MEETING BEFORE THE CALIFORNIA AIR RESOURCES BOARD BOARD HEARING ROOM 2020 L STREET SACRAMENTO, CALIFORNIA FRIDAY, MAY 22, 1998 8:00 A.M. Vicki L. Medeiros, C.S.R. License No. 7871 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 ii MEMBERS PRESENT John D. Dunlap, III, Chairman Joseph C. Calhoun Dr. William Friedman Mark DeSaulnier Lynne T. Edgerton Jack C. Parnell Barbara Patrick Barbara Riordan Ron Roberts Staff: Michael Kenny, Executive Director Tom Cackette, Chief Deputy Executive Officer Mike Scheible, Deputy Executive Officer Kathleen Walsh, General Counsel Deborah Barnes, Deputy Attorney General, Legal Advisor Jim Schoning, Ombudsman PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 iii I N D E X --o0o-- Page Proceedings 1 Call to Order 1 Pledge of Allegiance 1 Roll Call 1 Opening remarks by Chairman Dunlap 1 AGENDA ITEMS: 98-6-1 Public Meeting to Consider the Appeals of the City of Los Angeles from Order Nos. 041697-05 and 070297-04 of the Great Basin Unified Air Pollution Control District Introductory remarks by Chairman Dunlap 2 Staff Presentation: Mike Kenny 4 Kathleen Walsh 10 Paul Buttner 27 Linda Murchison 35 Paul Buttner 50 City of Los Angeles Presentation: Mr. Edward Schlotman 65 Mr. Gerald A. Gewe 88 Ms. Ruth Galanter 90 Great Basin Unified Air Pollution Control District Presentation: Mr. Brian Lamb, Esq. 92 Ms. Andrea Mead Lawrence 93 Mr. Duane Ono 98 Dr. Ellen Hardebeck 145 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 iv I N D E X (Continued) --o0o-- Page Afternoon Session 189 Public Comment: Mr. Michael R. Valentine 189 Mr. Charles L. Fryxell 204 Mr. Howard Auld 207 Captain W.P. Ostag 210 Mrs. Barbara Auld 212 Ms. Lucinda J. McKee 217 Mr. Randell Friedman 220 Mr. LaJoie H. Gibbons, Jr. 223 Mr. Don Mooney 229 Mr. Richard H. Knox 233 Mr. Andrew Morin 238 Ms. Dorothy Alther, Esq. 243 Mr. Harry C. Williams 246 Mr. Eric Bergh 249 Mr. Nick Sprague 251 Ms. Martha Davis 256 Mr. Paul A. Lamos 257 Adjournment 289 Certificate of Reporter 290 --o0o-- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 1 1 P R O C E E D I N G S 2 --o0o-- 3 CHAIRMAN DUNLAP: Mr. Kenny, would you put your 4 people in their places. 5 The second day of the May meeting of the California 6 Air Resources Board will now come to order. 7 I will ask the audience to rise as we follow 8 Mr. Parnell's lead as we have the Pledge of Allegiance. 9 (Thereupon, all present recited the 10 Pledge of Allegiance.) 11 CHAIRMAN DUNLAP: Thank you, Jack. 12 Will the Clerk of the Board call the roll. 13 MS. HUTCHENS: Calhoun. 14 BOARD MEMBER CALHOUN: Here. 15 MS. HUTCHENS: DeSaulnier. 16 BOARD MEMBER DeSAULNIER: Here. 17 MS. HUTCHENS: Edgerton. 18 BOARD MEMBER EDGERTON: Here. 19 MS. HUTCHENS: Friedman. 20 BOARD MEMBER FRIEDMAN: Here. 21 MS. HUTCHENS: Parnell. 22 BOARD MEMBER PARNELL: Here. 23 MS. HUTCHENS: Patrick. 24 BOARD MEMBER PATRICK: Here. 25 MS. HUTCHENS: Rakow. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 2 1 Riordan. 2 BOARD MEMBER RIORDAN: Here. 3 MS. HUTCHENS: Roberts. 4 BOARD MEMBER ROBERTS: Here. 5 MS. HUTCHENS: Silva. 6 Chairman Dunlap. 7 CHAIRMAN DUNLAP: Here. 8 Thank you. Good morning. 9 The next Item on the Agenda is the only item the 10 Board will consider today. In this Item the Board will 11 consider appeals by the City of Los Angeles from two orders 12 of the Great Basin Unified Air Pollution Control District. 13 Before we begin this Item, I would like to let you 14 know how we will handle the sign-up for testimony. There is 15 a request to present comment cards that are available outside 16 the Hearing Room on the table. 17 There is staff assigned there to assist anyone that 18 wishes to testify. Identifying yourself is voluntary and is 19 not necessary to address this Board. 20 However, in order to keep a clear and accurate 21 record of these proceedings, we ask that you please fill out 22 the cards completely, giving all of the requested information 23 and return them to the staff seated outside, not the Clerk of 24 the Board as is usually done. 25 This will facilitate the sign-up of so many people PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 3 1 wishing to testify. I want to thank you for your 2 cooperation. 3 Because of the special nature of this hearing, Mike 4 Kenny will begin the proceedings by describing the process 5 that will be followed. Mike Kenny is Executive Officer to 6 our Board. 7 Mr. Kenny. 8 MR. KENNY: Thank you, Mr. Chairman and Members of 9 the Board. 10 Before I describe today's hearing procedures, I 11 believe it is crucial that we provide some context regarding 12 the public health issues that underline the debate over the 13 PM 10 control strategy in the Owens Valley. 14 First, and foremost, the ARB staff has tried to 15 keep the focus on how to best achieve the public health goal 16 of reducing those emissions from the Owens dry lake bed. 17 We have supported the District's efforts to develop 18 an effective control measure strategy and believe now is the 19 time to begin implementing those measures. 20 I hope staff's presentation will make it clear that 21 addressing the technical uncertainties regarding the 22 District's PM 10 SIP can be done in a way that assures 23 control efforts are initiated without delay. 24 With that end in mind, I tried to facilitate 25 resolution of these issues through a consensus process that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 4 1 began in June of 1997 and concluded without resolution in 2 December of 1997. 3 A fair degree of common ground was established. At 4 that time it was disappointing to see the negotiations end 5 without resolution. 6 It appears to me that one of the stumbling blocks 7 was that the past relationship between the City and the 8 District was not what it should have been, and, in fact, at 9 the District's July 2, 1997 hearing on the PM 10 SIP, the 10 City representatives acknowledged the past problems and 11 indicated that it was time for the City policy makers to 12 become involved in the Owens Valley in a more productive 13 fashion. 14 I expect to see the City follow up on that 15 commitment. With that said, it is now time to move to the 16 appeals. 17 The Item before you is unusual from both procedural 18 and technical standpoints. In terms of procedure, the Board 19 will exercise quasi judicial authority to decide on an appeal 20 of PM 10 control measures and associated fees imposed upon 21 the City of Los Angeles by the Great Basin Unified Air 22 Pollution Control District. 23 The control measures and fees are intended to meet 24 Federal Clean Air Act requirements consistent with the 25 requirements of State law regarding mitigation of the air PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 5 1 quality impacts associated with the water gathering 2 activities of the City of Los Angeles within the Owens 3 Valley. 4 Clearly, there is a long history associated with 5 these water gathering activities, which has the potential to 6 interfere with the process of addressing the air quality 7 issues. 8 Nonetheless, the Board's responsibility is to 9 address the air quality issue on its own merits in a context 10 of State law. Longstanding issues relative to water rights 11 are not the issue today. 12 In terms of the control measures and fees, staff 13 has focused its evaluation on air quality considerations as 14 defined by health-based standards. State law, pursuant to 15 Health and Safety Code Section 42316, allows the District to 16 require the City to implement reasonable measures and pay 17 reasonable fees to mitigate air quality impacts resulting 18 from the City's water gathering activities within the 19 District. 20 Mitigation measures can be required if there is 21 substantial evidence that the City's activities cause or 22 contribute to violations of State or Federal air quality 23 standards. That test is easily met. 24 As staff's presentation will discuss in detail, 25 exceedences of PM 10 air quality standards occur during those PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 6 1 storms on the dry lake bed in average about 19 days per year 2 in the town of Keeler. 3 Since control measures and fees are linked to 4 attainment of air quality standards, the staff evaluation 5 focused on the scientific foundation used to establish the 6 level of control in the District's PM 10 attainment 7 demonstration. 8 The process by which today's hearing will be 9 conducted was established by a procedural order issued on 10 February 8, 1998. 11 This procedure is as follows: ARB staff will make 12 a presentation summarizing its analysis, conclusions and 13 recommendations. 14 The City will then present its arguments to the 15 Board. The City's arguments regarding each appeal shall be 16 presented separately. 17 The total time for the City's presentation will be 18 limited to two hours. At the option of the City, up to 15 19 minutes of its time may be reserved for rebuttal arguments 20 after the conclusion of the District's presentation. 21 The District will then present its arguments. The 22 District's arguments regarding each appeal shall also be 23 presented separately. 24 The total time for the presentation, again, will be 25 limited to two hours. At the option of the District, again, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 7 1 up to 15 minutes of its time may be reserved for rebuttal 2 arguments after the conclusion of the City's rebuttal 3 arguments. 4 Interested members of the public will then be 5 allowed to address the Board. The time allocated to each 6 individual speaker should be limited to approximately five 7 minutes. 8 As with any hearing, the Board may ask questions of 9 any witness, the City, the District, ARB staff, at any time. 10 Chairman Dunlap should serve as the presiding 11 official at the hearing. Ms. Deborah Barnes, seated to the 12 far right, is the Deputy Attorney General, and she will 13 advise the Board in matters of law. 14 The Board should then, at the conclusion of the 15 hearing today, adopt a written decision with its 16 determination on the appeals. 17 The Board is to exercise its independent judgment 18 to determine, based on the administrative record, whether the 19 weight of the evidence supports the reasonableness of the 20 control measures and fees. 21 Staff has not held briefings for the Board Members 22 on this Item, nor provided any materials not included in the 23 administrative record. 24 Apart from these unusual Board procedures, these 25 appeals also involve unique technical issues. Due to the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 8 1 nature of the Owens PM 10 problem, the application of 2 technical tools for the purpose of establishing specific 3 control requirements requires a thorough review. 4 The costs associated with measures adopted by the 5 District are substantial and ongoing. Staff is taking 6 seriously its responsibility to undertake an independent 7 scientific review of the technical basis for the specific 8 control requirements that would be imposed by the Great 9 Basin. 10 This review has been done within the constraints of 11 the provisions of Safety Code Section 42316. The fundamental 12 requirement is that the Board must either accept or reject 13 the City's appeals. 14 In this appeals process, the Board does not have 15 the option of modifying the specific control strategy adopted 16 by the District. 17 As I indicated earlier, over the past two years ARB 18 staff have done everything possible to avoid reaching this 19 point. 20 We continue to believe that agreement on a 21 reasonable strategy is possible and should be the goal of the 22 parties. 23 The ARB staff do not in any way question the need 24 to implement a control strategy as soon as possible. 25 We understand this process leaves the Board with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 9 1 difficult choices. ARB staff has done its best to carry out 2 its traditional role of addressing technical issues based on 3 the scientific data and a critical evaluation of how that 4 data is used. 5 In our view, scientific credibility must be the 6 basis for establishing reasonableness. Staff has carried out 7 this process in that context based on the specific nature and 8 facts associated with the PM 10 exceedences in the Owens 9 Valley. 10 I have the utmost confidence in the technical 11 analysis prepared by the staff. The staff has done an 12 extremely thorough review. 13 The staff has worked on all the technical elements 14 of the staff report -- excuse me, the technical staff who 15 have worked on all of those technical elements that are in 16 the staff report are here today to answer any questions you 17 may have. 18 These technical elements are air monitoring, 19 emissions inventory and air quality modeling. 20 At this point, I would like to ask Kathleen to 21 review the legal elements of this hearing, and following 22 that, we will present the ARB staff presentation. 23 Thank you. 24 MS. WALSH: Thank you, Mike. Before we move into 25 the technical presentation, I would like to take a few PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 10 1 minutes to set the legal stage for today's proceeding. 2 As you are already aware, and Mike has noted, this 3 hearing will be different from virtually any other hearing 4 that's been conducted by this Board. 5 We realize that it has been very difficult as we 6 moved through the preparation stage since the ARB staff has 7 been very careful not to have any substantive communications 8 with the Board, and as you know, that's necessary to preserve 9 your impartiality as decision-makers today. 10 Typically, the Board makes policy decisions in 11 adopting regulations; this is called quasi-legislative 12 process because it is similar to the process used by the 13 Legislature in adopting laws. 14 At today's hearing the Board will be exercising 15 quasi-judicial authority, and that is deciding a dispute 16 between two parties. 17 Those two parties are the City of Los Angeles and 18 the Great Basin District. The Board's role in today's 19 proceeding is most similar to that of a court in deciding a 20 lawsuit. 21 In this unique proceeding, and as Mike has already 22 indicated, the Board's role is limited. Before the Board 23 today are two appeals by the City from two specific orders 24 adopted by the District. 25 The staff will describe these two orders in detail PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 11 1 after my presentation, but I can briefly state that the first 2 order requires the City to pay fees, and the second order 3 requires the City to implement certain PM 10 control 4 measures. 5 The Board's job here today is to decide whether the 6 fees adopted by the District in the first order are 7 reasonable fees and whether the control measures adopted by 8 District in the second order are valid control measures. 9 The Board will essentially make yes or no decisions 10 for each appeal. For example, in the City's appeal of the 11 control measure order, the Board will either find that the 12 measures are reasonable or that they are not reasonable. 13 I want to take just a minute to talk about what you 14 are not doing today. The Board's role at today's hearing is 15 not to give the District advice about how to adopt different 16 or better control measures. 17 In this proceeding, staff does not believe that the 18 Board has the option of modifying the specific measures 19 adopted by the District. 20 If the Board finds that the measures are invalid, 21 as recommended by the staff, the next step would be for the 22 District to take off its judicial robes, that you are wearing 23 in effect today, and assume a more familiar role as reviewer 24 of the District's PM 10 plan, but this will happen at a 25 public hearing at a future date, and exactly what you will be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 12 1 considering at that time will depend on your decision here 2 today and any subsequent actions by the parties in response 3 to your action. 4 In conjunction with your decision, the staff will 5 recommend that the Board direct ARB staff to work to develop 6 recommendations regarding an acceptable PM 10 control plan 7 for Owens Valley and to transmit those recommendations to the 8 District with an offer of assistance in carrying out these 9 recommendations. 10 The next three slides provide a brief summary of 11 the requirements of Health and Safety Code Section 42316. 12 Health and Safety Code Section 42316 authorizes the 13 District to require the City to undertake reasonable 14 mitigation measures if the City's water gathering activities 15 cause or contribute to violations of Federal or State air 16 quality standards. 17 This statute also states that such mitigation 18 measures may not affect the right of the City to produce, 19 divert, store or convey water. 20 Moving next to the provisions regarding the fee 21 requirements, also in Health and Safety Code Section 42316, 22 the Legislature has authorized the District to require the 23 City to pay fees for costs associated with the development of 24 mitigation measures and related air quality analyses. 25 Finally, the statute allows the City to appeal any PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 13 1 measures or fees imposed by the District and that appeal 2 comes to this Board. 3 The ARB is then required to conduct an independent 4 hearing on those appeals. Because this is the first time the 5 City has appealed a District order, we have had to resolve 6 several procedural issues. 7 The term, independent hearing, is not defined 8 anywhere in California law, and the critical issue has been 9 to determine exactly what the Legislature intended when it 10 directed the ARB to conduct an independent hearing. 11 The City has argued that the Board should hold a 12 trial de novo, that is a full trial type evidentiary hearing 13 in which the Board would hear extensive expert testimony and 14 other evidence, and that might include evidence that was not 15 presented to the District Board when the orders under appeal 16 were adopted. 17 The District, on the other hand, has argued that 18 the Board should conduct a pure record review in which the 19 Board would decide the appeals solely on the basis of a 20 review of the evidence contained in the record of the 21 proceedings before the District Board. 22 Staff believes that neither of the parties 23 positions is correct. After a great deal of thought and 24 deliberation, the ARB Legal Office conclude that the statute 25 requires the Board to conduct what we have termed a modified PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 14 1 record review. 2 Like a pure record review, in the modified record 3 review the ARB decides the appeals on the basis of a review 4 of the evidence contained in the administrative record 5 without allowing the introduction of new evidence, issues or 6 arguments, that is, those that were not presented first to 7 the District Board. 8 This recognizes the District's primary authority to 9 control emissions from stationary sources. In a modified 10 record review, we believe the Board can consider an 11 independent analysis and the recommendations of the ARB staff 12 as contained in the staff report and the presentation you 13 will be hearing this morning. 14 This process allows the Board to benefit from the 15 expertise of the ARB staff. We believe that the Legislature 16 intended this expertise to be utilized in making a decision 17 on an appeal under 42316 and that is why the Legislature 18 designated the ARB as the body to hear these appeals instead 19 of simply providing that the appeals be first heard by a 20 court. 21 The process set forth in the statute is that the 22 City must first appeal to the ARB, the ARB renders a 23 decision, and then either the City or the District, if 24 unhappy with the decision of this Board, can appeal that 25 decision to the court. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 15 1 Today you will no doubt hear both parties argue 2 that we did not make the right decision on how this hearing 3 should be conducted. 4 We did, of course, carefully consider the arguments 5 presented by the parties, and we feel confident that our 6 recommendation charts the most reasonable path for you to 7 follow. 8 It ensures the proper deference to the actions of 9 the District but avoids an interpretation of the statute that 10 would give this Board a meaningless role between the District 11 Board as the fact finder and a court as the second level 12 appellate body. 13 We cannot accept the District's argument that the 14 Legislature contemplated such a passive role when it directed 15 this Board with its special expertise to hear these appeals. 16 Under the procedures that we recommend you follow, 17 it is important that the Board not consider new evidence, 18 issues or arguments, that is, those that were not first 19 raised before the District Board, but it is, ultimately, the 20 Board's responsibility today to determine what issues are 21 before you on these appeals, and what issues are relevant to 22 your decision-making process. 23 Many arguments have been made by the parties, and I 24 expect additional arguments are likely to be presented today. 25 I would like to reiterate staff's belief that the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 16 1 Board is not obligated to decide issues presented or argued 2 by the parties if they're not relevant to the decision that 3 you make. 4 To decide what issues were raised before the 5 District and which are issues relevant to your decision, you 6 may request input or clarification from staff, legal, 7 technical, you may ask the City or the District to address 8 those issues in their presentations, and finally, as 9 Mr. Kenny indicated earlier in his remarks, Ms. Barnes is 10 available to provide additional input should you require it. 11 Finally, and I promise this is the last of the 12 really legal, nasty legal issues I am going to raise, and we 13 are going to get into the interesting meat of this matter as 14 soon as I finish up this slide, I would like to discuss the 15 standard that will be applied in reviewing these appeals. 16 The standard of review is that the Board will 17 exercise its independent judgment to determine whether, based 18 on the whole of the administrative record for each appeal, 19 that is the fee appeal and the control measure appeal, 20 whether the weight of the evidence supports the 21 reasonableness of the fees and the validity of the control 22 measures. 23 A decision is supported by the weight of the 24 evidence if it is supported by a preponderance of evidence. 25 Everybody can laugh now if they want, but I will go PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 17 1 on, this means essentially that the evidence supporting one 2 side outweighs or has more convincing force than the evidence 3 in opposition. 4 It's a balance, 51 percent is a preponderance of 5 the evidence. 6 In these appeals, the findings and decisions of the 7 District come before you with a presumption of regularity, 8 and the burden of proof rests on the City to convince the 9 Board that the District's findings and decisions are contrary 10 to the weight of the evidence in the administrative record. 11 Once both the City and the District have presented 12 their arguments, the Board must apply its independent 13 judgment to review the facts underlying the District's 14 decisions. 15 Although the District's decisions come to the Board 16 with a presumption of correctness, the Board must reweigh the 17 evidence and make its own determination using the Board's 18 special expertise as the State's air quality agency. 19 As I mentioned, in making this determination, we 20 believe that it permissible, indeed, that it is expected that 21 the Board will consider the recommendations, analysis and 22 conclusions of the ARB staff as presented in the staff report 23 and in our presentation this morning. 24 That does conclude my presentation regarding the 25 legal framework for today's proceedings. I will be happy to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 18 1 answer any questions that you may have now or as the morning 2 progresses. 3 At this point in time, if there are no questions, I 4 will turn this over to Paul Buttner of the Office of Air 5 Quality and Transportation Planning. He will be giving the 6 staff presentation. 7 CHAIRMAN DUNLAP: Sir, if I could get you to sit 8 down for a minute, and what I am going to ask you to do is 9 ask you, if I call on you right now, I am going to ask you to 10 identify yourself, but first I want to proceed with the 11 outline of the presentation from staff. 12 That is the way that I would like to proceed. 13 MR. LAMB: I am Counsel for the District. 14 CHAIRMAN DUNLAP: Hold on just a second, sir. 15 As far as the protocol for hearing -- 16 MS. WALSH: Chairman Dunlap, I believe that 17 Mr. Lamb is asking to make his appearance for the record, and 18 I believe that would be appropriate for you to allow him, and 19 also the Counsel for the City, to place their names on the 20 record. 21 CHAIRMAN DUNLAP: Ms. Barnes, do you concur with 22 that? 23 MS. BARNES: That certainly would be a reasonable 24 tact for you would take. 25 It is truly up to the Chairman and the Board how PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 19 1 they would like to proceed with the hearing. 2 CHAIRMAN DUNLAP: Well, what I wanted to do, sort 3 of my reluctance is only that I wanted to get a handle on 4 this issue as it is to be considered by us today, and you 5 were not part of that original concept, though you are part 6 of it at the right time. 7 So, why don't you come forward, and you are with -- 8 I need you to state your name, but you are with the District, 9 and I would imagine the City would want to say something 10 after you. 11 MR. LAMB: Mr. Chairman, my name is Brian Lamb. I 12 am District Counsel for the Great Basin Unified Air Pollution 13 Control District. 14 As your staff indicated at the beginning, this is a 15 quasi-judicial proceeding in which you act as appellate 16 tribunal, and that is why I am asking for the privilege to 17 address you at the beginning of these proceedings as I would 18 if I were sitting in front of the court of appeal, that these 19 proceedings would begin with an introduction of the parties 20 to this proceeding, who are the appellant of the City of Los 21 Angeles and the respondent District. 22 So, I make my appearance, and with me today on the 23 record is William Freedman and Peter Hsiao, of McCutchen, 24 Doyle, Brown and Enersen. 25 In addition, Mr. Chairman, I must state, before the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 20 1 staff report goes any further, for the record I must make a 2 preliminary objection on the basis that inasmuch as this is a 3 quasi-judicial proceeding, the only parties to that 4 proceeding are the City of Los Angeles and the Great Basin 5 District. 6 They are the only people that have standing to make 7 arguments to introduce evidence, to introduce any kind of 8 legal objection or to answer your questions. 9 The role of staff in this is to support you in your 10 role as judicatures, and they are not parties, and I am not 11 in a position where I should have to be answering arguments 12 from staff or rebutting evidence introduced by staff. 13 The focus of this proceeding must be the focus of 14 any appellate proceeding, the focus must be on the parties. 15 Therefore, we separately moved to strike the staff 16 report, and I want to place on record my objection to the 17 staff report being interposed at this time. 18 CHAIRMAN DUNLAP: Ms. Barnes, do you see any 19 impropriety, any problem with us having the staff 20 presentation next? 21 MS. BARNES: At this juncture, no. 22 Though this is a quasi-judicatory proceeding, it is 23 not a classic appellate proceeding as you would find in an 24 appellate court, either on the Federal or State level. 25 We are still part of an administrative process PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 21 1 here, so really, the Board does have a great deal of 2 discretion in how they would like to take information from 3 staff and from the parties. 4 I don't believe that anyone is -- that the staff 5 report is being presented as a, quote, party. 6 BOARD MEMBER EDGERTON: Mr. Chairman. 7 CHAIRMAN DUNLAP: Yes, Ms. Edgerton. 8 BOARD MEMBER EDGERTON: I think it is important at 9 this time for me to make the remark that I believe, I am 10 tending to believe at this point, that the process 11 recommended by the staff is neither in the public interest 12 nor compelled by law. 13 In my view, the Board has the opportunity, at least 14 so far from what I have read from the briefs, the Board has 15 the opportunity to hold the opportunity, the discretion, to 16 hold an evidentiary hearing, the statute assures the parties 17 an independent hearing on appeal. 18 As there appears to be no legislative history, none 19 cited in any brief, regarding the Legislature's intent with 20 respect to an independent hearing, the staff's assertion that 21 a modified hearing, such as the staff has recommended, is 22 mere speculation. 23 The intent of the Legislature should control in the 24 way that we apply the law. Further, if I were to speculate, 25 and you can disregard my speculation, also, if I were to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 22 1 speculate on what the Legislature intended in this case, I 2 would conclude, at this point, that the Legislature intended 3 a full evidentiary hearing with rights to give direction to 4 this Board, this Board could give direction. 5 In recognition of the potential difference of 6 opinion of two areas in our State, it seems to me that we 7 would add value with an evidentiary hearing before this 8 Board. 9 I have spoken with Ms. Barnes, our Legal Advisor, 10 about whether it would be appropriate to have a three panel 11 Member of the Board, a one panel Member of the Board, or 12 whether it must be the whole Board, and she can give you her 13 advice on that. 14 It seems to be within the discretion of the 15 Chairman to do it that way, although the statute doesn't 16 especially give you, doesn't specifically say you can do it 17 that way. 18 So, without going on too long, the recommended 19 process, in my considered opinion, with great respect for the 20 staff's tremendous good will and intellect and research and 21 competence, I believe that the recommended process misses 22 entirely the important opportunity of hearing the facts and 23 the law represented thoroughly by the parties to us, the 24 State agency. 25 At least if the Board held such a hearing, in my PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 23 1 view, the Members of this Board, myself included, or a panel 2 of this Board, would be deciding these complex issues with 3 all of the requisite facts and law. 4 The process by which it has come to me, and again, 5 this is here, this is very much as an appointed Member of 6 this Board, this is not a legal finding, this is a policy, 7 this is a reflection of my sense of my obligation as a Member 8 of the Board, the process by which it has come to me is one 9 which has prevented me, I believe, from access to a complete 10 record, and access to facts that have been determined by 11 cross-examination and sworn testimony. 