September 21, 1998
Mr. Bruce Kaneshiro, Project Manager
c/o Environmental Science Associates
225 Bush Street, Suite 1700
San Francisco, CA 94104

Re: Pacific Gas and Electric Company’s Application for Authorization to Sell Certain Generating Plants and Related Assets, Application No. No. 98-01-008, Draft Environmental Impact Report ("DEIR")

Dear Mr. Kaneshiro:

The Environmental Law and Justice Clinic submits the following comments on the above-described DEIR on behalf of the Southeast Alliance for Environmental Justice (SAEJ).

Part I. General Comments

[Begin U1]

While the DEIR has presented much useful information, it nevertheless contains several fundamental errors prohibited by CEQA and undisputed case law. The major error is the DEIR’s various methods for minimizing the impact from the potential increased air pollution that may result from the sale of the facilities over the next few years. The San Francisco Bay Area ("Bay Area") during the winter months is routinely in violation of the state’s particulate (PM10) standard, meaning that thousands already are suffering early deaths or asthma and emphysema exacerbations as a result of PM10 exposure. In the summer months, the Bay Area routinely violates the state ozone standard and occasionally the federal ozone standard, resulting in the area being designated a nonattainment area by state and federal air quality agencies. At the same time, there is no state PM10 attainment plan in place, the state ozone plan makes no pretense of assuring attainment by any date certain, and the US EPA has determined the federal maintenance plan is now inadequate to attain the federal ozone standard. Thus it is crucial that this project not contribute to existing air quality conditions or delay the attainment of these standards.

[End U1]

[Begin U2]

The DEIR discloses that particulate matter and smog precursors (nitrogen oxides and reactive organics) emitted from Bay Area power plants may about double as a result of the sale in 1999. Table 4.5-26 at p. 4.5-57. Yet it dismisses the impacts from these increased pollutants in various spurious ways that amounts to saying the difference is tiny compared to the amount of pollution already in the air. This "ratio" approach, whether thought of a significance threshold or a qualitative evaluation, is illegal when applied to cumulative impacts at the EIR stage and inappropriately discounts the importance of those bearing the burden of the resulting significant health impacts. See Los Angeles Unified School District v. Los Angeles, 58 Cal. App. 1019, 1025 (4th Dist. 1997); Kings County Farm Bureau v. City of Hanford, 221 Cal. App. 3d. 692 (5th Dist. 1990).

[End U2]

[Begin U3]

Another error in the DEIR is its failure to provide a proper comparison between the baseline and the impact of the sale so that the full extent of any potential adverse impacts are captured and mitigated. The DEIR picks 1999 as the first year for comparison, an appropriate step to take. However, the DEIR then jumps to 2005 for its cumulative analysis because more stringent air quality impacts are then in place and PG&E’s operating characteristics are assumed to be quite similar to any other owner. It ignores the years 2000 (with one exception), 2001, 2002, 2003 and 2004. SAEJ believes this approach is wrong because it ignores potentially greater cumulative impacts in years after 1999 and before 2005 due to increased energy demand resulting from deregulation and growth, and fails to acknowledge the continued differences that may occur between PG&E and third party ownership even into the year 2005 due to PG&E’s remaining portfolio of facilities. See p. 3-7 and Attachment C.

[End U3]

[Begin U4]

Another error was to use the SERASYM model to produce analytical maximum capacity factors far below 100%. See Table 3.1 at p. 3-10. While the SERASYM model is a good predictor depending upon the inputs, its results are not enforceable. If the circumstances affecting these inputs change, e.g. natural gas prices, transmission system capability, operating procedures, capacity could rise approaching their theoretical capacity. Unless the project approval contains conditions limiting the project to the capacity factors predicted in this SERASYM run, the CEQA analysis has failed to properly analyze the potential extent of adverse impacts.

[End U4]

[Begin U5]

As a result of reviewing the DEIR and SAEJ’s own analysis, SAEJ believes it is imperative that mitigation be required for this project. The mitigation could be requiring BACT for all Bay Area power plants, with sufficient offsets to eliminate any contribution to cumulative impacts. Or it could be a condition limiting capacity to that which would have forseeably occurred under SERASYM’s analysis if PG&E retained ownership. Only with these conditions could the project then said to be without significant impacts.

