Michael E. Boyd – President, CARE Phone: 831-465-9809 (home)

5439 Soquel Drive Cell: 408-891-9677

Soquel, CA 95073 Email: michaelboyd@sbcglobal.net

Thom McCue-Planner

County of Monterey

Planning and Building Inspection Department

2620 First Avenue

Marina, CA 93933

CARE’S COMMENTS ON THE RECIRCULATED INITIAL STUDY FOR CALPINE”S PROPOSED PAJARO VALLEY ENERGY CENTER

CAlifornians for Renewable Energy, Inc. (CARE) wishes to echo the request of Mr. Gary Patton of LandWatch Monterey County in his May 29, 2002 letter to you that you prepare an Environmental Impact Report on the proposed Pajaro Valley Energy Center (PVEC) pursuant to the California Environmental Quality Act (CEQA).

We strongly believe that CEQA requires a full Environmental Impact Report. Furthermore, as a matter of policy, LandWatch does not believe that the County of Monterey should make a decision on a project that could preclude many options for the future development of surrounding properties unless and until a community plan is adopted for the Pajaro Area, and it is clear, based on full environmental analysis, that the proposed energy facility will not adversely affect the achievement of this plan.

In the alternative, and in order to prevent the any further waste of public taxpayers and ratepayers funds we request the project be denied.

What is Environmental Justice and how does it apply to this project?

The Pajaro community and the population within the zone of deposition of ambient air pollutants from the project are predominantly peoples-of-color. As such this community is protected under Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. §§2000d to 2000d-7), and Executive Order 12898, which requires a more extensive analysis of disparate impacts and additional mitigation for emissions for the project, this is what is referred to as Environmental Justice.

The County of Monterey Housing and Redevelopment Office is the recipient of Federal Community Development Block Grant funds from the US Department of Housing and Urban Development (HUD) and as such the County’s permitting authority for this project is subject to the requirements of the Act and the associated Executive Order.

Why an EJ study is required?

“President Clinton's Executive Order 12898, ‘Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations’ was signed on February 11, 1994. The order required the US Environmental Protection Agency (USEPA) and all other federal agencies to develop environmental justice strategies. The USEPA subsequently issued Guidelines that require all federal agencies and state agencies receiving federal funds to develop strategies to address this problem. The agencies are required to identify and address disparately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations.”

The EPA’s Final Guidance For Incorporating Environmental Justice Concerns in EPA’s NEPA Compliance Analyses of April 1998 out lines some of the steps to be followed in the performance of such analysis:

1. Determination of the actual, or possible, area of impact of the project would include a worst-case scenario of all potential pollution from the project (All controls fail, possible use of alternate processes on site, expansion of site, possible gas line rupture, rail car derailment etc…).

2. Determine worst-case scenario for water pollution. (Facility being completely flooded or explosion causing stored chemicals to enter the water)

3. Worst-case scenario on groundwater contamination related to chemicals leaching into groundwater.

4. Worst-case scenario of sabotage. And worst-case scenario of transportation failure of chemicals leaving and arriving at site.

5. All secondary sources of pollution are to be considered, such as PM formation from ammonia slip, and truck exhaust. The overlapping of these identified areas will delineate the study area.

6. Determine ambient air conditions: In a letter from Dennis Jang of BAAQMD to Jim MacDonald CARE dated Oct. 27, 1999. Mr. Jang confirms that 1. “Monitoring data must be representative of the ambient air quality of the proposed facility impact area.” 2. “… Three years of data is considered to be representative of long-term ambient conditions.” BAAQMD guidelines for TACs (Toxic Air Contaminants) further states air monitoring statistics are only accurate for the location where they are gathered. CARE contends Air monitoring must be at the nearest sensitive receptor to the project and where pollution from project is predicted to be high within the study group. All categories of air pollution are to be analyzed separately and cumulatively.

7. Determine disparate impacts on threatened and endangered species. Do analysis of current threatened and endangered species, including number of possible species that have gone extinct already within the study area.

8. Determine potential foreseeable sources of pollution.

9. Definition of low income: In the absence of any local definition of low income the National poverty line is to be used. The California Department of Education recognizes families that qualify for free and reduced lunch as low income. 2.1.2 Low-Income Population, page 12, paragraph 1, line 4:

“In conjunction with census data, the EPA NEPA analyst should also consider state and regional low-income and poverty definitions as appropriate. In identifying low-income populations, agencies may consider as a community a group of individuals living in geographic proximity to one another or set of individuals (such as migrant workers or Native Americans) where either type of group experiences common conditions of environmental exposure.”

10. With the possible impact area established, the minority and low-income population within that area must be determined. Any population of 50% or more minority or low income qualifies, examples: the minority and/or low-income population of a school district; the minority and/or low-income population of a city; the minority and/or low-income population of the downtown, uptown, westside, eastside; or by census block or tract. To keep it simple we have been defining minority populations by census blocks, and sensitive receptors that are 50% minority and/or low-income, by public schools and census blocks.

11. An extensive EIR study of the existing, potential or foreseeable pollution that affects the EJ communities is then done. This includes the effects of lack of medical access, lead pipes and paint, disease patterns, planned new roads and industries. Whether there are subsistence farmers or gatherers of natural food supplies that might be affected by project. Do they depend on fishing to supplement their diet? Do they use ground water that might be contaminated by the project?

12. All the results are compared to a larger non-minority, non low-income community. The Guidance states that a demographic comparison to the next larger geographic area or political jurisdiction should also be presented to place population characteristics in context when determining whether impacts fall disparately on minority and low-income populations.

13. At this point a determination can be made. If the study finds that the environmental quality within the EJ community is worse than the designated comparable community then the applicant cannot build unless they can show there is no other alternative (cost is not a factor) or that they will completely mitigate the effects on the EJ community.

EPA Guidelines April 1998, 5.0 METHODS AND TOOLS FOR IDENTIFYING AND ASSESSING DISPROPORTIONATELY HIGH AND ADVERSE EFFECTS:

“A fundamental step for incorporating environmental justice concerns into EPA NEPA compliance activities is identifying minority and/or low-income communities that may bear disparately high and adverse effects as a result of a proposed action. Once these minority and/or low-income communities are identified and located, the potential for disparately high and adverse effects to these communities must be assessed. It is important to understand where such communities are located and how the lives and livelihoods of members of these communities may be impacted by proposed and alternative actions. Minority communities and low-income communities are likely to be dependent upon their surrounding environment (e.g., subsistence living), more susceptible to pollution and environmental degradation (e.g., reduced access to health care), and are often less mobile or transient than other populations (e.g., unable to relocate to avoid potential impacts). Each of these factors can contribute to minority and/or low-income communities bearing disparately high and adverse effects. Therefore, developing an understanding of where these communities are located and how they may be particularly impacted by government actions should be a fundamental aspect of the EA and EIS development process.”

U.S. Environmental Protection Agency’s Final Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses, April 1998. EPA’s Compliance Guidance April 1998, 1.2 Principles/Philosophy of this Guidance, paragraph 4, page 7.

“The sensitivity to environmental justice concerns should sharpen the focus of the analysis. While the analytical tools to be used are similar, the analysis should focus both on the overall affected area population and on smaller areas and/or communities within the affected area”. Paragraph 7, page 7 of EPA’s Guidance: “Environmental justice concerns may lead to more focused analyses, identifying significant effects that may otherwise have been diluted by examination of a larger population or area. Environmental justice concerns should always trigger the serious evaluation of alternatives as well as mitigation options.”

2.1.1 Minority and Minority Population, paragraph 2, page 11 of EPA’s Guidance.

“The fact that census data can only be disaggregated to certain prescribed levels (e.g., census tracts, census blocks) suggests that pockets of minority or low-income communities, including those that may be experiencing disparately high and adverse effects, may be missed in a traditional census tract-based analysis. Additional caution is called for in using census data due to the possibility of distortion of population breakdowns, particularly in areas of dense Hispanic or Native American populations. In addition to identifying the proportion of the population of individual census tracts that are composed of minority individuals, analysts should attempt to identify whether high concentration "pockets" of minority populations are evidenced in specific geographic areas.” Paragraph 4, page 11 of EPA’s Guidance. “A factor that should be considered in assessing the presence of a minority community is that a minority group comprising a relatively small percentage of the total population surrounding the project may experience a disparately high and adverse effect. This can result due to the group's use of, or dependence on, potentially affected natural resources, or due to the group's daily or cumulative exposure to environmental pollutants as a result of their close proximity to the source. The data may show that a distinct minority population may be below the thresholds defined in the IWG key terms guidance on minority population. However, as a result of particular cultural practices, that population may experience disparately high and adverse effects. For example, the construction of a new treatment plant that will discharge to a river or stream used by subsistence anglers may affect that portion of the total population. Also, potential effects to on- or off-reservation tribal resources (e.g., treaty-protected resources, cultural resources and/or sacred sites) may disparately affect the local Native American community and implicate the federal trust responsibility to tribes.”

