independent technical resources. Chemical selection and emissions should be carefully analyzed in the initial and ongoing pollution prevention dialogue. In order to meet the Agency's own guidance on risk assessment, the risk assessment must take into account 1) chronic risks from all contaminants; 2) background ambient air concentrations, setting the caps at levels that, when added to current air toxics concentrations, would not cause an exceedance of the appropriate guidelines; 3) indirect exposure and bioaccumulation; and 4) additive risks from mixtures of HAPs. (Methods for screening for some indirect exposure pathways have been developed for the Agency's Hazardous Waste Identification Rule.) At a minimum, taking into account background concentrations, hourly emissions from the facility should never cause an exceedance of Arizona's one-hour air quality guidelines. Similarly, daily emissions from the facility should never cause an exceedance of Arizona's 24-hour air quality guidelines. The annual caps should not allow an exceedance of Arizona's annual air quality guidelines. Addition of monthly or quarterly emissions caps would also partially address the concern that short-tern emission peaks could increase risk from facility emissions.

12. The proposed monitoring scheme may not capture all emissions. It is unclear whether the proposed mass balance scheme would include HAPs and VOCs produced by chemical reactions in the manufacturing process.

13. Given the use of fluorinated organics, it is unclear whether the HAP and Arizona lists will capture all air toxics at the facility. For example, carbon tetrachloride is regulated as a HAP, but carbon tetrafluoride - which is used at the facility and is as, if not more, toxic - is not.

Emissions of fluorinated organic compounds would likely pose a great, if not greater, risk to human health and the environment as the chlorinated analogs. Fluorinated organic compounds should be controlled under the agreement as effectively as their chlorinated analogs would be controlled.

Reaction products should be covered by the monitoring and emission limits to address any additional mass of HAPs or VOCs are generated in the process.

14. The proposed HAP emissions caps provide more flexibility than the facility would likely require as long as the facility is providing "state of the art" environmental performance. For, example, the list of 189 HAPs that Intel could trade under the cap includes 48 halogenated organics. However, Intel currently does not use chlorinated organics at the facility and, for the 1993 TRI, no Intel facility reported releases of halogenated organics to any medium. Intel should be encouraged to continue such progress, not invited to return to use of halogenated organics.

The list of hazardous air pollutants allowed by the permit should be shortened to reflect Intel's progress in toxics use reduction and emission levels consistent with state-of-the-art performance. Intel should provide stakeholders with a pollution prevention analysis demonstrating the need for adding new HAPs or other compounds with an Arizona air toxics guideline in excess of 1 ton.

15. The primary environmental benefits from this agreement stem from Intel's commitment to a single emissions cap for the life of the agreement - that is, Intel would not exercise its existing rights to apply for new permits that would allow additional emissions - in exchange for broad pre-approval and no technology review for plant expansions and modifications. However, these benefits may not come to pass, since Intel may terminate the agreement to ask more for lenient permits, after having utilized its right to expand the plant without prior approval. In addition, there is no deadline for compliance with the normal regulatory system after termination of all or part of the Project XL agreement.

The air permits issued pursuant to the agreement should contain a provision that terminates the permits upon Intel's application for new permits to increase the total allowable emissions and the facility, at which point the facility shall apply for permits for all operations at the facility, under the standards that would have been applicable at the time of construction or most recent modification. Termination of the agreement and permits should include a sufficient time frame for the transition to the standard regulatory system and a deadline for completion of the transition. Further, the agreement should provide for a recapture of excess emissions that might occur during any post-agreement transition period. In addition, the Project XL arrangement should include the safeguards now applicable to voluntary acceptances of stringent limits, such as "netting out" to avoid new source review. As such, impermissible "tiering" should be prohibited. Any equipment built or modified under the Project XL emissions cap should be inelligible for any new, post XL permits that would increase allowable emissions limits unless a bona fide modification justified a new permit.

16. The termination/withdrawal provisions provide that Intel and Arizona DEQ are the only stakeholders involved in selecting an alternative dispute resolution method. Terminating or modifying the agreement does not provide for full participation by the community stakeholders.

Alternative dispute resolution methods should be selected by a consensus of the stakeholders. The Community Advisory Panel should participate in the modification, withdrawal, and transition processes as a Party; this participation should include the right of the CAP to request alternative dispute resolution for a modification.

17. The agreement does not establish concrete procedures and penalties for violations, thus decreasing incentives from compliance.

The agreement should include specific penalties for noncompliance with the emissions cap. We would suggest the two-pronged approach of the acid rain trading program - a set fine per ton of exceedance and a lowering of the emissions cap for the next 12 months by the number of tons of exceedance.

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