[End U5]

Specific Comments


The DEIR lists its air quality criteria at pp. 4.5-50 through 4.5-51. The criteria mainly relied upon are criteria 1,4 and 5. SAEJ believes these criteria are in many respects technically inappropriate and illegal.

A. Criterion 1

[Begin U6]

The first criterion states that violation of an ambient air quality standard or substantial contribution to a projected violation of an ambient air quality standard requires a finding of significance. This is appropriate for a project specific impact. See Appendix G. However, it is inappropriate when evaluating cumulative impacts once an EIR is underway:

There appears to be a difference between the "cumulative impacts" analysis required in an EIR and the question of whether a project's impacts are "cumulatively considerable" for purposes of determining whether an EIR must be prepared at all. For purposes of an EIR, the Guidelines define the 'cumulative impact' from several projects as the change in the environment that results from the incremental impact of a project when added to other past, present, and reasonably foreseeable future projects. 14 Cal Code Regs @ 15355." 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality

Act, @ 6.55, pp. 298-299, (quoted in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, 42 Cal. App. 4th 608, 623 (5th Dist. 1996)).

The DEIR should make clear that this criterion is inapplicable to cumulative impacts, and the cumulative analysis as discussed below needs to conform to the EIR version of a cumulative impacts analysis.

[End U6]

[Begin U7]

The first criterion goes on to define "substantial" for this project based upon the PSD provisions in the BAAQMD rules in Regulation 2, Rule 2. For example, the PM10 criterion would require a 5 microgram/cubic meter for a 24 hour average increment and a 1 ug/m3 for an annual average.

In fact, PSD refers generally to maintaining a standard already attained and the BAAQMD rules specifically reference federal requirements applicable to maintaining federal standards in attainment area. For this project, the ambient environment is a nonattainment area for federal ozone, state ozone and state particulate matter (PM10). The criterion ignores the provisions of Regulation 2, Rule 2, that includes the use of BACT and offsets to assure that standards are attained.

CEQA does not allow a part of a standard to be borrowed and used in a manner not used by the agency adopting the standard. A standard includes the quantitative, qualitative or performance requirement found in a statute, ordinance, resolution, rule, regulation, order, or other standard of general application. CEQA Guideline Section 15064 (i)(3)(A) as amended August 24, 1998. Thus BACT and offsets cannot be eliminated. The standard must govern the same environmental effect which the change in the environment is impacting. 15064(i)(3)(D). That would only work here if BACT and offsets are applied. This criterion is just not appropriate without the entire standard as applied by the BAAQMD.

[End U7]

B. Criterion 4

[Begin U8]

Criterion 4 asserts that based upon its review of PM2.5 studies that a significance threshold of 20 ug/m3 is appropriate for short term exposure. On an annual basis, an increase must be 10 ug/m3. The criterion is based upon the DEIR’s understanding of an EPA report, a number of health studies, and a private conversation with one of the authors of one of the reports.

This criterion as discussed below under cumulative impacts is not appropriate for evaluating cumulative impacts. As to project specific impacts, the DEIR also seems to have a serious misunderstanding of this literature. The EPA report makes clear it was unable to determine any safe threshold for increases in PM10. In fact, the EPA reviews many of the same studies described in the DEIR and presents graphs and narrative showing near linear increases in PM impacts at all measured levels. The report further asserts that once a certain level in the ambient environment is reached (significantly below the standard), increases in pollution produce clear and consistent increases in risk of health impacts. The EPA found no significant difference in this regard between studies for PM10 and PM2.5.

According to the survey of health studies conducted by the City and County of San Francisco Department of Public Health (DEP), any increase in particulate matter may cause health effects. 11/27/95 DEP letter to CEC, attached hereto as Exhibit A. This is particularly true in this case, where the state PM10 standard is often exceeded during winter months in San Francisco and the rest of the San Francisco Bay Area. A DEP survey report on particulate matter health effects studies indicate that "there is no lower threshold below which...problems do not occur" and that "these effects occur at levels well below the current federal standards for PM10 pollution." Exhibit A at 2.