12 Consequently, for me to apply the law, which is 13 whether it is a reasonable mitigation measure, and there are 14 others, to the facts is extremely difficult, because the 15 facts have not been determined. 16 So, in that light, I just thought it was important 17 to put on the record that I am troubled because the 18 definition given here by the staff of what we are to decide, 19 I believe, has gone further than it needed to go. 20 I believe it is up to this Board to decide whether 21 we are going to handle it in a different way. 22 CHAIRMAN DUNLAP: I appreciate those heartfelt 23 views, but my concern, Ms. Edgerton, and I note that you view 24 there is some discretion that the Board has, you believe, not 25 to put words in your mouth, that there could have been PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 24 1 another way to do this. 2 BOARD MEMBER EDGERTON: That is fair. 3 CHAIRMAN DUNLAP: I am comfortable proceeding this 4 way. I have, like you, I have had certainly limited, I think 5 staff properly characterized the limited context and 6 briefing, we haven't had any beyond the material that has 7 been provided to us, and I am comfortable with proceeding as 8 outlined. 9 My concern, and, you know, I want to admonish you 10 gently about this, is I don't want to have a shadow cast at 11 the outset about a discretionary process issue, which you 12 have just done. 13 I would rather focus on hearing the arguments 14 today, doing our best with this. I have great respect and 15 regard for this Board as a body, and I also have significant 16 regard and respect for our staff. 17 The staff approach has been reviewed by the AG's 18 Office. We have the AG here with us to be a legal advisor. 19 I want to proceed. I want to make this, to the 20 extent that we can and are able, an effective process, one 21 that hopefully will withstand any challenge anyone has to it, 22 and we will see the honorable way that it is managed. 23 So, notwithstanding your concerns, I want to 24 proceed. I understand your views, but I would like to get on 25 with the process today. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 25 1 MR. LAMB: Mr. Chairman, let me say one thing. 2 There is not anything in the record indicating that the 3 Attorney General has reviewed or endorsed the outlying of 4 this procedure that your staff -- 5 CHAIRMAN DUNLAP: Well, I'm not suggesting the AG's 6 Office has rubber stamped this, but I have gone over the 7 procedural elements of what we are trying to do here, and I 8 have not been given any indication that it is improper, or 9 flawed, or in any way is likely to be criticized as something 10 beyond our reach or our scope, and so that is why I am 11 comfortable proceeding the way we are going. 12 MR. LAMB: I want to emphasize, Mr. Chairman, that 13 your Counsel today is the Attorney General, and that the 14 opinions expressed by the General Counsel of the Office of 15 Legal Affairs is not the advice to which you should refer. 16 CHAIRMAN DUNLAP: Oh, I respect that view, but we 17 are going to proceed as outlined. 18 Is there somebody from the City of Los Angeles that 19 wants to stand up and introduce themselves as well? 20 MR. SCHLOTMAN: Good morning, Mr. Chairman. My 21 name is Edward Schlotman. 22 I am an Assistant City Attorney for the City of Los 23 Angeles, representing the City. With me today is Mr. Thomas 24 Hogenson, Chief Assistant City Attorney for Water and Power, 25 and Ms. Roberta Scharlin Zinman, Deputy City Attorney. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 26 1 With the Chair's permission, I would reserve the 2 balance of my remarks for our time of oral argument. 3 CHAIRMAN DUNLAP: That would be fine. Thank you. 4 All right. Why don't we proceed. 5 Mr. Kenny. 6 MR. KENNY: I think at this point what we would 7 like to do is ask Mr. Paul Buttner to make the staff 8 presentation in conjunction with Ms. Linda Murchinson. 9 MR. BUTTNER: Good morning, Chairman Dunlap and 10 Members of the Board. 11 My name is Paul Buttner, and I'm the Air Quality 12 Planning Liaison assigned to the Owens Valley area. 13 I will now begin the staff presentation on the 14 issue of the appeals from the City of LA regarding Owens 15 Lake. 16 I will also be joined by Dr. Linda Murchinson of 17 our Technical Support Division who will discuss staff's 18 technical analysis. 19 We will first provide an introduction to the 20 important issues related to staff's review. 21 Next, we will provide a focused discussion of the 22 City's control measure appeal, followed by a short discussion 23 of the City's appeals of the fees, and finally, staff will 24 offer its recommendations for the Board's action today. 25 Briefly, I will provide you an overview of today's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 27 1 presentation. First, I will provide an introduction -- I'm 2 sorry. 3 Can we proceed a further slide? 4 One further. 5 As with all air quality planning goals, public 6 health is staff's primary concern. To achieve this, control 7 measures are needed to address the pollution problem. 8 We believe that water is part of the solution for 9 the problems at Owens Lake. Agreement between the parties on 10 a strategy would speed the control process. 11 Staff have worked towards this goal, but no 12 agreement has occurred to this date leading up to our 13 recommendations. We will provide the Board with an 14 independent technical analysis. 15 The staff does not recommend that the Board reject 16 the broad categories of dust control concepts ordered by the 17 District Board. 18 The major issue is whether or not the required 19 level of control within each of these broad categories is 20 technically supported. 21 A number of objectives need to be met from the 22 measures and fees for Owens Lake. First, we must address 23 violations of the Federal Ambient Air Quality Standard for 24 particulate matter, or what we will call PM 10 today. 25 These violations from lake bed emissions occur PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 28 1 primarily in the area of Keeler where there are a number of 2 residences. 3 The funding of projects and activities are 4 necessary for the successful implementation of control 5 strategies to reduce the dust problem. 6 This slide shows a table depicting the expected 7 number of exceedences per year. As you can see, Keeler 8 represents the area of most significant impact from Owens 9 Lake dust. 10 Air quality in Ridgecrest is also shown based on 11 the official monitoring station at China Lake, which is used 12 to designate the region's air quality. 13 Ridgecrest is an area just south of the Owens 14 Valley nonattainment area. No exceedences have been measured 15 there since 1991. 16 Accordingly, a request for redesignation to 17 attainment has been submitted to the U.S. EPA for this 18 region. 19 This slide shows a graphic from the District's plan 20 of the lake bed and proposed control areas. The total 21 control areas make up approximately 35 square miles, 22 represented by the shaded areas on the right of the graphic. 23 The three proposed measures are shallow flooding, 24 which is shown in the dark shading to the north, that is 25 somewhat light on that graphic. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 29 1 Vegetative cover is shown as crosshatching to the 2 south, area D, if you can see that, and gravel cover is shown 3 as stripes in the central and southern portions of the lake 4 bed, area C, if you can see that. 5 According to the District's plan, these combined 6 measures make up a 99.5 percent overall control efficiency. 7 There is a clear need to match State and Federal 8 requirements at Owens Lake. Most immediately a PM 10 State 9 Implementation Plan, or SIP as we will call it, is due to the 10 U.S. EPA to meet Federal Clean Air Act requirements. 11 The SIP control measures must also meet the State 12 law requirements for the City to mitigate its impacts under 13 Health and Safety Code 42316. 14 I will refer to this section as the statute for 15 much of my presentation. The concept of reasonableness is 16 consistent with the State's SIP development approach, that 17 is, we always seek the most reasonable measures possible to 18 achieve air quality planning goals. 19 Controls in all California SIPs rely on a strong 20 scientific foundation. The scope and nature of SIP control 21 strategies should be based on sound modeling and emissions 22 inputs. 23 Furthermore, State law precludes the Air Resources 24 Board from submitting a SIP that imposes more controls than 25 are necessary to attain the appropriate standards. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 30 1 Today the Board has before it two specific District 2 Board orders, one for control measures and one for fees. 3 The Board must decide on the specific 4 implementation actions and fees proposed by the District. 5 The Board must simply uphold or reject the appeals. 6 The District Board Order Number 070297-04 requires 7 the City to implement a specific control strategy for Owens. 8 The Order specifies that the strategy will consist 9 of a combination of shallow flooding, vegetative cover and 10 gravel cover over a 35 square mile area with an overall 99.5 11 percent control efficiency. 12 I will refer to this appeal as the control measure 13 appeal throughout the remainder of this presentation. 14 District Board Order 041697-05 requires fees for a 15 number of special projects related to groundwater, soils, 16 environmental monitoring, permitting, dust transport, managed 17 vegetation and legal consultation. 18 One additional set of vegetation projects is not 19 being appealed by the City. These projects are also 20 discussed later in the presentation. 21 I will refer to this appeal as the fee appeal 22 throughout the remainder of this presentation. 23 Now we will move into a detailed discussion of the 24 City's appeal of the control measures. The next several 25 slides will provide a general overview of the City's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 31 1 arguments in support of their appeal of the District's 2 control measure order. 3 The first is air quality analysis. The City states 4 that the air quality analysis is not technically sound 5 because the model's performance is poor and it utilizes 6 average emission estimates which do not reflect conditions 7 similar to those which actually cause PM 10 violations. 8 The next issue is that of cost. The City claims 9 that there is too much uncertainty as to what the measures 10 are likely to cost. 11 The cost may be too high. Cost could be as much as 12 $312 million in capital expenses and $58 million annually. 13 The District's estimate is $90 to $250 million for 14 capital expenses and $38 to $50 million for annual operation 15 and maintenance costs. 16 The City also claims that problems exist with the 17 flooding measure. Freshwater use for flooding may destroy 18 protective salt crusts. 19 The use of 51,000 acre feet of aqueduct water is 20 too high and the shallow flooding has not been demonstrated 21 on the scale required by the measure. 22 The City further cites potential problems with the 23 vegetation measure. The City claims that there are problems 24 in achieving uniform water distribution, effective drainage 25 and acceptable chemical balance. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 32 1 Additionally, the City has concerns that drainage 2 water from vegetation projects is also potentially toxic to 3 wildlife. 4 The City's brief provides concerns about gravel. 5 They are concerned that the lake bed soils may not support 6 the weight of the gravel. 7 They also claim that particles will eventually 8 accumulate on the gravel and between the gravel pore spaces, 9 diminishing its efficiency and effectiveness. 10 On the subject of legal issues, the City states 11 that the measures violate Health and Safety Code Section 12 42316 by requiring the use of aqueduct water. 13 They additionally claim that required water use is 14 unconstitutional. 15 Finally, the City claims that the measures violate 16 prior court decisions. 17 Staff believe the air quality analysis to be the 18 key element in the City's arguments. If the scientific 19 foundation is flawed, there is a questionable basis for 20 developing an appropriate SIP control strategy. 21 Therefore, staff recommends that the Board not 22 consider or reach conclusions regarding the legal or other 23 nonair quality related control measure implementation issues 24 that are raised. 25 To help illustrate the importance of the emissions PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 33 1 inventory and air quality modeling analysis, staff provides 2 this illustration depicting how the various technical 3 elements build upon each other to develop an air quality 4 plan. 5 First, air quality monitoring data helps us to 6 understand the extent of the problem. Next, the critical 7 component of the emissions inventory. 8 For Owens, the emissions inventory represents the 9 basic foundation of the plan. In this case, wind tunnel 10 tests are averaged and develop emission rates, and you will 11 be hearing more about this in the presentation. 12 Emission inventory estimates are then used as 13 inputs into the air quality modeling, which also considers 14 meteorological data to predict measured historic ambient 15 concentrations. 16 The resulting concentrations are then compared with 17 the ambient monitoring data for an evaluation of model 18 performance. 19 Finally, the model is used as a tool to estimate 20 the level of SIP control measures required to meet the 21 Federal PM 10 standard. 22 I know we have discussed a lot of issues there and 23 they will be discussed in further detail as we go on. 24 The following two slides will briefly summarize the 25 District's responses to many of the City's comments related PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 34 1 to air quality analysis. 2 The District position is that the model performance 3 is sufficient and meets the U.S. EPA requirements. They 4 further state that the method of averaging area-wide 5 emissions is best due to the variable surface conditions and 6 unpredictability of storm locations on Owens Lake. 7 To further support its method, the District states 8 that the emission factors used in the plan were derived from 9 averages of numerous wind tunnel tests from various locations 10 in the highest emitting season. 11 At this point, I will introduce Dr. Linda 12 Murchison, Chief of the Emissions Inventory Branch, to 13 discuss staff's evaluation of the District's air quality 14 analysis. 15 DR. MURCHISON: Thank you, Paul. As Paul said, my 16 name is Linda Murchison, and I am Chief of the Emission 17 Inventory Branch at the Air Resources Board. 18 In my presentation today I will be giving you a 19 brief overview of the nature of the PM 10 problem in the 20 Owens Valley and a summary of our technical evaluation of the 21 District's emission inventory, the ambient air quality 22 monitoring data and the air quality modeling analysis used in 23 the SIP. 24 The Owens Valley PM 10 nonattainment area is a 25 rural area with relatively small amounts of emissions from PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 35 1 sources typically encountered in most PM 10 nonattainment 2 areas, sources such as emissions from road dust, farming 3 operations and fuel combustion. 4 In contrast, the airborne PM 10 observed in the 5 Owens Valley is overwhelmingly windblown dust from the Owens 6 dry lake bed. 7 The results of several studies indicate that the 8 Owens dry lake bed may be the largest single source of 9 emissions of PM 10. 10 The dust storms occurring on the lake bed result in 11 violations of the Federal 24-hour standard, primarily at 12 Keeler, numerous times throughout the year. 13 Because of the complexity and magnitude of these 14 storms and the impact they have on air quality, it is 15 essential to understand the nature, location and size of 16 these storms in developing a reasonable control strategy. 17 I would like to start the discussion of the staff's 18 technical evaluation by first describing an air quality model 19 and how models are used. 20 An air quality model consists of a system of 21 mathematical equations designed to simulate the behavior of 22 air pollutants in the atmosphere. 23 Models use emissions and meteorological data to 24 predict the resulting ambient concentration of air pollutants 25 at downwind locations. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 36 1 The competence that should be placed in a modeling 2 application and its results is directly related to the 3 quality of the data inputs, such as the emission inventory 4 and the meteorological data, and to the model's performance 5 in predicting observed concentrations. 6 If properly applied, air quality models can help 7 decision-makers in developing attainment plans and control 8 strategies. 9 However, models are not exact representations of 10 the atmosphere and judgment must be used in interpreting a 11 model's results, especially when there are major 12 uncertainties in the data inputs to the model. 13 Uncertainties in the data could lead to the use of 14 simplifying assumptions which do not reflect real world 15 conditions and may bias the model's results to give an 16 apparently correct answer for the wrong reasons. 17 Under these circumstances, decision-makers could 18 place confidence in a model that does not accurately predict 19 the results of proposed emission controls. 20 Emission inventories developed for use in air 21 quality models are called episodic inventories, and it is 22 important that they reflect as closely as possible the 23 conditions present in the specific day, under study day in 24 this case, a day when violations of air quality standards 25 occur. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 37 1 The inventory should account for where and when the 2 emissions occur, so that the model can accurately predict the 3 location and timing of downwind air pollution levels. 4 This is even more important if a particular source 5 has an overwhelmingly large impact, because errors in the 6 rates, timing or location of emission could have a dramatic 7 impact on the attainment demonstration. 8 The more the episodic emission inventory differs 9 from the actual conditions that existed when the episode 10 occurred, the more uncertainty will be introduced into the 11 modeling and the less certain will be the resulting control 12 strategy. 13 In developing the emission inventory used in the 14 Owens Valley PM 10 plan, the District's staff sponsored a 15 variety of multi-year studies of the lake bed. 16 Several studies examined the region of the lake bed 17 which contributed to the dust problem. As a result of these 18 studies, a 35 square mile dust source area was identified on 19 Owens Lake. 20 To estimate the emission rate for the lake bed, the 21 District used a small mobile wind tunnel to measure the 22 emission flux at different simulated wind speeds. 23 The wind tunnel testing was not performed during 24 dust storms, so the test did not measure emissions during 25 actual storm conditions. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 38 1 By combining the results of many wind tunnel tests 2 and applying statistical techniques, the District developed 3 general equations for estimating an average emission flux 4 from the lake bed at given wind speeds. 5 The District's emission inventory was then 6 developed by substituting the actual hourly wind speeds from 7 the day under study into the equation and using the average 8 emission fluxes for given wind speeds to calculate an average 9 emission rate that is the grams emitted per square meter of 10 the lake bed. 11 The same average emission factor was then applied 12 uniformly to the entire 35 square miles of the dust source 13 area. 14 Other than using the historic wind speeds, the 15 District's emission inventory was not designed to represent 16 an actual air pollution episode in which historic violations 17 of the standards occurred. 18 In order to evaluate the District's emission 19 inventory, we reviewed studies of actual Owens Lake dust 20 storms and compared the results to the District's emission 21 inventory. 22 These studies of actual storms were not used in the 23 District's development of the SIP modeling emission 24 inventory. 25 In the studies, which were conducted between 1994 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 39 1 and 1996, storms were mapped based on visual observations of 2 dust plumes on the lake bed, and in some cases, emission 3 rates were measured within the storms. 4 Although the visual monitoring of the lake bed was 5 not done on a continuous basis during the entire study 6 period, a large database of 148 wind storm maps representing 7 98 separate days was compiled. 8 As stated in the ARB staff report, we recognize 9 that visual observations do not give precise measurement of 10 the size and location of storms. 11 However, we found the observations useful for 12 understanding the relative frequency and location of dust 13 storms around the lake bed, and although it may have its 14 limitations, the observations provided by these studies are 15 the most robust data set for examining the distribution of 16 emissions under different conditions. 17 The data presented in these studies seemed to 18 indicate that dust storms observed in these areas rarely 19 exceed a few square miles of the surface area of the lake bed 20 at any one time and do not cover the entire 35 mile square 21 dust area and that dust storms occur most frequently in 22 certain areas of the lake bed. 23 They are not randomly or evenly distributed across 24 the bed. 25 I would like to show you a few maps using the data PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 40 1 from these studies to illustrate these two points. 2 On the first point that dust storms observed cover 3 only a few square miles, this map shows the size and location 4 of the dust plumes observed on the lake bed on a day when an 5 extremely high 24-hour PM 10 concentration of over 3,800 6 micrograms per cubic meter was recorded at Keeler. 7 The red areas on this map represent where dust 8 storms were observed on that day. The total area represented 9 by all the observed dust plumes is a little over one square 10 mile. 11 For comparison, the area outlined in blue on the 12 lake bed is the District's 35 square mile dust source area. 13 Now the second point that storms that occur most 14 frequently in certain areas of the lake bed and they are not 15 evenly spread over the entire 35 square miles, this map is a 16 composite of all 98 days of dust storm observations. The map 17 shows the relative frequency that dust plumes are observed at 18 a particular location during the study. 19 The overall colored area of the map represents 20 where a dust plume was observed at least one time on one of 21 the 98 days between 1994 and 1996. 22 The yellow areas of the map represent areas where 23 storms were infrequently observed. This accounts for 24 approximately 80 percent of the colored area on the map. 25 In contrast, the red areas where storms were PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 41 1 observed relatively frequently, this is less than five 2 percent of the shaded area, or about three square miles. 3 Again, the District's dust source area is outlined 4 on the map. This map seems to demonstrate that visible dust 5 plumes are not evenly or randomly spread around the lake bed 6 but appear to be much more likely to occur in some areas of 7 the lake compared to others. 8 In addition to the frequency and location of dust 9 storms, the other key factor is the method for estimating 10 emission rates. 11 In review of the wind tunnel test done by the 12 District shows that measured emission fluxes could vary by a 13 factor of 100 at a given wind speed. 14 This shows that there is a large variation in the 15 actual emission fluxes on the lake bed. 16 The average emission factors developed using the 17 District's method are also not tied to any specific location 18 or surface type, which makes it difficult, if not impossible, 19 to replicate actual storm conditions, and the placement of 20 the tunnels on the lake bed does not appear to be 21 representative of all surface types. 22 Measurements of PM 10 emissions within actual dust 23 storms were made as part of the dust storm mapping study that 24 I previously described. 25 The emission rates measured in actual dust storms PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 42 1 were generally higher than the average values used in the 2 Owens Valley plan. 3 The emission rate measured within a dust storm may 4 be an order of magnitude higher than the average factor 5 resulting from the District's method. 6 Whereas the District used a lower emission rate 7 over a large geographic area, actual storm observations and 8 measurements showed high emission rates over very small 9 geographic areas. 10 Based on the technical information available to us, 11 we find that actual observations of dust storms give a much 12 different picture of the emission characteristics of Owens 13 Lake dust storms than what is used in the District's modeling 14 in the Owens Valley PM 10 Plan. 15 Specifically, we find that there is a large 16 variation in the emission rates. Observed dust storms cover 17 a relatively small portion of the lake bed at any one time 18 and not the entire 35 square miles of the District's dust 19 source area. 20 Observed storms appear to occur more frequently in 21 certain areas of the lake bed than others. There is not an 22 even distribution across the bed. 23 The emission rates in actual storms are much higher 24 than the average emission rates used in the Plan, and the 25 District inventory does not represent actual episodic PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 43 1 conditions. 2 Earlier in this presentation I stressed that 3 reliable air quality modeling results depended on the 4 episodic emission inventory being representative of the 5 emissions occurring in the episode under study. 6 Based on the information available to us in the 7 administrative record, we conclude that the assumptions used 8 in developing the District's emission inventory are 9 inconsistent with the actual dust storm conditions and cannot 10 be expected to provide scientifically valid SIP modeling 11 results. 12 The second component of the staff's technical 13 analysis is the air monitoring data. Air monitors measure 14 the concentration of an air pollutant in the ambient air. 15 Two types of monitors were operated in the Owens 16 Valley. High volume PM 10 samplers which collect a single 17 24-hour sample per day and continuous PM 10 monitors which 18 measure hourly PM 10 concentrations. 19 Under the sampling conditions encountered in the 20 Owens Lake area, the 24-hour PM 10 concentrations calculated 21 from the continuous monitors are approximately 40 percent 22 higher than the 24-hour samples from the high volume samplers 23 at the same location. 24 The ARB staff has been unable to determine if one 25 instrument is more accurate than the other in measuring PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 44 1 ambient PM concentrations during dust storms. 2 Although both samplers are certified by the 3 U.S. EPA, the accuracy of either monitor is problematic 4 because the wind speeds at particular loadings present during 5 storms far exceed those that the monitors are certified at. 6 This leads to uncertainty regarding the monitor 7 values at very high concentrations. 8 I would now like to summarize the ARB staff 9 evaluation of the District's modeling analysis. I will 10 discuss the essential input information necessary for air 11 quality modeling, the District's modeling analysis, the model 12 performance issues and the assessment of the model 13 performance. 14 To perform an air quality modeling, you need an 15 appropriate air quality model, meteorological data, episodic 16 emission inventory and air quality monitoring data. 17 Based upon the staff's review, we determined that 18 although the District selected an appropriate air dispersion 19 model to predict 24-hour PM 10 concentrations and used 20 appropriate meteorological data, they did not use appropriate 21 emission inventory inputs. 22 The inventory does not represent the episodic 23 conditions for the 24-hour dust storm being modeled, and 24 there are still unresolved questions about the accuracy of 25 the PM 10 monitors used by the District when high PM 10 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 45 1 concentrations occurred during dust storms. 2 When there are serious questions about the 3 reliability of the main input data used in an air quality 4 model, the ability of the model to replicate actual 5 conditions immediately becomes suspect. 6 I will use the following examples to help 7 illustrate this point. I am going to show you two different 8 examples. 9 In both cases the overall emissions are similar, 10 the differences are in terms of the assumptions about the 11 space, or distribution of emissions. 12 This first slide shows the 35 square mile 13 identified by the District as the dust source area. 14 The District's modeling analysis assumes that the 15 entire 35 square mile area is emitting at an emission rate 16 calculated from the average of their wind tunnel test. 17 Several off lake source dust areas, which are sand 18 dunes, are also shown on the map. These areas were included 19 in the District's modeling analysis. 20 On this next slide, we show the results of using 21 the District's emission inventory in the model. Because the 22 emission inventory reflects the entire 35 square miles, the 23 model is forced to fit its predicted concentrations over the 24 35 square miles. 25 Note that the areas impacted by the emissions PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 46 1 generally conform to the boundaries of the dust source area. 2 This slide shows the actual dust source areas on 3 February 13, 1995 at Owens Lake when a very high PM 10 4 concentration was measured at Keeler, this is the same day I 5 showed you earlier. 6 As noted before, the overall source area for this 7 particular storm is a little over one square mile. 8 Here, we show the source impact area when the 9 actual February thirteenth dust source areas are modeled. 10 The resulting down wind concentrations at impact 11 areas are much different than when the District's 35 square 12 mile area is used. 13 No, we are not proposing that this be the area to 14 control, but we are trying to demonstrate that by changing 15 the model inputs you get different model results. 16 In this case, the distribution of emissions has a 17 major impact on the modeling results, therefore on the 18 selection of control strategies. 19 I would now like to discuss the District's model 20 performance. The performance evaluation is the process of 21 establishing that the model is working correctly and that it 22 is reproducing observations with reasonable accuracy. 