State of California

Energy Resources Conservation

And Development Commission

In the Matter of: )

) Docket No. 98-AFC-3

Application for Certification )

For the Delta Energy Center ) 11/12/1999

Written Testimony and Identification of Witnesses for a November 18, 1999 Hearing on the Delta Energy Center (98-AFC-3) Socioeconomic, air quality, and public health

This document is best viewed at the web site http://www.calfree.com/Delta_Test.html

Californians for Renewable Energy is a nonprofit corporation whose purposes include, “to engage on a nonprofit basis in research and information dissemination with respect to legal rights in a healthy environment by giving legal advice, appearing before administrative bodies, and enforcing environmental laws through court actions,” and also, “to supply on a nonprofit basis professional legal assistance to planning, conservation groups, and neighborhood groups, in regards to new energy projects in the state of California”. Petitioner is an advocate for new renewable energy supplies as the “environmental preferred alternative” for the people of the state of California.

Petitioner calls the additional witness Paulette Lagana representing intervener CAP-IT to present and be cross-examined on recent air samples collected by her organization. Petitioner requested EPA Region IX Matt Haber Chief permits office to be an impartial witness in this matter. He declined. Petitioner calls five witnesses to testify on this matter. Petitioner calls as a witness of public health an individual currently disabled by the effects of toxic exposure. Petitioner call intervener Joe Hawkins representing intervener Community Health First. As a duly elected trustee of the Pittsburg Unified School District petitioner call Jim MacDonald to testify of Environmental Justice, discrimination by government agencies in the Pittsburg community, and resolution 99-32 calling on EPA to declare Pittsburg an environmental justice community. Petitioner calls two representative of Pittsburg’s African-American community to testify on Environmental Justice and discrimination by government agencies in the Pittsburg. The two witnesses are the Rev. Bill Forest and Ms. Darcel Washington both long-term residents of this community. Petitioner requested Running Grass of EPA Region IX’s environmental justice division to appear as an impartial witness on this matter. He declined. Petitioner would like the record to note that his organization has insufficient fund to sequester witnesses who declined to appear. If the Commission so desires these witnesses may be issued subpoena to appear by the Commission.

Reasons for this petition are:

1) Petitioner’s contention is that the California Energy Commission’s waiver of the NOI requirements for this project precluded the completion of an adequate assessment of the “scope” of the project and its alternatives, as is required by CEQA and NEPA. Further, petitioner contends that this is normally the portion of the CEQA process that identify the “scope” or “project objectives” of a project, as well as project alternatives, which are developed in a public process with public participation. This is commonly referred to as a “scoping hearing” on the project. By eliminating the NOI requirements without any other CEQA equivalent process prevents the publics meaningfully participation in the project’s environmental review, which is in violation of CEQA. Commission’s failure to provide an adequate alternatives analysis and subsequent approval of the FSA is in violation of CEQA and NEPA, and is an “abuse of discretion” on the part of the Commission.

2) Petitioner position is that the FSA’s failure to comply with CEQA in its alternatives sections resulted in the failure to mitigate adverse impacts on air quality from this project. The applicant proposes to mitigate both regional and cumulative air quality impacts from this project through the use of trading of emission reduction credits (ERCs). Petitioner contends that the applicant’s mitigation fails to meet EPA Region IX requirements for Lowest Achievable Emission Rate (LAER). Petitioner contends that without interpollution trading the applicant cannot mitigate the adverse air quality impacts associated with this project which are both cumulative and regional impacts and should have been examined in the alternatives analysis. Commission’s failure to provide adequate alternatives analysis and subsequent approval of the FSA is in violation of CEQA and NEPA, and is an “abuse of discretion” on the part of the Commission.

3) 161.8 tons of particulate matter is identified as the maximum emission levels proposed for the Delta Energy Center in the FDOC. Petitioner’s position is that the BAAQMD FDOC and the FSA failed to identify potential significant unmitigated adverse impacts on air quality and public health resulting from particulate matter PM10 and PM2.5 potentially in excess of 1,681 tons annually. Petitioner’s contention is that the FDOC and FSA failed to analyze the potential impacts of 357 tons of ammonia slip cumulatively with respect to four out of ten of California’s largest stationary sources of Nox, including number one Shell Martinez Refining Company at 4,447 tons/year. These four sources are within near proximity to the proposed DEC and have net annual NOx emissions of 14,298 tons/year. Commission’s failure to provide adequate alternatives analysis and subsequent approval of the FSA is in violation of CEQA and NEPA, and is an “abuse of discretion” on the part of the Commission.

4) The EPA is responsible for processing by EPA's Office of Civil Rights (OCR) complaints filed under Title VI of the Civil Rights Act of 1964, as amended (Title VI), alleging discriminatory effects resulting from the issuance of pollution control permits by state and local governmental agencies that receive EPA funding. Petitioner contends that the proposed mitigation measures violate Title VI in that they unfairly impact low income and minority communities affected by the failure of the applicant to eliminate unhealthful air emissions in an area of EPA non-attainment for Ozone. Petitioner’s position is that the Commission’s support of the proposed project at its current site is in violation of Title VI of the Civil Rights Act of 1964, and as such the Commission’s failure to provide an adequate alternatives analysis and subsequent approval of the FSA is in violation of CEQA and NEPA, and is an “abuse of discretion” on the part of the Commission.

In addition to exhibit A the October 21, 1999 -- Final Determination of Compliance, Delta Energy Center (BAAQMD FDOC). The following additional exhibits are included for reference. Underlined exhibits have links on the worldwide web.

Ø Exhibit B Transcript for October 5, 1999 hearing on Delta Energy Center power plant project

Ø Exhibit C "Brief on the Delta Energy Center (98-AFC-3) Final Staff Assessment -- Inadequacy of Alternatives Analysis Pursuant to CEQA"

Ø Exhibit D October 18, 1999 -- Brief by staff counsel Dick Ratliff on project alternatives.

Ø Exhibit E "Rebuttal to Senior Staff Counsel Dick Ratliff's Brief on the Delta Energy Center Project Alternatives"

Ø Exhibit F “EPA Comments on the Preliminary Determination of Compliance for the Delta Energy Center” EPA Region IX to BAAQMD September 23, 1999 copy on file with Dockets or may be downloaded from the http://www.calfree.com/fax0007.rec and opened using imaging software.