These studies are epidemiological studies, and for methodological purposes, have used incremental increases of 10 ug/m3 in order to clearly identify differences in health effects that are due to particulate matter and not other confounding factors.. The DEIR seems to confuse these increments as increments of significance, rather than as methodological tools. The key for development of a significance factor is that when these increments are plotted from various studies they show a near linear increase. There is no scientific evidence, and no expert of any repute, who is claiming that health effects jump from one data point to another, as if there is a step graph of results. The DEIR appears to misinterpret the private communication with N. Schwartz in that he has conducted a study where the data points were interpreted at 10ug/m3, not that an increase of 5ug/m3 would not produce any impacts or that there is no linear increase. The DEIR seems confused about the meaning of the studies.

[End U8]

[Begin U9]

An additional study by G.D.Thurston, summarized in the documents attached hereto as Exhibit B, suggests that PM10 impacts may even be more severe in San Francisco than in other locations in the country, although its ambient level is lower. Thurston, the author of 5 other studies relied upon by the DEIR, see pp. 4.5-83 through 4.5-84, suggested that residents rely less upon air conditioning in San Francisco than in other hotter communities, and therefore are more exposed to the PM10, thereby increasing the impact from the level of exposure. The DEIR should take account of this study and adjust its notion of significance accordingly.

[End U9]

[Begin U10]

This San Francisco vulnerability is even more important for the Bayview-Hunters Point community. Impacts from PM10 (as well as ozone) are especially important since residents of this part of San Francisco have high incidences of chronic lung disease, including asthma, emphysema and bronchitis. Inhalers are more often prescribed at the Southeast Health clinic than at any other. The most common reason for visits to the Clinic is respiratory symptoms. See Exhibit at 4. The DEIR should take into consideration the greater vulnerability of this population to additional pollution or a delay in attaining air quality standards. This vulnerability also includes a lack of access to medical care and the other complications of poverty that aggravate the impact of disease. According to the CEQA Guideline 15064(b), "An ironclad definition of significant effect is not always possible because the significance of an activity may vary with the setting. For example, an activity which may not be significant in an urban area may be significant in a rural area." In this case, it is the particular urban area impacted which must change the significance criteria.

[End U10]

[Begin U11]

The problem with the thresholds utilized is best revealed by analyzing the actual health impacts resulting from the increases projected to result from the project. According to Table 4.5-26, the increase in PM10 from the PG&E proposed project to sell the three fossil fuel San Francisco Bay Area power plants is from 297 to 345 tons per year, looking just at the years 1999 and 2005. According to the testimony of the Bay Area Air Quality Management District’s chief statistician, Dr. David Fairly, in the prior San Francisco Energy Company application before the California Energy Commission, attached hereto as Exhibit C, an increase from a proposed power plant in Hunters Point of more than 45 tons per year in PM (as with this plant, primarily PM2.5) could have resulted in 2-6 deaths in the region, with a far greater number of incidents of asthma and emphysema exacerbations. Exhibit C at 6. Using these numbers, one could project that the number of deaths would accordingly increase for the entire PG&E power plant sale, as 345 tons would result in 15 to 46 deaths per year, with still greater numbers of incidents of asthma and emphysema exacerbations. Yet the DEIR’s threshold implicitly suggests inhumanely that this number of deaths of people is insignificant, as well as the suffering from emphysema and asthma that would affect far more people than those whose deaths are hastened by the PM10 exposures, because the concentration level does not rise to the 10ug/m3 used for methodological purposes in epidemiological studies.

[End U11]

[Begin U12]

The DEIR in addressing a situation where the standards are already exceeded should be consistent with the good science suggested by the City’s Public Health Department and the expert scientific opinion of the BAAQMD’s statistician. Any increase that may impact a human being and cause a serious health impact such as death, asthma attack or emphysema is significant, and should require the source to utilize BACT offset increased emissions.

[End U12]

C. Criterion 5.

[Begin U13]

Criterion 5 declares that inconsistency with the regional air quality plan is a basis for the finding of significance. While the current plans are insufficient to attain health standards, certainly a conflict with such a plan would suggest a significant impact.

The problem with the criterion is that it goes on to create a threshold whereby inconsistency must cause an increase over one percent of the regional inventory. It is not clear where this criterion comes from.

As discussed below regarding cumulative impacts, this use of a ratio is not appropriate when evaluating cumulative impact. This criterion is also faulty because the Bay Area plan assumed that the federal standard was maintained, and the state standard does not guarantee attainment by any date certain. In such circumstances, any violation of the plan has serious repercussions.