23 In order to evaluate the performance of the model, 24 actual meteorological and emissions data representative of 25 the conditions when a violation of a standard occurs, are PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 47 1 used to determine if the model can reproduce the ambient air 2 quality measured during an historical air pollution episode. 3 The model must be able to reasonably predict 4 measured concentrations over a wide range of pollutant 5 concentrations. 6 If it cannot, the performance of the model is poor 7 and the model is not a good tool for control strategy 8 development. 9 If the model does reasonably well at predicting the 10 measured ambient levels, we can then use model to determine 11 how much to reduce the emissions and where that reduction 12 must occur in order to reach attainment of the standard. 13 Our initial evaluation of the District's model 14 performance for 24-hour PM 10 concentrations using the 15 District's input data, shows apparently good agreement 16 between the model predictions and the ambient measures when 17 the 24-hour PM 10 concentrations are above 1,000 micrograms 18 per cubic meter in Keeler. 19 However, when the PM 10 concentrations are lower 20 than 1,000, the model tends to overestimate the ambient 21 concentrations. 22 It is crucial that the model accurately predict 23 concentrations at both high and low values to accurately 24 design controls to achieve the standard. 25 Because of the inability of the District's model to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 48 1 perform well at all levels of 24-hour ambient concentrations, 2 and because we knew the District's emission inventory was not 3 episodic, this led us to further investigate the model's 4 performance. 5 To further investigate the model, an independent 6 model performance evaluation using the District's modeling 7 outputs of predicted PM 10 concentrations was carried out, 8 but on a finer temporal resolution, in this case, one hour, 9 since hourly ambient data from meteorology and air quality 10 were available, the hourly performance evaluation provides 11 more information to judge the fidelity of simulating the 12 24-hour PM 10 concentrations. 13 Based upon the results of the hourly performance 14 evaluation, it was revealed that the model predictions do not 15 accurately estimate hourly ambient concentrations and tend to 16 underestimate the highest measured hourly concentrations and 17 overestimate the lower measured hourly concentrations. 18 We believe that the apparent good performance of 19 the model is due to compensating errors in calculating the 20 24-hour model estimates of PM 10 concentrations from hourly 21 values. 22 By applying emissions over a large lake bed area, 23 rather than using actual rates and locations of emissions, 24 the District's modeling approach is forced to predict that 25 control of the entire area is needed to reach the standard, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 49 1 as shown in that earlier example. 2 In addition, the District's modeling analysis of 3 the measures contained in the SIP Board order controls to 67 4 micrograms per cubic meter instead of 150 that is the Federal 5 standard. 6 We recognize that the District's staff has done an 7 enormous amount of work on the wind blown dust at Owens Lake. 8 Owens Lake is probably the largest and most 9 potentially most complex PM 10 emission source in the 10 country, and few other districts in California have had to 11 face technical challenges as complex as this. 12 However, because of the complexity and the nature 13 of this emission source, and because of the high cost of the 14 controls, we must require the most comprehensive and 15 technically sound analysis to ensure that we can develop the 16 most equitable solution to all parties involved. 17 Based on the technical information available to us, 18 the ARB staff concludes that the modeling, including the 19 emission inventory, does not provide an adequate scientific 20 foundation for the specific controls as listed in the 21 District's Board Order. 22 That concludes the technical analysis, and now I 23 will turn this over to Mr. Paul Buttner to continue the 24 presentation. 25 MR. BUTTNER: Thank you, Linda. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 50 1 Well, we will now shift gears somewhat after 2 hearing about the staff's technical analysis by summarizing 3 the issues related to the City's appeal of the District's 4 special projects budget. 5 The Health and Safety Code Section 42316 allows the 6 District to assess fees upon the City for its costs in 7 addressing the air quality impacts of the City's activities 8 in the District's jurisdiction. 9 This is generally broken into two major budget 10 categories, the regular budget, which handles administrative 11 and routine costs, and projects budget for special projects 12 on the lake, such as studies, research and demonstrations. 13 Originally the City appealed both the regular and 14 the projects budget. However, the parties settled the 15 regular budget in June of 1997. 16 Therefore, of these budgets, only the special 17 projects budget remains for the Board's consideration today. 18 Looking at the projects budgets over the last five 19 years, they have ranged from around $1 million to nearly $3.5 20 million since 1992-93, the highest being in 1995 and 1996. 21 This compares with the current year's total of 22 nearly $1.5 million. This illustration shows the five-year 23 budget history of the projects budgets assessed upon the 24 City. 25 The currently appealed assessment is depicted in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 51 1 the yellow bar on the far right. As previously stated, 2 assessments have ranged from $1 million to nearly $3.5 3 million per year since 1992-93, with 1992-92 being 4 represented as the orange bar to the left. 5 The highest assessment was in 1995-96, as depicted 6 by the light blue bar. 7 The current year's total is nearly $1.5 million. 8 Please note that the second fiscal year 1997-98 budget 9 assessment is not included in this total, shown in yellow, 10 however, based on the fact that it is less than half of the 11 previous year's total, comparing the black and the yellow 12 bars, the amount appears generally consistent with recent 13 assessments. 14 The original currently appealed projects budget 15 amount, as I had mentioned, nearly $1.5 million, however one 16 task item in this budget, vegetation projects valued at 17 nearly one-third of a million dollars, has been settled and 18 is therefore excluded from the appeal. 19 Accordingly, the staff consider the revised amount 20 under appeal to be nearly $1.2 million. A total of seven 21 projects remain under appeal by the City. 22 The first four are introduced on this slide. The 23 first being a hydrology program, the assessment of the Owens 24 Lake Basin Water Management System. 25 This project, budgeted at $210,000, continues PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 52 1 ongoing work to develop a program for possible long-term 2 groundwater pumping at Owens Lake. 3 Related projects over the past five years have 4 ranged from nearly half a million to over $1.8 million. 5 The second project, Owens Lake Soil Survey, is the 6 examination of the physical characteristics of 6,000 acres of 7 Owens Lake Playa. 8 This project, budgeted at approximately $82,000, 9 continues previous work to develop preconstruction data about 10 Owens Lake soils. 11 A related project was conducted in the previous 12 year at a cost of over $25,000. The next project, Owens Lake 13 Dust Studies, is to conduct tracer and visual studies to 14 confirm regional impacts and map Owens Lake dust storms. 15 This project, budgeted at approximately $62,000, 16 continues ongoing related work. Storm mapping projects were 17 conducted in the two previous years at an average cost of 18 over $32,000 per year. 19 The final one on this slide, the Monitoring 20 Programs, is to conduct groundwater, vegetation, wildlife and 21 air quality monitoring. 22 This project, budgeted at over $330,000, continues 23 ongoing work to develop baseline environmental data. 24 A related project was conducted in the previous 25 year at a cost of nearly $150,000. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 53 1 Now for the remaining three projects in the special 2 projects budget, managed Vegetation, efforts to improve 3 efficiency of water use, soil leaching and irrigation, this 4 project is budgeted at $300,000 and continues related work 5 conducted from the previous year for nearly $600,000. 6 Permitting Transition, this project is to transfer 7 all environmental and related permits from the District to 8 the City as project efforts move from study to 9 implementation. 10 Because this is related to the project 11 implementation phase, this task item, estimated to cost 12 $25,000, has no history in the five-year administrative 13 budget. 14 Finally, Legal Consultation, for legal assistance 15 to the District in the event that the City appeals to the 16 ARB, which is happening currently, this project, estimated at 17 $150,000, has not been previously funded within the five-year 18 budget history in the administrative record. 19 During the adoption of the Order, the City provided 20 very few project specific comments to the District Board at 21 the time of local adoption. 22 The comments that they did provide can be put into 23 four general categories: One, the City is concerned with the 24 overall size of the budget. They cited that prior to 25 District comments indicating that the budgets would decrease PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 54 1 after 1994. 2 Two, the City had concerns about the District 3 proposing more research at the same time that they are 4 proposing a control plan. 5 The City viewed this to indicate that the District 6 had all the data and research they needed to move forward. 7 Thirdly, the City explicitly provided an objection 8 to the assessment of outside legal services for action 9 against the City. 10 Finally, the City indicated that they are not 11 opposed to the funding of more research and feel that more 12 research is required on the lake. 13 The City provided additional comments in its brief. 14 However, because the District Board had no opportunity to 15 consider the additional comments, staff did not consider them 16 as being part of the administrative record. 17 In its response brief, however, the District 18 addressed all of the City's additional comments. 19 Staff supports all of the District fees because 20 these projects will develop information relevant to either 21 full scale implementation or further study and demonstration 22 of projects. 23 As for the legal fees, staff believes that the 24 statute permits assessment of legal fees to defend against 25 the City's appeals. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 55 1 This interpretation of the statute is supported 2 both by the strong fee shifting concerns that motivated the 3 passage of law and by the larger statutory scheme that 4 promotes self-supported District operations. 5 In support of the recommendation, staff finds that 6 the technical projects will likely develop information 7 relevant to either full scale project measure implementation 8 or further demonstration of projects. 9 Regarding the one nontechnical project of legal 10 assistance fees, staff believes this assessment is 11 permissible under the statute. 12 Staff believes that legal costs are part of the 13 administrative costs to the District, and therefore, it would 14 not be sensible to prohibit the District from assessing the 15 associated fees upon the City through the mechanism 16 established by the statute. 17 Now, finally, I will summarize staff's 18 recommendations to the Board regarding the City of Los 19 Angeles appeals. 20 First, I will discuss the City's appeal on the 21 control measure requirement. Staff recommends that the Board 22 uphold the City of Los Angeles appeal of the District's 23 control measure Board Order. 24 This Order requires the implementation of specified 25 control measures discussed earlier in the presentation. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 56 1 Staff's recommendation regarding the control 2 measure appeal is based on staff's finding that the 3 scientific foundation on which the control measures are based 4 upon is flawed. 5 The specificity of the adopted Board Order fails to 6 recognize any of the uncertainties identified by Air 7 Resources Board staff. 8 Staff believes that attainment may possibly be 9 achieved by controlling less than 35 square miles if the 10 initial phases focus on the more frequently emissive areas. 11 Staff further recommends that the Board find that 12 all of the Owens Lake projects and associated fees requested 13 by the District's fiscal year 1997-98 special projects 14 budget -- find that they are reasonable. 15 In support of this recommendation, staff finds that 16 all projects will likely develop useful information for the 17 development of either full scale control measure project 18 implementation, or further demonstration of projects. 19 Finally, if the Board upholds the City's appeal, 20 staff recommends that the Board strongly encourage the City 21 and District to work closely with each other to begin dust 22 control measures on the lake as soon as possible. 23 All parties must work together for progress towards 24 clean air in the Owens Valley. ARB staff continue to be 25 available to assist in any way we can. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 57 1 However, as previously discussed, the Board is 2 constrained by the statute in its action today. The Board's 3 role is to decide on the specific implementation actions and 4 fees proposed by the District. 5 This concludes staff's presentation. We welcome 6 any questions that you may have at this time. 7 CHAIRMAN DUNLAP: Does the Board have any questions 8 of staff on the overview? 9 By the way, I want to commend staff for what I 10 believe, and I am sure we will hear from other parties, for 11 its straightforward, fact-based presentation. 12 I particularly appreciated the commentary made at 13 the end, Paul, about folks working together and the like. 14 BOARD MEMBER EDGERTON: Mr. Chairman, I have a 15 question. 16 CHAIRMAN DUNLAP: Yes, Ms. Edgerton. 17 BOARD MEMBER EDGERTON: This is a question to the 18 staff. In my review of the documents submitted before us, in 19 the reply brief filed by the Great Basin Unified Air 20 Pollution Control District, I think on May 12, at appendix 21 number 17 is a letter dated by Mike Kenny, December 15, 1997, 22 to Dr. Ellen Hardebeck, Air Pollution Control Officer for the 23 Great Basin. 24 When I read this article -- I mean not article but 25 this letter -- actually it's a five-page letter, it seemed to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 58 1 put this in context for me in a way that I had, perhaps, not 2 grasped it before, at page 3, Mr. Kenny says, while air 3 quality modeling for ozone attainment demonstrations builds 4 on many years of study and use, the application of models to 5 particulate air pollution is in its infancy. 6 Then the part that struck me was, the application 7 of models to particulate air pollution is in its infancy, and 8 then it goes on to say, there is no uniform model, or 9 approach, because the nature of PM 10 problems differs 10 dramatically from region to region. 11 The letter has import. It goes on to have 12 important comments as well, but about more specifics here, 13 but in the next, or the third to the last paragraph, the 14 fourth to the last paragraph, what troubled me was where I 15 think this said that the ARB staff then ran its performance 16 model, including the historic data, which it said was missing 17 from the Great Basin model, this is what the ARB staff found. 18 With this in mind, ARB staff performed, and I quote 19 exactly, a modeling analysis using the same model, ISCST 3, 20 but incorporating the Niemeyer observations and flux 21 measurements for the one available exceedence day. 22 The results from the performance evaluation showed 23 improved hourly performance. While this supports the need 24 for an episodic modeling approach, the performance still 25 falls short of what is acceptable for a final SIP attainment PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 59 1 demonstration, and, again, one more sentence, the results of 2 these evaluations indicate that the available modeling 3 approaches, the available modeling approaches are inadequate 4 to predict the specific level of control necessary to attain 5 the PM standard. 6 I read that and what that meant to me was, although 7 the ARB staff thought that the PM 10 model used by the Basin 8 and with its inputs and as it was done, had limitations, when 9 the ARB staff did its best, as well, to get a correct 10 attainment demonstration model so that there would be 11 something that the District could actually use that the ARB 12 would endorse, it seemed to me that the ARB is saying even 13 what the ARB did would not support an attainment 14 demonstration. 15 So, I would like to ask whether I understood that 16 correctly? 17 CHAIRMAN DUNLAP: Mr. Kenny. 18 MR. McERNEY: I think I can answer that, or at 19 least try to address -- I'm Don McErney, I am the Chief of 20 the Modeling and Meteorology Branch at the Air Resources 21 Board. 22 We didn't, as you characterized it, did we do our 23 best here? 24 We looked at one episode with the available data. 25 We didn't try to design a SIP here. We didn't have time to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 60 1 put that kind of effort into it. 2 So, really, our role was to try to understand the 3 situation on the lake more and how the dust storms contribute 4 to high ozone. 5 Several other areas of the State, including the 6 South Coast Air Basin and the San Joaquin Valley Air Basin, 7 have done SIPS for PM 10, and they haven't used this type of 8 model, because it is difficult to apply this model. 9 You need a really clear understanding of dust 10 emission sources to make this model work well. This is very 11 difficult to understand and to come by, how and when do these 12 sources of dust occur. 13 So, the other areas have used an earlier, cruder 14 technique that gets a rough estimation of what you need to 15 attain the standard, and this is just a roll back 16 proportional model where you assume that air quality is 17 proportional to the emissions as you understand the 18 emissions. 19 So, if you are twice as high as the standard, you 20 need to reduce the emissions by about 50 percent to get to 21 the standard. 22 That is the extent of the modeling work that has 23 gone into other areas, and it is somewhat refined to what we 24 call a speciated roll back to apply to the different species 25 of emissions, but essentially on the lake there is only one PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 61 1 species of emissions. 2 So, we would say there is a pretty serious problem 3 on the lake. You are way above the standard, and you know 4 you need a lot of emission reductions, but the District model 5 really says you need 99 percent control of emissions. 6 Well, any model that calls for 99 percent control 7 is going to come under a lot of scrutiny. The roughly 8 proportional roll back says less than that can be done to 9 attain the standard, not a lot less, but less than that, and 10 further study is really going to try to identify the specific 11 areas that would be most effective in reducing PM 10 12 concentrations at the site that exceeds it most. 13 BOARD MEMBER EDGERTON: Well, how long does it take 14 to get that data, because from what I can see here, and from 15 what has been argued, it would take maybe five years to get 16 the kind of data that you think you need to put in, that the 17 District should be putting in to develop the correct model. 18 Of course, by that time they would be in default of 19 their obligations under the Clean Air Act of submitting a 20 SIP. They would have off-sets in the region. 21 They would have lost their transportation funds and 22 everything else. 23 MR. McERNEY: I understand. 24 Much of the data that you need to identify the most 25 effective controls is available now. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 62 1 It is pretty clear that the source areas that are 2 nearest to the monitor impact that monitor the most, and 3 reducing emissions in those areas are going to be 10 or 20 4 times more effective in reducing pollution at the Keeler site 5 than reducing emissions from areas much further away. 6 BOARD MEMBER EDGERTON: I just wanted to -- 7 CHAIRMAN DUNLAP: I just don't understand where you 8 are -- take us somewhere. 9 You asked us some questions, but I mean, this calls 10 into question, you are agreeing with Mike's assertion it's in 11 its infancy. You are agreeing that it is imperfect. 12 I just want you to take us somewhere. 13 BOARD MEMBER EDGERTON: Well, what I'm trying to 14 explore is that it seems to me that the District's obligation 15 is to do the best that it can with imperfect data in adopting 16 modeling and control measures. 17 If you have a situation where the Air Board is 18 saying, you did the wrong thing, but we can't tell you what 19 the right thing is, this is not really fair to the District. 20 I think that we need to really go on-line a little 21 bit here with the staff. If we are going to come in with 22 technical suggestions at this stage, I think that the 23 technical suggestions ought to come up with some sort of 24 direction, or a conclusion which they can understand. 25 Just a minute. What I hear you saying is, your PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 63 1 last sentence was, if I understood it correctly, was that 2 well, since the modeling is not so developed, since it is in 3 its infancy and since we need so many more inputs for the 4 modeling, actually, the control measures could be put into 5 place based on the minimum that we know that needs to be done 6 for the areas that are the most emissive, that that really is 7 what you think should be done is, that the model really isn't 8 the thing that should control it, that it should be the worst 9 areas observed. 10 MR. McERNEY: That's exactly what I think. 11 A judgment should be applied here because there is 12 a lot of uncertainty in this area, in knowing the rates of 13 emissions and the areas that emitted the highest rates. 14 BOARD MEMBER EDGERTON: Thank you. Mr. Chairman, I 15 will stop here. 16 Did I not go anywhere? 17 CHAIRMAN DUNLAP: No. 18 We are going to hear from the two parties in a 19 couple of minutes, but what I wanted to give them an 20 opportunity to ask questions about that, but I will, you 21 know, it is my belief that as we work our way through here we 22 are going to realize, I mean, we have all been saying for a 23 very long time that the particulate matter issues is going to 24 be the air pollution issue of the next century. 25 We have devoted an awful lot of time, you know, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 64 1 earlier in the last 25 years or so to lead, as you know, and 2 then we moved into ozone, and not to say that we have got 3 that process licked, but we have certainly made some 4 significant progress. 5 We need to do more in PM. We need to do a better 6 job of it collectively. 7 Why don't we do this, Mr. Kenny, 8 Dr. Friedman, unless you wanted to say anything, we will move 9 forward. 10 Are we to hear from the two parties now, Mr. Kenny? 11 Do you want to introduce that, or do you want me to 12 do that? 13 What's your preference? 14 MR. KENNY: We have at this point in time the 15 opportunity for the City of LA to present their appeal to the 16 Board. 17 CHAIRMAN DUNLAP: Could I ask the City to come 18 forward, and I have been provided, as my Board Member 19 colleagues have, with cards for Mr. Schlotman and Ms. Zinman. 20 You are welcome to tag-team and use the podium 21 there as you see fit, sir. 22 MR. SCHLOTMAN: Thank you, Mr. Chairman. 23 I would like to thank you and the Members of the 24 Board for this opportunity to address this morning on this 25 issue. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 65 1 Before I begin, I would like to introduce a couple 2 of people who are present, and some of whom will address the 3 Board a little bit later. 4 As I indicated earlier, Mr. Tom Hogenson, Chief 5 Assistant City Attorney is here, Ms. Roberta Scharlin Zinman, 6 Deputy City Attorney is here, also present in the audience 7 and will be addressing the Board a little bit later, is Ruth 8 Galanter, Chair of the Commerce, Energy and Natural Resources 9 Committee of the Los Angeles City Council, Mr. Gerald Gewe, 10 Executive Assistant in the Water Services Organization of the 11 Department of Water and Power, Ms. Barb Garretts, the Chief 12 Legislative Analyst Office, and also present is Mr. Ralph 13 Morrison, of Environ, who assisted the Department and the 14 City in putting together their air quality modeling comments. 15 Originally Mr. David Friedman, the General Manager 16 of the Department of Water and Power, intended to be present 17 this morning and address the Board on this matter and express 18 the Department and City's strong support for going forward 19 with appropriate control measures. 20 Unfortunately Mr. Friedman was taken to the 21 hospital last night and remains there this morning under 22 observation in Good Samaritan. I have had no further word as 23 to his condition other than he is sleeping, and they intend 24 to do further tests. 25 So, we have had to make some adjustments PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 66 1 accordingly. 2 CHAIRMAN DUNLAP: Mr. Schlotman, I am going to do 3 something unusual, that little area there next to the 4 Supervisor in that little desk area, I am going to let you 5 put one of your colleagues there if you would like so that 6 you can prepare your papers and the like. 7 Mark, if you are okay with that? 8 BOARD MEMBER DeSAULNIER: It depends who he puts 9 there. 10 CHAIRMAN DUNLAP: So, if someone wants to come up 11 and assist Mr. Schlotman, you are welcome to use that little 12 work area, and I will provide the same space for our 13 colleagues from Owens Valley. 14 MR. SCHLOTMAN: I appreciate the offer. I'm not 15 so sure we will need it. 16 As a preliminary matter, and before we get into the 17 balance of my remarks, I have a couple of motions, one motion 18 which I would like to lodge with the Board. 19 I don't intend to argue this motion. It is simply 20 a written motion that reiterates a previously made motion, 21 this is basically a record keeping matter that we feel is 22 appropriate at this time. 23 Also, I have a set of points and authorities that 24 we would like to put into the record concerning a recently 25 made motion by the Great Basin District. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 67 1 CHAIRMAN DUNLAP: Okay. Mr. Schlotman, feel free 2 just to speak to us like regular old people, not lawyers. 3 MR. SCHLOTMAN: Oh, Lord. You are taking away all 4 of the fun of this. 5 CHAIRMAN DUNLAP: Maybe for you. 6 MR. SCHLOTMAN: Do I get to yell at you? 7 CHAIRMAN DUNLAP: No, we won't allow that today. 8 MR. SCHLOTMAN: Good morning, ladies and 9 gentlemen. I have an order to cut down the some 46 pages 10 that I was originally going to present over several hours and 11 days to something a little briefer. 12 It seemed quite appropriate to do so. As we begin 13 this morning, I think a little history of how we got here 14 might be helpful. 15 Most of this, all of it is in the public record. 16 Section 42316 of the Health and Safety Code is a special and 17 unique statute. 18 It does not apply to anyone other than the City of 19 Los Angeles and the Great Basin District. It was a statute 20 to which the parties agreed. It was not forced upon them. 21 It arose out of an earlier dispute. In the early 22 1980's the Department's power system applied for certain 23 permits for a proposed geothermal operation and the Power 24 System really does think it is separate from everyone else, 25 and we were quite surprised when the Great Basin District PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 68 1 said, wait a minute, your water gathering operations are not 2 in compliance with the law, and we can't give you permits. 3 That led, I believe, to some litigation by one of 4 my colleagues, and ultimately led to some negotiations in 5 Sacramento that produced the language that you see before you 6 today. 7 We agreed at that time, the City agreed at that 8 time, voluntarily, to pay the administrative costs, the 9 research costs, the monitoring costs of the District and to 10 implement reasonable control measures. That was not pulled 11 out of us. 12 That was agreed to back in 1983. 13 CHAIRMAN DUNLAP: Do you remember who carried the 14 Legislation? 15 MR. SCHLOTMAN: I could find the answer. 16 It was Senator Ralph Dills. 17 The City has been doing that ever since. We have 18 been paying the reasonable costs, the monitoring, and for the 19 research for the District as it tried out various kinds of 20 research and gathered various kinds of data to try and put 21 together reasonable control measures. 22 Until today we have never appealed any of those. 23 We have worked cooperatively with the District, and intend 24 to, and want to work cooperatively with the District to solve 25 the problem. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 69 1 As Mr. Kenny and your staff have indicated, this is 2 the first time that you have had an opportunity to consider 3 this measure. 4 In many respects, the heart of the measure is what 5 is reasonable and valid, and as was indicated, a lot of these 6 terms are not defined. 7 When they are not defined we turn to their ordinary 8 and usual meaning. That is what the cases instruct us, that 9 is what common sense tells us. 10 So, I have looked at the dictionary, and some of 11 this is in the brief, but it doesn't hurt to repeat it. 12 What is reasonable? Something that uses right 13 judgment that is not ridiculous, that is not excessive, that 14 is moderate, that is not demanding too much. 15 What is valid? Well grounded, or justifiable, is 16 applicable to the matter at hand. It's designed to affect or 17 accomplish what it is designed or intended, as a solid 18 foundation in fact, or reason, or both, in short the test 19 that one applies to one's own decisions. 20 There have been a number of research projects that 21 have gone forward over the years, all funded by Los Angeles, 22 most of them funded by Los Angeles, some with State money as 23 well, but the majority by Los Angeles, all with the 24 District's concurrence, and as the lead on carrying out the 25 research as the statute contemplated at the time. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 70 1 The District would do the research and the City 2 would pay them. A brief review of some of those research 3 projects perhaps gives you a hint and flavor of various 4 things that have gone on over the years. 