Health risk analysts have testified at California Energy Commission (CEC) hearings that a finding that an increase in cancer risks of one in a million is considered significant. CARE contends that after the cumulative studies are done comparing the EJ community with a control community, that there will be a significant difference in the heath risks for the EJ community and that a finding of high and adverse health risk must be made. The applicant must conform to all other existing requirements.

Does the project have an illegal pre-commitment for approval and is it a waste of taxpayer and electricity ratepayer funds?

As currently proposed, and under the current environmental review scheme, the project has an illegal precommitment for approval, because the applicant, Calpine, has a pre-existing long-term energy contract with the State’s Department of Water Resources. This long-term contract for the delivery of 49.6 MW power from the proposed project is at prices far in excess of the applicant’s cost of production for the power produced from the project. This amounts to an illegal pre-commitment for the project. When this is combined with the excessive capacity payment of approximately eight million dollars annually the applicant will receive from DWR whether the plant operates or not, this is also an illegal waste of taxpayer’s funds.

PLEASE TAKE FURTHER NOTICE short of denial of the project your failure to immediately cease and desist from the further waste of public funds by processing this application subject to a CEQA review that may not be performed because of existing, ongoing conditions--i.e. the so-called energy crisis and associated DWR contracts--may become the subject of a taxpayers suit under section 526a of the Code of Civil Procedure, and relief may be sought against the decision makers personally, as well as against other parties.

The further waste of taxpayers funds is demonstrated by the applicant’s application to the Federal Energy Regulatory Commission (FERC)[1] for authorization allowing Calpine to make wholesale sales of electric energy, capacity and ancillary services at market-based rates, to reassign transmission capacity, and to resell firm transmission rights during the pendency of ongoing investigations of Calpine’s market practice, investigations under way by the SEC, the Department of Justice, and the FERC itself including fraud and racketeering, and prior to the County’s issuance of a certified environmental review, also demonstrates illegal precommitment for the projects approval.

What is "Enrongate" and must its effects be investigated?

Enrongate refers to the colossal, well-publicized financial (and most probably criminal) entanglements Enron has gotten itself in after years of perpetrating scams on the public, on honest members of the energy industry, and on governmental entities going as high as the White House and Congress. Enron is having perhaps the greatest, most widespread adverse impact on various areas of American life than any other major event except September 11, 2001. Does this mean Enrongate will affect the siting, construction and operation (particularly the sale and distribution of electrical power) of powerplants in California, and may this lead to conditions that are apt to have adverse impacts on the environment which must be identified, investigated and evaluated? The question is rhetorical. Of course the effects of Enrongate on the proposed project, the applicant and County itself must be investigated. Indeed, the investigation must go even further. The effect of current conditions and recent events must also be looked at. For example, the Governor issued executive orders specifically to deal with the so-called energy crisis by expediting the siting, construction and operation of new powerplants. We have seen this strong policy implemented by the constant change in CEC regulations and procedures, which have made it virtually impossible to implement CEQA in a manner that maximizes environmental protection, as the statutory scheme is intended to do.

But this was not done by the Legislature, through elected representatives that could have given the public meaningful participation and input. In violation of the constitutional separation of powers doctrine, it was done by the Governor, who until this election year has remained well insulated from public concern and pressure. Now, however, it appears conditions have changed. There is broad consensus that if there ever was one, now there is no longer an energy crisis of emergency proportions. There is no longer any reason to continue sacrificing the environment to build more powerplants. What effect is this having on County’s rules, regulations and procedures? Is consideration being given to undoing the numerous amendments made at the height of the perceived crisis? These and many other related questions abound and must be addressed to comply with CEQA, and other LORS [2] seeking to give some modicum of assistance to the goal of protecting the environment. CARE respectfully demands that proper steps be taken to rectify having ignored these matters in the past. At the very least, a threshold investigation is necessary immediately.

Compliance and General Conditions

Has the applicant provided substantial evidence of compliance with all applicable LORS, particularly air pollution district regulations, thus ignoring potentially significant environmental impacts, among other things?

The applicant's ability or willingness to comply with conditions to project approval, mitigation measures and similar obligations depends on the good faith of the applicant to carry them out even if left unsupervised. The applicant has not proposed any measures to address this circumstance, such as monitoring by an independent, qualified non-public organization selected in fair fashion with ample public input. The County should require that this potentially devastating enforcement problem be addressed. In a way, this is an area of potentially significant environmental impact under CEQA. The failure to adequately monitor and enforce the performance of project conditions and mitigation measure will surely have a potentially significant, if not overwhelming, impact on the environment. After all, the very fact a mitigation measure was identified is proof a potentially significant impact exists, and if the mitigation measure is abandoned, the adverse impact will occur for sure.

For example, and without limitation, the applicant should be mandated to identify and adopt beefed up or additional, continuous emission monitoring measures to specifically address compliance problems that this very applicant has encountered in constructing and operating other California Energy Commission (CEC)-approved powerplants. There is a growing body of solid information and evidence to reasonably infer that this applicant will continue having enforcement problems. If the enforcement problems are not addressed, it is reasonably foreseeable that potentially significant adverse impacts on the environment will surely occur. At the very least, therefore, a worst-case CEQA analysis taking into account the failure to monitor and mitigate mitigation measures in specific areas, and in regard to specific impacts, must be conducted. For example, what impacts will occur if applicant fails to install or update a particular piece of equipment? Are there additional mitigation measures for these non-or-inadequate enforcement impacts (e.g., monitoring by an independent non-governmental group)? The failure to address these matters is an obvious, inexcusable prejudicial abuse of discretion.

Strong and sure measures must be employed to deal with the monitoring-enforcement problem. This requires additional information about the applicant's problems at other powerplants. To assist in this vital task, CARE has obtained and herein presents further information and evidence of the applicant’s poor track record in complying with Conditions of Operation at other facilities.

Applicant’s Record Regarding Conditions of Approval

CARE provides evidence of the applicant’s poor track record of complying with the Conditions of Certification of the Los Medanos Energy Center (CEC docket 98-AFC-1) and the Sutter Power Project (CEC docket 97-AFC-2). CARE has received information on Calpine compliance issues via a request pursuant to the California Public Records Act from the CEC. In a 11/16/00 correspondence from Chuck Najarian to Bob Therkelsen in regards to the “Los Medanos Stop Work Order” it states, “Several days ago we were notified that Calpine has constructed 99% of a short segment (about 900 feet) of the Los Medanos transmission line differently than what was described in the Decision and which may conflict with the existing conditions of certification. In doing so, they encroached on the City of Pittsburg property near designated future residential development because they went outside the 40-foot easement they obtained from the City. The designated CBO has placed a stop order on the transmission line segment in question.”

On 12/4/00 Compliance project manager Jeri Scott sent e-mail to Commission staff Al McCuen, Eric Knight, Gary Walker, and Lorraine White titled “Los Medanos Complaint”, where it states, “We are not filing the complaint because the Calpine Corporation has agreed to pay the fine. Calpine filed a letter with the Commission on Friday, December 1st admitting to their “oversight” and volunteering to pay the maximum fine (sic) of $75,000.00 to the Commission.” CARE contends this demonstrates the applicants and Commission staff’s propensity to look the other way on the environmental and socioeconomic impacts of this project’s failure to comply with Conditions of Certification.

Finally, in regards to Calpine’s compliance problems CARE also cites for the record, Calpine’s compliance problems in Sutter where truckers hired by the company failed to confine traffic to the prescribed routes. Clearly there is a pattern of failure on the part of the applicant to comply the Conditions of Certification of projects already approved.

Applicant’s Record Regarding Public Participation

In regards to the rights of the public to participate, by this reference, we incorporate the attached December 19, 2000 letter to California Energy Commission chairman, William Keese, from Glenn May a reporter at the Contra Costa Times complaining about the inability of the press as well as the public to obtain information required to meaningfully participate in the CEC’s proceedings, as well as all comments submitted by CARE on the subjects of public participation and the procedural/substantive unfairness, due to the so-called energy crises in the proceedings before you. Please let us know immediately if you reject this attempt to incorporate these materials by reference without having to resubmit them.