[End U13]


[Begin U14]

The DEIR tries to dismiss cumulative air quality impacts (as well as other air pollutant impacts) by relying on the judicially discredited ratio analysis. The DEIR basically argues that since the percentage of air quality emissions and the accompanying concentrations from the plants are small compared to the Bay Area inventory and accompanying concentrations, then the increase is insignificant. The DEIR also uses the years 2005 and 2015 for its cumulative analysis, and wrongly limits cumulative impacts in many instances to future project or a limited set of existing projects, rather than all past, present and reasonably anticipated future projects impacting the ambient air.

The relevant question to be addressed is not the relative amount pollutant from the project when compared to existing pollution but whether an additional amount should be considered significant in light of the serious nature of the already existing problem. Los Angeles Unified School District v. Los Angeles, 58 Cal. App. 1019, 1025 (4th Dist. 1997). In that case, the court determined that the EIR was inadequate because it deemed insignificant an expected 2.83 dBA increase in noise from the proposed project because it failed to meet a regulatory significance threshold, even though the noise level in the area already exceeded the State’s recommended maximum of 70 dBA. A similar reasoning is present in this DEIR.

In determining the cumulative effects of the increase in carbon monoxide, reactive organic gases, nitrogen oxides, and particulate matter, the DEIR reports that the increases are less then significant because the power plants will not contribute more than 1% of these pollutants to the region’s air quality in the years 2005 and 2015. See Pg 4.5-59 and Table 4.5-26 at 4.5-57. However, at the same time the amount of regional carbon monoxide will increase by 2,275 tons/yr, ROGs 322 tons/yr, SOx 84 tons/yr, and PM-10 297 tons/yr. NOx will be reduced by controls finally in effect by 2005, but in the 1st year after the sale NOx will increase by 4,389 tons/yr.

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

[End U14]

[Begin U15]

Utilizing Dr. Fairly’s analysis described above makes clear how inhumane this ratio approach is. As discussed above, Dr. Fairly’s analysis would estimate approximately 15-46 deaths from the entire proposed project. Dr. Fairly also concluded that approximately 1,260 to 2,940 deaths per year are attributable to PM10 exceedances of the state standard in the Bay Area. Exhibit C at 7. The ratio approach might basically suggest that if 15 deaths is the more accurate number, and 2,940 is more accurate for the region, since 15 deaths are less than 1% of the region, these 15 deaths are insignificant and no effort should be made to avoid these deaths. This kind of analysis is immoral, and illegal under CEQA, whether we are talking about deaths, asthma attacks, exacerbations of emphysema or heart disease, all impacts associated with PM.

[End U15]

[Begin U16]

The appropriate test for cumulative impacts requires first examining whether a standard is exceeded in the ambient atmosphere at any time during the life of the project. In this case, that is true for PM10 and ozone at least in the foreseeable future. The DEIR properly notes that both ozone and PM10 standards are now being violated, and should also note that no plan for attainment of the state PM10 standard is in place, the federal plan for ozone has been found to be inadequate to attain the standard, and the state ozone plan does not provide for attainment of the state ozone standard by any date certain. The next question is whether power plant emissions contribute pollutants regulated by the standard to the ambient atmosphere. As the DEIR correctly points out, that is true for all facilities. E.g., p. 4.5-26 (For Potrero - "The power plant emissions contribute to ambient pollutant concentrations of criteria air pollutants in the plant vicinity"). If so, the cumulative impact must be considered significant. See discussion under criterion 1, above.

[End U16]


[Begin U17]

The DEIR attempts to evaluate the potential extent of impacts by using a SERASYM model based upon an estimate of the likely operations of the new facilities, rather than their true potential maximum capacity. Such an analysis hardly evaluates the potential adverse impacts that could result from the sale. Much of the analysis of impacts assumes that the new owners will operate the Potrero plant, for example, at the Analytical Maximum Capacity of 44% in 1999 and 40% in 2005. (pg 3-10). However, the DEIR states that "the degree to which generation would increase at the plants slated for divestiture is highly uncertain." (pg 3-8). Given this uncertain nature, it is imperative that the DEIR examine how the change in degree of generation will affect pollution output at capacity factors greater than 44% and 40% and determine at what point the degree of generation will result in significant impacts. [End U17]

[Begin U18]

Since energy output is not constant throughout the year (pg 4.5-22), the DEIR should also provide information on the actual maximum capacity factor on a daily basis and how that would differ from the annual capacity factors.