5 There has been geophysical hydrological 6 investigations. There have been the vegetation 7 investigations, which we have had some discussion of. 8 There has been research for biological values of 9 cohabitat created. There has been looking at irrigation and 10 tilling projects, the flood irrigation test measure, which 11 has been discussed. 12 There have been deep and shallow groundwater 13 studies conducted, and proposed, as you know, to be 14 continued. There are wells that have been put in, dosimeters 15 have been put in. 16 There has even been a mosquito study. There have 17 been, earlier on there has been evaluation of stream flow 18 losses. There has been mapping and characterization of the 19 wetlands. 20 I suspect the northern end of the lake 21 particularly, there has been an attempt to determine Owens 22 Lake surface processes and associated spectral 23 transformations. 24 In addition, earlier on there have been various 25 surface treatments applied to the lake, polymers, magnesium PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 71 1 chloride, all to see what would create a bonding of the soil 2 to create a hard crust to prevent the particulates. 3 This is just a small flavor of the various kinds of 4 research that the District has conducted with the City's 5 support in terms of financial support so we could find out 6 what might work. 7 This is a unique, complex body of land. It is not 8 an easy solution. 9 If one looks., for example, at some of the 10 District's soil studies, one finds striking as fairly awful 11 descriptions of how you can sink into the soil at one moment 12 and not at the other. 13 It is difficult chemistry to deal with. It is not 14 an easy challenge. 15 CHAIRMAN DUNLAP: How much money over the course of 16 the time period are you talking about? 17 MR. SCHLOTMAN: I have heard numbers anywhere 18 between $20 and $25 million over the course of time, most of 19 that in the last five, six, seven years. 20 So, in view of all of this research in the past and 21 all of this cooperation, you might ask somewhat reasonably, 22 why is the City here now? 23 The City is here, in short, because it has serious 24 and substantial concerns about these three particular control 25 measures. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 72 1 We expressed our concerns to the District in our 2 comments, which were provided in several places, for example, 3 on the measures themselves and on the draft EIR. 4 The concerns have also been set forth in some 5 detail in our opening and closing briefs, I think only a 140 6 or 150 pages worth. 7 They have also been set forth in concurrent 8 litigation regarding the failure of the District's EIR to 9 analyze the impacts on the lake and the environment of so 10 much construction activity. 11 The District chose to treat their EIR as a 12 programmed EIR rather than a project EIR, which we think was 13 erroneous. 14 I do not intend to belabor all of those substantial 15 concerns this morning. We have written on them extensively, 16 and we will be happy to answer questions on them. 17 I must say that despite those concerns, we are 18 ready and prepared to go forward with focused control 19 measures, as will be addressed a little bit later. 20 There is one issue that we do wish to discuss a 21 little more extensively in open argument, and that has to do 22 with the fee order. 23 I realize Mr. Kenny said that we should keep these 24 separately, but with your concurrence I will mix them just a 25 little bit. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 73 1 We have extensively briefed this issue also in our 2 opening briefs. Again, we are concerned here with the 3 special projects budget. 4 Again, I am not going to reiterate at length all of 5 the various arguments that were made in there by 6 Mrs. Zinman, I am stealing her thunder here, but we wish to 7 focus on two of those for your review. 8 One of those is referred to as the dust deposition 9 studies and the other, as you might guess, is the attorneys 10 fees, the litigation costs. 11 The dust deposition work was discussed in the 12 City's closing brief, page 25, it's part of the project 13 designated as dust studies. 14 There is a proposed study which will determine the 15 negative effects, if any, and we emphasize if any, of dust 16 from the Owens Lake upon areas of the State that are far 17 outside of the borders of the Great Basin's jurisdiction, and 18 more importantly, for outside the borders of the State. 19 At this time, it is not known if there is even a 20 tracer signature for dust from the Owens Lake which can be 21 identified, and it is unknown if there is even a dust related 22 problem that far off-site. 23 This study seems to be completely hypothetical in 24 nature, and we think, falls completely outside of the section 25 42316 of the Health and Safety Code. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 74 1 It has nothing to do with determining whether or 2 not the City's water gathering and production activities are 3 contributing to dust in the Owens Valley. 4 We believe that the District has acknowledged in 5 its response brief, page 28, that the study does not relate 6 to mitigation measures or to analysis to develop mitigation 7 measures, and we don't think there is substantial evidence 8 that is related to the City's water gathering activities to 9 support it. 10 While it is an interesting study, both 11 scientifically and intellectually perhaps, we do not think 12 that it should be a charge that legitimately the City should 13 be compelled to pay, so we bring that particularly to your 14 attention. 15 The other issue that I wish to discuss was the 16 demand the City pay for outside legal counsel to assist the 17 District. 18 This raises a purely legal issue. In some 19 respects, you are sitting as both judge and jury here. 20 As we have argued extensively, we believe that 21 California follows what is called the American rule regarding 22 attorneys fees shifting. 23 That rule, we believe, is codified in California in 24 Code of Civil Procedures Section 1021, which states in so 25 many words that unless a statute explicitly shifts the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 75 1 obligation to pay, each party is responsible for his or her 2 own attorney fees. 3 Generally, the law permitting shifting only shifts 4 the payment of legal fees to the prevailing party, that is 5 the party winning the lawsuit, or proceeding, or whatever. 6 That person, the party winning gets his fees paid 7 only if the statute provides for it explicitly, not by 8 interpretation of some statute. 9 In the instant case, the matter before you, the 10 Health and Safety Code section does not explicitly shift the 11 burden to the City of legal fees. 12 Legal fees are not mentioned anywhere in the 13 language of the statute, and we have copies of it if you 14 would like to see it, and I am sure staff would provide it to 15 you, it is not present. 16 There is no explicit authority that has been relied 17 on, and we do not think that Section 42316 intends attorney 18 fees to be included. 19 It is contrary to the American rule, which 20 California follows. We think there are reasons for following 21 it, that American rule here. 22 If a party must bear his own cost for the services 23 of an attorney in a lawsuit or in an administrative 24 proceeding as a plaintiff, you are less likely to bring a 25 specious proceeding, and as a defendant you are less likely PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 76 1 to put up an unwarranted defense. 2 It tends to reserve and reduce litigation to an 3 appropriate level. In the instant case, the interpretation 4 proposed, we think not only ignores the Code of Civil 5 Procedure in the American rule, but under that interpretation 6 we are in the somewhat strange and unique position of having 7 the City pay for the legal fees of the opposition whether we 8 within or lose. 9 Under that interpretation, even if we win, whatever 10 win means, we get to pay for the opposition's legal fees. 11 There is no incentive to bring reasonableness to 12 that process. We should not have to pay the legal fees. 13 We were unable to find any other statute in place 14 where that occurs. We believe that on that issue the staff 15 report should be reviewed. 16 That does now bring us to a consideration of your 17 staff's report, especially regarding the air quality 18 modeling. 19 As you know, the City also had concerns about the 20 District's efforts in this area. We had these concerns 21 early, and we provided them in some detail to the District, 22 beginning with written comments in October of 1996, November 23 of 1996, December of 1996, January, May and June of 1997. 24 We provided written comments all concerning what we 25 were concerned with, the District's air quality modeling and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 77 1 its analysis. 2 An example of those comments can be found in our 3 May comments in the administrative record, beginning at 4 volume 4, section 1797, and especially on page 1820. 5 We had this modeling looked at by independent 6 experts who concluded, as your staff has concluded, that the 7 Owens Valley air quality modeling was hard to model. 8 It was just a difficult thing to do. We believe 9 that there are real world, in-the-field observations, which 10 your staff has alluded to, that could be helpful and that 11 were collected by one of the District's scientific 12 consultants, Dr. Tezz Niemeyer. 13 Unfortunately, the District has discounted, 14 apparently, some of their own work in this matter. 15 We believe that those factual observations are much 16 better than the computer prediction that is dependant upon 17 uncertain inputs. 18 I think the data will show that the computer 19 predicted 170 days of exceedences a year in the Owens Valley 20 overall, when the actual reality is somewhere between 20 and 21 25, if you put together Keeler with about 19 and Lone Pine 22 with one or two and Olancha with four or five. 23 It just didn't come close and there should be a 24 concern about that. We think these real world observations 25 shed important light, as your staff has alluded to, on the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 78 1 problem and how to solve it. 2 Dr. Niemeyer believed that there were two major 3 areas that should be mitigated in some sort of colloquy with 4 the District. 5 In one particular discussion with the District, 6 which can be found in the record on page 003692, and I will 7 quote this just briefly just to give you a flavor of what she 8 had to say, quote: 9 "If these two areas were mitigated, 10 I feel PM 10 emissions from Owens Lake would 11 be significantly reduced. 12 "For two years I have extensively observed 13 the dust storms at Owens Lake, and I found 14 that 15 these two areas caused the majority of the 16 problem. 17 Dust storms start in these areas and blowing sands 18 impinge on downwind areas, abrading and 19 ultimately 20 breaking the crust. 21 "Over time this results in additional 22 source areas. Many of these latter source 23 areas would remain stable if just the two 24 outlying areas were mitigated and the abrasion 25 action was stopped." PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 79 1 Unquote. 2 We would tend to concur with that. This phenomenon 3 has been noted by others and it has been identified by other 4 independent scientists. 5 We would bring to your attention the 1984 West Tech 6 study, and the various comments by Dr. Cahill, of University 7 of California at Davis that are in the record. 8 All of this really brings us to the recommendations 9 and conclusions of your staff's report. Your staff reviewed 10 and analyzed the City's comments as well as the District's, 11 and those results are as you know. 12 The report reached certain conclusions that a 13 different modeling approach or data was necessary, that the 14 episodic nature of the particulate events on the lake had to 15 be appropriately considered and used, and it made 16 recommendations to you. 17 Our independent review of the staff report has lead 18 the City to concur in its findings regarding the air quality 19 model. 20 The staff report independently confirmed the 21 validity of the concerns expressed by the City in the early 22 development of the plan, including, for example, observations 23 by Dr. Chet Calherd of the Midwest Research, who has been 24 recognized, I believe, by the District as a respected expert 25 in fugitive dust that, quote: PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 80 1 "Each hour of an event should be 2 modeled separately," unquote. 3 That was made in a slightly different context, but 4 nevertheless, the hourly modeling aspect is something that 5 should be considered, because it gives a more accurate 6 picture, and this was brought to the District's attention 7 some time ago. 8 The City does indeed concur in the staff's report 9 findings regarding the modeling and its ultimate 10 recommendation on returning these measures to the District. 11 That's the end of the matter, right? 12 No, obviously, it is not. 13 There is much work to be done, and the question of 14 where do we go from here has to be addressed, and the City 15 does indeed wish to go forward and to address this matter. 16 In Mr. Freedman's absence is Mr. Gerald Gewe, the 17 Executive Assistant of the Water Services Organization of the 18 Department. 19 CHAIRMAN DUNLAP: Could I take a couple minute 20 break for our court reporter? 21 We worked her hard yesterday, and we are working 22 her even harder today. 23 So, why don't we take about a five-minute break, 24 and we will come back and let you pick up that. 25 (Thereupon a brief recess was taken.) PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 81 1 CHAIRMAN DUNLAP: Okay. If folks would take their 2 seats. 3 Our colleague from Los Angeles, are you ready, sir? 4 If I could get staff to take their places, and the 5 audience please take your seats. If I could get the audience 6 to take their seats. 7 Okay. I am going to ask you to yield for a moment 8 for a legal procedure I am told I must consider. I would 9 like to invite Mr. Lamb to take the microphone for a moment. 10 District Counsel for the Great Basin, you wanted to 11 interject something? 12 MR. LAMB: Mr. Chairman, for the record, Mr. Gewe 13 is a man that I respect, has been introduced as a speaker to 14 address the issue of what will occur from the City's point of 15 view should you accept their appeal, and the objection that I 16 am making is that the evidence that you may consider in this 17 appeal to determine whether to accept or reject the 18 District's plan must be based on the evidence in the 19 administrative record, and so I am objecting on the basis of 20 relevance to Mr. Gewe's testimony about what may or may not 21 occur from the City's point of view afterwards. 22 CHAIRMAN DUNLAP: Okay. 23 Ms. Barnes, how would you react to that? 24 MS. BARNES: Mr. Chairman, I would suggest, again, 25 this is in the Board's discretion what to allow in or not. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 82 1 In terms of the specific objection, I think it 2 would be a reasonable approach to allow in for consideration 3 of whatever weight each specific Board Member would consider 4 appropriate information from the City should the Board accept 5 or reject their appeal. 6 I would assume that at the time this matter was in 7 front of the District that the matter was not up on appeal, 8 and so therefore, that would not have necessarily been 9 brought to light during the earlier administrative 10 proceeding. 11 So, it is not necessarily going to take in extra 12 record materials. 13 MR. LAMB: Just so I can complete my record, as I 14 understand the City's presentation, they want you to make a 15 decision about this appeal based in part upon Mr. Gewe's 16 testimony about what will happen -- 17 CHAIRMAN DUNLAP: As a result. 18 MR. LAMB: And I think that that is improper. 19 The question for you is whether the District's 20 Governing Board acted properly and lawfully based on the 21 administrative record that was before it when it acted on 22 July 2, 1997. 23 So for that reason I think it is -- the sixth 24 procedural order issued by your Executive Officer said that 25 the Air Resources Board would not consider any arguments or PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 83 1 matters presented that was not contained in the 2 administrative record before the District's Governing Board. 3 CHAIRMAN DUNLAP: Okay. Ms. Barnes, this is 4 outside of the administrative record; is that correct? 5 MS. BARNES: It would appear that that would be 6 accurate. 7 CHAIRMAN DUNLAP: I am inclined, and again, I'm not 8 a lawyer, but I am inclined not to allow to hear that, not 9 allow the Board to hear that at this juncture, because it is 10 not part of the record, and I'm comforted by staying within 11 the focus of the record, so thank you for expressing your 12 concerns. 13 Our intent is not to disadvantage you from making 14 your case, but this is new ground for us, sir. 15 MR. SCHLOTMAN: I appreciate that, Mr. Chairman. 16 I would have two things to say, having not heard 17 Mr. Gewe's remarks, and as I said, we are scrambling a little 18 bit this morning, I think it is difficult to judge whether 19 they fall within or without the record. 20 One of the measures of reasonableness that can be 21 evaluated by you is how best to proceed, and it goes to the 22 nature of argument, so I believe it is appropriate for 23 Mr. Gewe to present some remarks about where we go from here 24 in context of judging the reasonableness of the present 25 control measures. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 84 1 All of my remarks may be outside of the record 2 because they are not testimony in front of the District, but 3 there certainly is argumentive discussion that I think you 4 can and should consider, and I think Mr. Gewe's remarks fall 5 into the same category. 6 Alternatively, and I think with equal force, you 7 have invited public comment and you have not restricted them 8 particularly, and you are going to treat it as argument, so I 9 believe Mr. Gewe could address this as a matter of public 10 comment, and for convenience his remarks could be heard now 11 rather than later. 12 CHAIRMAN DUNLAP: Ms. Barnes, do you have any 13 advice on that? 14 MS. BARNES: Again, I don't want to -- I want to 15 bring back the fact that it is really up to your discretion 16 what you would like to let in or not. 17 One option could be to allow the comments being 18 made as part of this administrative proceeding for today's 19 hearing, and then the Board can decide whether or not to 20 include that in the decision-making process in making your 21 final decision, whether the fees are reasonable or the 22 measures are appropriate. 23 CHAIRMAN DUNLAP: Does any such framework along 24 these lines apply at all that we could have your colleague 25 from the City testify in the public comment period? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 85 1 MS. WALSH: I believe, if I may speak, Chairman 2 Dunlap, that the procedural order that established the 3 process for this hearing, which was issued by Mr. Kenny, does 4 provide a framework for accepting comments, public comments 5 and other comments in a context of this hearing for the 6 purpose of argument as opposed to an evidentiary type 7 submission. 8 If nothing else, it may be useful to have these 9 remarks in the record as an offer of proof, even should you 10 decide that they are not appropriate for you to consider in 11 the context of your decision. 12 CHAIRMAN DUNLAP: Okay. So, then we could allow 13 for this gentleman to speak, and we could put it in the 14 proper context about what it means for deliberation on these 15 two points that are at issue; is that correct, Ms. Barnes? 16 MS. BARNES: I believe that is what I said prior to 17 Ms. Walsh's comments, and I think that would be most 18 appropriate. 19 CHAIRMAN DUNLAP: Okay. All right. 20 Do you want to say one other thing, from Owens? 21 MR. LAMB: To the extent that Mr. Gewe is going to 22 be making factual assertions about what the City will or will 23 not do after the Board rules, that can't be considered to be 24 argumentative in any sense. 25 Argument is characterization of evidence. It is PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 86 1 not making assertions as to events that will occur or not 2 occur in the future. 3 This matter is clearly evidentiary. 4 CHAIRMAN DUNLAP: Mr. Lamb, the point that I am 5 going to focus on right now is the fact that he would have 6 the opportunity to speak today with the format that we have 7 relative to the public testimony side, too, so I would just 8 assume take it and have it well managed. 9 MR. LAMB: Public comment is freely allowed. 10 A party may not circumvent the restrictions on 11 party presentation by putting comment in the public comments. 12 I am allowed two hours to argue. I couldn't argue 13 for two hours and then go put on my citizen hat and show up 14 at public comment and say I have another five minutes worth. 15 Public comment cannot be used intentionally by a 16 party to circumvent. 17 CHAIRMAN DUNLAP: I understand that. All right. 18 What I think that I am going do is allow the 19 gentleman to speak, and I am going to ask the Board to place 20 it -- I will let Ms. Barnes take just a minute and frame it 21 relative to the record, so that it can be properly, I want to 22 say discounted, but put in context so that the Board can 23 absorb what is being said. 24 I appreciate your concerns, and I am grateful that 25 you expressed them. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 87 1 MS. BARNES: Mr. Chairman, I just have one 2 additional comment, I would just like to remind the parties 3 involved here that not only are we complying with the Health 4 and Safety Code sections as well as procedural orders, but 5 we also have to comply with the Bagley-Keane Open Meeting 6 Act, and therefore, this Board is obligated to take public 7 comment by any member of the public. 8 BOARD MEMBER EDGERTON: Mr. Chairman, may I make a 9 comment? 10 CHAIRMAN DUNLAP: Yes, Ms. Edgerton. 11 BOARD MEMBER EDGERTON: Mr. Chairman, I just 12 briefly wanted to say that just this type of scenario is one 13 of the reasons why I think we would do better to have an 14 evidentiary hearing where everything can come in, and it can 15 be cross-examined -- 16 CHAIRMAN DUNLAP: I crossed that bridge. I 17 appreciate that. 18 You can have your colleague speak. 19 MR. SCHLOTMAN: Thank you, Mr. Chairman. 20 MR. GEWE: Thank you, ladies and gentlemen. I will 21 keep my comments very brief. 22 I want to make it clear that the Department of 23 Water and Power and the City of Los Angeles, what we are not 24 asking you to do in asking that the Board Order or that the 25 Order of the District be referred back. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 88 1 We are not asking you to give us a blank check to 2 get out of our responsibility. We are not asking you to 3 allow us to sit on it and delay forever. 4 We fully understand that we need to move forward 5 and that a resolution to the particulate emissions needs to 6 be obtained as quickly as feasible. 7 However, this is a very difficult situation. We 8 have spent many years trying to come up with a solution. 9 We do not have the perfect answers. We need the 10 opportunity to move forward in a phased manner, and we are 11 committed to working together with the District in a phased 12 approach focusing on those areas that emit most often. 13 As the earlier comments on the modeling showed, we 14 can get a lot more bang for the buck in focusing on the areas 15 that emit most often. 16 As we develop controls on those areas, there will 17 then be ample opportunity to improve the modeling and to 18 bring it much closer to the reality of what it will take to 19 meet the standards. 20 We believe this will give our citizens the 21 opportunity to have a cost-effective solution that would be 22 lost if we were mandated to do all 35 square miles of 23 measures based on the knowledge that exist today. 24 So, we ask you to give us the opportunity to work 25 together with the District. We committed to solving the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 89 1 problem, but it is going to take time, and it is going to 2 take going in a phased approach, doing it, seeing what the 3 results are, modifying it and doing some more, and we fully 4 intend to make that happen and to meet our obligations to see 5 that the problem is solved. 6 CHAIRMAN DUNLAP: Thank you. 7 Mr. Schlotman, who is up next? 8 MR. SCHLOTMAN: Next, for some concluding remarks, 9 I would ask this Board to hear Ruth Galanter, the Chair of 10 the Commerce, Energy and Natural Resources Committee of the 11 Los Angeles City Council. 12 CHAIRMAN DUNLAP: Hello, Ms. Galanter, good to see 13 you. 14 MS. GALANTER: Thank you. Good morning, is it 15 still morning, yes, good morning, ladies and gentlemen. 16 I'm having a hard time listening to all this, 17 because here we are once again in an adversary proceeding. 18 What I am really here to tell you is that it's a 19 new era in the City of Los Angeles. I have been talking with 20 some of the people from Owens Valley, and they are 21 understandably and appropriately frustrated that this has 22 gone on for as long as it has, and both the technical 23 testimony and the procedural testimony you have heard a great 24 deal of comment about how long it has taken to try to resolve 25 this problem, we have a new Manager at the Department of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 90 1 Water and Power. 2 We have a different kind of City Council than we 3 had 20 years ago when all this stuff started. 4 As evidence, I would point to the fact that we did 5 finally resolve the Mono Lake issue after years of 6 controversy, years of adversary proceedings, and we resolved 7 it in a forum without a forum. We just did it. 8 It is my hope that we will be able to do the same 9 thing here, but I am a little bit at a loss as to how to do 10 that in the context of an adversary proceeding. 11 So, my real purpose in being here is to assure you 12 that we are committed to finding a resolution. We are 13 looking for your assistance in creating the easiest possible 14 path to a solution. 15 I'm not a technical expert on any of this, although 16 I have an awful feeling I'm about to become one. There has 17 got to be a way to solve the problem on the ground, not 18 necessarily through the courts, not necessarily through 19 elaborate computer modeling or any other kind of modeling. 20 My concern, and I think the concern of the City, is 21 that we solve the problem on the ground and that we are able 22 to do that in a way that doesn't require us to write a blank 23 check either, and that really is what this whole dispute is 24 about. 25 So, I am available for questions, or further PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 91 1 comment as needed. 2 Thank you. 3 CHAIRMAN DUNLAP: I appreciate those comments. 4 Any questions of Ms. Galanter? 5 MR. SCHLOTMAN: Mr. Chairman, thank you. 6 That concludes our opening remarks, and then we can 7 reserve whatever time we have for rebuttal. 8 CHAIRMAN DUNLAP: Okay. Very good. 9 Mr. Kenny, next we are to hear from the District? 10 Very good. Mr. Lamb, you are up, I guess. 11 Would you serve as the Floor Manager with your team 12 here? 13 MR. LAMB: Thank you, Mr. Chairman. I will be 14 honored. 15 Like the City, we have a team of people to address 16 you today. I will briefly introduce them at the beginning, 17 and then I will introduce each speaker as they come up. 18 I am your humble District Counsel, small town 19 lawyer -- 20 CHAIRMAN DUNLAP: You have been doing okay so far, 21 Counsel, for a small town guy. 22 MR. LAMB: With respect, Mr. Chairman, the parties 23 that will be addressing you today are the Supervisor Andrea 24 Lawrence. 25 She is one of our Governing Board Members. Then PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 92 1 you will be addressed on the technical issues by our Deputy 2 Air Pollution Control Officer, Mr. Duane Ono. 3 Then our Air Pollution Control Officer, Dr. Ellen 4 Hardebeck, will address you, and then I will bring up the 5 rear with the legal argumentation and summation. 6 CHAIRMAN DUNLAP: You are welcome, by the way, the 7 offer is still good for that chair there, if you would like 8 it, Mr. Lamb. 9 MR. LAMB: Thank you, sir. I will begin with an 10 introduction of Supervisor Andrea Lawrence. 11 She is the Governing Board Member Senior-In-Service 12 on Great Basin Air Pollution Control District. 13 She has been a Member of our Governing Board since 14 the early 80's. Perhaps some of you who are sports 15 enthusiasts recognize the name of Andrea Mead Lawrence as the 16 winner of two gold medals in downhill skiing at the 1952 Oslo 17 Olympics, a feat which has never been matched or equalled or 18 excelled by any American athlete since then. 19 I mention that only because Andrea is one of the 20 few people of whom it can be said that their Olympic 21 achievements are among the lesser of their accomplishments. 22 She has had a life devoted to public service. She 23 has been a member of the Mono County Board of Supervisors 24 forever. She has been a supporter of the Mono Lake 25 Committee. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 93 1 I ask you, because of her seniority on the Board, 2 and Chairman Gansburg was not able to be here today, asked 3 her to address the Air Resources Board on behalf of the whole 4 Board. 5 CHAIRMAN DUNLAP: Thank you. 6 MS. LAWRENCE: Good morning. With that 7 introduction, he sort of moves up in the ranks of a being a 8 small town, humble, local lawyer. 9 Anyway, I need to say to all of you I am most 10 pleased to be here today, and if I tend to take you to task a 11 little bit, bear with me, because it is true, I'm a County 12 Supervisor for 16 years and have had, indeed, the privilege 13 of being on the Great Basin Air Pollution Control District 14 Board since your Code Section 42316 went into effect, so I 15 have been around a long time. 16 I have, in fact, watched, and I have observed as 17 well as watched the Air Pollution Control District work very 18 cooperatively in doing the studies for the Los Angeles 19 Department of Water and Power for all the years that I have 20 been there. 21 Our Board over the last ten years has adopted three 22 previous SIPs, all which were committed to, quote, further 23 study. 24 We really now must get moving. We have done the 25 studies. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 94 1 We have done the best that we can, 13 years, 15 2 years of them, and we now have to put it to work. 3 It may not be the state of the art, but then as we 4 are hearing in science, it's really the state of the art, but 5 it is going to be hard for me to turn away from 15 years of 6 studies and analysis and doing the best we can, working with 7 very cooperatively with the City of Los Angeles all of these 8 years, knowing full well the programs having their input as 9 we put those studies into place, having them agree to the 10 budgets that put those studies into place, having the results 11 of those studies as we worked our way through this 12 progression over the years, we are prepared and ready to 13 start the process and keep it and get it going. 