In this letter Mr. May states,

“Dear Mr. Keese,

I am writing to express my deep dissatisfaction with the performance of California Energy Commission staff and my resulting loss of confidence in the commission’s stated goal of providing California residents with full and complete information about power projects affecting them.

I am a reporter for the Contra Costa Times (Knight-Ridder) chain who covers the city of Pittsburg, which is, as I’m sure you’re aware, ground zero in efforts to site generation assets to ease the current power shortage.

As a reporter whose duty it is to relay information to a community particularly at risk to excesses of that zeal, I entrust the Energy Commission with providing me with full and thorough information on projects under its jurisdiction. After recent developments regarding the Calpine Los Medanos Energy Center, I fear that trust is misplaced.

To me, the residents of a community in which not one but two power plants are being built deserve at least a base level of disclosure. An admission by the constructor of those plants that it violated terms of its license, I believe, meets that threshold.

If you disagree, I would welcome hearing your rationale.

Ms. Scott is not, I am aware, a public information officer and I appreciate her willingness to discuss with me aspects of projects in which she is involved. As such, I understand her not taking the step of advertising what Calpine has done by issuing a press release.

But it is my strong belief that when presented direct questions about a matter in which she knew certification violations were involved, it was her duty to fully disclose the matter.

But she was not alone in playing possum.

I was present, along with about 15 or 20 community members, at a November public hearing where commission staff, including Ms. Scott and Commission Attorney Dave Mundstock allegedly went through the process of informing the public about another Calpine Los Medanos amendment proposal, this one involving the plant’s capacity. In the foreground, everyone spoke of procedure, about technicalities, about the intricacies of power plant engineering and the concerned residents patiently and graciously posed their questions. In the background, unsaid, was the simple fact that Calpine was already violating its license for Los Medanos and none of your staff felt it necessary to reveal that.

No one, Mr. Keese, likes to be treated like a fool.”

Applicant’s Record Regarding Employee Exposure to Toxics

One matter for consideration of Calpine is its partner Bechtel's treatment of its employees, as shown by a recent state Supreme Court case, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 332. Among other things, in this litigation it is alleged, and there is evidence establishing at least a question of fact that Bechtel--or one of its corporate offspring--engaged in deceptive practices, that include the failure to follow its own policies, in order to cut costs. Of course, the tendency to disregard its own ameliorative policies in order to cut costs is a very relevant attribute of corporate character that needs full and fair investigation, and it is up to the County, not the public, to conduct this investigation. In this regard CARE cites the 10/6/00 e-mail from Bob Therkelsen to Compliance Officer Jeri Scott where it states, “On Wednesday, October 4th, Andrew Berna-Hicks of the Department of Toxic Substance Control telephone Mike Ringer to inform him of two alleged arsenic poisoning at LMEC. Apparently, two workers at the LMEC where exposed to arsenic contaminated soil on the site. One backhoe operator tested for exposure on October 9, 2000 (Sample C6896) listed an exposure level of 0.0053mg/m³ with a California OSHA action level of 0.0050mg/m³. CARE contends that Calpine/Bechtel is “engaged in deceptive practices, that include the failure to follow its own policies, in order to cut costs.”

Efficiency, Reliability, and Facility Design

CARE is concerned with the inadequacy of the applicant’s analysis of the effects of possible natural gas supply curtailments or manipulations on the efficiency and reliability of the proposed facility’s design.

Water Impacts

Does Sea Water Intrusion[3] Make the Proposed Cooling Technology for the Project Infeasible?

When groundwater levels near the coast fall below mean sea level, there is a natural physical tendency for seawater to penetrate into the groundwater basin. The ocean pushes the more dense seawater inland to raise the water table until it is equal to mean sea level. This is depicted in Figure 6.

Groundwater pumping in excess of groundwater recharge can enhance this natural tendency. As seawater encroaches into the fresh groundwater basin, water quality is degraded and wells have to be abandoned. This is depicted in Figure 7. If fresh water is not available for recharge, or if the groundwater table is reduced to elevations below sea level, seawater will be drawn inland until equilibrium is restored. Unlike freshwater levels in the groundwater basin that vary with the season and climatic trends, the ocean is a constant source of recharge and the elevation varies only marginally with the tide. When inland pumping causes the water level to drop (see Figure 7a), pressure throughout the aquifer decreases (see Figure 7b) and equilibrium is restored via seawater intrusion (see Figure 7c). Thus, pumping throughout the basin causes seawater intrusion along the coast.

Seawater Intrusion in the Pajaro Valley

The Pajaro Valley groundwater basin includes confined and unconfined aquifers and semi-confined transition zones between the two, as described in the basin geology section. In the Pajaro Valley, groundwater levels and pressure in confined aquifers is influenced both by the ocean and by the groundwater level in inland areas. The Pajaro Valley groundwater basin is connected to the ocean, and there are no seismic faults or barriers to prevent seawater intrusion.

The average concentration of chloride in seawater is 19,000 mg/L. Chloride levels exceeding 142 mg/L will likely result in increasing problems for agricultural irrigation (California Regional Water Quality Control Board, 1995). Increasing chloride concentration in groundwater well samples is an indication of seawater intrusion. Chloride is useful for monitoring seawater intrusion because it is chemically stable and moves at the same rate as the intruding water. The horizontal migration of seawater occurs slowly over time as seawater mixes with the fresh water as it moves inland. Initially, chloride concentrations increase gradually. However, as the bulk of the seawater plume moves inland, chloride concentrations can rise rapidly. Other chemical changes also occur over this mixing zone, and can assist in interpreting the sources of the observed chlorides.

Based on background chloride concentrations in groundwater from inland groundwater recharge areas, it has been determined that chloride levels exceeding 100 mg/L in coastal wells indicate seawater intrusion (U.S. Geological Survey, 1974). Well data from 1998 generally indicate that inland seawater intrusion is more extensive than previously reported. In the La Selva Beach area, the size of the existing intruded area has tripled compared to conditions in late 1979. The intruded area extends approximately 0.75 miles inland and is 2 miles wide.

The intrusion zone near the mouth of the Pajaro River extends inland approximately 1.5 miles and is approximately 3 miles wide. Figure 8 shows the coastal area that has been impacted by seawater intrusion, along with the changes in chloride concentrations versus time for selected wells.

A number of deeper wells have shown substantial increases in chloride concentrations in recent years indicating that the volume of fresh water displaced in the intruded area is increasing. Chloride levels are generally highest in the deeper confined aquifers consisting of Aromas Sand and the Purisima, with values ranging from 200 to 8,500 mg/L. In contrast, shallow wells tend to have lower chloride levels (50 to 500 mg/L), and a number of neighboring shallow wells show marked differences in chloride levels.

The data indicate that seawater is intruding along the coast in the middle and lower portions of the Aromas sands and that poor-quality water is present in the deeper zones. This implies that as intrusion moves inland and wells are lost to seawater impacts, the option of using existing wells for the projects 178,000[4] GPD maximum water use is probably not a viable option. The EIR required to be completed for this project requires further analysis, mitigation, and the adoption of a legally enforceable monitoring program for the project. CARE notes here that the alternative analysis failed to analyze the feasible option of utilizing dry-cooling technology as Calpine has implemented in its 530 MW Sutter power plant. Dry cooling needs to be analyzed as an alternative Mitigation measure because of impacts on water resources. This analysis needs to include the use of dry cooling technology as adopted for the Sutter Power Project [5].

“Calpine (1998h), to address concerns about potential effects of the project on groundwater supply and quality, is proposing to use a 100 percent dry cooling technology. This will reduce the project's average water demand by over 95 percent, from slightly more than 3,000 gpm to 140 gpm (Calpine 1998q). As shown in the revised preliminary plant water balance, average daily flows will be 60,000 gallons per day (gpd) and peak flows to be 318,000 gpd (Calpine 1998q). The annual water demand of the project based upon average operating conditions, therefore will be reduced from 4,856 acre feet to 67 acre feet, while annual demand based upon peak operating conditions, will be reduced from 7,115 acre feet to 356 acre feet. Since the project will not be operating at peak levels a significant portion of the time, Calpine (1998q) estimates that annual groundwater pumping will be approximately 225 acre feet.”

The County needs to demonstrate that water resource impacts from this project will not perpetrate discriminatory effects in comparison to the non-low income non-minority agricultural communities surrounding the PVEC.

Air Pollution Impacts: What significance does the SCR vs. SCONOx controversy have under CEQA?

