3M: Hutchinson, Minnesota

3M: NRDC Comments on 3M Proposal

NRDC Comments on 3M Hutchinson Project XL
July 3, 1996

1. Contrary to both the spirit and explicit criteria of Project XL, the 3M proposed agreement would allow significant emissions increases, and would not require superior environmental performance. While the terms of the facility's permits would change, 3M would receive broad pre-approval for facility expansions, would not reduce its sizable actual air emissions, and could instead significantly increase actual emissions above current practice. The proposed VOC emissions cap would allow the facility to emit more tons of VOCs than all but the 70 most polluting facilities in the U.S.

2. Instead of requiring actual environmental improvement, the proposed agreement offers "reductions" only on paper. The stated intention of the project is to provide broad pre-approval of facility expansions and modifications in exchange for less permissive emissions limits in the facility's permits. However, the proposedlimits remain so permissive as to allow the facility to increase its emissions to very high levels.

3. Even the paper "reductions" may be illusory, since the agreement would allow increases in excess of those currently allowed by law. The agreement assumes that the normal permitting would allow emissions of 3,278 tons per year of VOCs. The proposed emissions limit for the facility would also allow for addition of new equipment, increasing the proposed limit to 4,500 tons per year of VOCs. First, it is unlikely that BACT standards would allow emissions from current equipment of 3,278 tons per year. Second, there is little assurance that the additional 1,222 tons would guarantee superior environmental performance.

The 3,278 ton estimate includes emissions allowances for the North Magnetic Tape Plant, which is going to be phased out. Under current rules, emissions allowances for older, more heavily polluting equipment are not transferable to new equipment. The South Plant would emit only 1,468 tons per year under BACT, according to the project analysis (which assumes that certain sources are exempted from BACT as proposed). Thus, according to the project analysis, the likely maximum "BACT baseline" for expansion of existing South Plant equipment would be 1,468 tons. Additional emissions allowances above this baseline should be based on emissions limits that ensure superior environmental performance for new equipment.

The project's BACT calculation for the North Plant would allow as much as 4 times higher emissions than BACT would likely allow. The project calculations assume that 95 percent emissions is equivalent to BACT. However, the proposal documents that the North Plant equipment achieves 97.6 to 99.6 control efficiency; thus, BACT would require at least this level of performance. Thus, while the project calculates that 1,810 tons per year would represent BACT for the North Plant, BACT would require at a minimum a limit of 435 tons to 1033 tons, assuming that over 300 tons of emissions would remain exempt from BACT as 3M proposes.

The proposed emissions limits do not represent superior environmental performance and as such are unacceptable. The project should, before the new permit is issued, create an open process to perform a pollution prevention evaluation at the facility. Representatives from the project sponsor, the regulatory agencies, and the local and regional (PPC) stakeholders should supervise this evaluation using independent technical resources.

This process should first be used to set initial emission limits and enforceable, short- term goals for reducing VOC and HAP emissions from present equipment at the environmental management system fail to encompass the range of pollution prevention goals of the project. In addition, there is no timeline to EMS design, implementation, and evaluation.

After the initial pollution prevention evaluation, the ongoing pollution prevention dialogue should craft the EMS on an established deadline included in the permit. The stakeholder group with independent technical resources should, no less frequently than every eighteen months, 1) assess progress and improvement toward the facility's goals and targets and 2) establish non-enforceable targets and enforceable minimum performance goals for the most pressing environmental impacts and most promising pollution prevention opportunities. The permit should establish that the broad goal of the EMS encompass all of the pollution prevention goals of the project.

8. The agreement proposes a HAP emissions cap that would allow the facility to trade 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 on the HAP list. As such, the proposal sharply departs from requiring superior environmental performance. This also represents a dangerous departure from Agency policy that alternative HAP compliance must not represent an increase in risk to human health and the environment.

9. The size of the hazardous air pollutants cap cannot be squared with "superior environmental performance." In 1993, the facility was already the 22nd largest source of hazardous air pollutants in the country reporting to the TRI. The proposed cap would allow the facility to triple its HAP output and become one of the 6 largest sources of HAPs of the 22, 000 facilities reporting to the TRI.

10. 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 risk from one mixture of HAPs to that from another mixture.

11. Moreover, the proposed risk assessment contains basic flaws. 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 HAP compounds. In addition, the cancer risk limit is 10-5, ten times the goal of one-in-one-million incremental increase in cancer risk.