Ø Exhibit G “Petitioner’s Reply Brief” Sutter Power Project PSD Appeal No. 99-6 copy attached

Petitioner requests the Commission staff provide written copies of all the exhibits to all the parties and witnesses involved in the November 18, 1999 hearing on the Delta Energy Center (98-AFC-3).

1. Inadequacy of the alternatives analysis

For testimony petitioner cites Exhibit C for reference in regards to Commission’s failure to provide adequate alternatives analysis with excerpts as follows:

“The, “Delta Energy Center (98-AFC-3) Final Staff Assessment “ the California Energy Commission fails to identify the “environmentally preferred alternative” to this project in compliance with CEQA. Petitioner’s position is that this alternative is renewable energy.”

“Petitioner formally protests the failure of the CEC to identify renewable energy supplies, or propose, or consider any renewable energy project, as the “environmentally preferred alternative” in the, “Delta Energy Center (98-AFC-3) Final Staff Assessment”. Petitioner request the CEC prepare and Environmental Impact Report on the proposed project in compliance with both CEQA which identifies renewable energy supplies as the “environmentally preferred alternative” to this project, to this project, as the CEC’s environmental program is not currently certified by the California Resources Agency, as the CEC’s certified program is under review by the California Resources Agency pursuant to SB110. Petitioner believes that this analysis of alternatives fails to identify the “environmentally preferred alternative” as such, and therefore fails to comply with CEQA’s requirements for alternatives and mitigation.”

“Petitioner’s position is that adequate alternative sites to the proposed project are required under CEQA and not provided. Petitioners further states that the “Delta Energy Center (98-AFC-3) Final Staff Assessment” failed to meet the requirements of CEQA to clearly identify the “Proposed Pittsburg District Energy Facility site or the DEC Alternative Site C siting alternatives” as an “environmentally preferred alternatives” to the proposed DEC. “

“Petitioner believes that this analysis of alternative siting “environmentally preferred alternative sites” fails to identify either alternative site as such, and therefore fails to comply with CEQA’s requirements for alternative siting and mitigation. As evidence of the legal basis for petitioner’s position petitioner cites the CEQA Case “Citizens for Goleta Valley v. Board of Supervisors of Santa Barbara County” in which the Court of Appeals, “Held that: (3) alternative of development on a different site was not adequately considered.” As such, the petitioner’s position is that this projects environmental document therefore fails to meet the requirements for CEQA.”

“The, “Delta Energy Center (98-AFC-3) Final Staff Assessment” fails to identify the “the No-Project Alternative” as the “environmentally preferred alternative” to this project in compliance with CEQA. Petitioner’s position is that failure to identify the no-project alternative as the “environmentally preferred alternative” to the proposed project fails to meet the requirements of CEQA”

“Petitioner’s position is that connection to a steam host is an economic benefit to DOW and the applicant not an environmental benefit. Further this section fails to provide a technically accurate analysis of the beneficial effects on air emission of the no-project in comparison with the proposed project. As evidence of the legal basis for petitioner’s position petitioner once again cites the CEQA Case “Citizens for Goleta Valley v. Board of Supervisors of Santa Barbara County” in which the Court of Appeals, “Held that: (2) failure of environmental impact report to consider alternative was improper.””

“The, “Delta Energy Center (98-AFC-3) Final Staff Assessment” fails to identify the “the Reduced Project Alternative” as the “environmentally preferred alternative” to this project in compliance with CEQA. Petitioner’s position is that failure to properly analyze the reduced project alternative as the “environmentally preferred alternative” to the proposed project fails to meet the requirements of CEQA.”

“Petitioner position is that this section fails to provide a technically accurate analysis of the beneficial effects on air emission of the reduced project in comparison with the proposed project. Petitioner would like to note that the statement, “this smaller project would be less likely to meet project objectives and offers no environmental benefits when compared to the proposed project”, is technically incorrect in regards to environmental benefits. Further the compliance with the requirements for the applicant’s “economic” objectives should not be cited unless this alternative can be shown to be economically unfeasible. As evidence of the legal basis for petitioner’s position petitioner once again cites the CEQA Case “Citizens for Goleta Valley v. Board of Supervisors of Santa Barbara County” in which the Court of Appeals, “Held that: (1) alternative of a smaller project was not shown to be economically unfeasible.””

“Petitioner contends that as a result of flaws in the site identification process and the alternatives analysis the subsequent FSA prepared for the Commission failed to identify cumulative impacts and associated mitigations, as is in accordance with the California Environmental Quality Act. Petitioner contends that Commission’s staff and Senior Staff Counsel, Dick Ratliff, are under the mistaken assumption that the applicants proposed mitigation measures will eliminate significant adverse air quality impacts associated with this project, and thereby absolves the applicants from identifying environmentally preferred alternatives.”

2. Failure to mitigate adverse impacts on air quality

Petitioner position is that the FSA’s failure to comply with CEQA in its alternatives sections resulted in the failure to mitigate adverse impacts on air quality from this project. Petitioner will cross-examine the BAAQMD witness on these matters during the hearing. Petitioner calls the additional witness Paulette Lagana representing intervener CAP-IT to present and be cross-examined on recent air samples collected by her organization. Petitioner requested EPA Region IX Matt Haber Chief permits office to be an impartial witness in this matter. He declined. For testimony petitioner cites Exhibit B and Exhibit C for reference in regards to Commission’s failure to mitigate adverse impacts on air with excerpts as follows:

“MR. RATLIFF: I understand, and I' m saying we found that - - we haven't gotten to air quality yet in that, so we're sort of jumping a little bit ahead of ourselves here. But staff has not found a significant air impact associated with this project. And for that reason, the only environmental benefit of a smaller project would be lower emissions. But if you have no significant impact, as you did in the Goleta case, but if you have no significant impact then there is no environmentally preferable alternative from the smaller project.”

Petitioner position is that the FSA’s failure to comply with CEQA in its alternatives sections resulted in the failure to mitigate adverse impacts on air quality from this project. The applicant proposes to mitigate both regional and cumulative air quality impacts from this project through the use of trading of emission reduction credits (ERCs). Current EPA policy does not encourage the use of ERCs. Petitioner cites the letter to BAAQMD Air Pollution Control Officer, Ellen Garvey, from EPA Region IX Chief Permits Officer, Matt Haber, titled EPA Comments on the Preliminary Determination of Compliance for the Delta Energy Center - September 23, 1999 page 2 where it states,

“The source plans to use the provisions for interpollution trading under District rules and provide 81.8 tons of VOC ERC in place of the required Nox ERCs. In the EPA’s notice proposing limited approval/disapproval of Regulation 2 Rules 1,2 and 4 (63 FR 59924), EPA identified interpollution trading of Nox and VOC as a significant approvability issue. The District rule does not contain adequate safeguards to ensure an overall air quality benefits from this type of trading.”