The issue is feasibility, and it's a question of complying with the appropriate standards and requirements, more than a matter of policy. In other words, there is unanimous agreement that mitigation measures must be adopted if they are feasible. Feasibility is a broad, complex and uncertain concept under CEQA. The starting point of the analysis is the fundamental rule that, like other findings, a determination of what factors to use and what weight to give them must be based on substantial evidence in the record. In other words, the County can't simply conclude that powerplants, like development in general, are beneficial to the affected public. Specific benefits and costs--economic, social, environmental, etc.--must be identified, explored and an effort must be made to quantify them in making the ultimate decisions. The lead agency may have discretion in weighing and balancing the feasibility components, but the specific procedure required by CEQA must be followed. To date, there is nothing in the record indicating the CEQA process has been properly followed. There is no indication of what factors were selected for the analysis, or what substantial evidence supports the identification of and weight given each factor. This must be done to comply with CEQA.

To get back to the SCR vs. SCONOx dispute, there is no identification nor analysis of what substantial evidence in the record supports the decision to accept applicant's self-serving contentions that SCONOx is an infeasible technology. Even if there were evidence showing the cost is significantly higher, and applicant profits are significantly lower, this is the start, not the end of the inquiry. For example, in determining that the cost of SCONOx is significantly higher enough to make it infeasible, what criterion was used? Was the cost/benefit determination based on the gross revenue the applicant stands to take in over the life of the powerplant? On profits made over the same period? On funds the applicant may be required to pay back to the state for having unconscionably gouged the state during the so-called energy crisis and through long-term energy contracts with the DWR making the crises permanent? These are all questions that must be answered to comply with CEQA.

Still unresolved at this time is the matter of what Best Available Control Technology should apply to the PVEC. The applicant has proposed to use selective catalyst reduction (SCR) and oxidation catalysts to minimize the emissions of oxides of nitrogen (NOx) to 5 parts per million (ppm), and carbon monoxide (CO) to 6 ppm, while maintaining the slip of ammonia (NH3) emissions to 10 ppm. However, the Federal Environmental Protection Agency (EPA), recently determined that the BACT for a combustion turbine combined cycle operation should be set at 2 ppm for NOx, 2 ppm for CO and 5 ppm for ammonia. CARE is recommending that the project be mitigate to the above-mentioned EPA-recommended BACT levels, but the EPA will not officially comment on this project without a requisite Preliminary Determination of Compliance (PDOC) from the air district.

The air district has found that the project’s emissions of NOx and VOC have the potential to cause significant impacts relative to the District’s BACT thresholds. Thus, it is crucial that any NOx and VOC emission increases be fully offset to avoid worsening violations of the ozone ambient air quality standard. The applicant has not proposed to provide emission reduction credits (ERCs) as the air district accepted the applicant’s projected NOx emission at 99.27% of threshold, and CARE therefore cannot determine whether the applicant's proposed offset package is adequate to mitigate the project's emissions of NOx and VOC to a level of less than significant.

In addition to the District’s Rule 207 requirements for the project as a major source whose emissions trigger PSD requirements for NOx, PM10, and CO. Any major modification subject to PSD must conduct an analysis to ensure that best available control technology ("BACT") is used. This requirement is set forth in section 165(a)(4) of the federal Clean Air Act, in federal PSD regulations at 40 C.F.R. § 52.21(j), and in federal regulations providing the requirements for State implementation plan (SIP) approval of a State PSD program, at 40 C.F.R. § 51.166(j). For PSD purposes, BACT is “an emissions limitation… based on the maximum degree of reduction for each pollutant subject to regulation under [the] Act which would be emitted from any proposed major stationary source….” (40 CFR § 52.21(b)(12).)

A proper top-down analysis would almost certainly conclude that SCONOx is BACT for this project, even if it achieved exactly the same emission limit as SCR, because it offers a number of important advantages over SCR alone, with no offsetting disadvantages. First, SCONOx uses a single catalyst to simultaneously remove NOx, CO, VOCs, and toxics. Second, it uses no ammonia or other hazardous materials and thus requires no ammonia slip, eliminating the many significant impacts associated with ammonia use (e.g., transportation accidents, unloading accidents, site releases, PM10 generation). Third, the SCONOx system operates effectively at temperatures ranging from 300^oF to 700^oF, making it well suited for merchant operation and providing better control during startups and shutdowns than achieved with other competing catalytic technology (e.g., SCR, CO oxidation catalyst). Fourth, unlike other catalytic systems, the SCONOx catalyst is continuously regenerated, assuring continuous maximum catalyst effectiveness. Finally, notwithstanding the forgoing benefits, SCONOx has achieved much lower NOx and CO levels than other competing technologies and, therefore, is de facto BACT for this project. The SCONOx system has been demonstrated to achieve 2 ppmvd averaged over 3 hrs or 2.5 ppmvd averaged over 1 hr on the 32 MW combined cycle (25 MW LM2500 gas turbine plus 7 MW steam turbine) Federal Cogeneration facility in Vernon, California (“Federal Facility”). (South Coast AQMD Staff Report, p. 3-4.) The South Coast AQMD has concluded that SCONOx/water injection is “achieved-in-practice” technology for natural gas-fired turbines with rated capacities of 3 MW or greater. EPA Region 9 has also concluded that the Federal Facility “has, based on data submitted to EPA for the six-month period from June 28, 1997 to December 28, 1997, ‘demonstrated in practice’ NOx emissions rates that are consistently at or below 2.0 ppmvd based on a 3-hour rolling average.” (Haber 3/23/98.) EPA has recently acknowledged that this same facility is currently meeting 1 ppm NOx. In addition, SCONOx has been operating on a 5-MW Solar Taurus 60 gas turbine at the Genetics Institute facility in Andover, Massachusetts since August 1999, likewise meeting 1 ppm. SCONOx simultaneously removes NOx, CO, and VOCs. The nine months of recent CEMs data indicate that the Federal Facility routinely achieves a CO limit of 1.0 ppm averaged over 1 hour, and 0.7 ppm averaged over 3 hours.

Public Health

What is the effect of partial loads (start-up/shut-down) on criteria pollutant and TAC emissions?

Partial load emissions (for air quality and public health) in the Recirculated Initial Study and the air district’s Health Risk Assessment failed to properly analyze the cancer risk associated with partial load operations of the project. The calculations of the projects emissions assume that the turbine is operating at full load.

Turbine specifications are based on a low ambient temperature scenario because it resulted in the highest emission rates. Daily and annual operations are also based upon the low ambient temperature scenario. Daily and annual operations are based on full load operation for up to 24 hours and 8,760 hours respectively. Operating conditions, were established to provide the basis for the calculated emissions.

Irrespective of the District’s contention that they examined the “highest emission rates”, emissions of some toxic compounds are substantially higher during reduced loads; such as occur during startup, shutdown, and partial load operation, than during routine operation.

The analysis failed to identify the typical operating scenario based on other similar sized Peaker project is about 250 start and shutdowns annually. The Gas Research Institute ("GRI") investigated the effect of load on criteria and toxic pollutant emissions from nine gas turbines including a large Frame 7 GE turbine. This study found that emissions of benzene, toluene, formaldehyde, methane, and total non-methane hydrocarbons decrease with load. Emissions of formaldehyde, a carcinogen, increased dramatically, by up to a factor of 343 when the load was reduced from 100% to 20%. For the 750 MW GE Frame 7, the formaldehyde emission factor increased by a factor of 503, and the formaldehyde emissions increased from 0.11 to 16.08 tons/yr or by factor of 146, when the load was reduced from 100% to 30%. (GRI 8/96, Table S-5.) This substantial increase in formaldehyde emissions during reduced load operation was not taken into account in the Applicant's risk calculations. Acrolein is the most toxic compound emitted by the gas turbines. It is a double-bonded aldehyde which causes eye, nose and throat irritation. It has the lowest acute and chronic reference exposure level among all of the substances emitted by the turbine. Therefore, very small concentrations of acrolein, much smaller than any other compound emitted by the Project, will result in significant health impacts. CARB has recently published an advisory that states: "any data or results, based on the use of M430 to determine acrolein...are suspect and should be flagged as nonquantitative wherever they appear." (CARB 4/28/00.) This method has been validated for only formaldehyde and acetaldehyde and substantially underestimates acrolein concentrations.

Are there collateral impacts associated with the proposed emission control technology not considered in the air district’s health impact analysis?

