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 )

Rebuttal to Senior Staff Counsel Dick Ratliff’s Brief on the Delta Energy

Center Project Alternatives

Petitioner would like to thank the Commission for the opportunity for rebuttal to senior staff counsel Dick Ratliff’s brief on the Delta Energy Center project alternatives analysis performed in the Final Staff Assessment (FSA) on the Delta Energy Center proposal. This is a rebuttal to support the determination that this analysis is inadequate and that it fails to meet the requirements of the California Environmental Quality Act (CEQA) for alternatives analysis.

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.

Counsel Ratliff states,

“As is explained in Staff’s testimony, alternative sites were screened for feasibility and site availability, in accordance with the Guidelines. Feasibility under CEQA is an encompassing term: it may be economic, technical, or environmental. (See Sec. 15364[“feasible” defined to include “economic, environmental, legal, social, and technological factors”].) Thus, intervener’s comment that only “environmental” grounds can be used to screen alternatives has no basis in CEQA.”

Petitioner does not contest that the Commission may consider other effects when considering project feasibility but this is in addition to mandatory consideration of the environmental effects that will result from the Commission’s approval of this project. Petitioner’s position is that CEQA’s objective is to insure that environmental quality is protected for the people of the state of California.

PRC Section 21002.1. Use of Environmental Impact Reports

In order to achieve the objectives set forth in Section 21002, the Legislature hereby finds and declares that the following policy shall apply to the use of environmental impact reports prepared pursuant to this division:

(a) The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.

Counsel Ratliff states,

“The applicant’s project is, as the record indicated, the response to a specific “request for proposal” (or “RFP”) from Dow Chemical Company for a gas-fired generator to provide Dow with both process steam and electricity.

Such an RFP narrowly defines project objectives, and the applicant thus would have to abandon such objectives.”

Petitioner offers in rebuttal citation from the California State Bar Association web site at

http://www.calbar.org/2sec/3env/4envalt.htm

“It has been suggested that EIR’s should be required to clearly define project objectives, to provide a more definitive basis for screening alternatives. Ordinarily, however, there will not be a single, clearly defined set of objectives for a project. The applicant, the lead agency, and each responsible agency will have its own objectives. If environmental review focuses to narrowly on declared objectives of the applicant or lead agency, feasible alternatives may be ruled out of consideration based simply on how the applicant or lead agency initially chooses to state the objectives of the project. The process of considering project alternatives serves to sort out the project objectives, helping to distinguish between basic project objectives and those outweighed by the objective of avoiding environmental damage.”

Petitioner’s contention is that the 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. 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 you usurp the will of the public to meaningfully participate in the project’s environmental review, which is in violation of CEQA. Petitioner once again cites the Cal. Bar Association Web site for,

“Commonly voiced concerns are that in attempting to comply with CEQA's alternatives requirement, agencies include only infeasible "straw men" as alternatives in the EIR, or so narrowly define the project as to exclude analysis of clearly available alternatives. Neither approach is consistent with the Guidelines, which require consideration of alternatives which can feasibly attain the basic objectives of the project. The "rule of reason" standard applied by Goleta II should address these problems. Moreover, while the obligation is on the lead agency to identify and consider alternatives, the public has the opportunity to propose additional alternatives and to submit independent analyses of alternatives, and the agency is required to make a reasoned response to such proposals and analyses. Thus, interested parties can force the EIR to discuss any alternative that is timely proposed. (See also, Goleta II, 52 Cal.3d at 567-68 (even untimely alternative proposals must be addressed, although they may be addressed outside the EIR).)”

Petitioner’s position is that the alternatives identified by the FSA are such “straw men” or that the project is to narrowly defined. Petitioner position is that if the Commission and the applicant share these narrowly defined objectives for this project that are developed in the absence of the affected public’s participation then the Commission is not an unbiased evaluator of this projects impacts, but instead an advocate for this project. In this case, petitioner as an “abuse of discretion” by the Commission may challenge the approval of this project.

Counsel Ratliff states,

“Intervener Boyd also contended that the “downsized” project (one-half of the proposed project size) should be identified as “environmentally preferable” inasmuch as a smaller project would emit lower air emissions than the proposed project.

However, Staff has not identified any impacts from the proposed project, including those regarding air quality impacts from the proposed project, including those regarding air quality impacts, as “significant” in a CEQA context after mitigation is applied. Mitigation for the air quality impacts of a power plant would be the same for the “downsized” facility as it is for the proposed project: the requirement that the applicant provide the air district offsets that compensate for the proportion of air emissions that a new project will emit”

Petitioner contends Counsel Ratliff’s arguments are flawed. Petitioner cites petitioner’s Brief on the Delta Energy Center (98-AFC-3) Final Staff Assessment –Inadequacy of Alternatives Analysis Pursuant to CEQA October 20,1999

“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. Petitioner cites the transcript from the Hearing before the Energy Commission on October 5, 1999 in which the Commission’s chief counsel states,

“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 agrees with counsel Ratliff’s statement “The air quality impacts of the proposed project are potentially significant cumulative impacts”. Petitioner cites counsel Ratliff’s statement,

“A project’s contribution is less than cumulatively considerable [i.e., not a significant cumulative impact] if the project is required to implement or fund its fair share of a mitigation measure or measures designed to alleviate the cumulative impact.”(Sec.15130(a)(3).) The air quality impacts of the proposed project are potentially significant cumulative impacts. The mitigation –offsets funded by the applicant—is the programmatic approach used by state and federal government to required proportionate, ”fair share” mitigation of air quality impacts.”