14 One of the things of enormous concern to me, and I 15 am very disturbed about, is that the fact that the Board has 16 changed the rules in its staff report to all of you from 17 modeling for the Owens Valley Plan. 18 The rules were changed after we, the Board, the 19 District Board, made our decision to adopt this Order. 20 The action shows no respect, or little respect for 21 either the local decision-making process for the 13 years, or 22 15 years that not only I as a Board, but all our Board 23 Members and all of our staff have been working on this with 24 very good faith. 25 It really would make our decision-making and the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 95 1 process that we have gone through irrelevant, and of course, 2 standing up here it is hard to accept the fact that your time 3 and what you have been doing should be dismissed or being put 4 down as irrelevant. 5 I am also very disturbed that the perception that 6 the Owens Lake should be treated differently than any other 7 sections in the State of California. 8 The modeling was good enough for the Mono Lake 9 issue, but you are suggesting that it's not good enough for 10 the Owens Lake issue. 11 In the ARB, your good people here, joined with the 12 District to help solve the Mono Lake dust problem. 13 We, in Mono, I need to tell you, are very, very 14 grateful for that. It is a wonderful, wonderful decision. 15 But then I must ask, why have you not offered this 16 assistance when the pollution in Owens Lake is so much more 17 severe? 18 And then, on a very personal level, I need to make 19 another observation to all of you, it is a personal one, for 20 all of us who are in public office, in my case, as you know, 21 it is now 16 years that I have been doing this, I take very 22 seriously, as I think we all do, that we must hold ourselves 23 and those we work with to a very high standard. 24 I have said it many a time, the people and the 25 staff of the Great Basin Air Pollution Control District have PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 96 1 held themselves to, I think, the highest standard of any 2 group that I have had the privilege of working with in my 3 years in public office. 4 They stand for the greatest integrity and the 5 highest ethics, and I may sound hyperbolic, but I need to 6 tell you, I speak of that with great conviction. 7 They have worked the hardest. They have worked 8 openly. They have worked with both integrity and in an 9 ethical relationship with the Board and with the Los Angeles 10 Department of Water and Power. 11 They have brought the best of their minds to it and 12 the best of their science. In this group, if you will 13 indulge a little bit of humor here, they have been absolutely 14 apolitical. 15 They have just done one outstanding job. I am here 16 to stand for that. 17 So, I am asking you to respect the years of studies 18 and work that has gone into this and respect what our staff 19 has done and know that we have stood willing to work with the 20 DWP in finding solutions, and we will continue to do that, 21 but begin, we must. 22 So, I am asking you to please respect the Board's 23 decision, the Governing Board's decision. It's made after 18 24 years of study, and please do confirm the control measure 25 order. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 97 1 Thank you, very much. 2 CHAIRMAN DUNLAP: Any questions of our witness? 3 All right. Very good. Thank you. 4 Mr. Lamb, who is next? 5 MR. Lamb: Mr. Chairman, at this time I will ask 6 Mr. Duane Ono, he's our Deputy Air Pollution Control Officer, 7 to make a technical presentation. 8 I will just say a few words of introduction. 9 Mr. Ono came to us from the dreaded EPA Region 9 where for 10 five years he worked as the regional PM 10 expert. 11 He started working for the District on an IPA, and 12 we borrowed him and eventually he found that he couldn't go 13 back. We had kept him. 14 His background is that he has a Bachelor's Degree 15 in Physics and in Environmental Engineering, and a Master's 16 Degree in Mechanical Engineering. 17 He has been the principal author of four State 18 Implementation Plans since working at the District. He has 19 the single honor of being the principal author of the only PM 20 10 State Implementation Plan that has ever been approved by 21 the EPA Region 9, and that is the State Implementation Plan 22 for the Mammoth Lakes Woodsmoke Episodic Emissions. 23 So, to address you on the technical issues, I 24 introduce Mr. Duane Ono. 25 CHAIRMAN DUNLAP: Mr. Ono, how many staff do you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 98 1 have at your District? 2 MR. ONO: I think the staff is about 25 people 3 right now. 4 It used to be that we had over 30 people, but due 5 to the layoffs that we had when the assessment was appealed, 6 we have been reduced down. 7 CHAIRMAN DUNLAP: Thank you. 8 MR. ONO: There are probably about 10 people that 9 worked almost exclusively on Owens Lake issues, so we had 10 quite a few people working on this, so it is not just myself. 11 We have a lot of people behind me, and I am proud 12 that I am able to represent them to discuss these technical 13 issues. 14 Well, thanks a lot, Brian, for the nice 15 introduction. What I want to cover today is just a couple of 16 things. 17 There are so many points that were in the City's 18 briefs and in the ARB's brief that the District does not 19 agree with, but I don't have that much time to deal with all 20 of them. 21 The things that I want to focus on here today is -- 22 first, I want to give you an overview of the Owens Lake dust 23 problem and a little bit about the control measures that we 24 are going to implement, and then after that I want to talk 25 about some of the technical issues with the modeling. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 99 1 As far as we know, the ARB staff report has 2 recommended the rejection of the control measures based 3 solely on problems with the hourly model performance. 4 In my presentation, I will show that ARB's hourly 5 ozone model performance requirement for the Owens Valley PM 6 10 SIP is not appropriate. 7 The second part that I am going to show is that the 8 air quality modeling approved by the District meets all of 9 the EPA and ARB regulatory requirements. 10 Just briefly, on the Owens Lake, just a quick 11 overview, this is a picture of the Owens Lake. It used to be 12 110 square mile, one of the largest lakes in California. 13 Lake Tahoe, is actually larger. 14 Next slide. This is the LA Aqueduct. It was 15 finished in 1913. 16 CHAIRMAN DUNLAP: Could I get you to kill the 17 lights up here, and sir, you have a light there that you are 18 welcome to use so that you won't be in the dark. 19 MR. ONO: Good idea. 20 In 1913, Los Angeles completed the LA Aqueduct, 21 which essentially diverted the entire flow of the Owens 22 River. 23 The Owens River was the primary source of the water 24 for the Owens Lake. Because of the diversion of the Owens 25 River from the lake, the lake became dry. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 100 1 There is still about 30 square miles of brine, 2 lifeless brine in the middle of the lake, but for the most 3 part the lake bed is a dry playa, and what we have coming 4 from it now is some of the largest dust storms seen in the 5 country and the highest PM 10 concentrations ever seen in the 6 country. 7 Next slide. This is a picture of the community of 8 Keeler, which is located on the shore of Owens Lake, and you 9 can see the dust storm hitting the town. 10 Concentrations of PM 10 measured at Keeler are 11 sometimes more than 25 times the Federal PM 10 standard. 12 For comparison, the concentrations in Los Angeles 13 or San Bernardino may go up to twice the standard on extreme, 14 so this is an extreme level of air pollution seen in this 15 country. 16 Next slide. Not only does it impact the area local 17 to Owens Lake, the plume extends as far south as the desert 18 near Ridgecrest and even goes further than that, the Navy is 19 going to show you a little bit more about that. 20 This is a picture of the dust plume hitting 21 Ridgecrest. This is taken during the 70's. It is a really 22 graphic picture. 23 We have a lot of people here today from the 24 Ridgecrest area who will tell you about their health 25 concerns. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 101 1 This problem goes far beyond just the local Owens 2 Lake area. What I want to show you now, just to give you a 3 flavor of what the people who live next to Owens Lake and are 4 exposed by the dust from Owens Lake, what they have to go 5 through. 6 I am going to show you a video of a dust storm as 7 it's impacting Keeler. This happened to be one of the 8 largest dust storms that we have ever measured at Owens Lake. 9 The concentration on that day was 300,000 10 micrograms per cubic meter. As I said before, that is over 11 25 times the Federal PM 10 standard. 12 (Thereupon a video tape was shown.) 13 MR. ONON: This will give you an idea why there are 14 so many people here today in support of our plan. 15 What I would like to talk about now is just briefly 16 the control measures that we have proposed, or we have 17 ordered the City of Los Angeles to implement on Owens Lake. 18 As Mr. Schlotman stated in his testimony, over $20 19 million has been spent on research on the Owens Lake trying 20 to determine the cause of the problem and ways to control it. 21 This really, the effort that we put forth in the 22 SIP and these control measures actually represents a 23 culmination of all of that work of over 18 years, and we put 24 it all together in this plan that we are presenting to you 25 for your approval. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 102 1 This is a picture of the shallow flooding measure 2 that we are proposing. This is a picture of the shallow 3 flooding from the air. 4 It covered more than a 600 acre test area. What 5 shallow flooding requires is that we have 75 percent water 6 cover on the areas that we are controlling. 7 For those of you that may have seen the lake on the 8 tour recently, this is no longer out there. This was a 9 temporary test. Water was turned off. 10 One of the things about shallow flooding is that 11 the control measures are easily adjustable to have more 12 control or less control by simply turning the valve on the 13 water. Just turning it down or turning it up can decrease or 14 increase emissions. 15 Next slide. Managed vegetation is another control 16 measure that we have in the plan for the Lake. 17 This covers about a third of the 35 square mile 18 control area, and backing it up with the shallow flooding it 19 also covers about a third. 20 The vegetation, the cover only has to be about 50 21 percent to achieve the level of control that we need to 22 maintain the standard for those areas. 23 Next slide. Gravel would be the third control 24 measure that would be implemented on the lake bed, and it 25 would be the final control measure after managed vegetation PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 103 1 and shallow flooding measures are implemented, because we 2 can't allow sand to infiltrate the rock, or otherwise salts 3 will migrate through the rock and, again, cause a dust 4 problem. 5 Next slide. With the issue of air quality 6 modeling, it seems to be the bone of contention with the ARB 7 staff report, saying that the District's model is not good 8 enough because it doesn't meet the hourly performance 9 requirements that they have set forth. 10 Some of the things that you need to know for doing 11 the modeling is you need to know where the source areas are, 12 and how much PM 10 is coming off of each of those source 13 areas. 14 One of the things that we did was we went out and 15 we actually looked at all of these areas where we have 16 erosion taking place. 17 Actually, there is a combination of some particles 18 being deposited in this area, and other areas, like out here 19 in the darker areas where the surface is actually eroded, and 20 what we did is we went out with a Global Positioning System, 21 or a GPS, and mapped all of the areas. 22 These Global Positioning data was taken back and 23 put into a GIS model. So, the 35 square miles that we are 24 using for the control area are actually at areas that have 25 physically eroded, and we have actually mapped these with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 104 1 on-site observations on the lake bed. 2 Next slide. Another method of doing the lake bed 3 observations where the source areas are is to do visual 4 observations of the visual dust plumes. 5 This is very difficult to do because one of the 6 things is that dust plumes can be very faint. There are some 7 dust plumes coming off of this area that are very hard to 8 see. 9 There are other dust plumes that are very much 10 higher intensity, and they are easier to see. One of the 11 problems with visible observations is you tend to map those 12 areas that are highly visible. 13 When the District did the area-wide emissions 14 inventory and mapped the areas, what we would find is all of 15 these brown areas where they would be mapped, and all of 16 those areas were included in a large area, and what we 17 believe is that anywhere within that large area we may have 18 emissions coming off of the lake bed. 19 What ARB presumes we can do is to just map these 20 discreet source areas like this, and like this, and just 21 figure out how much emissions are coming off each of those 22 areas and throw those into a model. 23 I'll tell you right now that we do not have that 24 kind of information, and we never have had that kind of 25 information. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 105 1 That information may actually be impossible to get, 2 we don't know how to do it, and we have been studying this 3 problem for a very long time. 4 Next slide. This is not the first time that we 5 used our methodologies to determine how to estimate the 6 emissions. 7 The wind tunnel that the Air Resources Board 8 discussed previously is a method that we used before for Mono 9 Lake. 10 You know, one time we were receiving very good 11 reviews from the ARB staff on the modeling approach that we 12 took and on the emissions inventory approach. 13 This is a quote from a memo dated August 24, 1993. 14 It's in regard to the emissions inventory work that we did 15 for Mono Lake. 16 It says: "The Great Basin Unified Air 17 Pollution Control District's approach to developing 18 PM 10 control strategies based on episodic emission 19 inventories is breaking new ground in the area on 20 PM 10 emission development and should be 21 encouraged." 22 So, this doesn't sound so bad, right? 23 Next slide. Again, we had ARB review the emissions 24 inventory methodologies that we used. This is dated 25 October 23, 1996. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 106 1 This is from Dale Shimp, Manager of the Emissions 2 Inventory Analysis Section. 3 This memo, less than eight months prior to the 4 adoption of the plan on July 2, 1997, and in this memo, 5 Mr. Shimp states: 6 "Overall, the estimates and assumptions used 7 by the District to compute the lake bed emissions 8 estimates are much more refined and scientifically 9 validated than the wind-blown dust emission 10 estimates 11 used throughout the remainder of the State." 12 Again, this doesn't sound so bad to us. You know, 13 you would think a reasonable person may think that everything 14 is okay with the Air Resource Board. 15 Next slide. One of the things that -- next one 16 after that -- recently, last Friday, we received, through 17 a Public Records Act request, a memo that was dated 18 May 6, 1997. 19 In this memo we have several quotes: 20 "Modeling presented in the SIP is unchanged 21 from the previous modeling studies presented to 22 ARB by the Great Basin Unified Air Pollution 23 Control District. 24 "The modeling analysis is acceptable and 25 meets ARB requirements." PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 107 1 These are quotes from a memo that was written by 2 Mr. Tony Servin and Mr. Andrew Ranzieri. 3 Andrew Ranzieri is the Chief of the Modeling 4 Support Section. The date on this is May 6, 1997. This is 5 less than two months before the District adopted the plan. 6 Secondly, they also say in this memo: 7 "The approach used by the District meets EPA 8 guideline requirements." 9 Again, this sounds pretty good. 10 Third, "The design days show a range of 11 plus or minus 30 percent of modeled estimates 12 to measure concentrations. 13 "Historically, for applying grid based models, this 14 is an acceptable range of uncertainty for a well designed 15 field study." 16 So, prior to July 2, 1997, when the District 17 approved the SIP and the Board ordered to implement the 18 controls, the District was receiving high praise and approval 19 on the episodic emissions estimation method and the modeling. 20 Now, we see in the ARB staff report for this appeal 21 hearing a very different opinion. The ARB staff report now 22 recommends that the Board reject the implementation order due 23 to problems with the hourly model performance. 24 Next slide. This is a slide that shows the areas 25 that, or actually, this is a slide that was shown by ARB, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 108 1 but kind of in a different format, it shows the areas on 2 February 13, 1995. 3 There are small areas that were mapped using visual 4 observations, and they said that they did the modeling on 5 this day and that the hourly model performance actually was 6 improved by using discrete source areas as opposed to the 7 District's area-wide averaging method. 8 Do you want to go to the next slide? 9 This shows a comparison of the PM 10 data, this is 10 the red line here, that was collected in Keeler. It shows 11 the District's modeling, which is the blue line. 12 This is using an area-wide averaging approach, and 13 then it shows the ARB modeling using these discrete source 14 areas that were taken by using visual observations. 15 What we have on the horizontal axis is the hour, 16 the time of day from one o'clock in the morning until 17 midnight, and also, PM 10 concentration on the vertical axis, 18 but what is shows is that we have a day that starts out kind 19 of low and then starts to spike up at about five o'clock in 20 the early evening. 21 What we see when we look at the blue line, which is 22 the District's model, is that it follows the same trend, 23 although it doesn't predict the peak completely, it doesn't 24 go all the way up, but then you look at the ARB's modeling, 25 and the ARB used the discrete source areas of Tezz Niemeyer, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 109 1 and what you see is that they are way below even the 2 District's model. 3 In fact, what we find is that they way 4 underpredict. 5 The concentration that the ARB gets, the overall 6 for 24 hours is 884 compared to the concentration for that 7 day, which was 3,883. 8 The concentration that the District estimated for 9 the same day was 2,075. What we find also with the ARB model 10 is that they predict spikes where there are no spikes. 11 The District's model does not do that, and they 12 also show nothing happening in a period when concentrations 13 are starting to go up. 14 Overall, this does not look like it is better model 15 performance than what the District did. In fact, if you just 16 look at the simple statistics on this, and you find that they 17 underpredict the 24-hour by 77 percent. 18 The District's model underpredicts it by about 47 19 percent. The correlation coefficient which shows how well 20 the general trends are matched shows that the District's 21 model has correlation coefficient of .93 and the ARB model 22 has a correlation coefficient of .63. 23 With correlation coefficients you have a value of 24 one, and that's a perfect correlation, so .93 is very good. 25 Next slide. One of the things that the previous PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 110 1 slide showed is that what the ARB staff is proposing we do 2 may not actually improve the model. 3 We can collect this data, and we may not end up 4 with a model that performs any better than the model that we 5 have now. 6 I am quickly going to give you five reasons why the 7 hourly model performance criteria is not important. 8 First is that the ARB cites hourly performance 9 criteria for ozone modeling. In fact, a quote from the 10 guidance document that they state that they get their 11 performance criteria from, in fact, the guidance document 12 title is, Technical Guidance Document Photochemical Modeling. 13 At present, this document provides guidance on 14 photochemical ozone modeling only, and, in fact, it goes on 15 to say that this does not apply to PM 10 modeling, the 16 guidance for PM 10 modeling will be created at a later date, 17 there was no future guidance on PM 10 modeling. 18 Next. The second reason is that U.S. EPA does not 19 require hourly PM 10 model performance. 20 Next. The ARB has never required PM 10 SIPs to 21 meet an hourly model performance criteria. 22 We have checked with other areas, and, in fact, ARB 23 has also admitted in their response to our Public Records Act 24 request that they have no SIPs that have an hourly model 25 performance criteria. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 111 1 Next. In addition, ARB reviewed the Owens Valley 2 SIP modeling protocol and never did indicate the need to meet 3 an hourly model performance criteria. 4 In fact, one of the things that they asked us to do 5 was to remove the performance criteria statistics that we put 6 in there, that it specifically said what performance level we 7 would be, say, for instance, if we were going to have a 30 8 percent error that would be acceptable, they said that we 9 should remove that because most modeling efforts end up not 10 meeting the goals of the performance criteria, and so you end 11 up picking the best modeling approach that you can. 12 Next. In fact, the model performance was put into 13 a protocol, or the methodology that we used to do the 14 modeling was run by the Air Resources Board before we ever 15 did the modeling. It was run by the Air Resources Board, the 16 Department of Water and Power and the U.S. EPA. 17 In fact, one of the ARB's guidance documents, the 18 Statewide Modeling Guidelines, it states, the ARB is 19 committed to the protocol process described in this document. 20 Protocol process allows procedural approval prior 21 to the conduct of work and lessens the opportunity for 22 conflict at a later date. 23 So, it appears to us that the ARB has reneged on 24 this commitment to the protocol process by stating now that 25 we have to do something other than what we had described in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 112 1 the protocol that they approved prior to the adoption of the 2 SIP. 3 Next slide. The fifth reason is because at Owens 4 Lake we have such extreme concentrations of PM 10 that the 5 criteria, the performance criteria that is used for ozone 6 doesn't even apply mathematically or statistically to 7 concentrations at Owens Lake. 8 At Owens Lake concentrations can range from 30 9 micrograms per cubic meter to over 30,000 micrograms per 10 cubic meter, over a thousand times higher. 11 Ozone levels typically can range about four times 12 higher than the background concentrations, so it is much 13 easier to meet performance criteria for ozone. 14 Next slide. Finally, the Owens Lake and Mono Lake 15 modeling were very similar. 16 We believe that the ARB has set a precedent by 17 previously approving the modeling that was done for Mono 18 Lake, which is exactly the same methodology that was used for 19 Owens Lake. 20 Next. Both used ISE dispersion models. 21 Next. Both used area-wide average emissions. 22 Both used on-site wind tunnel date for emission 23 factors. Both had comparable performance, actually, with 24 Owens Lake being better for the Keeler high days. 25 Both assumed reductions of PM 10 from depositories, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 113 1 such as sand dunes through lake bed controls. 2 Both used physical surface erosion to determine 3 source areas. Both had dust plume observations that were 4 deemed inadequate for modeling. 5 At Owens Lake we have the Niemeyer Observations. 6 At Mono Lake the Department of Water and Power for 11 years 7 took pictures at two o'clock every day of dust coming off the 8 lake bed, and we felt that that was not adequate for modeling 9 purposes and that wasn't used. 10 The only difference between the Owens Lake and Mono 11 Lake modeling is that the Mono Lake model was approved by the 12 ARB. 13 Next. So, to summarize, the ARB staff report 14 recommended rejection of the control measures based on 15 problems with the hourly model performance. 16 The District has shown that the ARB's hourly ozone 17 performance requirement for the Owens Valley PM 10 SIP is not 18 appropriate. 19 We have also shown that the air quality model 20 approved by the District meets all U.S. EPA and ARB 21 regulatory requirements. 22 Doing this, we showed that the same modeling method 23 was approved by ARB for the Mono Lake SIP. We showed that 24 the District followed all ARB suggestions for modeling, and 25 we also showed by the Buttner memo that the ARB staff found PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 114 1 that the Owens Valley SIP modeling method met all U.S. EPA 2 and ARB requirements. 3 For these reasons, we ask that you find that the 4 District's modeling method is appropriate and should be 5 approved by the Air Resources Board. 6 Thank you. I will be happy to answer any questions 7 that you may have. 8 CHAIRMAN DUNLAP: If I could have you stay close 9 for a minute. 10 Mr. Lamb, did you have another presentation that 11 you wanted to introduce, or are you yielding your time? 12 MR. Lamb: If there are questions for Mr. Ono. 13 CHAIRMAN DUNLAP: I think there is going to be. 14 I have a few that I want to ask staff. 15 Mr. Ono, could you put up your last slide. You 16 just did a verbal run through -- or have our staff put up the 17 slide. 18 Okay. Mr. Kenny, for you and your team, it is 19 impossible for the Board not to have you address these 20 points. 21 One of the things that the District did a very good 22 job of, I think very forthright, they brought forward some 23 guidance documents, they brought forward some letters and 24 that kind of thing. 25 I also want to acknowledge that I know how much PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 115 1 time and effort you and the staff put into this personally, 2 not that I heard a lot about it other than you would tell me 3 that you were going for a meeting or hearing there, but I 4 would like you to address, and have your team address these 5 point by point, so we understand, I think these are the key 6 issues for the Board to consider as we look at considering 7 this appeal. 8 MR. KENNY: I absolutely agree, and I think the key 9 thing that we want to provide you here is the context. 10 Okay. Because the context for each of these issues 11 really is important for a full understanding of what the 12 staff actually has provided to the District and the nature of 13 the discussions that have essentially occurred with the 14 District, because they been extensive, and I will leave it 15 there for the moment. 16 What I would like to do is I will turn it over to 17 Technical staff to go through these on a point by point basis 18 and we will provide you that context. 19 CHAIRMAN DUNLAP: Okay. 20 MR. McERNEY: I'm Don McErney, again, the Chief of 21 the Modeling and Meteorology Branch at the Board. 22 As you can probably understand, modeling is a 23 somewhat arcane field. 24 The staff reviews all SIP modeling at the Board, 25 and speaking of the modeling requirements, we don't have PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 116 1 specific modeling requirements for PM 10 modeling at the 2 Board. 3 For all modeling, ozone, PM 10, other modeling, we 4 review modeling, and we look for two things. We want to 5 assure that it is proper model operation, that the model is 6 producing the right answers for the right reasons. 7 We want to assure this for one reason. We don't 8 want a model that is not producing the right answers for the 9 right reasons to be presented to a Board of Supervisors 10 without some kind of caveat, so that they can understand how 11 much confidence should be placed in this model. 12 We actually had a meeting with the District in 13 October of last year, where we discussed this specific point 14 on this modeling, and our points were clear here, that our 15 concern with this model was, not just with hourly model 16 performance, that is something that we investigate, to 17 understand how the model is operating, and there are other 18 concerns with this model besides hourly model performance, 19 but basically, we told the District that we didn't feel that 20 this model was operating properly and that its results could 21 be trusted with confidence. 22 In the District's SIP, not just the hourly 23 performance, but the District modeled 352 days in their SIP, 24 and in these days they had to estimate emissions for each of 25 these days, and they did these based on one of several PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 117 1 different possible area-wide emission calculations, and they 2 selected one of the calculations that produced the highest 3 numbers from a very wide range of possible emission factors. 4 They selected this range as they say so that they 5 could look at the highest types of days above the standard, 6 but they applied this emission rate to all the days, and as a 7 result, the model's predictions are all over the place. 8 For the lower days, you get very high predictions 9 in some cases, and for the higher days, you get very low 10 predictions, and this leads us to believe that the model is 11 not functioning correctly. It's not going to give a good 12 estimation of how much emissions have to be reduced to reach 13 the standard. 14 CHAIRMAN DUNLAP: I appreciate hearing that, but 15 here is a concern, one of the things that we find ourselves 16 in as a Board, Don, and Michael, and staff, I think, it is 17 common to understand this, when we put forward and depended 18 upon models and modeling data, and that is the basis for 19 what, you know, you all make decisions, local districts, 20 Feds, and policy bodies like this, models have to be relied 21 upon or not. 22 I mean, you can't decide one day the model works 23 great and the next day it doesn't. I need to have some 24 definitive, I mean, I appreciate the answer, and you are 25 trying to address that -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 118 1 You are saying, the model works most of the time 2 and it depends, and in this case, it didn't, but, I mean, 3 I've got to know a little bit more about what the problem is 4 here, and, you know, because we're not in a good place. 