Petitioner contends that without interpollution trading the applicant cannot mitigate the adverse air quality impacts associated with this project which are both cumulative and regional impacts and should have been examined in the alternatives analysis. EPAs citation of this as a “significant approvability issue” because it “does not contain adequate safeguards to ensure overall air quality benefits” demonstrates staff’s and counsel’s mistaken assumption in that, “staff has not found a significant air impact associated with this project”. This serves to demonstrate the inadequacy of staff’s analysis.

Petitioner has reviewed the BAAQMD FDOC for resolution of this concern for interpollution trading with EPA Region IX Matt Haber Chief Permits Office as identified in exhibit F. In the FDOC attachment C-1 titled Offsetting Nox emissions with POC reductions is referred to on Page 20 of the FDOC. This is the only reference petitioner could find to EPA’s concern, and it is unclear to petitioner who the parties in this memo represent in this process.

Petitioner has reviewed the FDOC in regards to offsets for PM10. Page 19 of the FDOC states in this regard,

“With projected PM10 emissions of greater than 100 tons per year, the DEC is considered to be a Major Facility for PM10 pursuant to District Regulation 2-2-220.1. Therefore, emission offsets must be provided at a ratio of 1.0 to 1.0 pursuant to District Regulation 2-2-303. Pursuant to District Regulation, 2-2-303.1, the applicant has opted to provide SO2 ERCs to offset a portion of the proposed PM10 emission increases at offset ratios deemed appropriate by the APCO. As stated earlier, the standard BAAQMD interpollutant trade-off ratios for the Pittsburg area is 3 to 1 for SO2 to PM10.”

Petitioner contends that the major source of PM10 in the state of California is Nox in reaction with ammonia producing Ammonium Nitrate not SO2 that the applicant has opted to provide as ERC offsets of Nox. Therefore the applicant’s offset for PM10 fails to properly mitigate PM10 impacts from this project.

“Petitioner would also include that the EPA doesn’t agree with the applicant’s use BACT limits for POC emissions from the gas turbines/HRSG duct burners proposed by the BAAQMD in their Preliminary Determination of Compliance for the Delta Energy Center. The EPA instead requires the use of the Federal LAER since the location of the Delta Energy Center is in a region of the state in non-attainment for Ozone. Petitioner cites the letter to the BAAQMD from the EPA page 1 where it states,

”EPA does not agree with the Best Available Control Technology (BACT) limit for POC from the gas turbines/HRSG burners proposed by the Bay Area Air Quality Management District (District) in the Preliminary Determination of Compliance (PDOC). As the District is aware, Rule 2 of Regulation 2 requires BACT to be at least as stringent as the federal Lowest Achievable Emission Rate (LAER). Neither the limit listed from District BACT Guideline 89.s.1 nor “expected” POC emission rate satisfy federal LAER.”

Petitioner contends that air quality non-attainment is a regional problem associated with air pollution emissions in the San Francisco Bay Area, and the greater Sacramento Valley, and as such, cumulative air quality impacts should be evaluated based on impacts to the entire region, not limited to within a six-mile radius of the project”

“Petitioner contends that an adequate alternatives analysis cannot be performed based on inadequate or incorrect data provided by the applicant on project related air quality impacts and their proposed mitigation.

The assumption that because the ambient air quality for ozone and PM10 is in non-attainment and that this project would therefore not significantly impact cumulative air quality is not correct and should not be used as a basis for not completing a cumulative impact analysis on air quality impacts and should be factored into any alternatives analysis. From <http://www.pgedivest.com/eirtc/comments/u.html>:

"A project’s impact cannot be considered insignificant because it’s contribution to air quality is insignificant when compared to other sources. Kings County Farm Bureau v. City of Hanford 221 Cal. App.3d 692, 720 (5th Dist. 1990). The Court of Appeals held inadequate the cumulative impact analysis prepared for an EIR for a proposed coal-fired cogeneration power plant. The Court called this method of finding an impact insignificant because it was small compared to other sources, the incorrect approach. Id. This "ratio" theory of impact analysis allows a large pollution problem to make a project’s contribution appear less significant in a cumulative impact analysis. But the Court strongly disagreed, holding that such a method would "avoid analyzing the severity of the problem and allow approval of projects which, when taken in isolation, appear insignificant, but when viewed together, appear startling." It is invalid and terribly misleading of the DEIR to conclude that the impacts to air quality are insignificant because it is less then one percent of regional emissions. (Pg 4.5-59). In fact, the more severe existing environmental problems are, the lower the threshold should be for treating a project’s cumulative impacts as significant. Id. at 721. See discussion of Los Angeles Unified School District v. Los Angeles (1997) 58 Cal. App. 1019, supra."

In other words, in areas with high levels of pollutants in the air, new sources of pollution look less significant from the "ratio theory" point of view.

It is the petitioner’s contention that the failure to meet the requirements of CEQA for alternatives, and alternative siting resulted in a failure to identify and mitigate cumulative adverse air quality impacts and the associated risk to public health. Petitioner’s position is that the FSA fails to discuss cumulative impacts associated with other projects and their association with alternative sites for the DEC Petitioner wishes to cite further case evidence the CEQA Case “Laurel Heights Improvement Association of San Francisco, Inc., v. The Regents of the University of California” located at the Internet site http://ceres.ca.gov/ceqa/cases/1988/laurel_120188.html, issued by the Court of Appeals,

“First, it found the EIR did not adequately describe the "project" within the meaning of CEQA because the EIR did not discuss the future cumulative effects of the relocation of additional UCSF operations to the Laurel Heights site. Second, the Court of Appeal found inadequate the EIR's discussion of project alternatives. Third, the court found no substantial evidence to support the Regents' conclusion that all significant environmental effects will be mitigated.”