[End U18]

[Begin U19]

Additionally, the DEIR does not contain facts and analysis to show how the various capacity factors were derived other than to describe in general terms the major assumptions that were used in the baseline computer simulation. (pg 3-9). "The EIR must contain facts and analysis, not just the bare conclusions of a public agency. An agency’s opinion concerning matters within its expertise is of obvious value, but the public and decision-makers, for whom the EIR is prepared, should also have before them the basis for that opinion so as to enable them to make an independent, reasoned judgement." Santiago Water District v. County of Orange, 118 Cal. App. 3d 818, 831 (4th dist. 1981). "[A]n EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." Laurel Heights Improvement Association v. Regents of the University of California, 47 Cal. 3d. 376 (1988).

[End U19]

[Begin U20]

If the EIR is assuming the maximum capacity is 44%, it is incumbent that the project description and the Commission’s approval include a condition that the plant cannot be operated at a capacity factor at any time (at least over a 24 hour period to reflect the PM10 24 hour standard) over 44%. Otherwise the analysis fails to consider the potential adverse impacts from this sale and an approval for operations at greater capacity would not be supported by the environmental analysis.

[End U20]


[Begin U21]

The DEIR fails to provide needed data on the air quality baseline in the vicinity of the Potrero Power Plant. In preparing an EIR, the project’s impacts must be evaluated against the backdrop of the "environment." CEQA Guidelines §15063. CEQA Guidelines define the "environment" as the "physical conditions which exist within the area" including "both natural and man-made conditions." CEQA Guidelines §15360. An EIR must describe "the environment in the vicinity of the project as it exists before the commencement of the project, from both a local and regional perspective." CEQA Guidelines §15125. No air quality data is presented for the local vicinity of the Potrero Plant. In fact, the only baseline air quality data presented is for the Arkansas Street Monitoring Station, which is over 1 mile away and predominately upwind or cross wind from the Potrero Plant. (pg 4.5-22) Conversely, no information is presented that would suggest a correlation or relationship between air quality at the Arkansas Street Monitoring Station and air pollutants released from the Potrero Plant. In fact, the DEIR suggests no correlation or relationship exits between air quality at the Monitoring Station and the Potrero Plant, given that the highest PM10 concentrations measured at the Monitoring Station do not correspond to the time of year of the highest PM10 releases from the Potrero Plant. (pg 4.5-22). Or conversely, it could be interpreted that if PM10 is high in the winter when emission are blowing toward the monitoring station then they may be even higher during times of the year that power generation is higher and therefore PM10 emissions are higher. Monitoring data from Table 4.5-7 (pg 4.5-23) is from the Arkansas Street Station, which, if interpreted with the wind rose presented on page 4.5-27, most likely represents air quality from areas at least 3/4 mile west of the Potrero Power Plant, such as the Mission District and US 101 Freeway.

The DEIR needs to explain the relationship between the monitoring station and modeling results and justify the relevance of comparing modeling results with the ambient air quality data from the Arkansas Street Monitoring Station. In addition, the DEIR needs to demonstrate how the ambient air quality presented in Table 4.5-7, pg 4.5-23 is relevant to stack emissions from the power plant. If a relevance can be established, data should be presented that discloses the ambient air quality during the times that the Arkansas Monitoring Station is downwind of the power plant.

[End U21]


[Begin U22]

The DEIR fails to address the generation and impacts of particulate matter formed by the reaction of nitrogen oxides in the atmosphere, known as secondary particulate. It is estimated that up to 1/6 of the nitrogen oxides from power plant emissions are converted to particulate matter (private conversation with David Fairly).

[End U22]


[Begin U23]

The DEIR fails to present sufficient details of the dispersion modeling analysis of PM10 (pg 4.5-31) to allow the public and decision-makers to evaluate the model data imputs, assumptions and findings in order to have some level of confidence in the model’s conclusions. 