The Monterey Bay Unified Air Pollution Control District’s emissions and health risk assessments failed to identify collateral impacts and mitigation for the applicant’s proposed emission control technology. Selective Catalytic Reduction (“SCR”), the technology selected by the District as BACT, requires the use of ammonia. Some of this ammonia, termed “ammonia slip” or simply “slip,” is emitted into the atmosphere, where it can form secondary PM10. Secondary PM10 results from precursor emission (e.g., NOx, SO2, ammonia, organics) that undergo physical processes and chemical reactions in the atmosphere, as opposed to direct, primary PM10 emissions formed during combustion. Secondary PM10 is very fine particulate matter of the size largely responsible for health effects attributable to PM10, and causes visibility impairment.

The District identified in its analysis of PM that the existing Ambient Air Quality for the region is 49 (ug/m³) with the State’s Ambient Air Quality Standard AAQS threshold at 50 ug/m³ respectively. This same analysis identifies the total AAQ impact for the project as 0.4 ug/m³ without taking into consideration the collateral impacts of the applicant’s proposed emission control technology. CARE contends that pursuant to CEQA it is reasonably foreseeable that the proposed project will induce exceedance of the State’s AAQS for PM10 and additional mitigation measures including the requirements for offsets in the form of ERCs. This is reasonably foreseeable as the District’s presumption that no PM offsets are required is based on an error factor of 1%, which is well within the error of the District’s calculation analysis parameters.

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), the contents of which are fully incorporated by this reference (copies will be made available on request) were published showing that people living in more polluted cities had an increased risk of premature death compared to those in cleaner cities.

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.

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. One to two years on average in more polluted areas might shorten their lives.

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. 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.

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.

What exactly is particulate matter?

Particulate matter includes a wide range of pollutants -- road dust, diesel soot, fly ash, wood smoke, ammonium nitrate, 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.

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, natural gas, 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.

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 ug/m³, according to the World Health Organization.

How did Natural Resources Defense Council 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. NRDC 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 was 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.

Table 1 Deaths attributable to particulate matter exposure

Metropolitan Statistical Area	Average Annual Mean PM-10 Concentration (1990-1994) (ug/m³)	Estimated Annual Cardiopulmonary Deaths Attributable to Particulate Air Pollution
		Point Estimate	Range	-	Range	Deaths per 100,000 Population	Adult Cardio- Pulmonary Deaths (1989)	Deaths from Auto Accidents (1989)
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 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.

Table 1 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. The nearest MSA is Seaside with 40 deaths attributable to particulate matter exposure per 100,000 population.

Biological Resources

Did the IS properly analyze the effects of project emissions and seawater intrusion on regional and local impacts on Biological Resources?

The impression one gets from reading the Re-circulated Initial Study is that the project applicant selected disturbed sites to locate pipelines and other project-related structures. However, the IS never explicitly states that such a standard led to the siting of all project-related structures. The IS would have been more informative by describing the conditions of other areas in the region where project-related structures are not proposed. We wonder whether the planned PVEC really did avoid and minimize impacts by targeting disturbed sites that are less likely than other sites in the area to be inhabited or visited by special-status species. Was the coincidence of PVEC structures and disturbed areas planned, fortuitous, or inappropriately described as such only after the preferred sites were selected and acquired?

Existing Setting[6]

Vegetation and Wildlife Habitats

Valley Foothill Riparian. Valley foothill riparian includes a range of habitats associated with permanent (nonseasonal) water. It may be a dense, multilayered forest of trees and shrubs, or a thicket of dense shrubs. In a natural state, it may span the entire floodplain of a river, giving way to oak savannas or grasslands on adjacent uplands. On the Pajaro River, valley foothill riparian habitat often consists of a dense growth of willows (Salix spp.), black cottonwood (Populus

balsamifera ssp. trichocarpa), and boxelder (Acer negundo var. californica), with an understory of poison-oak (Toxicodendron diversilobum), mugwort (Artemisia douglasiana), California blackberry (Rubus ursinus), and stinging nettle (Urtica sp.). Under a dense canopy or where stream scouring and/or siltation are significant influences, the understory may be sparse.

The coastal streams and tributaries of the Pajaro River also support valley foothill riparian habitat, but most habitat is limited by narrow waterways, and the intermittent presence of flowing water or near-surface water. Corralitos Creek is an unleveed tributary to the Pajaro River; it supports a well-developed band of valley foothill riparian habitat, especially in its upper reaches.

Wildlife Attributes. Riparian areas provide nesting habitat and diverse insects that are attractive to a variety of migratory birds. Foliage, bark, and ground substrates provide a variety of foraging areas. Birds that forage for insects in the foliage include Bewick’s wren (Thryomanes bewickii), northern oriole (Icterus galbula), and black-headed grosbeak (Pheuticus melanocephalus). Barkinsect

foraging species occur here, such as downy woodpecker (Picoides pubescens), Nuttall’s woodpecker (Picoides nuttallii), and white-breasted nuthatch (Sitta carolinensis). There are a few species that are adapted to foraging for insects in flight, such as black phoebe (Sayornis nigricans), western wood pewee (Contopus sordidulus), and tree swallows (Tachicyneta bicolor).

Coastal Oak Woodland. This habitat is typically comprised of a dense to sparse cover of coast live oak (Quercus agrifolia) with a partial understory of shrubs and grasses similar to the annual grassland type. Within the study area, coastal oak woodland may once have been more extensive on the deeper and more level soils, but is presently limited to sheltered, often north-facing slopes too steep to cultivate. The predominant tree species is coast live oak, although occasionally other species may be found, such as madrone (Arbutus menziesii) and California bay (Umbellularia californica). The understory includes poison-oak, monkey flower (Mimulus aurantiacus), and California blackberry, while the herbaceous understory includes vetch (Vicia sp.), mustard (Brassica sp.), and bracken fern (Pteridium aquilinum).

Wildlife Attributes. Coastal oak woodland provides food and shelter for a variety of bird species, including insect eaters such as chestnut-backed chickadee (Parus rufescens), white-breasted nuthatch, and warbling vireo (Vireo gilvus). Other species attracted to this habitat include song sparrow (Melospiza melodia), quail, rufous-sided towhee (Pipilo erythrophthalmus), and brown towhee, which glean insects from the foliage on the ground. Stellar’s jay (Cyanocitta stelleri)

and squirrels (Sciurus sp.) are dependent on the acorns during the winter. Anna’s hummingbirds (Calypte anna) use vines growing around trees for nectar and for insects that are attracted to the nectar. Other species, such as the great horned owl (Bubo virginianus), use the trees for roosting and foraging perches. The western gray squirrel (Sciurus griseus) and gray fox (Urocyon cinereoargenteus) both feed on truffles, mushrooms, fruits, and nuts within the forest. Unlike the

riparian habitat, oak forests have a higher density of wintering birds than nesting birds.

Coastal Scrub. This shrub-dominated habitat occupies a rather limited area within the study area. Coastal scrub tends to grow on steep rocky slopes, grading into oak woodland on deeper soils or moister sites. Depending on site-specific factors, including soil depth and slope aspect, coastal scrub in the study area can consist of shrublands dominated by either California sage (Artemisia californica), poison-oak, monkey flower, and black sage (Salvia mellifera) or by coyote brush (Baccharis pilularis) and poison-oak growing in dense thickets.

Wildlife Attributes. The sandy soils often associated with coastal scrub habitat provide ideal habitat for reptiles such as western fence lizards (Sceloporus occidentalis), which are common in the warm, dry scrub community. Coastal scrub habitat, often interspersed with other habitats, provides foraging and nesting habitat for species that are attracted to edges of plant communities.

Bird species that use the scrub canopy for catching insects include dusky flycatcher (Empidonax oberholseri) and wrentit (Chamaea fasciata). Besides insects, flowering scrub vegetation (e.g., ceanothus) attracts nectar drinkers such as Anna’s hummingbird. Mammals, including striped skunk (Mephitis mephitis), use this habitat for protection and foraging grounds, feeding off new shoots of plants. Black-tailed deer (Odocoileus hemionius californicus) often feed on scrub, but this habitat supports a lower density of deer than occurs in oak savannas.

Small mammals that are expected to occur within the scrub include brush rabbits (Sylvilagus audubonii), Botta’s pocket gophers (Thomomys bottae), and deer mice (Peromyscus maniculatus). Small mammals attract predators such as long-tailed weasel (Mustela frenata), gray fox, and bobcat (Felix rufus).