Petitioner has reviewed the BAAQMD FDOC for resolution of the concern “EPA does not agree with the Best Available Control Technology (BACT) limit for POC from the gas turbines/HRSG burners proposed by the Bay Area Air Quality Management District (District) in the Preliminary Determination of Compliance (PDOC)” with EPA Region IX Matt Haber Chief Permits Office as identified in exhibit F. On page 15 of the FDOC it under Precursor Organic Compounds (POCs) it states:

“In response to comments from EPA and ARB, the applicant has accepted a BACT specification of 2 ppmvd POC @ 15% O2 that will apply during all operating modes except start-up and shutdown. This converts to an emission factor of 0.00251 lb/MM BTU and a mass emission rate of 5.03 lb/hr.”

Petitioner contends that the EPA requires 1 ppmvd for POC not the FDOC specified 2 ppmvd. In regards to this on page 2 of exhibit F it states,

“The PDOC states that an oxidation catalyst is BACT, but then goes on to say that the applicant’s emission limit is not based on the use of an oxidation catalyst. EPA disagrees with the assertion in the PDOC that the oxidation catalyst will not significantly control POC. Source test data provided by ARB suggests that this type of catalyst will result in ROC levels from turbines on the order of 1.0 ppmvd. Additionally, there is evidence that a 1.0 ppmvd limit has been achieved in practice. Source test data for the Crockett Cogeneration Co. Plant in Crockett, CA show that the plant is meeting this level, while the Bear Mountain Ltd. Cogen facility in Bakersfield, CA, is permitted at 0.6 ROC (equivalent to POC)…. Collectively, these evidence and data are the basis for EPA’s assessment that BACT for this project is 1.0 ppmvd.”

Petitioner contends that this projects FSA and FDOC fails to properly identify threatened and endangered species that are adversely impacted by air emissions. Petitioner cites for evidence EPA Region IX’s review of the sites of threatened and endangered species and drinking water supplies in proximity of the Delta Energy Center dated September 28,1999 figure 1 exhibit E. Additionally the FSA and FDOC fails to adequately examine these impacts as cumulative in association with known impacts from known EPA regulated sites in proximity to the proposed Delta Energy Center as identified in figure 2 exhibit E.

3. BAAQMD FDOC and the FSA failed to identify potential significant unmitigated adverse impacts on air quality and public health resulting from particulate matter

Petitioner’s position is that the BAAQMD FDOC and the FSA failed to identify potential significant unmitigated adverse impacts on air quality and public health resulting from particulate matter PM10 and PM2.5 potentially in excess of 1,681 tons annually. Petitioner’s contention is that the FDOC and FSA failed to analyze the potential impacts of 357 tons of ammonia slip cumulatively with respect to four out of ten of California’s largest stationary sources of Nox, including number one Shell Martinez Refining Company at 4,447 tons/year. These four sources are within near proximity to the proposed DEC and have net annual NOx emissions of 14,298 tons/year. For further testimony in this matter petitioner cites exhibit G:

“In this case, the treatment technology that Calpine has chosen to reduce its NOx emissions will have the collateral effect of significantly increasing the presence of tiny particulate matter in the vicinity of the facility. The vast majority of increase particulates will be smaller than 2.5 microns in diameter (PM2.5). EPA has recognized that the smaller fraction particulates pose an even greater health risk with respect to respiratory disorders than more coarse particulates. Other treatment technology options for NOx exist that would not have resulted in such a large increase in particulate matter emissions.”

“Calpine’s emissions limit for NOx is based on its proposal to use Selective Catalytic Reduction (“SCR”) as a central component of its NOx treatment technology. See EPA’s Ambient Air Quality Impact Report (“Air Quality Report”) at 4. SCR uses ammonia as a reducing agent in controlling NOx emissions from gas turbines. The portion of the unreacted ammonia passing through the catalyst and emitted from the stack is called “ammonia slip.” Ammonia is currently unregulated as an air contaminant. However, it is recognized to contribute to ambient concentrations of both PM₁₀ and PM2.5.

The California Air Resources Board recently released a document entitled “Guidance for Power Plant Siting and Best Available Control Technology” (“CARB Guidance”)(excerpted hereto as Exhibit C. The CARB Guidance recognizes the relationship between ammonia slip and increased levels of particulate matter, including PM2.5:

Ambient PM2.5 is composed of a mixture of particles directly emitted into the air and particles formed in air from the chemical transformation of gaseous pollutants (secondary particles). Principle types of secondary particles are ammonium sulfate and ammonium nitrate formed in air from gaseous emissions of sulfur oxides and NOx, reacting with ammonia. Studies conducted in the South Coast Air Basin by Glen Cass of Caltech have indicated that ammonia is a primary component in secondary particulate matter. As a result, districts should consider the impact of ammonia slip on meeting and maintaining PM₁₀ and PM2.5 standards.

CARB Guidance, page 24.

Calpine’s emission limitation for NOx includes an ammonia slip of 10 ppmvd corrected to 15% O₂ and averaged over 1 hour. Further assuming that one lb mole of NH3 reacts to form one lb mole of NH4NO3, up to 438 tons/yr (2,398 lb/day) of secondary PM10 could be formed in the stack and downwind assuming adequate HNO3 is available.[1] These collateral PM10 emissions are nearly five times higher than the proposed controlled maximum annual operational PM10 emissions from the Project (92.5 tons/yr). AFC Table 8.1-21. Most of this additional PM10 will be extremely small particles, less then 2.5 microns in diameter.”

Petitioner cites page 9 Table 3 of the FDOC for 714,669 pounds/year of ammonia slip from the Delta Energy Center. This is equivalent to357.33 tons/year of ammonia slip. The California Air Resources Board identifies four of California’s top point sources for Nox with near proximity of the proposed project as cited http://www.arb.ca.gov/aqd/almanac/pdf/tbl2_05.pdf in Table 1 below.

Air Basin	Facility Name	City	NOx (tons/year)
San Francisco Bay Area	Shell Martinez Refining Company	Martinez	4447
Mojave Desert	Southdown (Cement)	Apple Valley	4106
North Central Coast	P G & E	Moss Landing	4037
San Francisco Bay Area	Chevron Inc.	Richmond	3612
Mojave Desert	Riverside Cement Company	Oro Grande	3361
San Francisco Bay Area	Tosco Corp. Avon Refinery	Martinez	3161
San Francisco Bay Area	Exxon Corporation	Benicia	3078
South Coast	Chevron USA Inc.	El Segundo	2587
South Coast	California Portland Cement Co.	Colton	2289
Mojave Desert	California Portland Cement Co.	Mojave	2246

1. Facility totals are for calendar year 1995. Some facilities may have reduced or increased emissions since
1995. These changes will be reflected in subsequent almanacs.
2. The lists of facilities do not include military bases, landfills, or airports.