[End U23]

[Begin U24]

For the model to be usable as a way to predict future events it must, at a minimum, be demonstrated that the model can actually predict present effects from present pollution source conditions. In other words, data from actual emissions of the power plant should be used as input data to the model and the model’s prediction of pollutant concentrations at the receptors (where the people are located) should match actual field measurements at those locations.

[End U24]

[Begin U25]

Additionally, it should be demonstrated how changes in model assumptions and changes in input data will effect the output. This is the only way that the results from the model can be considered meaningfully.

[End U25]


[Begin U26]

The DEIR does not adequately address the impact of the project to local and regional ozone concentrations. Table 4.5-26 indicates that ROG and nitrogen oxides will about double in 1999 upon sale of the plants which suggests that ozone concentrations will also increase and that such emissions will be above the baseline (defined as the emissions resulting from PG&E’s ownership) until such time as PG&E’s operations without a sale would be equivalent to the operations with a sale (this may never be true unless PG&E entirely divested all of its facilities).

[End U26]

[Begin U27]

The DEIR appears to dismiss the significance of the project’s ozone precursor emissions in two ways. First it notes that the emissions will eventually decrease once more stringent concentration standards are in place. This analysis errs in two respects. First, in years prior to the more stringent limits, emissions will increase. Secondly, even when they decrease, they would decrease even more if PG&E retained ownership. As these are concentration rather than mass limits on emissions, if PG&E operates it less given its likely portfolio of facilities their ownership would mean further reductions. As the region is out of attainment, the failure to grasp additional ozone reduction opportunities may mean a failure to attain the standard, causing a significant impact.

[End U27]

[Begin U28]

The DEIR seems to implicitly rely upon its significance threshold that these emissions will be consistent with the Bay Area SIP. However, the SIP has been determined to be inadequate by the US EPA to attain the standard, thus compliance with Rule 9-11 is no guarantee of avoidance of a significant impact. Until EPA approves a new plan, not expected until at least 2001, any increase in emissions or minimizing of potential reductions due to the sale of the plant may mean significant impacts unnecessarily continue or are exacerbated.

[End U28]

[Begin U29]

As with PM10, the DEIR indulges in a ratio analysis by comparing the increased ozone precursor emissions with the regions ambient ozone concentration. This analysis for the reasons described above is improper. Given that there is no approved plan in effect to attain the federal standard, and the state plan makes no pretense of assuring attainment of the state standard, any increase in emissions or minimization of reductions resulting from the project will cause cumulative impacts that are significant.

[End U29]

[Begin U30]

During the interim years before the most severe NOx controls begin to be in place (2002), smog exceedances may occur with increasing frequency in the San Francisco Bay Area (1995, 1996 and 1998 smog levels are the highest in a decade). The report should note that US EPA determined that the BAAQMD plan is now insufficient to prevent such exceedances, and that new controls may not be approved by EPA until somewhere between 2000 and 2002. ROG and NOx will about double by the year 2000 as a result of the sales of the power plants. ROG and Nitrogen oxides are precursors to the formation of ozone. Unless emissions from the plants are balanced completely by offsets and the utilization of BACT, the cumulative impact must be considered significant.

[End U30]


[Begin U31]

Table 4.5-23, pg 4.5-54 indicates that the Potrero emissions of carbon monoxide and sulfur oxides may increase substantially from the 1999 baseline yet Table 4.5-29, pg 4.5-63 indicates no local change in carbon monoxide or sulfur dioxide concentration. That table appears to present conflicting information unless there is a valid reason why stack emissions can increase and have absolutely no affect on the maximum local concentrations of pollutants in the air. 

[End U31]

[Begin U32]

Table 4.5-23 also indicates that emissions of nitrogen oxides will double between the 1999 baseline and the 1999 analytical maximum but the local ambient concentration of nitrogen dioxide will remain unchanged (Table 4.5-29). This apparent discrepancy should be explained.