Annual Grassland. This community typically comprises a dense to sparse cover of annual grasses, often associated with numerous species of annual and perennial forbs. These grasslands grow actively during winter and spring and remain dormant during summer and early fall. This assemblage of non-native, annual grasses originates in the Mediterranean with regional, seasonally arid climates as is found in coastal California. Species richness in fresh emergent wetland is comparatively very high.

Vernal Pools. Within the annual grassland habitat, vernal pools are surface depressions with a slowly permeable substratum that holds water after winter and spring rains. Claypan pools have a slowly permeable clay layer that holds winter rains, while hardpan vernal pools develop where chemical processes allow for the accumulation of a cemented subsoil layer.

Plants occurring in vernal pools are predominantly native, low-growing, ephemeral annual herbs, but some are perennial. Germination and early growth occur in winter and early spring, often while plants remain submerged. As pools dry out in spring, flowering occurs in bands at the margins of the pools following the receding water level.

A suite of native plant species is typical within vernal pools. These are species adapted to the periodic but somewhat variable cycles of inundation and drying. Unlike the surrounding nonnative annual grasslands, intact, undisturbed vernal pools are dominated almost entirely by native taxa.

Due to its patchy distribution and historic habitat loss, this community is considered a high priority for inventory by CDFG. In addition, vernal pools typically qualify as wetlands and as such may be protected under Section 404 of the Clean Water Act.

Wildlife Attributes. Vernal pools provide one of the most diverse habitats within California, providing winter foraging for waterbirds, including gulls (Larus spp.) and snowy egret, and shorebirds, such as western sandpipers (Calidris mauri) and black-necked stilt (Himantopus mexicanus). Several endangered and threatened vernal pool shrimp species occur only within the seasonal vernal pool habitat.

Cropland/Orchard/Vineyard. The deep alluvial soils along the floodplain of the Pajaro River and coastal areas support a variety of row crops as well as vineyards and orchards. The very mild climate in the project area makes it suitable for row crops such as strawberries, bush berries, lettuce, broccoli, cauliflower, and cut flowers. Agricultural habitats are subject to periodic discing, planting, harvesting, and the application of herbicides, pesticides, and fertilizers, which prevent the establishment of natural plant species and communities. A number of weedy plant species, including bristly ox-tongue (Picris echioides), curly dock (Rumex crispus), and bull thistle (Cirsium vulgare), are associated with cultivated lands; many of these are non-native species, and all are adapted to open, bare ground, rapid maturity, and high seed production.

Wildlife Attributes. Agricultural lands of this type may provide occasional habitat for transient mammals, reptiles, and amphibians, and have some value to birds. Small mammals, such as rabbits and rodents, forage on the leaves and grasses and, in turn, may attract small predators, such as hawks or feral cats. Row crops with leveled fields, as are predominant in the study area, are used as travel corridors but support no resident wildlife.

Urban/Developed. Urban development is scattered in the project area. These areas consist of homes, buildings associated with farming, and towns, of which Watsonville is the largest. Urban and developed areas tend to be landscaped with non-native ornamental plant species, thus displacing native plants. Residential parks and disturbed areas provide little habitat for wildlife except for those species adapted to human habitation, such as skunks, opossum (Didelphis

marsupialis), starlings, golden-crowned sparrows (Zonotrichia atricapilla), and rock pigeons (Columbia livia). These areas do not provide habitat for larger mammalian species nor for predators, except possibly raccoons (Procyon lotor).

Critical Habitat for California Red-Legged Frogs

The project area is within the boundaries of final designated critical habitat for the California redlegged frog (USFWS, 2001). The final designation states that red-legged frogs can use “virtually any aquatic system” provided that a permanent water source is nearby. Upland and riparian habitat associated with breeding sites is also considered essential for the maintenance of redlegged frog populations. These frogs can be found in streams more than 1.8 miles from their

breeding sites, have been found in riparian habitat more than 100 yards from water, and can travel 2.25 miles across upland habitats from nonbreeding to breeding habitat (USFWS, 2001). Thus, critical habitat will include any portion of the zone of deposition, or the desiccation area of surface water bodies, resulting from the projects operation.

Specifically, within the critical habitat boundaries, three elements must co-occur for an area to qualify as critical habitat: suitable aquatic habitat, associated uplands, and suitable dispersal habitat connecting aquatic habitats (USFWS, 2001). The aquatic habitat must consist either of (1) two or more breeding sites, at least one of which is a permanent water source, within 1.25 miles of each other; or (2) two or more breeding sites and a permanent water source, all within 1.25 miles of each other if none of the breeding sites is a permanent water source (USFWS, 2001). Suitable upland habitat consists of all upland areas within 500 feet of the edge of suitable aquatic habitat. If the watershed boundary is less than 500 feet from the aquatic habitat edge, then the watershed boundary forms the edge of suitable habitat (USFWS, 2001). Suitable dispersal habitat must provide connectivity between aquatic habitats; it must be at least 300 feet wide and free of barriers to dispersal. These barriers include roads with more than 30 cars per hour as well as “moderate to high” density urban or industrial development (USFWS, 2001).

Aquatic Habitats and Resources

The Pajaro River Valley is an agricultural area drained by the Pajaro River and two of its major tributaries, Salsipuedes Creek and Corralitos Creek, as well as by Watsonville Slough. Portions of these watercourses are bounded by levees to control periodic winter flooding. Smaller drainages also are found in the immediate vicinity of the Pacific Ocean.

The following descriptions of the major reaches of the Pajaro River are based on Swanson et al. (1992).

The Pajaro River serves as a migration pathway for adult steelhead migrating upriver to spawning and nursery habitat in the upper watershed, and for steelhead smolts migrating downriver from that habitat to the ocean. Adult steelheads enter the river from late December through April, with spawning taking place from January through April. Most smolts migrate to the Pacific Ocean in April and May (HRG, 1997). Studies from the 1960s report steelhead runs in the Pajaro River ranging from 1,000 to 2,000 individuals (Federal Register, 1997). Current runs are smaller undoubtedly due to habitat quality declines stemming from water quality changes in the wake of land development along the watershed and loss of vegetation and channelization along riparian corridors. Habitat was also affected by the 1987-1991 drought.

The Pajaro River serves as a migration pathway for adult steelhead migrating to spawning and nursery habitat in the upper watershed and for steelhead smolts migrating from that habitat to the ocean. In the upper watershed, Pescadero, Uvas, Llagas, and Pacheco creeks and their tributaries provide potential spawning and rearing habitat. Pescadero and Uvas creeks provide access, spawning, and rearing in all but extreme drought years. Llagas and Pacheco creeks tend to be drier, and use of those streams is less frequent and less extensive.

During periods of lower flows beginning in late spring, the water temperatures of local streams increase. Part of this increase is due to the seasonal increase in day length and air temperatures, and part is due to the reduced temperature buffering provided by the reduced streamflows. Smolts can suffer from heat stress at higher temperatures; however, since smolts travel mostly at night when water temperatures are cooler, heat stress probably is minor for short migrations.

Migrating smolts travel relatively quickly; therefore, temperature probably is not a problem at times when the flows are sufficient to allow easy passage through riffles. No steelhead spawning or rearing occurs in the Pajaro River downstream of Murphy Crossing because of the lack of spawning gravels and low and warm summer streamflows.

Fresh/brackish water fish species present in the Pajaro River downstream of Murphy Crossing and in Salsipuedes Creek include Sacramento sucker (Catostomus occidentalis), Sacramento squawfish (Ptychochielus grandis), hitch (Lavinia exilicauda), Sacramento blackfish (Orthodon microlepidotus), prickly sculpin (Cottus asper), and threespine stickleback (Gasterosteus aculeatus). None of these species require April to June streamflows for passage, spawning, or rearing in excess of those required for steelhead smolt passage. The Pacific lamprey (Lampetra tridentata) is an anadromous fish that, like the steelhead, migrates into freshwater to spawn.

Lamprey juveniles later migrate downstream to the ocean to mature. Adult migration times for lamprey tend to occur somewhat later than the peak of the steelhead adult migration (March and April). However, lamprey adults are able to negotiate relatively shallow riffles. Juvenile lampreys migrate to the ocean with peak winter flows, and rarely suffer migration blockage.

Although once present in this area, the coho salmon (O. kisutch), a federally and state-listed anadromous species, has not been present in the Pajaro River system since at least the late 1960s. Occasional sightings in the 1960s may have been due to fish released from a hatchery in the San Lorenzo River to the north that inadvertently strayed into the Pajaro River as adults (HRG, 1997). Scarcity of suitable cool, low-gradient rearing habitat and lack of regular access preclude sustaining runs of coho in the watershed.