Table 1 Top Ten Stationary Sources of NOx in California

Assuming the worst case scenario of 100% reaction of ammonia slip with NOx in the mornings and evenings during periods of plant startup and shutdown, high relative humidity, and lower air temperatures the total potential for PM10 and PM2.5 is given by 357.33 tons NH3 times 80 tons NH4NO3 per ton mole divided by 17 tons NH3 per ton mole gives 1,681 tons of particulate matter per year. Petitioner contends the failure of the FSA and FDOC to address this impact fails to mitigate potential significant impacts on public health and human mortality in proximity to the proposed project. Petitioner cites exhibit G for further impacts on public health.

“If EPA had properly considered the effect of the proposed project on persons with respiratory ailments, then it would have evaluated the collateral effects of ammonia emissions and increases in small particulates caused by its choice of NOx treatment technology.

D. Increased Levels of Particulate Matter Created by the NOx Treatment Technology Will Adversely Affect Persons With Respiratory Ailments.

EPA has recognized that the key health effects associated with particulate matter include:

(1) Premature mortality; (2) aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions and emergency room visits, school absences, work loss days, and restricted activity days); (3) changes in lung function and increased respiratory symptoms; (4) changes to lung tissues and structure; and (5) altered respiratory defense mechanisms.

Preamble to Proposed National Ambient Air Quality Standard for Particulate Matter, 61 Federal Register No. 241, December 13, 1996, page 65641(“Preamble to Proposed NAAQS”) (excerpted hereto as Exhibit D).

Historically, health impacts due to particulate matter were regulated through ambient air quality standards for particulate matter with an aerodynamic diameter of less than or equal to 10 microns (“PM10"). However, a substantial amount of important new information has been published documenting new health impacts at much lower concentrations and for different size fractions of particulate matter than was previously known. On the basis of this information, EPA has concluded that the more fine fraction of particulate matter tends to pose an even greater health hazard with respect to “mortality, morbidity, and lung function changes in sensitive subpopulations.” Preamble to Proposed NAAQS at 65648-65649. See also Preamble to National Ambient Air Quality Standards for Particulate Matter; Final Rule, 62 Federal Register 138, July 18, 1997, pages 38655-38656 (excerpted hereto as Exhibit E).

The Agency, in its review and analysis of this new information, concluded that coarse and fine particles have fundamentally distinct physical and chemical properties and health effects and thus should be separately regulated and measured so that effective control strategies may be developed. To address this issue, EPA promulgated a new national ambient air quality standard for PM2.5 in 1997.[2] 62 Federal Register 38652.

Evaluation of the impact of selected treatment technology on persons with respiratory ailments is made even more important in light of the area’s status as nonattainment for the state’s PM10 standard. See CEC Decision, page 36. As the CEC Decision states, “ozone and PM10 are the air pollutants of the greatest concern in the Sutter County area.” Id. at 35. The highest twenty-four hour concentrations for PM10 exceeds the California Ambient Air Quality Standard during all four years between 1993 and 1996. Id.

Petitioner cites the National Resources Defense Council for the effect of particulate matter on human health and mortality at the web site http://www.nrdc.org/worldview/index.html

“1. What are the health effects of particulate air pollution?

More than two-dozen community health studies since 1987 have linked particulate pollution to reductions in lung function, increased hospital and emergency room admissions, and premature deaths. Recently, two major epidemiological studies (by the American Cancer Society and Harvard University) were published that showed that people living in more polluted cities had an increased risk of premature death compared to those in cleaner cities.

2. How does mortality attributable to particulate pollution compare to total cardiopulmonary mortality?

NRDC estimates that at current levels of pollution, approximately 64,000 premature deaths from cardiopulmonary causes may be attributable to particulate air pollution each year. That represents 6.5% of all cardiopulmonary deaths, which total 986,000 per year. The national estimate of mortality attributable to smoking is 418,690 for 1990.

3. Who is at greatest risk?

The elderly and those with heart and lung disease are at greatest risk of premature mortality due to particulate air pollution. Their lives might be shortened by one to two years on average in more polluted areas.

4. How do particles cause harm to human health?

The exact toxicological mechanisms are not well understood, but researchers have a number of theories. For instance, studies show that particulate matter causes respiratory symptoms, changes in lung function, alteration of mucociliary clearance, and pulmonary inflammation which can lead to increased permeability of the lungs. Increased permeability might precipitate fluid in the lungs in people with heart disease. In addition, mediators released during an inflammatory response could increase the risk of blood clot formation and strokes.

Particulate exposure might also increase susceptibility to bacterial or viral respiratory infections, leading to an increased incidence of pneumonia in vulnerable members of the population. Potential mechanisms could include impairment of clearance mechanisms or immune system function. In the presence of pre-existing heart disease, acute bronchiolitis or pneumonia induced by air pollutants might precipitate congestive heart failure.

Particulate air pollution might also aggravate the severity of underlying chronic lung disease, causing more frequent or severe exacerbation of airways disease or more rapid loss of lung function.

5. Has a cause-and-effect relationship been demonstrated?

Evaluation of epidemiological studies requires consideration of a number of factors such as strength of the association, consistency of the association, dose-response relationship, biological plausibility, and coherence with other known facts. Based on these factors, a number of prestigious international panels including a British Committee on the Medical Effects of Air Pollutants and a Committee of the Health Council of Netherlands have concluded that there is a cause-and-effect relationship between particulate pollution and mortality.

6. What exactly is particulate matter?

Particulate matter includes a wide range of pollutants -- road dust, diesel soot, fly ash, wood smoke, and sulfate aerosols that are suspended as particles in the air. These particles are a mixture of visible and microscopic solid particles and minute liquid droplets known as aerosols.

7. Where do fine particles come from?

Combustion of fossil fuels is the principal source of fine particle emissions, including the burning of coal, oil, diesel fuel, gasoline, and wood in transportation, power generation, and space heating. Old coal-fired power plants, industrial boilers, diesel and gas-powered vehicles, and wood stoves are the worst culprits. High temperature industrial processes such as metal smelting and steel production are also significant sources.