[End U32]


[Begin U33]

The DEIR concludes that since project-specific toxic impacts are less then significant cumulative risks are also insignificant. (Pg 4.5-75) This conclusion comes from the conclusion presented in the Mission Bay SEIR, which assumed that cumulative impacts on ambient concentrations of toxic air contaminants are significant since the project-specific impacts are significant. Although it can be conservatively assumed that cumulative risks are significant if the project-specific risks are significant, the reverse is not necessarily true. CEQA Guidelines define a mandatory finding of significance to include where "the project has possible environmental effects which are individually limited but cumulatively considerable." "...cumulative considerable means that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects." (CEQA Guideline 15065(c)). Section 15355 says that "cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time." The DEIR’s reasoning for a finding of no cumulative impacts is therefore illogical and directly contrary to CEQA Guidelines and case law. The DEIR needs to therefore consider in a more realistic approach the cumulative effects of toxic air contaminants.

[End U33]

[Begin U34]

The DEIR concludes that cancer risk is insignificant because the incremental increase in cancer risk is 0.06 per million. (pg 4.5-30) However, there is no standard significance threshold for acceptable cancer health risks. (pg 4.5-30) The predicted increase in cancer risk is also proportional to the increase in energy generation by the new owners, so the actual cancer risk may be higher then stated. Even so, it is necessary under CEQA considerations of cumulative impacts to address the incremental increase of cancer risk increase as cumulatively considerable. The DEIR downplays cancer risk to Bayview-Hunters Point residences by citing a California Department of Health Services report which states that breast cancer rates were "very similar to other regions of the Bay Area." DEIR at 4.5-30 through 31. This may or may not be true since differing conclusions can be drawn depending on which time period for observations is chosen. However, it is of little comfort since Bay Area rates are among the highest in the world, and the Glazer study does not question the Bay Area rates. The DEIR should point out that, according to the American Cancer Society:

1. African American men have the highest overall cancer rate of all ethnic groups in the United States.

2. Hispanic women are nearly twice as likely as the general population to develop cervical cancer.

3. Breast cancer rates among African American and Native American women in the San Francisco Bay Area are among the highest in the world.

Consequently, when the incidences of various forms of cancer in the Bayview-Hunters Point neighborhoods are compared to national averages, and considering the ethnic makup of the neighborhoods, the results demonstrate that cancer is already a serious problem around the Potrero Power Plant and any increase in cancer is significant.

[End U34]

[Begin U35]

Table 4.5-10 displays toxic air contaminants that were emitted up to 1995, and with the exception of benzene and formaldehyde, the 1995 concentrations are "zero or less than reportable quantities." It should first be clarified which of the 1995 concentrations are in fact zero or less than a reportable quantities and, if applicable, what is the reportable quantity. Secondly, the DEIR does not make any prediction or estimation of the amount and concentrations of toxic air contaminants after the Potroro Plant is sold. At a minimum, Table 4.5-10 suggests that benzene and formaldehyde, both human carcinogens, will continue to be emitted after the power plant is sold and that the amounts will probably increase in proportion to the amount of electricity generated. The DEIR needs to specifically address these chemicals, considering the amounts emitted and dispersion pattern, both temporally and spacially.

[End U35]


[Begin U36]

Table 5.1 (pg 5-12) and Section 5.3 (pg 5-16) do not include the strong possibility of a power generation facility being built next to the Potrero Power Plant and/or the repowering of the Potrero Power Plant. The DEIR reports that power demand in San Francisco will increase by approximately 10 MW per year and that the Hunter’s Point Plant will be closed when replacement power generating capacity is available and that it is necessary that new generating capacity be located north of the Martin Substation. (Citation) The Potrero Plant is located in an M-2 (heavy industry) District zone and it is our assumption that any new generating facility will be similarly zoned. Given the increased demand for electricity, coupled with the limited number of M-2 zones north of the Martin Substation it is reasonably foreseeable that a new facility may be located next the existing Potrero Power Plant and/or there will be some economic incentives to repower the Potrero Plant.

[End U36]

[Begin U37]

Further, DEIR states in Attachment C (System Economics and Operational Characterization) that "a new owner may repower as soon as possible to reduce the potential economic benefits to the ISO from approving a transmission upgrade." (Pg C-36) In other words, there is a foreseeable economic advantage to repowering the Potrero Plant. Impact assessments should account for reasonably foreseeable future phases, or other reasonably foreseeable consequences, of proposed projects. Laurel Heights Improvement Association of San Francisco, Inc. v. Regents of the University of California, 47 Cal.3d. 376 393 (1988). The Court in Laurel Heights reasoned that even though a future expansion of a medical facility was not yet formally approved, the expansion was reasonably foreseeable. In a separate case the California Fish and Game Commission had to assess the cumulative impacts of authorizing mountain lion hunting on future hunting seasons, even though separate future regulatory decisions would be required to approve such seasons. Mountain Lion Coalition v. California Fish and Game Commission, 214 Cal. App.3d 1043, 1048 (1st Dist. 1989). The DEIR must therefore anticipate that repowering will take place and/or that additional generating capacity could be built next to the Potrero Plant.