12. The proposed risk assessment would permit such high concentrations of hazardous air pollutants in ambient air that it is possible that persons at the fenceline could experience acute exposure risks. The permit grants this weakness by adding an acute exposure procedure to buttress the primary risk assessment.

13. Contrary to the Executive Order on environmental justice, the risk assessment assumes no background exposure -- that the background concentrations of HAPs is zero. Moreover, if the MPCA finds that risk has been shifted from one population to another, all that is required is a report stating the finding.

Internecine issues complicate even a crude risk assessment for the wide variety of emissions scenarios available to 3M under the proposed agreement. Moreover, risk assessment does nothing to demonstrate that the proposed emissions limits represent superior 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 containments; 2) background ambient air concentrations of air toxics; 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.) If inequitable risk shifting is found to have occurred, the permit should be modified to reduce the resulting risks.

14. The proposed HAP emissions caps provide more flexibility than the facility would likely require as long as the facility is providing superior environmental performance. For example, the list of 189 HAPs that 3M could trade under the cap includes 48 halogenated organics. However, 3M Hutchinson reported no releases of halogenated organics to any medium. 3M should be encouraged to use less toxic compounds, not invited to use halogenated organics and other compounds that may be more toxic and/or persistent than the facility's current emissions.

The list of hazardous air pollutant allowed by the permit should be shortened to reflect 3M's progress in toxics use reduction and emission levels consistent with superior performance. 3M should provide stakeholders with a pollution prevention analysis demonstrating the need for adding new HAPs in significant quantities.

15. The agreement requires a periodic regularity analysis of the facility's performance to the level of performance that would have been required by the current regulatory system. This review is the primary justification for exempting the facility from the future federal rule that will govern HAP emissions from the facility, even though the proposed emissions limit may be significantly less protective than the future rule. However, in the case that the regulatory analysis reveals that the XL agreement has allowed greater emissions than would have been required, there is no requirement to strengthen the XL permit.

16. This retroactive review would almost certainly rely on end-of-the-pipe controls, since the equipment and products under review would already have been designed and operating. The most promising avenues for pollution prevention would most likely be closed at such a point.

The goal of the agreement should be to exceed current regulatory requirements, given the remarkable flexibility allowed under the provisions of the permit. The agreement must set continuous improvement pollution prevention goals, not rely on performance "equivalent" to regulatory standards.

If the permit allows increased emissions when compared to BACT or other normally applicable requirements, the permit should provide that the facility would then be required to reduce emissions to the amount that would have been allowed. In the case of major exceedances, the new limit should be lowered below the "normal" limit by the amount of the exceedence until the facility's multi-year total no longer exceeds the multi-year total that would have been allowed under the normally applicable regulations.

17. The agreement does not establish concrete procedures and penalties for violations, thus decreasing incentives for 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 ton of exceedence and a lowering of the emissions cap for the next 12 months by the number of tons of exceedence.

18. The agreement would lock-in the facility's ability to continue increase emissions of criteria pollutants other than VOCs. SO2, NOx, and PM10 emissions from the facility have significantly increased by 118 percent, 34 percent, and 82 percent, respectively -- from 1990 reported levels.

The ongoing pollution prevention dialogue should examine ways to decrease energy and stream use and to establish goals for improved performance from the on-site combustion units. At a minimum, 3M should certify that for SO2, NOx, and PM10, tons of emissions per unit of product has not increased as the plant is modified and expanded. Upon any expansion or modification of the facility that would trigger review of the on- site combustion unit emission limits, at a minimum, the normal regulatory standard should be applied and the permit modified accordingly.

19. The agreement proposes to increase regulatory flexibility with a number of requirements under the auspices of an environmental management system. However, no public oversight of this broad wavier authority is proposed, even though the requirements to be waived include important right-to-know and chemical accident prevention provisions. Moreover, some of the provisions to be waived are enforceable by citizen action, but may not be after incorporated into the EMS.

The environmental management system should be shaped and overseen by an open dialogue between the project sponsor, regulatory agencies, and local and regional stakeholders. Great care should be taken in determining the equivalence of these provisions. All requirements of the Project XL permit, whether part of the permit or the environmental management system, must remain as enforceable as the present.

20. Chemical accidents may be considered "permitted releases" and exempt from CERCLA release reporting requirements, as long as the emissions caps are not violated.

The permit should include language to require reporting of any sudden, accidental releases not associated with normal operations.

3M: Hutchinson, Minnesota

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