8. What level of exposure to particulates is considered unhealthy? Is there a threshold?

Epidemiological studies have reported a linear relationship between exposure and effects. In other words, the higher the concentration of particles, the greater the effect on the health of populations. Effects have been demonstrated at levels well below the current National Ambient Air Quality Standards. Scientists have not been able to identify a threshold below which health effects do not occur. While not a threshold, the long-term epidemiology studies show that the risk of premature deaths starts to increase at annual average concentrations of PM2.5 of 10 g/m3, according to the World Health Organization.

9. How did NRDC come up with its mortality estimates?

NRDC used a methodology suggested by prominent research scientist Dr. Joel Schwartz of the Harvard School of Public Health. We applied the findings of a 1995 study by the American Cancer Society (ACS) and Harvard Medical School to local data to gauge the extent of the particulate pollution problem. The ACS study is the largest, most comprehensive long-term epidemiologic study examining the effect of ambient air pollution on human health. The study used statistical techniques to adjust for age, and to control for the effects of smoking, body weight, occupational exposure, and other risk factors.

There were four steps to NRDC's analysis: 1) Analysis of EPA particulate monitoring information for metropolitan statistical areas; 2) Tabulation of data from the National Center for Health Statistics on adult mortality rates from selected cardiopulmonary causes; 3) Calculation of a risk coefficient per microgram of particle pollution from data presented in the ACS study; and 4) Application of the risk coefficient to city-specific monitoring and mortality data.

Although NRDC's analysis relies on several assumptions, a sensitivity analysis based on alternative assumptions shows that the estimates are reasonable.

California: Particulate Air Pollution Attributable Mortality by MSA

This table identifies Metropolitan Statistical Areas in the state of California. For each MSA, the table shows PM-10 concentration and NRDC's estimate of air pollution attributable deaths.

The table shows the average annual mean PM-10 concentration in each MSA over the five-year period, 1990 through 1994. The higher the PM-10 concentration, the greater the risk of premature mortality from heart and lung disease.

For each MSA, we present point and range estimates of the annual adult cardiopulmonary deaths attributable to air pollution The estimates are derived by applying a risk factor reported in a study of an American Cancer Society cohort to MSA-specific information on PM-10 concentrations and mortality from selected causes. The range estimates are derived from the confidence intervals for the risk ratio reported in the ACS study.

For the purposes of comparison, the table also shows the total number of cardiopulmonary deaths in the MSA and the number of deaths from car accidents.

Metropolitan Statistical Area	Average Annual Mean PM-10 Concentration (1990-1994) (ug/m³)	Estimated Annual Cardiopulmonary Deaths Attributable to Particulate Air Pollution						Adult Cardio- Pulmonary Deaths (1989)		Deaths from Auto Accidents (1989)
		Point Estimate	Range			Deaths per 100,000 Population
ANAHEIM-SANTA ANA, CA	38.1	1,053	632	-	1,433		55		7,429		369
BAKERSFIELD, CA	54.8	464	284	-	618		115		2,005		163
CHICO, CA	33.1	104	62	-	143		72		924		59
FRESNO, CA	51.7	488	298	-	653		95		2,265		212
LOS ANGELES-LONG BEACH, CA	43.8	5,873	3,550	-	7,933		79		33,825		1,458
OXNARD-SIMI VALLEY-VENTURA, CA	30.6	182	108	-	251		34		1,864		110
REDDING, CA	28.3	58	34	-	80		50		683		60
RIVERSIDE-SAN BERNARDINO, CA	48.1	1,905	1,158	-	2,560		122		9,685		748
SACRAMENTO, CA	31.9	488	290	-	669		48		4,625		260
SALINAS-SEASIDE-MONTEREY, CA	19.4	29	17	-	40		10		1,019		62
SAN DIEGO, CA	34.8	999	597	-	1,365		54		8,147		412
SAN FRANCISCO-OAKLAND, CA	28.7	1,270	752	-	1,748		39		14,694		414
SAN JOSE, CA	32.8	447	266	-	612		35		4,015		179
SANTA BARBARA-SANTA MARIA-LOMPOC, CA	30.5	124	74	-	171		41		1,278		53
SANTA CRUZ, CA	13.2	0	0	-	0		0		881		37
SANTA ROSA, CA	20.0	52	31	-	73		17		1,600		86
STOCKTON, CA	44.8	321	194	-	433		93		1,794		125
VALLEJO-FAIRFIELD-NAPA, CA	28.2	120	71	-	165		36		1,437		67
VISALIA-TULARE-PORTERVILLE, CA	60.4	302	186	-	402		123		1,277		167
YUBA CITY, CA	37.4	65	39	-	89		64		472		37

Table 2 California: Particulate Air Pollution Attributable Mortality

Point estimates are derived from the risk ratio reported in the ACS study. Ranges are derived from 95-percent confidence intervals around the risk ratio in the ACS study.

Metropolitan Statistical Areas are as defined by the Office of Management and Budget for 1980, except for New England, where areas are New England County Metropolitan Areas.”

Petitioner calls as a witness of public health an individual currently disabled by the effects of toxic exposure. Petitioner call intervener Joe Hawkins representing intervener Community Health First.

4. Mitigation measures violate Title VI in that they unfairly impact low income and minority communities

Petitioner contends that the current siting of this project violates Title VI in that air emissions unfairly impact low income and minority communities affected by the failure of the applicant to eliminate unhealthful air emissions in an area of EPA non-attainment for Ozone. Additionally the FSA and FDOC fails to adequately examine these impacts as cumulative in association with known impacts from known EPA regulated sites in proximity to the proposed Delta Energy Center as identified in figure 2.

Petitioner contends that the site as proposed project violates the civil rights of low income and minority populations in the Pittsburg area as is identified in figures 3 and 4 of exhibit E provided by EPA’s Region IX, as the Pittsburg community’s population is already disproportionately impact by known EPA regulated sites in proximity to the site of the proposed Delta Energy Center.

It is the petitioner’s position that the Commission’s failure to identify impacts on Title VI populations, and the associated violations of CEQA guidelines could be corrected through a more thorough analysis of the alternatives to the project. Petitioner raises these issues in order to prevent the need for the petitioner to legally challenge a potential “abuse of discretion” in the Commission’s approval of this project. Petitioner wishes to also prevent the need to file a complaint of violation of Title VI with the EPA on this project. Petitioner’s position is that the Commission has a fiduciary responsibility to protect the environment and public from adverse air emissions from the proposed Delta Energy Center. Failure to do so violated CEQA guidelines, Title VI of the Civil Rights Act of 1964, and such actions constitute an “abuse of discretion” on the part of the Commission.