Fishery Resources in the Pajaro River Lagoon. Pajaro River and Salsipuedes Creek streamflows can provide for steelhead passage and also supply freshwater to the Pajaro River estuary. In spring, the freshwater inflow provides a surface wedge of lighter freshwater on top of the salt water in the Pajaro River estuary. This freshwater wedge allows steelhead smolts to move up and down in the water column to aid in gradually adjusting to seawater. When flows are sufficient for passage to the estuary, the inflows are probably sufficient to provide a good freshwater to saltwater transition zone. Migrating smolts may spend several weeks feeding in the estuary and adjusting to seawater. This transition may not be required, as many central California streams lack good transitional estuaries while sustaining steelhead populations. However, the transition may improve survival of smolts, especially smaller smolts, upon their entering the ocean.

A sandbar forms across the mouth of the Pajaro River in most years. Bar formation is primarily a function of beach-building processes produced by low-energy summer waves. Spring and early summer freshwater inflows are not an important factor in bar formation in a large estuary like that of the Pajaro River (Smith, 1990). Tidal flux through the mouth is substantially higher than freshwater inflows; even after the sandbar forms, seepage through the large sandbar probably is sufficient to prevent overtopping and sandbar breaching.

After sandbar formation, freshwater inflows lower the salinity of the summer lagoon and may be important to lagoon ecology (Smith, 1990). However, at the Pajaro River, even in most years when the sandbar forms, the formation is usually in mid- to late summer. This is much later than the period of steelhead smolt passage and estuary adjustment and is also later than the present practice of pumping water from College Lake. Tidewater gobies (Eucyclogobius newberryi), a federal endangered species currently proposed for delisting (Federal Register, 2001), are present in the Pajaro River estuary and up to a mile upstream. Sandbar formation is important for providing the calmer lagoon conditions favored by tidewater gobies (Smith, 1990), but the salinity of the lagoon generally is not important to goby viability. Tidewater gobies in central

California maintains highly localized populations in lagoons ranging from freshwater (Soquel Creek in 1988 and Pescadero Creek in 1985) to ocean salinities (Corcoran and Moran lagoons in 1996). After partial sandbar formation in late spring and summer, lagoon height increases, backing brackish water upstream to above Highway 1. Tidewater gobies possibly can be found that far upstream in years of high abundance; however, in years of heavy winter floods, this species probably is confined to the downstream portion of the Pajaro River estuary and to Watsonville Slough (Smith, 1990).

Critical Habitat for South-central California Coast Steelhead

The NMFS designated critical habitat for South-central California coast steelhead in 2000. The designation covers “all waterways, substrate, and adjacent riparian zones below longstanding, naturally impassable barriers (i.e., natural waterfalls in existence for at least several hundred years),” as well as some major dams (Federal Register, 2000). Thus, all waterways within the project areas fall under this designation.

Biologists are principally concerned with loss of special-status species habitat, which indeed warrants great concern. County staff’s impact estimates were thence minimized by focus solely on habitat displaced by PVEC structures. Four obvious, wide-reaching, environmental impacts on biological resources were completely ignored in the IS.

1. While the County’s analysis did mention seawater intrusion, the County’s impacts analysis did not consider the effects of reduced stream flows, and desiccation of surface water bodies, in the region of the proposed PVEC, which is a major impact ignored in the IS. The large volume of water to be extracted by the PVEC might very well dry up wells, irrigation canals, and the Pajaro River itself, or in the alternative make it unusable for habit or agricultural. The PVMWA indicates that the draw down of groundwater for agricultural uses during the 1970s through 1990s has not fully recharged during the years of extraction. The current water deficit for the basin is identified as 24,000 AF annually. The very large volume of water to be used by PVEC during its 40-year lifespan will not be recharged for a very long time, meaning that desiccated surface water bodies would remain desiccated for a very long time (possibly permanently). These water bodies compose a critical element of the habitat for most of the special-status species in the region. This likely impact to each and every one of these species has yet to be addressed by the IS.

2. An impact not dealt with adequately in the IS would be the effect of NOx PM[7] and Toxic Air Contaminant (TAC) deposition on exotic plant growth in the region. The IS did not depict estimated contours deposition, which was a surprising inadequacy. The IS did not discuss the consequences of nitrate and TAC additions to the environment. Will not exotic plants thrive on increased nitrogen in this environment? If so, then exotic plants are likely to spread and to crowd out endemic plants, thus increasing the magnitude and spatial area of PVEC’s adverse biological impacts. This larger area of impact, which would be much larger than the 12 acres of PVEC’s structural footprint, should have been factored into the mitigation plan. After all, NOx, PM, and TAC deposition was a principal concern of the air district’s staff who reviewed biological impacts due to the PVEC. In fact, we dispute the formulation of mitigation land to be protected, due only to the contribution of NOx, PM, and TACs from the PVEC only. To be consistent, the environmental documents should include an estimated of the outer contour of NOx, PM, and TACs deposition so that the acreage within that contour can be multiplied by the appropriate percentage of the region’s deposition which is to be contributed by the PVEC, and an appropriate mitigation offset area can be established and acquired.

3. Deposition of all toxic substances (TACs) from stack releases is an adverse biological impact completely ignored in the IS. Whereas the human health impacts of criteria pollutants were dealt with in an unusually crude risk assessment, the health impacts to wildlife and plants were not addressed. Unlike humans working at the plant during 8-hour shifts, resident plants and animals would be exposed to these pollutants 24 hours per day. The IS was inadequate by not estimating the contours and ultimate boundary of pollutant deposition due to stack releases from the PVEC, and it was inadequate by not estimating the consequences to plants and animals within this zone of deposition.

4. Furthermore, by not determining the margins of safety around pollution standards and real thresholds of impacts due to various project activities, the cumulative effects analysis of the IS minimizes impacts. The IS presented only point estimates of released pollutants and compared them to regulatory standards. Chronic exposures and synergistic effects were not adequately addressed. However one looks at this level of generation, it is obvious that resident species of plants and animals are going to be exposed to a large amount of pollutants generated by the PVEC, yet no biological impacts were assessed due to the PVEC.

Agricultural Resources

Does the IS properly analyze the effects of project emissions and seawater intrusion on regional and local impacts on Agricultural Resources?

The IS erroneously concludes that the PVEC will not have an adverse impact on Agricultural Resources. Under the Project approval, the basin’s overdraft condition would worsen. Seawater intrusion would continue to advance beneath the coastal lands at the current rate of 10,000 acre-feet per year (afy) or higher. Irrigation with groundwater would continue along the coast area until the salt content in the soils builds up to the point where existing agricultural crops typical of the area could not grow. Production of more salt-tolerant crops may occur to some degree; however, the economy of the area may change and some land may be fallowed. Over the long term, this would eventually remove 10,000 acres or 33 percent of the basin’s agricultural acreage by the end of 2040 due to continued irrigation with salt-contaminated groundwater. A 33 percent reduction in agricultural productivity would amount to hundreds of millions of dollars in lost economic production annually and the elimination of thousands of jobs.

Visual Resources

Does the IS properly analyze the effects of the project on Visual Resources?

The IS erroneously concludes that the PVEC will not have an adverse impact on Visual Resources. The only mitigation for visual resources offered up by the applicant is in the form of trees and shrubs along the Railroad Avenue frontage.

When mature, the planting should reach over 30 feet in height effectively screening the facility.

As with other energy projects CARE has participated in, the proposed mitigation measures fails to mitigate the impacts cited in the IS, as it will require from 30 to 40 years for trees to mature enough to reach 30 feet height, when “native and native compatible species, especially drought resistant types,” are used.

As a simple cycle water-cooled natural gas fired turbine with SCR and CO emission controls the proposed project is substantially the same technology utilized in a combined-cycle natural gas fired turbine with SCR and CO emission controls. The difference being with how the process steam from the cooling system is utilized. In the Combined Cycle turbine the remaining process steam is captured to generate additional electricity from a steam turbine, this is also referred to as cogeneration. In the case of the simple-cycle Pajaro plant, the cooling process also referred to as once through cooling technology, the process steam must be vented to the atmosphere. This factor creates a class 1, significant, un-mitigatable, adverse impact on visual resources, in the form of a steam plume, which can be seen easily as far as ten miles away from the proposed facility. To demonstrate the nature of this impact CARE invites observers to view the nearby visual plume from the Moss Landing energy facility owned by Duke Energy.