[End U37]


[Begin U38]

The DEIR declined to find a significant impact to surface water quality, using future remediation plans and permits as an excuse (see 4.4-14). However, the California courts have firmly established that an environmental analysis must be conducted at the earliest possible time when environmental effects caused by future expansion is a reasonably foreseeable consequence of the initial project. Mount Sutro Defense Committee v. Regents of the University of California, 77 Cal. App. 3d 20, 34, 143 Cal. Rptr. 365 (1st Dist., 1978).

Here, the report admits that this project could advance the cleanup of potentially contaminated soils, effecting surface water quality. However, the report fails to analyze this effect even though the cleanup could be rushed by the sale of the power plants. Moreover, the report admits that no permits have yet been issued. Therefore, no environmental analysis has been made. For the report to decline analysis at this stage is contrary to CEQA protocol.

[End U38]

[Begin U39]

This DEIR similarly declines to address environmental impacts with regard to water flow, thermal limits, and effluent constituent limits. It assumes that since RWQCB issued permits for these effects that the impacts have already been addressed. The report then shirks its duty by claiming that the RWQCB has the job of making sure there are no violations (see 4.4-15 & 16). This conclusion is a distortion of CEQA.

Sections 15253 and 21080.5 of CEQA allows the substitution of a qualified permit for a CEQA analysis as long as the permit addressed identical environmental concerns and that the project for which the permit was issued is the same project the current DEIR is analyzing. The situation here fails to meet both requirements.

First, the permit doubtfully could have conceived of the sale of the power plants when it was issued, as it does not contain mass limits, only concentration limits. Even if it did, the DEIR offers no indication.

Second, this divestiture project is different than PG&E’s original project to operate. The current project involves selling the plant to an owner who will then be allowed to operate in an open market. When PG&E was given the initial permit, it could not operate on an open market. Therefore, the reliance on the existing permit for a finding of no significant impact is improper.

[End U39]

[Begin U40]

Additionally, the DEIR fails to consider the effects of a permit violation (i.e.: an adverse environmental impact) shouldering that responsibility onto RWQCB.

The purpose of CEQA is to prevent and mitigate possible adverse environmental impacts. This report fails to prevent possible impacts by allowing probable damage to occur (through a permit violation) and then relying on another agency to take action after the damage is done. Again, this flies in the face of what CEQA is designed to do.

[End U40]


[Begin U41]

If the DEIR is properly revised, it should find that there are significant air quality impacts. This is not a devastating problem for this project. All it means is that air quality mitigations must be put in place, measures that likely will eventually happen for all of these plants anyway as they must meet increasingly more stringent air pollution requirements. It merely requires that they be employed now to avoid the deaths and suffering delay will cause for Bay Area residents.

[End U41]

[Begin U42]

For example, Potrero, is likely to be repowered (see DEIR at C-36), so requiring BACT before operations can be increased provides no additional burden on the new owner, other than accelerating the process. Offsets for any increases in PM should be minimal if BACT is employed. Thus, a tortured analysis trying to minimize emissions in a manner contrary to undisputed case law is unnecessary and a disservice to the project sponsor and the public.

[End U42]

If you have any questions regarding our comments, please feel free to call any of the undersigned. We may be reached by telephone at (415) 442-6647 and by E-mail at Thank you for your consideration.

Environmental Law and Justice Clinic, Golden Gate University School of Law
Alan Ramo, Attorney at Law, Director
Joe Como, Certified Student Clinician*
Laura Spano, Certified Student Clinician*

Alan Ramo
Attorneys for SAEJ

*A certified student under the State Bar Rules governing the Practical Training of Law Students (PTLS), working under the supervision of Alan Ramo and Anne Eng pursuant to the PTLS rules.

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