5 MR. KENNY: If I could maybe help him a little bit 6 here. 7 I think there were three things, and Mr. Ono put up 8 what, at least, appears to be very damaging to ARB staff. 9 One was the Goodenow quote, one was the Dale Shimp 10 quote and then the last one was the memo that essentially 11 went to Mr. Paul Buttner from Mr. Ranzieri and Mr. Servin. 12 I think that what I would to do is basically 13 address those three things, and then we can go into the rest 14 of the arguments that have been raised by Mr. Ono. 15 MR. Lamb: I object to your staff making 16 argumentative statements. 17 I misunderstood your question. At first I thought 18 you wanted time to ask Mr. Ono questions. 19 In any event, your Executive Officer, who is a very 20 bright man, is not the Technical staff. 21 CHAIRMAN DUNLAP: Let me assure you, I'm going to 22 weave in your colleague in just a minute. 23 I just want staff to explain the assertions that 24 were made, and I would hope you would want me to do that on 25 behalf of this Board, because if we have a broader problem PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 119 1 with our staff, let me assure you, Mr. Lamb, we are going to 2 deal with it beyond just this issue. 3 So, that is why I'm trying to find this out. I 4 appreciate your concern. 5 Mr. Ono, we are going to come back to you, so just 6 hang on. 7 Go ahead, Mr. Kenny. 8 MR. KENNY: I think when you look the first slide, 9 which was the Goodenow slide, maybe that could be put back up 10 for just a moment, and we could talk about that very briefly, 11 and we will go through the rest of them. 12 When you look at this slide, it appears to be 13 complimentary to the District, and I think that any 14 reasonable person would read it that way, but one of the key 15 things that we were having problems here today with is the 16 nature of the modeling that occurred. 17 Whether one uses it as inputs, average emissions, 18 or whether one uses episodic emissions, the District model 19 relies upon average emissions, which you have heard from the 20 Technical staff today is that we think episodic emissions 21 should have been utilized. 22 As you look at this particular quote, it also 23 compliments the District for developing episodic information, 24 that is fine, however, that information was not utilized by 25 the District in its modeling. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 120 1 Could we now go to the next slide? 2 CHAIRMAN DUNLAP: Okay. Now, Mike, I don't want to 3 get too far into a point counter point, but I would like to 4 ask the Great Basin staff to comment on that; do you see it 5 that way, sir? 6 MR. ONO: Not at all. 7 This was a very short memo, and it was written to 8 be praise, as I took it. One of the things about episodic 9 emissions inventory, they want us to go into a lot of detail 10 on this, is that they have accepted plans using linear roll 11 back, which is, you know, just an averaging method of 12 anything that hits the monitor. 13 We just proportionally reduce it and, you know, it 14 doesn't even matter where it comes from, so they are asking 15 for a level of specificity as to location and emission rate 16 for each of the distinct source areas that they have never 17 required before for any area source, or even point sources, 18 for that matter. 19 CHAIRMAN DUNLAP: So, you are saying it is going 20 beyond the norm. 21 You are asking for a level of perfection that's 22 beyond what is the norm? 23 MR. ONO: That's correct. 24 CHAIRMAN DUNLAP: What about the assertion that 25 Mr. Kenny just made about the fact that some, some specific PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 121 1 data wasn't used, and I heard your comment about specificity, 2 but was there another way that you could have done this 3 within that episodic definition? 4 MR. ONO: The data that they suggested that we use 5 is the Tezz Niemeyer data. 6 CHAIRMAN DUNLAP: Do you have that? 7 MR. ONO: Yes, we did have that. She worked for 8 us. 9 That data was not good enough for modeling. She 10 was not out there at all times. 11 CHAIRMAN DUNLAP: So, you weren't comfortable with 12 including it because it didn't meet your check, QAQC work. 13 MR. ONO: This was not the intent of her project to 14 accurately map where the source areas were. 15 CHAIRMAN DUNLAP: Let me take this a step further, 16 I don't want to get too far into conjecture here, but could 17 it be that the disagreement was that, what we are seeing here 18 our staff knew you had the data even though you weren't 19 comfortable with using it, that's what they thought was being 20 used, or wanted you to use, is that possible? 21 MR. ONO: No, that's not pertinent. 22 They knew that we were using area-wide averaging. 23 They knew that we were not using Tezz Niemeyer's data. 24 The District was really concerned that they were 25 pushing the use of Ms. Niemeyer's data when they had never PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 122 1 been out to the lake bed to see a dust storm as far as we 2 know. 3 We have seen hundreds, if not thousands of dust 4 storms, and we know that we can't predict it as well as they 5 believe that we can. 6 We know where these discrete source areas will be, 7 and so we could not, in our good conscious, do in any kind of 8 modeling that would be that kind of information that we knew 9 was not right. 10 CHAIRMAN DUNLAP: Okay. Now, just a commentary, 11 you know, when people do modeling, and I'm not suggesting it 12 applies here, and they use variables from different studies, 13 you know, sometimes people are selective about what they use 14 because it makes a point, and one of the things this Board 15 becomes pretty adept at determining is that when people, 16 particularly you have the Regulatory staff will do some 17 modeling work, and then you will have industry do some 18 modeling work, and they will come in and they will argue over 19 the models, and it is my hope that, you know, on these kinds 20 of disagreements, as I work to try to understand this issue, 21 that, you know, it is not a -- I would hate that this 22 disagreement right now would be about that you had some data 23 that you chose not to use because it didn't reflect the place 24 you wanted to be, and staff knew that and felt that you 25 weren't, I don't want to say being fair, but using what you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 123 1 had available. 2 So, I don't know if I am ever going to determine 3 that from how this conversation is going, but I am just going 4 to leave that comment linger there for a minute, okay? 5 MR. ONO: Can I add something, as Mr. McErney 6 stated, in October of 1997, this was four months after we 7 adopted the plan, they brought this issue to the District. 8 It was not brought up prior to the adoption of the 9 plan. In addition, this is not the first time that we did 10 the modeling for Owens Lake. 11 The final Owens Lake model was actually the third 12 modeling effort for Owens Lake, and the fourth using this 13 kind of methodology. 14 CHAIRMAN DUNLAP: Okay. Mr. Calhoun and then Mike 15 we will come back to you. 16 BOARD MEMBER CALHOUN: Did you use episodic 17 emissions or the area-wide method for Mono Lake? 18 MR. ONO: Mono Lake, we used the area-wide 19 averaging emission method, the same method we used at Owens 20 Lake. 21 DR. MURCHISON: Could I just clarify one point, and 22 I want to be sure that everybody understands that this 23 particular memo is concerning Mono Lake and not Owens Lake, 24 number one. 25 Number two, if you will note the date on there, it PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 124 1 was written in 1993. 2 In 1993, we were asked to review the Mono Lake plan 3 and evaluate whether or not the District had done an adequate 4 job of doing the emission inventory. 5 By the word, episodic, what they mean here is that 6 they took the average emission rates and took the actual 7 hourly wind conditions to generate a somewhat episodic 8 inventory. 9 I think the important point here is that after that 10 point the District went on to do a lot of additional studies 11 that demonstrated the true episodic nature of these storms, 12 you know, they measured emission rates that were in order of 13 magnitude greater than they have from their average factors 14 they have gotten from their wind tunnels. 15 CHAIRMAN DUNLAP: Okay. This particular memo was 16 about another situation in your Basin? 17 MR. ONO: Right. 18 CHAIRMAN DUNLAP: It wasn't readily apparent. 19 MR. ONO: There was a follow-up memo that was 20 pertinent to Owens Lake. 21 CHAIRMAN DUNLAP: Okay. Ms. Riordan. 22 BOARD MEMBER RIORDAN: Let me ask you, you 23 mentioned just a few moments ago about Tezz Niemeyer's study, 24 and what had you hired this individual to do? 25 What was the purpose of putting her work to use? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 125 1 MR. ONO: Ms. Niemeyer's objective in her study, 2 the first objective, was to determine how much PM 10 was 3 coming off the lake bed during the storm. 4 She used a methodology known as the Sun Photometry, 5 which what you would do is measure the amount of radiation 6 and sunlight in the clear air and then also measure the 7 amount of radiation of the sun as it passes through a dust 8 plume, and by doing this she could figure out how much PM 10 9 was in the air. 10 That was her primary mission out there. 11 Secondarily, while we had her out there looking for dust 12 plumes to measure, we also had her do some mapping so that we 13 would get an idea of just in general where the areas were 14 that were producing the most dust, and she did do a lot of 15 observations. 16 The maps are not accurate though, and even the Air 17 Resources Board admits to the difficulties in doing visual 18 observations, especially from her vantage point that's 10 to 19 15 miles from the lake bed. 20 So, this was really a secondary part of her job, 21 and a lot of times what she would do is do the mapping early 22 in the morning, then run down to the lake, and so she never 23 did see the completion of the storm and what culminated after 24 the storms got started. 25 So, a lot of times she would map just the small PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 126 1 areas that were the start of the storm but not the full 2 storm. 3 CHAIRMAN DUNLAP: That is where the fundamental 4 flaws were, in your view? 5 It wasn't a rounded out view of the whole 6 situation, right? 7 MR. ONO: That's correct. 8 BOARD MEMBER RIORDAN: If I could just follow along 9 on that, what element of accuracy were you looking for when 10 you say her sightings were not accurate? 11 A mile? 12 Half a mile? 13 Quarter of a mile? 14 MR. ONO: The one case where we did try to do a 15 ground truth of her observations, we found out that she was 16 off by a mile. 17 The contrast, the methodology that we used, Global 18 Positioning System, is good to 10 feet. 19 BOARD MEMBER RIORDAN: I don't know if there is any 20 comment by staff. 21 DR. MURCHISON: I would like to make one comment. 22 My understanding is what the District measured is 23 that they went out on the lake bed, and they looked for 24 evidence of historic erosion. 25 They mapped those using this GPS system, which is PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 127 1 quite accurate, but the point is is that location that they 2 mapped was not connected or directly linked to a specific 3 storm event nor to an exceedence. 4 So, although it is accurately mapped, it may not 5 represent what we are looking for, and that's actual storm 6 conditions and locations. 7 CHAIRMAN DUNLAP: Okay. Mr. Parnell and then 8 Ms. Edgerton. 9 BOARD MEMBER PARNELL: Well, it seems to me that 10 the question that we are being asked is does the weight of 11 evidence support the reasonableness of the control strategies 12 and requirements, and it seems to me that the thing that goes 13 to that question is, is there a scientific basis? 14 Does this chart, did I understand the chart 15 correctly that you put up, which says if you used our 16 modeling versus the ARB with the Niemeyer and the District 17 model that we come up with a totally different result, which 18 seems to me that goes to the scientific validity of your 19 assertions. 20 Do I miss something here? 21 MR. ONO: I think that is correct. 22 BOARD MEMBER PARNELL: Can you put that back up? 23 CHAIRMAN DUNLAP: Mike, we haven't forgotten you, 24 we will come back. 25 MR. KENNY: Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 128 1 MR. ONO: What we concluded from doing the 2 comparison of the District's modeling, which is the blue 3 line, and red line is the actual PM 10 concentrations on that 4 day, is that the District's model performed better than the 5 ARB's model with the discrete source areas mapped by Tezz 6 Niemeyer. 7 As you see, they had peaks where there were no 8 peaks. They had no emissions, or no impact where there was 9 an impact, and the peaks that were predicted, they were 10 lower. 11 So, overall, you know, any statistical analysis 12 that you do on this is going to show that the District's 13 model works better than the ARB model using the discrete 14 source areas of Tezz Niemeyer. 15 MR. McERNEY: Can I make a comment on this? 16 I would like to make two points. One is, the ARB 17 model, of course, was something that we did just to 18 understand the situation. We didn't do it for the SIP model. 19 The second point, I'm not sure what the lower lines 20 are, but I assume that they are the ARB model predictions at 21 the Keeler monitoring site. Is that what they are? 22 MR. ONO: That's correct. 23 That is the Keeler monitoring site. 24 MR. McERNEY: Okay. In our view, the model is 25 operating in an area of very steep concentration gradients PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 129 1 here, that is the predicted concentrations change over a very 2 small distance, and so when we applied the model, we said 3 there are uncertainty in the wind directions and the wind 4 speeds here, and we think we should look at the results 5 within a 500 meter search radius and see, are they lower, or 6 are they higher, because in my view, those are equally as 7 valid. 8 You don't know precisely what the concentration is 9 at one point in this area. 10 When we look within a 500 meter search radius the 11 concentrations are different than these, and in some places 12 they are higher and in some places they are lower. 13 I guess one final point that I would like to make 14 is, look at the concentration prediction of the District 15 model compared the observation. 16 I don't think this is typical of either good or 17 bad, but I just suggest look at it. 18 The model is predicting 15,000 micrograms per cubic 19 meter as a peak hour, where as the observation is between 20 40,000 and 45,000 micrograms per cubic meter, and on either 21 side of the 40,000 or 45,000 the observations were 20,000 22 micrograms per cubic meter, and as you see, the District 23 model is predicting 5,000 or less than 5,000. 24 So, this is the model that they want to you base 25 the SIP on, and what the ARB staff is saying is, there is a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 130 1 lot of uncertainty with this model. 2 It is too uncertain to be used to establish a 3 precise target here, as the District has done with it. 4 MR. ONO: Can I respond to that? 5 CHAIRMAN DUNLAP: Which goes to the core of the 6 control measure, as Mr. Parnell pointed out, about what is 7 expected and what kind of certainty we would have with that 8 strategy. 9 MR. ONO: Don points out that we underpredict the 10 peaks and overpredict some of the shoulders of the 11 concentrations. 12 I would say that that is the nature of averaging. 13 You take highs and lows, and you average them together and 14 you get a mid range value. 15 It's like if you took the heights of everybody here 16 and you said that the average height is five foot six and you 17 use that information, you will have some people who are going 18 to be six foot four, or, you know, over six feet and not 19 everybody is going to be five foot six. 20 He also talks about that they looked at just 21 different preceptors near the monitor site to see if they 22 were just off by that much. 23 We did the same thing. We looked at our data 24 compared to their data for just in the vicinity of the 25 monitor site, and we found, again, that our model performs PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 131 1 better than the ARB model, no matter how you look at it. 2 CHAIRMAN DUNLAP: All right. Ms. Edgerton. 3 BOARD MEMBER EDGERTON: I wanted to follow up on 4 what exactly the ARB staff did and your recent comment to the 5 effect that the ARB model was just run to understand what was 6 happening but not run to SIP standards. 7 Is that what you said? 8 MR. McERNEY: Yes, I did. 9 If you look at this day, the monitor value is 3,883 10 micrograms per cubic meter measured at Keeler. There is 11 really two very high days. You have a serious problem here. 12 The third highest value would be what we call the 13 design value. The highest days you are allowed to exceed the 14 standard one day per year on average. 15 That would be this day and another day of similar 16 concentration. The actual design value is about 2,002 17 micrograms per cubic meter. It is still quite high. 18 That would be the day, conceptually, that we like 19 to say, we want to take this value that should attain the 20 standard and determine how much control is needed to make 21 that attainment standard. 22 There would be a different day from this. There 23 would be lower concentration, which still require a lot of 24 control but not as much as on this day. So, we were unable 25 to model that day, nor were we able to go through and model a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 132 1 series of similar days. 2 We had the data for this day, so we thought we want 3 to take a look at this data just to see how the model is 4 operating and what we can do if we put in the emissions at 5 the individual locations as best we understand it, and I 6 think those emissions are quite uncertain, as Duane points 7 out. 8 BOARD MEMBER EDGERTON: Would it be correct to 9 characterize what the ARB staff did is impressionistic? 10 MR. McERNEY: Yes, I think it would. 11 BOARD MEMBER EDGERTON: Why did you determine not 12 to run the entire SIP model so that you could get back to the 13 District, and it would be helpful to me to hear, you know, 14 what ARB had done with an entire emissions model to compare 15 it with an entire emissions model from the District. 16 You would think that way it would seem to be apples 17 to apples instead of apples and oranges, or cherries. 18 MR. McERNEY: One reason is time pressures. 19 There would be a lot of work in a very little time. 20 A lot of it is that there is not data for most of 21 the other episodes of this type, of specific source locations 22 and emission rates, and uncertainty in those data. 23 This is a very difficult problem that the 24 District's had to struggle with, and I don't think that the 25 best approaches are really known. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 133 1 Taking an approach that produces an estimate of 2 what has to be done, in my view, and the estimate, I think, 3 isn't as good as you would get with a simpler approach, 4 perhaps they have tried to push, in this case, the science 5 beyond where it can go and produce good results. 6 I recognize that they have done a lot of work here. 7 BOARD MEMBER EDGERTON: Thank you, for that. I 8 appreciate that. 9 I have one other question. 10 CHAIRMAN DUNLAP: I will come back to you. 11 Dr. Friedman, I think, has a comment on the same 12 point. 13 BOARD MEMBER FRIEDMAN: I am just pleased to have 14 this back up on the screen, because what it demonstrates to 15 me is the notion that the model is intrinsically flawed. 16 You have got a difference between prediction and 17 reality that's as high as 400 percent, and that's not a 18 normal curve of distribution. 19 I mean, we understand how to do that sort of thing. 20 The fact that there is not a perfect model doesn't disallow a 21 conclusion when you see a bad model, or one that just doesn't 22 measure up. 23 I, in my naive, simple minded way, think that the 24 conflict resolution, I mean, we are not being asked today to 25 solve the problem. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 134 1 We are being asked today rather to resolve a 2 conflict, but, you know, I don't think it is a major brainer 3 to sit people in a room and get them to come up with some 4 ground rules and move forward quickly with an approach that 5 satisfies everyone. 6 This is not a -- that is enough. I understand the 7 frustration with the length of time, and these episodes, and 8 the lack of a solution, but what I am hearing is people who 9 are not communicating at a level that should have resolved 10 most of these issues without having us have this hearing. 11 It is distressing to me, because I think everyone 12 wants the same thing. There is no one sitting in this room 13 that doesn't want the condition at the Lake and surrounding 14 regions to improve immensely. 15 The fact that we are at cross purposes, people are 16 at cross purposes is a function, I think, of, I don't know 17 what it is, politics, lack of communication, something has 18 gone wrong here. 19 CHAIRMAN DUNLAP: Well, on that point, I will come 20 back to you, Lynn, but I am very appreciative of the level of 21 sophistication that you have and what you are demonstrating 22 here from a relatively small district. 23 It is impressive, and I want to acknowledge that. 24 Imperfect as it is, it is certainly very good. 25 Thank you. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 135 1 MR. ONO: We appreciate your comments. 2 CHAIRMAN DUNLAP: Ms. Edgerton, and then we will 3 let Mike, because we got him on the string to respond to some 4 of these things. 5 BOARD MEMBER EDGERTON: I wanted to follow up on 6 GPS data that you have. 7 My familiarity with GPS data comes from wonderful 8 maps that I have seen, climate change issues. 9 They typically can be quite specific with respect 10 to bad water, contamination of pollutants coming in and out 11 of waterways and dust storms and smog and all kinds of 12 things. 13 I have seen that myself. So what I am asking is, I 14 guess I was confused, because when I went on the tour last 15 week and somebody from the District said you used GPS maps, I 16 assumed that you had used GPS mapping both when there were 17 storms and when there were not storms. 18 Did you? 19 MR. ONO: The GPS stands for Global Positioning 20 System, and that was only done after the storms occurred. 21 It was very recently after the storms. We would go 22 out there and do it historically for the last year where it 23 came from. 24 This is only good for probably a couple weeks, and 25 maybe in the extreme a month, because as you saw by the photo PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 136 1 where you had the white and dark, that is really what we were 2 looking for. 3 We are looking for periods when we had physical 4 evidence of erosion on the lake bed so we could accurately 5 map where those were, and so the GPS was put on the 6 four-track and rode around the circumference of the eroded 7 areas. 8 That data, in turn, was put into a computer which 9 produced a GIS, Geographic Information System map, and that 10 is probably to what you are referring to. 11 We created our own GIS map based on our own GPS 12 data of the source areas. 13 BOARD MEMBER EDGERTON: Have we seen that? 14 MR. ONO: That is simply the 35 square mile area, 15 control area. 16 BOARD MEMBER EDGERTON: You see, my impression of 17 that was that that was very accurate data, the GIS maps. 18 MR. ONO: And if we went down a level before that, 19 before the 35 square miles, if we take out the straight line 20 it would be very ragged around the edges, and so the straight 21 line is the 35 square miles, and it is really kind of an 22 approximation of --- 23 BOARD MEMBER EDGERTON: Connecting the dots? 24 CHAIRMAN DUNLAP: Lynn, I am going move on. 25 Mike, there are two other -- could we go back to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 137 1 the other slide -- not to make it overly complicated. 2 MR. KENNY: This is the other slide that we were 3 mentioning. 4 I think that what I am going to do is just simply 5 have Bill Shimp, who is seated right behind me, speak for 6 himself. 7 MR. SHIMP: Well, actually I look at that and I 8 would say that I totally agree with that statement that's 9 written there within the context of the memo that was 10 written. 11 I think that if you read the entire memo you see 12 how this fits into the entire explanation. This memo was 13 quite long, about four or five pages, and the major subject 14 to the memo was, I'll just read the first sentence, this memo 15 is in response to your request for an expedited review of the 16 Owens Valley PM 10 Planning Area of Attainment State 17 Implementation Plan Project Alternatives Analysis. 18 So, what we were asked to do in there was to review 19 the emission inventory data that was presented in that 20 particular document. 21 One of the key citations -- 22 CHAIRMAN DUNLAP: So, you did a quick review and 23 you found, just as you said, overall they did a good job with 24 it. 25 MR. SHIMP: But I think there is more to this that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 138 1 I think is very critical, is that when I get into discussing 2 my comments, I said that the Alternatives Analysis Document 3 was not intended to provide comprehensive data on emission 4 inventory methodologies, basically commenting that this 5 document does not contain a detailed description of a method 6 for how the inventory was done, but just gives a summary of 7 that, so another comment in this memo on the first page is 8 that based on our information that we have, the inventory 9 does appear reasonable. 10 CHAIRMAN DUNLAP: All right. For my purposes, you 11 have answered the question. 12 One of the things, you know, Mr. Kenny, it is 13 important, and I think it's borne out in particular in a 14 well-focused way by the Board Member that spoke to us earlier 15 from Great Basin about, you know, consistent messages and 16 that we don't send signals that they think we have gone 17 another place, so I think, as Dr. Friedman pointed out a 18 moment ago, you want to have clarity in your communication, 19 you want to have consistency, and we obviously expect this 20 staff, Mike, you guys, to do what you do so well, which is 21 find common ground and you bring forward a reasoned policy 22 issue for us to consider, and granted, this is a different 23 context, but I just want you to understand the assertion that 24 maybe some false signals have been sent. 25 That's all. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 139 1 MR. KENNY: I understand your comment, and 2 actually, I guess I would respond with saying, false signals 3 were not sent. 4 We have had probably more contacts with the Owens 5 Valley District on this issue over the last couple of years 6 than any other issue that we have worked on as a staff. 7 I, myself, have spent more time on his particular 8 issue than any other issue that I have handled as the 9 Executive Officer of this Board. 10 So, we have made it very clear what our concerns 11 were throughout this process. What is happening is that 12 specific memos over a specific timeframe, which is fairly 13 large, are being put before you today and specific sentences 14 in those memos are being put before you out of the context of 15 the entire memo. 16 The last memo, which has also been blown up for 17 you, it looks like in four by six foot fashion, is one that 18 is also very important for you to understand, because when 19 you look at that memo and you look at it in the abstract, it 20 appears to be one in which the ARB staff is saying things are 21 fine, don't worry about it, you can go ahead as a District 22 and do what you want. 23 That particular memo was never provided to anyone 24 outside of the Air Resources Board until about a week and a 25 half ago, long after the District had made all of its PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 140 1 determinations. 2 That particular memo was a very -- well, I am going 3 to actually -- Andy Ranzieri and Tony Servin are here, as 4 well as Paul Buttner, because I think it's important for them 5 to tell you what they meant when they wrote that memo, but 6 that memo was not provided to the District. 7 That memo was not essentially a final staff 8 conclusion with regard to the modeling and inventory work 9 here. 10 What you have here is a staff to staff assessment 11 of one aspect of a District's plan, but that aspect needs to 12 be contained in the context of the entire plan and the entire 13 review. 14 With that as kind of a preliminary introduction, I 15 think it's important -- 16 CHAIRMAN DUNLAP: Mike, unless my Board Member 17 colleagues want to hear it, I am comfortable. 18 I don't want to -- look, I have been in this 19 business, I have been Chairman for going on four years, I 20 don't want to get involved in a point counter point, a game 21 of, got-you about communications. 22 One of the things that I have come to expect from 23 our staff is extremely thoughtful, careful and consistent 24 communication, and I am not going to pass judgment that this 25 is sloppy, or anything like that, but it troubles me that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 141 1 some of the words are being used, you know, to leverage the 2 policy, well, excuse me, the judicatory nature of this 3 discussion today. 4 So, I think you have addressed that these are 5 contextual issues. They need to be considered in that light. 6 I, you know, again, I just think that the Owens 7 folks have had a thorough presentation here. So, I don't 8 need you to defend it, unless my colleagues want to hear it. 9 BOARD MEMBER FRIEDMAN: John, just a question. 10 It isn't clear to me at what point the staff does 11 identify that they have a major concern. 12 There was a reference to a meeting in October, I 13 guess, of last year, but I guess I am looking at this in sort 14 of a different light, and I am curious at what point did you 15 clearly identify that the methodology, that you were 16 uncomfortable with it? 17 MR. KENNY: The specifics that you see in the staff 18 report were really not made known, in terms of the specific 19 details, to the District until after they adopted in July of 20 1997. 21 Prior to July, however, what was made known to them 22 is that we had concerns about the level of uncertainty that 23 was associated with their staff report and with the work that 24 they were proceeding on. 25 Prior to July, we actually had meetings with them, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 142 1 and I myself had meetings with them at that point in time. 2 Prior to July, we invited the District staff to 3 come up to this Board and to listen to the San Joaquin Valley 4 PM 10 consideration by this Board so that they would have a 5 sense of how uncertainties in plans were being addressed. 