Petitioner does not agree with the statement, “The mitigation –offsets funded by the applicant—is the programmatic approach used by state and federal government to required proportionate, ”fair share” mitigation of air quality impacts”. In fact, the current offsets proposed by the applicant are the subject of contention between EPA Region IX and the Bay Area Air Quality Management District (BAAQMD) as stated in the EPA Comments on the Preliminary Determination of Compliance for the Delta Energy Center - September 23, 1999 page 2.

Counsel Ratliff goes onto state,

“Accordingly, if the project meets air district requirements for Best Available Control Technology (BACT) and provides offsets for its emissions, it has no significant air quality impact. Where there is no significant impact to be, the alternatives analysis becomes essentially irrelevant, as no alternative “would avoid or substantially lessen any of the significant effects of the projects.”(Sec.15126.6(a).)”

In fact it is petitioners position the FSA’s proposed mitigations are not yet in compliance with EPA requirements for Lowest Achievable Emission Rate as cited in petitioner’s Brief on the Delta Energy Center (98-AFC-3) Final Staff Assessment –Inadequacy of Alternatives Analysis Pursuant to CEQA October 20,1999

“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.”

Counsel Ratliff states,

“Finally, Intervener Boyd argued that alternative technologies should have gotten a greater focus in the Staff’s analysis. Staff did consider and discuss “renewable” alternatives, but screened them from more intense scrutiny because they were either infeasible (i.e., no geothermal sources locally) or because they failed to meet the well-defined project objective.”

Petitioner cites the California Bar Associations web page for his rebuttal argument,

“Moreover, while the obligation is on the lead agency to identify and consider alternatives, the public has the opportunity to propose additional alternatives and to submit independent analyses of alternatives, and the agency is required to make a reasoned response to such proposals and analyses. Thus, interested parties can force the EIR to discuss any alternative that is timely proposed. (See also, Goleta II, 52 Cal.3d at 567-68 (even untimely alternative proposals must be addressed, although they may be addressed outside the EIR).)”

Petitioner wishes to raise additional concern with counsel’s response to petitioner’s question about the participation of federal agencies in the review of this project. Petitioner cites the transcript from the Hearing before the Energy Commission on October 5, 1999

“MR BOYD: Is there any NEPA or National Environmental Policy Act review process concurrent with the process that we're going through right now for the Delta Project? Or is this strictly a state matter, and not - -is a federal review not involved?

HEARING OFFICER GEFTER: The attorney can answer that, please.

MR. RATLIFF: There is no federal agency involvement such that would require a federal environmental document, such as an environmental impact statement.”

Petitioner would like the record to note that this response is technically incorrect. The BAAQMD acts as the air permitting authority for the federal EPA Region IX, with review and over site by Region IX. The failure of counsel to state this obscures the fact that a federal EPA air permit is required for this projects approval, and therefore a federal agency, EPA Region IX, is involved in the review of this project. Petitioner includes exhibit A 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, for evidence of this review.

Petitioner would like the record to reflect that this same federal agency is responsible for investigating and denying federal air permits. 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’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 “as is” is in violation of CEQA, and is an “abuse of discretion” on the part of the Commission. Petitioner sites the EPA’s web site at http://es.epa.gov/oeca/oej/titlevi.html to define Title VI.

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
- Title VI “

“On February 11, 1994, President Clinton issued Executive Order 12,898, "Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations." The Presidential memorandum accompanying that Order directs Federal agencies to ensure compliance with the nondiscrimination requirements of Title VI for all Federally-funded programs and activities that affect human health or the environment. While Title VI is inapplicable to EPA actions, including EPA's issuance of permits, Section 2-2 of Executive Order 12,898 is designed to ensure that Federal actions substantially affecting human health or the environment do not have discriminatory effects based on race, color, or national origin. Accordingly, EPA is committed to a policy of nondiscrimination in its own permitting programs.”

As further evidence of this project’s violation of Title VI in the Pittsburg community, petitioner cites the resolution 99-32 from the Trustees of the Pittsburg Unified School District requesting the EPA declare Pittsburg an Environmental Justice Area. 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 contends that this projects FSA 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.

Figure 1 known sites of threatened and endangered species and drinking water supplies in proximity of the Delta Energy Center

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 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.

Figure 2 Known EPA Regulated Sites

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 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.

Figure 3 Percentage of the Population Living Below the Poverty Level

Figure 4 Minority Distributions as a Percentage of Total Population

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.

Conclusion

Petitioner wishes to thank the Commission for allowing Californians for Renewable Energy to participate in these proceeding. Petitioner request the Commission issue an order directing staff to perform a more thorough analysis of the projects alternatives, alternative siting, associated air quality impacts and mitigation, that is in compliance with the requirements of CEQA. Petitioner requests the commission provide the petitioner evidence that its environmental program is currently certified by the California Resources Agency, and not pending certification. If certification is pending, petitioner requests the Commission complete and Environmental Impact Report on this project in compliance with CEQA.

Californians for Renewable Energy, Inc.

C/o Michael E, Boyd

821 Lakeknoll Dr.

Sunnyvale, CA 94089

11/04/1999