Petitioner calls three witnesses to testify on this matter. As a duly elected trustee of the Pittsburg Unified School District petitioner call Jim MacDonald to testify of Environmental Justice, discrimination by government agencies in the Pittsburg community, and resolution 99-32 calling on EPA to declare Pittsburg an environmental justice community. Petitioner calls two representative of Pittsburg’s African-American community to testify on Environmental Justice and discrimination by government agencies in the Pittsburg. The two witnesses are the Rev. Bill Forest and Ms. Darcel Washington both long-term residents of this community. Petitioner requested Running Grass of EPA Region IX’s environmental justice division to appear as an impartial witness on this matter. He declined.

Californians for Renewable Energy, Inc.

C/o Michael E, Boyd

821 Lakeknoll Dr.

Sunnyvale, CA 94089

Exhibit G

BEFORE THE ENVIRONMENTAL APPEALS BOARD

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

____________________________________

)

In re: )

)

SUTTER POWER PROJECT ) PSD Appeal No. 99-6

)

PSD Permit No. NSR 4-4-4 )

SAC 98-01 )

)

PETITIONER’S REPLY BRIEF

Petitioner Joan Joaquin-Wood respectfully submits this reply memorandum to responses to her petition filed by Calpine Corporation (“Calpine”) and the Environmental Protection Agency (“EPA”).

I. THIS BOARD SHOULD REMAND TO THE AGENCY FOR A CONSIDERATION OF THE COLLATERAL IMPACTS OF CALPINE’S SELECTED POLLUTION CONTROL TECHNOLOGY ON PERSONS WITH RESPIRATORY AILMENTS SUCH AS ASTHMA.

EPA’s responses to my comments and to my petition incompletely characterize the Agency’s responsibilities in conducting PSD permit review. The Agency argues that it need not consider whether the new facility will adversely impact persons with respiratory ailments, because it may rely solely on the National Ambient Air Quality Standards as a measure of whether adverse impacts will occur. See EPA’s Response to Comments, Response #3 (attached hereto as Exhibit A), Response to Petition, page 10. However, EPA overlooks the fact that it must consider the environmental impacts of selected treatment technologies as a part of its Best Available Control Technology (“BACT”) analysis.

In this case, the treatment technology that Calpine has chosen to reduce its NOx emissions will have the collateral effect of significantly increasing the presence of tiny particulate matter in the vicinity of the facility. The vast majority of increase particulates will be smaller than 2.5 microns in diameter (PM2.5). EPA has recognized that the smaller fraction particulates pose an even greater health risk with respect to respiratory disorders than more coarse particulates. Other treatment technology options for NOx exist that would not have resulted in such a large increase in particulate matter emissions. The proposed facility is located in an area that is out of attainment for California’s ambient air quality standard for particulate matter. Petitioner respectfully requests that this Board remand the permit to the Agency for a consideration of collateral effects on respiratory ailments as part of its BACT analysis.

A. The Question of Whether the Epa Properly Considered the Potential Effects on Respiratory Illnesses Caused by Small Particulate Matter Is Suitable for Review.

I have consistently stated in my comments and my petition that I am concerned that the permit improperly allows additional pollutants, including small particulate matter, to be emitted in my community. I am particularly concerned that these emissions will adversely affect persons with respiratory illnesses, and alleges that the effect of the plant’s emissions on asthma sufferers was not analyzed as part of the PSD permitting process. My July 12, 1999 comments on the PSD permit allege that “[n]o mention of the effect of the plant’s emissions on asthma sufferers has ever been made.” See Letter to Barbara Witter from Joan Wood dated July 12, 1999 (“Petitioner’s Comments”) at page 1. My Comments object to EPA’s approval of a permit to emit, among other things, additional amounts of “tiny particulate matter into the already polluted air of Sutter County.”[3] Id. In my subsequent Petition, I again stated that the plant “will further pollute our already ‘moderately’ polluted air, thereby increasing the already higher-than-average respiratory illness in the county,” Petition, page 1. The petition highlights “tiny particulate matter” as a pollutant of considerable concern.[4] Id.

Therefore, the issue of whether EPA properly considered the impact of small particulate matter on respiratory ailments in the vicinity of the new facility is appropriate for this Board’s review.

B. Collateral Environmental Impacts Are Appropriately Considered as Part of a BACT Analysis.

The Clean Air Act and EPA’s implementing regulations require that new major stationary sources and major modifications of such sources employ the "Best Available Control Technology" to minimize emissions of regulated pollutants. Clean Air Act, section 165(a)(4), 42 U.S.C. section 7475(a)(4); 40 C.F.R. section 52.21(j)(2). EPA’s PSD regulations define BACT in part as follows:

Best available control technology means an emissions limitation * * * based on the maximum degree of reduction for each pollutant subject to regulation under [the CAA] which would be emitted from any proposed major stationary source * * * which the Administrator, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source * * *.

40 C.F.R. section 52.21(b)(12). Under the rules governing the PSD permitting process, the permit issuing authority (in this case EPA) is responsible for determining whether the permit applicant has proposed an emissions limitation that constitutes BACT for each regulated pollutant.

The principle guidance used by EPA in the context of making BACT determinations is EPA’s New Source Review Workshop Manual (Draft Oct. 1990) ("NSR Manual")(excerpted hereto as Exhibit B). The NSR Manual states that in conducting the BACT analysis the permit issuer should examine the “trade-off between emissions of the various pollutants resulting from the application of a specific control technology.” NSR Manual, page B.51. In making this evaluation, the permit authority “may want to give consideration to any relevant local air quality concern relative to the secondary pollutant [in this case tiny particulates] in the region of the proposed source.” Id.

Similarly, this Board has determined that it is appropriate to consider unregulated pollutants as a collateral environmental impact in the context of the BACT determination. If a technology has "an incidental effect of increasing or decreasing emissions of unregulated pollutants," consideration of that effect may be taken into account in selecting BACT for a facility. In re: Knauf Fiber Glass, 1999 EPA App. LEXIS 2; Genesee Power, 4 E.A.D. at 848; see also In re North County Resource Recovery Assocs., 2 E.A.D. 229, 230 (Adm'r 1986).