Conclusions

For the foregoing reasons CARE respectfully requests that you prepare an Environmental Impact Report on the proposed Pajaro Valley Energy Center (PVEC) pursuant to the California Environmental Quality Act (CEQA). In the alternative, based on the information we have provided you and your own analysis, and in order to prevent the any further waste of public taxpayers and ratepayers funds, we request the project be denied by the County as soon as is practicable. CARE wishes to thank the County of Monterey for an opportunity to comment on the PVEC.

Respectfully submitted

August 8, 2002

Michael E. Boyd – President, CARE

5439 Soquel Drive

Soquel, California 95073

(831) 465-9809

E-mail: michaelboyd@sbcglobal.net

VERIFICATION

I am an officer of the complaining corporation herein, and am authorized to make this verification on its behalf. The statements in the foregoing document are true of my own knowledge, except matters, which are therein stated on information and belief, and as to those matters I believe them to be true.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on August 8, 2002, at Soquel, California

Michael E. Boyd – President, CARE 8-8-02

CAlifornians for Renewable Energy, Inc. (CARE)

5439 Soquel Dr.

Soquel, CA 95073-2659

Tel: (408) 891-9677

Fax: (831) 465-8491

michaelboyd@sbcglobal.net

EXHIBIT A

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Pat Wood, III, Chairman;

William L. Massey, Linda Breathitt,

and Nora Mead Brownell.

Pajaro Energy Center, LLC Docket No. ER02-2231-000

Petition to Intervene and Protest

Pursuant to Rule 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) CAlifornians for Renewable Energy, Inc. CARE moves to intervene to obtain party status to represent its members in the above-captioned proceeding, and protests your approval of Calpine Corp’s request for authorization to make wholesale sales of electric energy, capacity and ancillary services at market-based rates, to reassign transmission capacity, and to resell firm transmission rights.

I. CORRESPONDENCE AND COMMUNICATIONS

The principal office of CARE is located at 314 Laurel St., Santa Cruz, California, 95060. All pleadings, orders, correspondence and communications regarding this motion should be directed to the following person:

Michael E. Boyd -President

CAlifornians for Renewable Energy, Inc. (CARE)

5439 Soquel Dr.

Soquel, CA 95073-2659

Tel: (408) 891-9677

Fax: (831) 465-8491

Email: michaelboyd@sbcglobal.net

II. CARE’s Protests and Objections

CARE was the first consumer, environmental, and social-justice, non-profit corporation to focus attention on energy market manipulation by Enron, Calpine, and other companies that were abusing their market power. In part, as a result of CARE’s complaints before the FERC in dockets EL01-2, and EL01-65, and our intervention in docket EL00-95, FERC’s investigations have disclosed wide spread exercise of market power, and fraudulent market practices (i.e., round-trip or “wash” trades) utilized by traders like Calpine in concert with Enron to improperly inflate their stock values in violation of Securities and Exchange Commission Regulations. Calpine and Enron are not alone in the current investigations under way by the SEC, the Department of Justice, and the FERC itself. CARE strongly objects to the FERC authorization allowing Calpine to make wholesale sales of electric energy, capacity and ancillary services at market-based rates, to reassign transmission capacity, and to resell firm transmission rights during the pendency of the ongoing investigations of Calpine’s market practice. CARE shall interpret such Act at this time to be a prejudicial abuse of discretion and a precommitment to the approval of the development of the 45 MW Pajaro power plant.

The Pajaro[8] power plant has yet to receive development permits for the project from Monterey County. Such authorization by FERC, prior to the public review and Certification of the project’s environmental review, also acts as a precommitment to the approval of the development of the project. The Pajaro community and the population within the zone of deposition of ambient air pollutants from the project are predominantly peoples-of-color. As such this community is protected under Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. §§2000d to 2000d-7), and Executive Order 12898, which requires a more extensive analysis of disparate impacts and additional mitigation for emissions for the project. CARE has an outstanding administrative complaint with the Department of Energy Office of Civil Rights concerning the discrimination being perpetrated against communities-of-color by the siting of so-called “peaking power” plants and the lack of emission controls such projects entail in these communities on an expedited basis as the necessary and only cure to the so-called “Energy Crises”. CARE respectfully objects to and protests your approval of Calpine Corp’s request for authorization to make wholesale sales of electric energy, capacity and ancillary services at market-based rates, to reassign transmission capacity, and to resell firm transmission rights, not merely as an Act of precommitment for the projects approval but also as an Act of intentional discrimination, because FERC is aware of the ongoing Federal and State investigations of Calpine’s market practices.

Respectfully submitted,

Michael E. Boyd – President, CARE

CAlifornians for Renewable Energy, Inc. (CARE)

5439 Soquel Dr.

Soquel, CA 95073-2659

Tel: (408) 891-9677

Fax: (831) 465-8491

Email: michaelboyd@sbcglobal.net

Certificate of Services

I hereby certify that I have this day served the foregoing document upon each person designated on the attached service list, via electronic mail. Additionally, those interested parties, who have provided CARE an electronic address have been served a link to this document this day via electronic mail to enable access to the foregoing document at the website

http://www.calfree.com/PajaroComments.doc.

Dated at this 8^th day of August 2002.

Michael E. Boyd – President, CARE

CAlifornians for Renewable Energy, Inc. (CARE)

5439 Soquel Dr.

Soquel, CA 95073-2659

Tel: (408) 891-9677

Fax: (831) 465-8491

Email: michaelboyd@sbcglobal.net

Service List

James B. Vasile

Lindsey How-Downing

Leanne Bober

Davis Wright Tremine LLP

1500 K Street, NW, Suite 450

Washington, DC 20005

Tel:(202)508-6600

Fax: (202) 508-6699

Email: jimvasile@dwt.com

Steven S. Schleimer

Director Market and Regulatory Affairs

Calpine Corporation – Western Region

4160 Dublin Boulevard

Dublin, CA 94568

Tel: (925) 479-6600

Fax:(925) 479-7314

Email: sschleimer@calpine.com

Alexandre B. Makler

Senior Regulatory Counsel

Calpine Corporation

1350 Eye Street, NW, Suite 1270

Washington, DC 20005

Tel:(202) 589-0909

Fax:(202) 589-0922

Email: AlexM@calpine.com

Tom McCue – Sr. Planner

Monterey County Planning

And Building Inspection

P.O. Box 1208

Salinas, California 93902

Phone: (831) 883-7528 (Marina)

Email: mccuet@co.monterey.ca.us

Marti Noel

Monterey County Office of

Housing and Redevelopment

29 Bishop Street, Suite 203

Pajaro, CA 95076

Phone:(831) 786-1350

Email: noelm@co.monterey.ca.us

List of Interested Parties Receiving Service of Link via E-mail

http://www.calfree.com/PajaroComments.doc

Gary Patton landwatch@mclw.org

Cecile Mills seaseal@got.net

Mary Ellen Dick maryellendick@sbcglobal.net

Larry Dick larrydick@sbcglobal.net

Serena Coltran-Brisco serenacoltrane-briscoe@usa.com

J. Engell engellj@aol.com

Peggy Nehm peggygnehm@hotmail.com

stormran@pacbell.net

Casa de la Cultura sccasa@aol.com

---

[1] See Exhibit A CARE’s July 22, 2002 Petition to Intervene and Protest Calpine’s request for FERC authorization to make wholesale sales of electric energy, capacity and ancillary services at market-based rates, to reassign transmission capacity, and to resell firm transmission rights, Pajaro Energy Center, LLC Docket No. ER02-2231-000.

[2] Laws Ordinances Regulations and Statutes

[3] This report is taken from the Pajaro Valley Water Management Agency’s Revised Basin Management Plan State of the Basin report p 2-13 to 2-17 http://www.pvwma.dst.ca.us/bmp2000/bmp.htm.

[4] This is based on the Monterey Bay Unified Air Pollution Control District’s operations scenario. Daily and annual operations are based on full load operation for up to 24 hours and 8,760 hours respectively, not the 50% usage criteria used in the County’s analysis.

[5] Sutter FSA 98-10-22 p.470

[6] Source Pajaro Valley Water Management Agency Revised BMP Draft EIR Section 3.4 October 2001.

[7] The most common form of Particulate Matter, and the form most likely produced by this project is ammonium nitrate which is 90%+ particulate matter of 2.5 um or less (PM2.5).

[8] CARE has not analyzed Calpine’s other proposed peaking projects in dockets ER02-2227, ER02-2228, ER02-2229, ER02-2230, and ER02-2232, which are also part of Calpine’s application in this project. Irrespective, CARE’s position is the same on these applications, and CARE objects to such project, we are

assuming the same conditions precedent exists for such.