C. Ammonia Slip from the NOx Treatment Technology will Dramatically Increase The Presence of Small Particulate Matter in the Vicinity of the New Facility.

Calpine’s emissions limit for NOx is based on its proposal to use Selective Catalytic Reduction (“SCR”) as a central component of its NOx treatment technology. See EPA’s Ambient Air Quality Impact Report (“Air Quality Report”) at 4. SCR uses ammonia as a reducing agent in controlling NOx emissions from gas turbines. The portion of the unreacted ammonia passing through the catalyst and emitted from the stack is called “ammonia slip.” Ammonia is currently unregulated as an air contaminant. However, it is recognized to contribute to ambient concentrations of both PM₁₀ and PM2.5.

CARB Guidance, page 24.

Calpine’s emission limitation for NOx includes an ammonia slip of 10 ppmvd corrected to 15% O₂ and averaged over 1 hour. See California Energy Commission Decision, page 65. Assuming the average ammonia slip over the life of the SCR catalyst is 5 ppmvd, the Project would emit about 93 tons/yr of NH3. Calpine Corp., Application for Certification for the Sutter Power Project, Vol. 1, submitted to CEC, December 1997 (“AFC”), Table 8.1-22. Further assuming that one lb mole of NH3 reacts to form one lb mole of NH4NO3, up to 438 tons/yr (2,398 lb/day) of secondary PM10 could be formed in the stack and downwind assuming adequate HNO3 is available.[5] These collateral PM10 emissions are nearly five times higher than the proposed controlled maximum annual operational PM10 emissions from the Project (92.5 tons/yr). AFC Table 8.1-21. Most of this additional PM10 will be extremely small particles, less then 2.5 microns in diameter.

Technology exists that would reduce or eliminate the problem associated with ammonia slip. These options should have been considered in the context of EPA’s BACT analysis. The new CARB Guidance states:

Gas turbines using selective catalytic reduction typically have been limited to 10ppmvd ammonia slip at 15 percent oxygen; however levels as low as 2 ppmvd at 15 percent oxygen have been proposed and guaranteed by control equipment vendors. In addition, Massachusetts and Rhode Island have established ammonia slip BACT levels of 2 ppmvd. To date, Massachusetts has permitted two large gas turbine power plants using selective catalytic reduction with 2 ppmvd ammonia slip limits. Given the potential for health impacts and increases in PM10 and PM2.5, districts should ensure that ammonia emissions are minimized from projects using selective catalytic reduction. Staff recommends that districts consider establishing ammonia slip below 5 ppmvd @ 15 percent oxygen in light of the fact that control equipment vendors have openly guaranteed single-digit levels for ammonia slip.

CARB Guidance, page 25 (emphasis added).

If EPA had properly considered the effect of the proposed project on persons with respiratory ailments, then it would have evaluated the collateral effects of ammonia emissions and increases in small particulates caused by its choice of NOx treatment technology.

D. Increased Levels of Particulate Matter Created by the NOx Treatment Technology Will Adversely Affect Persons With Respiratory Ailments.

EPA has recognized that the key health effects associated with particulate matter include:

Evaluation of the impact of selected treatment technology on persons with respiratory ailments is made even more important in light of the area’s status as nonattainment for the state’s PM10 standard. See CEC Decision, page 36. As the CEC Decision states, “ozone and PM10 are the air pollutants of the greatest concern in the Sutter County area.” Id. at 35. The highest twenty four hour concentrations for PM10 exceeds the California Ambient Air Quality Standard during all four years between 1993 and 1996. Id.

Consideration of the impact of treatment technologies on persons with respiratory ailments is necessary in light of (1) the considerable body of evidence that particulate matter results in respiratory disorders, (2) substantial new information showing a relationship between PM2.5 and respiratory ailments such as asthma, and (3) the fact that Sutter County has been designated as a nonattainment area for particulate matter by the State of California. EPA’s BACT analysis was incomplete because it failed to consider these significant impacts.

II. THIS BOARD SHOULD REMAND TO THE AGENCY FOR AN EVALUATION OF AIR QUALITY IMPACTS USING APPROPRIATE METEOROLOGICAL DATA.

In its response to the Petition, EPA relies on an “Ambient Air Quality Impact Report” (the “Report”) performed as part of the PSD review. However, this Report is flawed because it did not use appropriate meteorological data. The Report states that “meteorological data was obtained from the Beale Air Force Base meteorological monitoring station, located more than 15 miles due east of the SPP site.” Report, page 5. The Meteorological data should have been taken from the closer Yuba City meteorological station, located approximately seven miles from the site of the proposed project. See Exhibit F.

[1] Ammonium nitrate PM10 formation potential = 93 tons NH3/yr)/17 tons NH3/ton mole)](80 ton NH1NO3/ton mole = 437.7 tons NH4NO3/yr.

[2] Although the status of the PM2.5 national ambient air quality standard is somewhat ambiguous in light of the recent decision of the court in American Trucking Associations, Inc. v. United States EPA, 175 F.3d 1027 (D.C. Cir. 1999), the court found ample scientific basis for the PM2.5 standard. See 175 F.3d at 1056-1057.

[3] My original comments sought an “additional hearing” to explain why these emissions should be allowed. This request for a hearing plainly manifests an objection to the issuance of a permit authorizing the emissions.

[4] The Petition states “92.4 tons of tiny particulate matter annually, in addition to the other pollutants, should not be loosed on our economically disadvantaged farming communities.”

[5] Ammonium nitrate PM10 formation potential = 93 tons NH3/yr)/17 tons NH3/ton mole)] (80 ton NH1NO3/ton mole = 437.7 tons NH4NO3/yr.

[6] Although the status of the PM2.5 national ambient air quality standard is somewhat ambiguous in light of the recent decision of the court in American Trucking Associations, Inc. v. United States EPA, 175 F.3d 1027 (D.C. Cir. 1999), the court found ample scientific basis for the PM2.5 standard. See 175 F.3d at 1056-1057.

State of California

“Petitioner contends that an adequate alternatives analysis cannot be performed based on inadequate or incorrect data provided by the applicant on project related air quality impacts and their proposed mitigation.

Air Basin

Facility Name

California: Particulate Air Pollution Attributable Mortality by MSA

Estimated Annual Cardiopulmonary

Range