6 Prior to July, the representatives of the City were 7 present here at the Air Resources Board along with the 8 Executive Officer of the District as well as two Members of 9 the Board of Directors from the District who had been 10 designated as a committee to essentially come up and 11 negotiate issues associated with the plan that was going to 12 come to the Board the following week. 13 At that meeting all the parties were present. The 14 two Members of the Board, myself and the City signed a 15 memorandum of understanding that what would occur is that the 16 July second hearing would be deferred for a period of 90 days 17 so that we could address a number of these uncertainties. 18 When I arrived at the Board hearing on July second, 19 it was the time I expected that memorandum of understanding 20 to be carried out, I was informed at the Board hearing that, 21 in fact, what would occur is that the Board was planning to 22 adopt that SIP that day, and the way that I was informed was 23 simply by being at the hearing, I never even received a phone 24 call. 25 So, there have been a number of communications PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 143 1 throughout this process, and we have tried to make it very 2 clear that we had concerns about what was occurring in the 3 Owens Valley, and then as the process continued, we then made 4 it very clear in terms of the very specific nature of what 5 those were. 6 CHAIRMAN DUNLAP: All right. 7 Anything else from Mr. Lamb? 8 Do you want to break? 9 I intend to get to the witnesses. We have 17 10 witnesses here. 11 Now, the City, by the way, the City of LA has a 12 right to, and I think you both will work something out where 13 you can come back and say a few things, but -- 14 MR. Lamb: Mr. Chairman, that colloquy, which is 15 constructive, and I'm glad that it was engaged in, used up 16 about 28 minutes of time that I hadn't anticipated would be 17 presented, and so there are two more aspects of my 18 presentation, and I would ask you for leave for more time. 19 The District's Air Pollution Control Officer, Dr. 20 Ellen Hardebeck, was going to address you next, and then I 21 was going to take some time to address some legal points. 22 BOARD MEMBER ROBERTS: Mr. Chairman, before the 23 next witness comes up, we have been handed a number of pieces 24 of correspondence as we are sitting here. 25 One of them, which is only identified on the first PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 144 1 sheet as CH2M-Hill, there is only a part of that letter, and 2 I was wondering if staff could get the entire letter. 3 CHAIRMAN DUNLAP: We are missing a couple of pages. 4 Ms. Hutchens, would you go look at what has been 5 distributed to the Board. If we are missing some sheets, get 6 them to the Board. 7 Mr. Lamb, please, Ms. Hardebeck. 8 MR. LAMB: Mr. Chairman, if I may introduce Dr. 9 Hardebeck. 10 Dr. Ellen Hardebeck is the Air Pollution Control 11 Officer for the Great Basin Unified Air Pollution Control 12 District. 13 She has been our APCO since 1985. She has a degree 14 from University of Chicago in Physics, and her Ph.D. is from 15 Harvard University is in Astral Physics. 16 She has been Director of our air pollution control 17 efforts on Owens Lake since we almost started. 18 DR. HARDEBECK: Your staff has recommended to you 19 that you not approve our Order, which enforces the District's 20 plan for the Owens Valley, and the reason that has been given 21 is because we have poor hourly modeling performance that 22 could effect the required extent of the control measures. 23 Staff has also said that the visual observations of 24 the dust storms show that the District is requiring the City 25 to do much more than is necessary to meet the Federal PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 145 1 standards. 2 The District does not agree that the modeling 3 performance is poor, and Mr. Ono gave extensive discussion of 4 that. 5 We also believe that if you use the visual 6 observations of the source areas, which is not our preferred 7 method of determining how much must be done, that you would 8 have to actually control more, considerably more than the 35 9 square miles that the District says has to be controlled. 10 The modeling requirements are applied to Owens Lake 11 only. Your staff has sent us a letter which says that no 12 other PM 10 plan in the State of California has had to meet 13 these modeling criterium. 14 They were applied after the plan was adopted. The 15 October meeting was the first time that we heard of these 16 hourly performance criteria and that was about three months 17 after the plan was adopted. 18 They are really unjustified in that there is no 19 written guidance why Owens Lake must meet this particular 20 requirement that no one else has to meet, and it contradicts 21 written guidance, because the criteria that we are required 22 to meet is contained in the Ozone Modeling Guidance, which 23 specifically says it is for ozone only, and so this is quite 24 an unusual thing to go away from all the written guidance and 25 require something uniquely from one source. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 146 1 As far as the area to be controlled, your staff has 2 not shown that the District plan controls too much. The 3 visual observations that ARB is relying upon, if you remember 4 their map, more than once a year was a very large area, 5 larger than the District's 35 square miles and, in fact, in 6 our GIS we put it in there and measured it, it is 65 square 7 miles has observed to blow more than once a year. 8 Also these visual observations, as you discussed 9 extensively, performed less well for the day that they were 10 modeled than the District's averaging method. 11 We are experienced in preparing PM 10 plans. In 12 the last 10 years we have submitted six other PM 10 plans to 13 you, and one of those plans has even been approved by EPA, 14 and I think you know how difficult that is. 15 It is the only EPA approved PM 10 SIP in Region 9. 16 Our Deputy Air Pollution Control Officer, who just did that 17 very good presentation to you, worked for EPA and that is how 18 we explain our luck in getting the plan. 19 The performance of the District model meets all the 20 regular criteria for PM 10 modeling. We were surprised to 21 learn that the modeling for this plan has to meet the ozone 22 criteria also. 23 We do not have an ozone problem. We know nothing 24 about ozone, so don't ask me how to apply these things. We 25 know nothing about it. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 147 1 Our PM 10 is wind blown dust, so it is not 2 photochemical formed. PM 10 you could perhaps see some 3 justification for the secondary form to be an attempt to use 4 ozone modeling, but this is all just dirt off of the ground. 5 Now, your staff is saying that we need to meet, 6 closely match the model and the measured values on an hourly 7 basis; but the PM 10 standard is a 24-hour standard, and 8 nobody who violates a 24-hour standard is required to meet 9 the modeling criteria on an hourly basis. 10 We don't understand why this new requirement has 11 been put on this plan at all. It could be, perhaps it is 12 because we have hourly PM 10 data, which is rare, but South 13 Coast also has hourly PM 10 data. 14 They did their modeling performance on an annual 15 basis, even though they also violate the PM 10 24-hour 16 standard. 17 They do not meet their goals in their modeling. 18 The annual predictions were off as much as 93 percent on an 19 annual standard, which you would think would be a lot easier 20 to meet than an hourly standard, and your staff did recommend 21 to you to approve that plan. 22 Is it because Owens Lake is an unusual source of a 23 dry lake bed? Mono and Owens are caused in the same way by 24 the same people. 25 In 1995, your staff approved the Mono Basin plan PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 148 1 and sent it to EPA, and the modeling was identical. Perhaps 2 this requirement is because it is going to be a very costly 3 fix for Owens Lake. 4 But if you look at it in terms of dollars per ton, 5 which is how the Air Resources Board usually determines 6 whether something is reasonable, the Owens Lake controls are 7 only going to cost about $200 a ton. 8 At Mono Lake where the control measure was not 9 gravel, vegetation or shallow flooding, but was actually, put 10 the water back in the lake, that ended up costing $500,000 11 a ton. 12 If you look at total cost, the cost for Owens Lake, 13 well, we argue, but it is between $100 and $300 million. 14 That is a lot of money, but the South Coast plan 15 was somewhere around the billion dollar range. 16 Is it because Owens Lake is an episodic source? 17 Mono Lake and all fugitive dust sources are episodic sources. 18 They emit only when wind blows. 19 There are other classes of episodic sources. There 20 are woodstoves. We are experienced in that. 21 We did the Mammoth Lakes plan, which was all 22 episodic sources. It was either wood smoke from fireplaces 23 or woodstoves, or it was road dust, which only happened when 24 there had been storms and cinders were put down and people 25 rolled over, and so we did not have to do hourly modeling PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 149 1 performance for that, and I don't believe anyone else has 2 either. 3 So, perhaps this is just a new requirement for all 4 future PM 10 plans, but ARB has not gone through the usual 5 process of consultation with the District and has not issued 6 a new guidance document for this new requirement, and this 7 could set the precedent for all future plans that will be 8 very difficult for other districts to meet, as well as our 9 own. 10 We never calculated the hourly modeling performance 11 because this has never been required of us before. We did 12 some inter protocol, as Duane has talked about. It was 13 discussed with your staff. 14 We had, certainly, the impression, we did not see 15 this memo before, but we spoke with your modeling people and 16 certainly had the impression that this modeling method was 17 okay when we went to our Board to adopt the plan. 18 The first we heard about hourly performance was in 19 this October meeting three months after the plan was adopted. 20 But at that time, we did not know what requirements 21 the hourly would have to meet. We did not discover that 22 until we got the staff report and then had to get that 23 guidance document to see where that came from. 24 We reviewed EPA guidance to see if maybe they 25 required this, and we have spoken to the staff at Region 9, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 150 1 and our conclusion is that EPA does not require hourly 2 modeling performance. 3 Then I would like to talk a little bit about the 4 visual observations and the GPS. We did use the average 5 value that we measured in the wind tunnel over the entire 35 6 square miles. 7 We know that that is not what happens every day. 8 We know that different places on the lake bed will blow on 9 different days. 10 It is rare, but not impossible, that the whole 35 11 square miles goes. When that happens you couldn't possibly 12 see what was blowing because the dust fills the Valley to the 13 top of the mountains on both sides, and there is no way an 14 observer on the mountaintop could see where that dust was 15 coming from. 16 The emission factors do vary by a factor of a 17 hundred or more, and this depends on the interaction of the 18 previous few weeks of precipitation and temperature on the 19 very different soils on the different parts of the lake bed. 20 So, deciding or being able to predict what areas 21 will blow, it is less predictable than the weather, and this 22 uncertainty cannot be removed. 23 You can possibly measure on a particular day what 24 particular areas are blowing, but that exact pattern will 25 never be repeated, so it would be very difficult to use these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 151 1 kinds of observations for an attainment demonstration where 2 you have to predict through the three or five years of your 3 method in the future what areas would be blowing. 4 So, we did what we felt was the only available way 5 to do it. We averaged the emissions over the whole area that 6 we had measured after the storms that they were disturbed 7 areas. 8 This did give acceptable modeling performance on a 9 24-hour basis. I think everybody here agrees that these high 10 emitting source areas move around in a large envelope, and 11 there is some disagreement as to what that envelope is. 12 We discussed how we did it with the GPS, and I 13 think we discussed sufficiently how the visual observations 14 were taken. 15 In the staff report, ARB separates the more 16 frequent from the less frequent areas. You saw the graph. 17 It looked like there were some areas that kind of coincided 18 with our 35 square miles but not exactly. 19 We also put that in our GIS and measured it. 20 That's 28 square miles. 21 Those are the areas that were observed to blow more 22 than five or six times a year. The area that blows more than 23 once a year is 65 square miles. 24 You know that the PM 10 standards, you are only 25 allowed to violate it once a year. So, on that basis, you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 152 1 could conclude that perhaps we are not controlling it enough, 2 if you believe the visual observations. 3 We believe they are not accurate enough upon which 4 to make a decision. You have to weigh them, the arguments in 5 favor of approving this plan, against those, the 6 appropriateness of rejecting it based upon the requirements 7 opposed after the plan was adopted, and they are not required 8 of anybody else. 9 Owens Lake is a serious health problem. There is 10 more than 300,000 tons of PM 10 that comes off that lake 11 every year. 12 We know the adverse health impacts of PM 10 are 13 well documented at this time. 30 tons of arsenic and nine 14 tons of cadmium are included in that. 15 Nearby residents endure concentrations up to 3,000 16 micrograms averaged over 24 hours, and as you saw in that 17 graph, the hourly can be 40,000 micrograms. 18 That scene, we look out of our office window and 19 can't see the back fence. It is really a serious problem. 20 We figure about 40,000 people are affected, and 21 more than 130 people showed up at a meeting in Ridgecrest to 22 tell us that they were certainly affected and wanted 23 something done. 24 So, this is a serious health problem, and by 25 holding the Owens Valley Plan to a higher standard than any PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 153 1 other plan, ARB will allow this health problem to continue. 2 There is also an economic harm from this. The Navy 3 identified Owens Lake dust in 1975 as the source of 4 visibility reductions at China Lake Naval Weapons Center. 5 This interferes with their weapons testing. The 6 boundary of the Center is less than 10 miles from the south 7 shore of Owens Lake and a portion is within the nonattainment 8 area. 9 The dust interferes with the Center's missions and 10 could be a factor in allocation of missions and the 11 probability of Base closure. 12 So, the City of Ridgecrest is concerned both for 13 the economic and the physical health of their residents. 14 The City of Ridgecrest has adopted a resolution 15 supporting the plan and so has the Kern County APCD. 16 Those that live close to the lake bed are suffering 17 serious health impacts, and many of these people are poor, or 18 members of a minority group. 19 There are several Indian tribes that have 20 reservations near the Lake. California Indian Legal Services 21 is concerned about environmental justice when Government have 22 waited 18 years to begin mitigating PM 10 levels 25 times the 23 standard in an urban area. 24 They have sent your Board a letter notifying you of 25 a possible Title 6 Civil Rights Action. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 154 1 The plan is already late. It it was due to EPA 2 last February. 3 A findings letter was issued last August. If there 4 is no plan to EPA and approved by them by August of 1999, 5 there will be a Federal Implementation Plan. 6 No alternate plan to the District's plan that would 7 attain the standard by the deadline has ever been suggested. 8 Meeting the ARB staff modeling requirements will 9 take years and may not even be possible, considering the 10 variability of the source areas. 11 The Owens Valley Plan meets the requirements of the 12 Clean Air Act and can stop the Federal plan, and rejecting 13 this Order will probably guarantee the Federal plan. 14 When a plan is due, the best available information 15 should be used to determine the control measures. 16 The District was aware when we wrote the Owens 17 Valley plan of both the 35 square mile GPS observations and 18 the visual observations, because both of these studies were 19 done either by us or for us. 20 We identified the crust measurements rather than 21 the visual observations as the better information on source 22 area location and size. I think that that attempt, that the 23 modeling also bears that out. 24 We worked on Owens Lake for 18 years. Few ARB 25 Technical staff have ever visited the Lake. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 155 1 We believe that your Board should respect our 2 judgment in this matter of which they decide is better and 3 approve the control measure order. 4 Our plan includes a commitment to five methods to 5 reduce the cost of implementation and the use of resources. 6 It is not necessary to stop all implementation on 7 Owens Lake to suggest change. 8 In summary, Owens Lake is the largest single source 9 of PM 10 in the United States, and concentrations can exceed 10 the 24-hour standard by 25 times where people live. 11 Studies done in conjunction with the City of Los 12 Angeles and reviewed by an advisory group have been ongoing 13 for 18 years. 14 No controls of any kind have been implemented on 15 the Lake in all that time, in spite of Federal requirements 16 to implement RAQCM in 1991 and BAQCM in 1994. 17 The plan has public support. The Navy, the City of 18 Ridgecrest, Indian Legal Services, Kern County Agency, and 19 other citizens and environmental groups gave testimony to the 20 District Board in support of the plan. 21 You have been asked to disapprove the plan because 22 the attainment demonstration modeling does not meet 23 requirements for ozone modeling. 24 These requirements are not applicable to PM 10 25 plans and to meet them will take years of detailed source PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 156 1 location, area and emission measurements. During that time, 2 no controls would be put in place, and the pollution will 3 continue. 4 It is not like we have forgotten to make these 5 measurements. The location, area and emission rate of the 6 source areas change hourly. 7 In the end, all this work will accomplish nothing, 8 since the uncertainty in the modeling comes from the 9 unpredictability of the source and not a lack of information 10 or errors in measurements. 11 Will more years of studies remove the 12 uncertainties? 13 You know that they won't. 14 The question before you today is not, are there 15 uncertainties, because, of course, there are. 16 Who will bear the risk of the inevitable 17 uncertainties, the polluter or the public? 18 Is the small chance that the District is requiring 19 too much of the City, or years more of exposing people to 20 PM 10 levels of 25 times the health standard? 21 That is really the choice here. I urge you to 22 choose to protect the public and to reject the City's appeal. 23 I would be happy to answer any questions. 24 CHAIRMAN DUNLAP: Okay. I appreciate that. 25 Just a second, Ms. Edgerton, I was going to ask Dr. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 157 1 Hardebeck, could I ask you a question about the cost, just 2 for a minute? 3 You kind of glossed over that, and I know the folks 4 before you on your team asserted some things, I just want to 5 check some numbers with you. 6 Are you intimate enough with them, so I can engage 7 you on that? 8 DR. HARDEBECK: If not, Ted is in the audience and 9 he can pop right up. 10 CHAIRMAN DUNLAP: Okay. Because as I understood 11 it, and again, I don't want to put words in the City of LA's 12 mouth, but the numbers that I seem to recall was that the 13 City asserts that your plan's cost would be, the range would 14 be somewhere between $58 million and $312 million for the 15 controls, and that you all asserted between $90 and $250 16 million. 17 DR. HARDEBECK: Okay. There are really two 18 numbers. 19 One is the implementation cost, where you have to 20 go in up front and put in all of the pipe and everything, and 21 that we say $90 to $250 million, they say $300 and something 22 million, then there is the maintenance cost per year, which I 23 don't see there, but I think we say $30 or $40 million, we 24 are not that different on that one. 25 CHAIRMAN DUNLAP: So, the initial -- help me out PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 158 1 with this, the initial investment for your control plan would 2 be how much? 3 DR. HARDEBECK: Somewhere between $100 and $300 4 million. 5 CHAIRMAN DUNLAP: And then the annual? 6 DR. HARDEBECK: Somewhere between $40 and $50 7 million. That is the cost of the water. 8 CHAIRMAN DUNLAP: Does the City have any 9 disagreement with that? 10 Is that generally accurate? 11 MR. SCHLOTMAN: Those are the estimates that we 12 talked about. 13 DR. HARDEBECK: If you take that to dollars per 14 ton, because it is 300,000 tons, it comes out around $200. 15 CHAIRMAN DUNLAP: $200 a ton. 16 I haven't seen anything that cheap in a while. 17 DR. HARDEBECK: Well, this is just dirt. 18 This is easy. 19 This is not ozone. 20 BOARD MEMBER EDGERTON: Dr. Hardebeck, it was a 21 good presentation. 22 I have a specific question. 23 Mr. Kenny asserted early in the morning that water 24 rights were not at issue today, that they were nothing that 25 should be, or water should not be considered, the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 159 1 availability of water as a scarce resource should not be 2 considered by this Board in reviewing whether the measures 3 were reasonable, at least that was my impression of what you 4 said. 5 MR. KENNY: What I was trying to indicate is what 6 is before the Board today is an air issue not a water issue. 7 BOARD MEMBER EDGERTON: Right. I understand that 8 one. 9 Because of Mr. Kenny's position, do you agree that 10 the efficient use of water is not a factor, even a small 11 factor, in applying the statutory term, reasonable mitigation 12 measures? 13 In other words, do you think that the fact that 14 it -- what you proposed has used 13 percent of the primary 15 water source for the largest city in the State of California 16 is something that the California Legislature intends for us 17 not to consider at all in determining whether it is 18 reasonable? 19 DR. HARDEBECK: I don't think that I would want to 20 advise you on what you think should be reasonable. 21 Did we feel that using 50,000 acre feet was 22 reasonable when we adopted the plan? 23 We certainly did. 24 The City takes more than 300,000 acre feet out of 25 the water that used to go into Owens Lake, so rather than -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 160 1 we don't view it as we're taking the City's water. We're 2 saying the City is going to have to put back 13 percent of 3 the water they are taking from the Lake. 4 BOARD MEMBER EDGERTON: Dr. Hardebeck, I appreciate 5 your answer. 6 Is it correct then that all of the water that you 7 have proposed to take for the control measures is aqueduct 8 fresh water? 9 DR. HARDEBECK: Our plan does not say where the 10 water has to come from. 11 We don't take the water. 12 We are telling the City to use their water to solve 13 their problem on their lake. 14 You do this every day. You go out and you say, 15 okay, you have to water your dirt roads. You don't believe 16 that's a water rights issue. 17 You don't tell the people where to get that water 18 from. You are saying, you have water. You have a problem to 19 solve. Use the water to solve your problem. 20 BOARD MEMBER EDGERTON: Realistically, do you think 21 that there is another water source besides the aqueduct to 22 satisfy the water needs that you have for the control 23 measures?. 24 DR. HARDEBECK: There may be. 25 We have spent quite a bit of time trying to define PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 161 1 how much local groundwater could be pumped without serious 2 impacts on the local area, and one of the fee measures, which 3 your staff has graciously said you should approve, is more 4 continued use of that. 5 This is going to be a very long control measure. 6 As long as the City takes the water from Owens Lake, they 7 will be maintaining this, and the source of the water can 8 change over, you know, if they are going to take it for a 9 hundred years, then they will have plenty of time to look 10 through and change their water sources and adjust it to the 11 most efficient way possible, and we are happy to help them to 12 do that. 13 BOARD MEMBER EDGERTON: Dr. Hardebeck, I am sorry, 14 with your indulgence, I do have a couple more questions on 15 this water issue for my own clarification, in terms of where 16 I stand on this issue. 17 CHAIRMAN DUNLAP: Lynn, with all due respect, I 18 don't care where you stand on water as an issue. 19 I care where you stand ultimately on this -- you 20 know, I don't want to sit here and tell you, hey, you know, I 21 feel bad about the water being removed, etcetera, 22 historically. 23 That isn't what this is about. This is about us 24 dealing with the appeal that we have, so -- 25 BOARD MEMBER EDGERTON: Well, respectfully, I would PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 162 1 say, yes, it does have something to do with it, in my mind, 2 the question of what is reasonable, in terms of what the 3 Legislature intended us to look at would have to, under the 4 circumstances, include the water. 5 CHAIRMAN DUNLAP: Lynn, what I am not going to do 6 is debate the process that we are in now and the way that the 7 issue has been framed. 8 I will let you, at the conclusion, talk about your 9 concerns yet again, if you desire, but what I would like you 10 to do is focus on the witness so we can get through the 11 presentation by Owens, and then we will get to the witnesses 12 after the City of LA has a chance, and I would like to do 13 that before lunch. 14 So, if you have something that you wanted to ask 15 Dr. Hardebeck, do it. 16 BOARD MEMBER EDGERTON: When I was doing the tour 17 of the lake, which was excellent, I got the impression from 18 various representatives from your staff, and the City, that 19 there may be significant amounts of saline water in artesian 20 wells underneath the dry bed, which could be better suited to 21 the vegetation, the managed vegetation project, because you 22 need salty water for that anyway, than aqueduct water; is 23 that correct? 24 DR. HARDEBECK: We couldn't use the saline 25 groundwater there. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 163 1 The reason why nothing grows on the lake bed after 2 90 years is because of the salts in the soil and the salty 3 groundwater. 4 You could use the really saline groundwater, which 5 is the white under the surface, you could use that and mix it 6 with fresh water. 7 Now deeper down, about 200 feet down, there is 8 water that is not of drinkable quality, but is not really, 9 really saline, and that could be used. 10 However, there are many concerns about wetlands and 11 other things in the pumping, and that needs to be resolved 12 before this pumping can happen. 13 BOARD MEMBER EDGERTON: Thank you. 14 CHAIRMAN DUNLAP: Okay. Mr. Calhoun. 15 BOARD MEMBER CALHOUN: I looked at the control 16 measure itself, and it seems to be very specific in terms of 17 what needs to be done. 18 I kind of liken it to this Board telling an auto 19 manufacturer that they have to meet certain standards and 20 designing the control system for them. 21 Is that an over simplification of it? 22 I'm looking at the control measures themselves, and 23 they seem to be very prescriptive. Do this, do that, as 24 opposed to telling them what you expect out of them, leaving 25 it up to them to design it. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 164 1 DR. HARDEBECK: Yes, they were very specific, 2 because we wanted to meet the high amount of effectiveness 3 that is necessary, and we also didn't want -- but there are 4 some things that we didn't tell them, like we didn't tell 5 them about where the water came from or how much. 6 We wanted to leave them free to conserve water, to 7 use different kinds of water. So, what we told them was, 8 these are the parameters that we think will meet the 9 effectiveness that we need. 10 For instance, we said 50 percent cover on the 11 vegetation, we think that will meet the effectiveness, but, 12 you know, how much water that takes, what kind of water they 13 use, what their schedule is, it can be living or dead 14 vegetation. 15 We know how much cover of water that has to be for 16 the shallow flooding. We know 75 percent will give you the 17 right effect. 18 Where they get the water from, that is their 19 problem. They can change. We wanted to have something that 20 just guaranteed the effectiveness but did not restrict them 21 too much in how they got there. 22 Does that answer your question? 23 BOARD MEMBER CALHOUN: Does the City have any input 24 into this at all? 25 DR. HARDEBECK: Yes. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 165 1 Actually they were our partners in this for 17 of 2 the 18 years that we have been working on it. It is in the 3 last year when the plan started to be developed that they 4 kind of stepped away from that and began to challenge it, but 5 they have been involved in all of these studies. 6 They have written us letters which said, yes, you 7 did enough premonitoring on this area. So, they are very 8 familiar with and have gone along with the testing over all 9 of these years. 10 Yes, of course, they did say that the 50,000 acre 11 feet was too much, which is a guess that we made. We didn't 12 say they had to use that much water. 13 We said, this is what we think it will be. We had 14 to write an EIR. 15 There are a few really specific things in the order 16 that you say, what is this business about between June 17 fifteenth, and those are the snowy clovers. 18 There are certain mitigation measures that we had 19 to put in there in order to comply with CEQA. So, if you put 20 out water, like in the shallow flooding, then snowy clovers 21 will camp and have their babies near that water, and then if 22 you turn it off at the end of the dust season, then you kill 23 a lot of infants. 24 So, some of the really picky things are for 25 environmental impacts. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 166 1 CHAIRMAN DUNLAP: Speaking of that, Mr. Parnell has 2 a question about that issue. 3 BOARD MEMBER PARNELL: Perhaps you just answered 4 it. 5 I have had some experience at Fish and Wildlife 6 Agency for four years. 7 I was only concerned that if you went to a shallow 8 flooding strategy, have you investigated, and have you 9 received answers to what effect, if any, that might have as a 10 result of having attracted wildlife? 11 I think you just answered a piece of that. I'm not 12 sure that you answered all of it. 13 DR. HARDEBECK: If you have more, Ted, who did the 14 EIR, could talk to you about that, but, yes, we did extensive 15 consultation with Fish and Game, and that is where some of 16 those very particular things came in. 17 CHAIRMAN DUNLAP: Do you want the mysterious Ted to 18 come forward? 19 BOARD MEMBER PARNELL: No, I think that is 20 sufficient for now. 21 Ted, wherever you are, stay put. 22 CHAIRMAN DUNLAP: Any other questions for the 23 witness? 24 Thank you. We appreciate that. 25 Mr. Lamb, is that it, or is there one more? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 167 1 MR. LAMB: I'm the one more. 2 CHAIRMAN DUNLAP: I don't want to rush you, but you 3 are the only thing standing between us and lunch, I want you 4 to know. 5 MR. LAMB: I will address you briefly on a couple 6 of points that we need to focus back on the principal legal 7 criteria that governed your judgment in today's appeal. 8 As you were initially told this morning, the 9 decision that you are being asked to make is a decision that 10 you are sitting in basically a judicial mode to decide, based 11 upon the evidence that was in the administrative record when 12 our District's Governing Board made this decision, did they 13 act in adopting a valid control strategy order, and I want 14 to say that for 30 seconds my view on the fee order is that I 15 have adequately briefed it, and I agree that the fee order 16 should be affirmed on all bases. 17 CHAIRMAN DUNLAP: That is consistent, I believe, 18 with the staff recommendation; is that correct? 19 MR. LAMB: That is also the staff recommendation. 20 With respect to the control strategy order, one of 21 the things that your Board must consider in determining 22 whether or not our Board acted reasonably is to understand 23 the constraints and the legal context in which it acted. 24 One of the arguments that is being made implicitly 25 today is that we acted too soon, that we are ahead of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 168 1 ball in terms of our modeling and our science. 2 The question is, why did we act now instead of at 3 some other time? 4 There has been a reference here or there to the SIP 5 adoption requirements, but, for example, no where in your 6 staff report is there any reference to the date on which our 7 plan was due to the U.S. EPA. 8 The Owens Lake planning area is a serious 9 nonattainment planning area. We are the only serious 10 nonattainment PM planning area that does not have a SIP 11 that's approved by you and submitted to EPA. 12 Our serious nonattainment PM 10 plan was due to EPA 13 on February 8, 1997. So, our Board held back in terms of the 14 deadlines to make sure that we had all the best available 15 information and modeling input before we acted, even at the 16 risk of being a couple months past the deadline. 17 In terms of acting when we acted, and whether we 18 were reasonable in acting when we acted based on the 19 information that we had, the context of our Federal planning 20 responsibilities must be understood. 21 We're responsible as the local agency. We are the 22 agency that is primarily responsible for stationary source 23 control. 24 One thing that has been mentioned is the expertise 25 of your staff. That's irrefutable, but in terms of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 169 1 stationary source control, the go-to-people are the local 2 districts. 3 In terms of expertise in stationary source control 4 and PM 10 source control, I think you will be hard put to 5 find anyone more expert than Mr. Ono and the staff that he 6 has put together in that area. 7 So, when you are asking, was this a reasonable 8 approach, is this something that we just coddled together, 9 the answer is no. 10 In fact, I want to emphasize the process that the 11 District's Governing Board went through to adopt this plan. 12 This goes to Ms. Edgerton's suggestion that maybe 13 you would want to do a de novo review of this, don't go 14 there, because our process to adopt this plan, the public 15 input and the workshopping was an incredibly intensive, more 16 than one year, process. 17 I'm not talking about the 15 years of research and 18 studies that went into it. I am just talking about, okay, 19 now we're going to start a process that gets us to a SIP and 20 an order. 21 How are we going to do that? 22 We started well into the middle of 1996, where the 23 Board adopted and issued that EIR-sized project alternatives 24 analysis, and the District said, we don't want to start the 25 CEQA process, because when you start CEQA, everybody gets PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 170 1 legal. 2 Let's just actually talk about what the 3 alternatives are that we can use to address this lake 4 problem. It was extensive comment. 5 The City commented. 6 The public commented. We had workshops. It was a 7 big process. 8 Finally, there was a big Board meeting in December 9 of 1996, where the Board at a public meeting asked for 10 comment, made a decision, hears the preferred alternative 11 control strategy, and now we are going to start the CEQA 12 process. 13 We had a Draft Environmental Impact Report with the 14 suitable two foot high stack of documents that was issued in 15 March of 1997. 16 The draft SIP was issued in March of 1997. 17 What is going on as this process is going on? 18 Are we staying away from ARB? 19 Are we not communicating with ARB? 20 The record shows quite the opposite. It shows that 21 we are sending the modeling protocol to ARB. 22 We have phone records and the administrative 23 records. We are calling up the modeling people saying, is 24 there any problem, are we headed up the wrong street, and all 25 the answers we got were good. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 171 1 Some of you may have heard about the concerns the 2 South Coast District had when they adopted with EPA, but 3 they felt that they were talking to EPA, they got maybe mixed 4 messages, and good messages, and they told them they could 5 adopt their plan, and they find out afterwards somebody 6 writes in a legal brief that their plans are unapprovable. 7 Well, that is the frustration that our District 8 feels when we feel that we had a process that tried to 9 include all of the stakeholders and there is no information 10 of modeling and find out after the fact starting in October 11 or even later that some basis that was never introduced to 12 our Board is now being used to repudiate it. 13 To go back to the process, we had a draft SIP based 14 on comments from the City and other people. We did a revised 15 draft SIP in May, and these copies being sent to EPA and to 16 the City, we are getting back lots of comments. 17 The City is interested. 18 The stakeholders, we had a lot of public workshops. 19 Our Board Members were heroic in the number of workshops that 20 they went to. 21 They listened to public comment not only in the 22 District, they went to Ridgecrest, which is not in our 23 District. 150 people came and testified in a public 24 workshop, just an extraordinary attendance, the amount of 25 public input that went into this. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 172 1 This all led up to a process where on July second, 2 we had a big Board meeting. Many people took the day off 3 from work to come and testify to the Board about their public 4 concern about this, and based on the best available 5 information that we had at that time, including the best 6 available modeling analysis that we had at that time, we 7 adopted a control order as the basis for a State 8 Implementation Plan that was then already about four or five 9 months late. 10 Our view was, we were going to ship this to you and 11 you guys could consider it. All of the vibes that we had 12 gotten from you, everything that we had seen in writing were 13 good. 14 There was no point in our going to the Board and 15 recommending this plan if we felt that we had a negative 16 signal from you. That would be stupid. 17 If we knew that you had a problem with our 18 modeling, we would have either defended our position or we 19 would ask the ARB how to change it. 20 What is the point in our adopting a plan that we 21 know ARB hates? 22 That clearly was not the signal that the staff had, 23 or the Board had at the time that our plan was adopted. 24 I am asking you to put yourself in the seat of our 25 Board Members, both on July second and also today, and ask PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 173 1 yourself whether based on the best available information and 2 modeling that they had in adopting this order, they acted 3 within the scope of the law. 4 Not whether, now if you consider it today as an 5 original matter would you do it differently, or if this was 6 something coming up before your Board, is this the plan that 7 you would adopt, that is not the question for you to decide 8 today as an appellate and a judicature. 9 I want to focus then on some of the points that 10 have been made, which is that we don't have any reason to 11 determine that this control measure order is invalid or that 12 our Board acted unreasonably. 13 Specifically, one thing that I wanted to mention is 14 that in determining the reasonableness of our control 15 measures, the question is, we had to come up with a plan and 16 a modeling approach that is an attainment demonstration 17 approach. 18 We are not asking to you approve the SIP. Approval 19 or disapproval of the SIP is not the issue today, but in 20 terms of our adopting a control order that is consistent with 21 an attainment demonstration SIP, that was the context in 22 which our Board acted. 23 The criticisms that are being raised by the ARB 24 staff are not fixable in a modeling way. There was a slide up 25 here at the very beginning which said, if your modeling is PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 174 1 flawed, you have no basis for an attainment demonstration. 2 Mr. McErney said that we have had a year to work on 3 this. We can't come up with a different way to model this 4 that gets you to attainment demonstration. 5 If ARB with all of its resources and all of its 6 focus on this issue, Mr. Kenny said that this was his number 7 one issue, he spent more time on this than any other air 8 quality issue in the last year, with that focus in one year 9 and they can't come up with a different way to do an 10 attainment demonstration model, then you have to wonder 11 whether our approach is reasonable under the circumstances. 12 There is no point in our spending five years doing 13 a different modeling approach if it has to be a FIP in one 14 year. 15 When our Board acted, the FIP wasn't a big gorilla 16 in the closet. They knew when they acted that citizen groups 17 had already filed 60 day letters with the EPA asking the EPA 18 administrator to make a finding upon submittal. 19 They knew if that finding of nonsubmittal was made 20 that the District would be subject to offset sanctions. 21 Those offset sanctions will now take effect in 22 February of next year. The mandatory transportation funding 23 sanctions take effect in August of next year. 24 Those sanctions can only be stopped if we submit a 25 complete Federally compliant State Implementation Plan by PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 175 1 August of 1999. 2 That is not what I am hearing from staff. They're 3 saying our proposal is that you go and you look to the areas 4 that are most emissive and control them first. 5 That is common sense, but that doesn't get you 6 where you need to go. 7 We could spend five years looking, visually looking 8 at the things that blow and then running out and controlling 9 them. 10 Dr. Hardebeck has said that this is not really 11 productive because the control areas change over time. 12 The approach that is suggested is kind of like 13 taking binoculars and looking at what woodstoves are burning 14 on that particular day and then you control those, but then 15 they change every day, something that was burning a lot 16 becomes a rental, and etcetera, etcetera. 17 In terms of our Federal planning requirements, 18 whether our control strategy was reasonable and valid must be 19 judged in light of our need to get to a SIP. 20 On that basis, I am asking you to defer to and to 21 respect the decision of the District's Governing Board in 22 affirming this order. 23 I will just say one more thing. If we had not 24 adopted this Order, the council was to reject the plan and do 25 more talking, as were made to our Board on July second. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 176 1 It's an understandable approach. Obviously, if all 2 the parties can agree, if the polluter and the regulator can 3 agree, that's a constructive approach. 4 At the same time, here we are after 15 years, what 5 is the basis to believe that by rejecting this plan you 6 increase incentives on the polluter to meet with the District 7 and find a middle ground. 8 I think to the contrary, and this is just common 9 sense, that if you reject this plan then the pressure is off. 10 The parties of the City that are the war parties 11 that think that denial and delay are effective are going to 12 be empowered, and the parties, some of whom you have heard 13 today, people that I respect in the City who are trying to 14 find a middle ground to do something constructive, they will 15 be disempowered. 16 We would not be here today talking about what the 17 City is willing to do unless we had adopted this plan. 18 I'm asking you to consider that in deciding what is 19 appropriately a very difficult choice. I think that if you 20 affirm this order, you empower the District and you empower 21 the City to find an appropriate solution to this, because now 22 what we are hearing, look at the opening briefs that the City 23 filed, the opening briefs didn't say, we have a different way 24 to solve this problem, we fundamentally disagree about how to 25 reach attainment, it's, you can't do anything, it's illegal PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 177 1 to put water on the lake, it's unconstitutional to the fix 2 the Owens Lake. 3 There are court decisions that keep us from going 4 on to the lake. That is the argument of denial that are 5 being made. 6 We need to get past denial. The way to get past 7 denial is have a plan that is approved. 8 When that plan is approved, then what is the 9 incentive of the polluter? 10 The polluter has to say, oh, my God, I know I don't 11 like this plan. I am going to put our brainiacs to work with 12 the District to find a way that gets the District to where it 13 needs to go to meet its Federal Clean Air Act requirements by 14 some way, in the City's opinion, more acceptable. 15 I am asking you to empower the District in that 16 way, by showing respect in deference to the decision that it 17 made. 18 I think that if we go there, we are going to talk 19 about a solution that is ultimately going to both resolve 20 this problem and address the District's very serious Clean 21 Air Act responsibilities. 22 If there are any questions that you have -- I just 23 want to make one other point, which is that if it is the 24 pleasure of your Board to affirm the District's Order, we 25 have included in the reply brief a formal order that makes PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 178 1 all of the necessary findings and conclusions that your Board 2 can adopt in order to do so. 3 CHAIRMAN DUNLAP: Thank you. 4 Any questions for Mr. Lamb? 5 Very good. Thank you, and I appreciate your 6 wrap-up. 7 For my friends from the City, I am pretty hungry, 8 but I am willing to listen to you, certainly. 9 I am going to ask a judgment call on your part. If 10 you are going to be longer than 10 minutes -- 11 MR. SCHLOTMAN: I'm hungry, too. 12 I have brief remarks. 13 I think I will probably hit or miss things, because 14 Mr. Lamb went around and he missed various things as well. 15 Impressions, really. The impression he gives you 16 to empower the District. The District is empowered. 17 They could have issued a control order at any time 18 in the last 15 years if they felt they had a reasonable basis 19 and reasonable evidence to do so. 20 How many orders have they issued in the last 15 21 years? 22 One. 23 Who is empowered to get on the Lake and do it? 24 Not the City. 25 We don't own the Lake. It is owned by the State of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 179 1 California. The State Lands Commission issues the leases and 2 permits. 3 The District has gone to the State Lands Commission 4 for those leases and permits because of the statutory scheme 5 the parties agreed to back in 1983. 6 The State Lands Commission will be here and have 7 comments to present to you later, I suspect. They believe 8 they are a player, a stakeholder in this, and their views 9 about what should and should not go on in the Lake must be 10 listened to. 11 I believe you will hear some interesting ideas 12 about creative solutions. That basically has been ignored in 13 all of the District's control orders. 14 They proposed, and I don't intend to spend a lot of 15 time talking of them, a massive project. It's easy to say 16 5,000 acres here, 8,000 acres there, 5,000 acres here. 17 Well, 8,000 acres is something over 300 million 18 square feet. The 5,000 acres of gravel is something over 217 19 million square feet. Based on a long test process? No, 20 based on a 20 foot by 10 foot test process one year that 21 failed, 200 square feet to 200 million square feet. 22 So, we have some questions about the control 23 measures that we really have not delved into today because of 24 the judgment of your staff that the fundamental premise for 25 many of these things. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 180 1 The air quality modeling was not sufficient, so we 2 don't need to go to those control measures, and essentially 3 you are either going to believe your staff and their 4 expertise, or you are not. I am not going to quarrel with 5 it. 6 Counsel pointed out that, well, you heard negatives 7 in a brief. You heard that this is wrong, and that is wrong. 8 It's illegal. It's immoral. It's fattening. 9 Sure, that is what goes into a brief. 10 He says you didn't hear any solutions. That is 11 probably true. 12 When we attempted in some fashion to present this 13 morning a willingness to go forward and work, who objected to 14 hearing that? 15 Not us. 16 You can't have it both ways. The sense of what I 17 get from the District's comments is, we didn't get enough 18 input from CARB early on. 19 There has been miscommunication. You didn't tell 20 us, so we did the best we could under the circumstances. 21 Well, the City made comments, at least, in writing. 22 They're in the record, in October, November, December, 23 January of 1996, January of 1997, again in May, June, all 24 pointing out some of these substantive difficulties with the 25 control measures and with the air quality monitoring. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 181 1 The District dug its heels in, and I think probably 2 the City did too, quite frankly, and we are trying to get 3 beyond that. 4 The other thing I hear is, well, we have these time 5 deadlines we have to meet. They're Federal requirements. We 6 have to obey the law. 7 I grant you that. 8 Does that authorize you to undertake unreasonable 9 measures simply because of the time deadline? 10 April 15 is income tax day. You owe income taxes. 11 You have no idea how much. Can you file a false return 12 simply to meet a time deadline? 13 No. 14 Can you undertake an unreasonable measure simply to 15 meet a time deadline? 16 No. 17 They have to be worked together. The District 18 suggests that nothing will happen if you sustain your staff's 19 report. 20 On the contrary. The City and Department have 21 expressed, and I will reaffirm, our willingness to do things 22 today to solve the problem. 23 Counsel asked you to trust in their judgment, to 24 reaffirm their judgment. He says you act as an appellate 25 panel. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 182 1 No, you do not, with all due respect for you. You 2 make an independent judgment as an independent Board that 3 these measures are or are not reasonable. 4 You make an independent determination as to whether 5 the fundamental underpinnings, the science, can be relied on. 6 Your staff says it cannot, and we concur. 7 Thank you. 8 CHAIRMAN DUNLAP: Okay. Any questions of 9 Mr. Schlotman? 10 All right. Mr. Lamb, I don't want this to go on, 11 and on, and on, but you did use up more time than the City of 12 LA by my count. 13 You had maybe a minute left, and they also have 14 time left, so I would encourage you to be a gentleman, hit 15 the key point or two for a few seconds, and then we will take 16 a break and get to the witnesses. 17 MR. LAMB: I'm sure the City would yield their 18 additional time. 19 Mr. Chairman, I just want to make three very brief 20 points. 21 One is I want to emphasize that this modeling is 22 now being used to fill Mono Lake. As we speak, water is 23 going into Mono Lake, filling that at the cost of $5,000 a 24 ton. 25 I adjure you not to take any action that decides PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 183 1 today that based on this ozone modeling requirement, this is 2 the basis for not only the judging of all PM 10 plans going 3 forward, but it could be used by people as a basis for 4 reopening decisions that have already been made, they will 5 decide, well maybe Mono Lake doesn't have to be that full, we 6 have this new modeling criteria that ARB has adjudicated 7 through this proceeding, and therefore, we are going back to 8 the Water Board, they think that maybe if we had hourly 9 performance evaluations that the water level would be 10 different. 11 In terms of people relying on this modeling, it has 12 been already relied on by ARB and is being relied on today. 13 I wanted to address Ms. Edgerton's issue about the 14 use of water. That is a serious issue, and it can't be 15 dismissed. 16 At the same time the South Coast AQMP that you 17 approved in 1997 uses 80,000 acre feet of water a year, 18 virtually all of it potable, to control far less fugitive 19 dust than we are talking about off Owens Lake. 20 That is all in the administrative record, and it's 21 referenced in the briefs if you want to look at it. 22 CHAIRMAN DUNLAP: Okay. 23 MR. LAMB: My final point that I want to make is 24 that we are not saying this is the be all and end all plan. 25 42316 expressly says that we can require or amend PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 184 1 control measures based on substantial evidence. Our SIP 2 expressly says that we will amend and improve the SIP, both 3 our control measures and our modeling technology as we go 4 forward. 5 Our District is committed to that. Also, the 6 Federal Clean Air Act explicitly requires us to make changes 7 to our control strategy going forward. 8 I'm telling you today as District Counsel, we are 9 committed to a process of revision of consideration of all of 10 CARB's points that have been raised today, of all of the 11 points that the City has raised, to have a comprehensive 12 second look at a SIP at a reasonable time. 13 CHAIRMAN DUNLAP: Very good. Thank you. 14 BOARD MEMBER EDGERTON: I have a question. 15 CHAIRMAN DUNLAP: Yes. 16 BOARD MEMBER EDGERTON: Mr. Lamb, as you know, you 17 were with us at the tour last week, which the parties sent 18 representatives, and Ms. Riordan and I had an opportunity to 19 spend five hours out on the dry bed. 20 There were several photos that were presented here 21 with respect to the control measures and the efforts to do 22 them that didn't look like what I saw. 23 This picture, the 20-acre vegetation test plot on 24 the Owens Lake bed, I didn't see anything that looked exactly 25 like that. In fact, did you say it was not there any more, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 185 1 it was the City that pointed out that it was not there 2 anymore, I think. 3 CHAIRMAN DUNLAP: I think the quick answer, Lynn, 4 is that it's not there anymore. 5 MR. LAMB: It's not there anymore. We tried 6 different kinds of basic vegetation. 7 What you saw was a different method that as used 8 there. We have studied things and then we have let them go. 9 So, that's why when you go out to the Lake you see 10 different brick brack, okay? 11 CHAIRMAN DUNLAP: Okay. 12 Anything else, Lynn? 13 MR. LAMB: You like what you see in the picture and 14 want more of it. 15 BOARD MEMBER EDGERTON: I have to say that with 16 respect to what I saw when I was there on the lake bed was a 17 wonderful effort to establish vegetation and to find some 18 control measures, but I didn't see anything that looked just 19 yet like a success. 20 MR. LAMB: Mr. Chairman, one thing that needs to be 21 emphasized is that our plan is a phased implementation plan, 22 that is it calls for the most successful and simplest control 23 measures to be implemented first. 24 It calls for an implementation over a four and a 25 half year schedule to meet the Federal deadline of December PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 186 1 31, 2,001. 2 We are not even going to be implementing 3 agricultural for like two years from today. So, in terms of 4 finalizing and perfecting that, there is time to do that. 5 We feel that it's there, and we have used this 6 technique so recently that you don't see the amber waves of 7 grain yet, but trust me, you will. 8 CHAIRMAN DUNLAP: Okay. All right. 9 Mr. Schlotman, again, you have a couple minutes. 10 Do you want another minute before we go to lunch? 11 MR. SCHLOTMAN: A chance to get in the last word, I 12 can't ignore that. 13 CHAIRMAN DUNLAP: As a lawyer, I know you need 14 that. I will give you a minute, too. 15 MR. SCHLOTMAN: I think the only thing that I will 16 say, I think Ms. Edgerton's comments about the lack of 17 success of the managed vegetation stand for themselves. 18 32 pounds planted, zero growing. Planted, I think 19 in September of 1996, report in May of 1997, sufficient in 20 July, a rush to judgment, simply not enough time to find out 21 whether it works or doesn't work. 22 Counsel says we can modify as we go long. Maybe. 23 But the order is an absolute. It speaks for 24 itself, read it. 25 Massive works on very skimpy basis. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 187 1 Thank you. 2 CHAIRMAN DUNLAP: Okay. Here is what we are going 3 to do processwise. 4 Mr. Kenny, we are going to break for lunch. I am 5 going to keep it at 30 minutes. 6 We are going to come back, and we are going to hear 7 from the California State Lands Commission, and they are 8 going to have 15 minutes or so, and then we have some 17 9 witnesses that have signed up. 10 I'm going to ask Ms. Hutchens to be available, 11 she's wearing the purple, I'm going to let you all see where 12 you stand on the list of witnesses, and if you want to 13 consolidate your testimony, or go up as a team, because I am 14 going to put a time limit on it, okay, I am going to go 15 between four and five minutes because of the number of folks. 16 So, Ms. Hutchens is going to be available or one of 17 the representatives to talk to you about maybe two or three 18 of you going up there to emphasize the same points if you 19 desire, that way you can have perhaps a little bit more time 20 to develop a broader issue that you wish to develop. 21 The Board also has been given, those of you who 22 provided written testimony, the written testimony. I can 23 assure you we have read most of it, if not all of it. 24 So, I will make sure that I remind them by 25 mentioning it now that we are to do that. So, we will take a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 188 1 half an hour break, and we will convene about 10 after, is 2 that about right, and we will hear from the Land Commission. 3 Thank you. 4 (Thereupon the lunch recess was taken.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 189 1 A F T E R N O O N S E S S I O N 2 --o0o-- 3 CHAIRMAN DUNLAP: If I could get folks to take 4 their seats, we will get going. Our friend from the State 5 Lands Commission is here. 6 Just a minute. I will get him up here. 7 I will introduce, before we hear the comments from 8 the members of the public, we will first hear a presentation 9 of the California State Lands Commission. 10 The State Lands Commission is not a party to the 11 appeals we are considering today, however the State Lands 12 Commission is the agency responsible for managing the Lake on 13 behalf of the State of California which is the owner of the 14 lake bed. 15 The State Lands Commission has asked to address the 16 Board, and I believe it is appropriate to hear their comments 17 in light of their special status with respect to the lake 18 bed. 19 So, Mr. Lamb, I will bring you up right after him 20 and then you can say what you need to say. 21 I think it is more appropriate for then, okay? 22 We are going to hear from him in a special 23 presentation provided by the Board. 24 MR. VALENTINE: Thank you, Mr. Chairman and 25 Members. My name is Michael Valentine, and I would also like PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 190 1 to introduce Robert Hight who is our Executive Officer who 2 has been here all morning to hear your labors. 3 CHAIRMAN DUNLAP: He stood up and waved. He is 4 welcome to join you. 5 I have been offering that seat up next to Mark all 6 day, but there have been no takers. 7 BOARD MEMBER DeSAULNIER: Maybe it is me. 8 MR. VALENTINE: Thank you. I suspect there will 9 be no takers this time either. 10 Your staff, for which I thank them greatly, has set 11 aside 15 minutes for me. 12 In light of what you have already been through this 13 morning, and in light of the number of speakers behind me, I 14 will endeavor to keep it considerably shorter than that. 15 I just wanted to make a couple of general 16 observations, and then see if there were any questions or 17 comments, and then I will withdraw. 18 We previously submitted to you a letter of comment, 19 which I won't repeat here. I assume everybody who wants to 20 see it has seen it. 21 We only start by thanking the ARB for all of their 22 work, the ARB staff, and to echo some things that were said 23 earlier about the Great Basin District's staff, its laborers, 24 its integrity and its high ethical standards, we would echo 25 all of those remarks. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 191 1 The State Lands Commission is the agency of the 2 State Government which has been given by the Legislature 3 responsibility for managing those lands that were either 4 under navigable waters, or were tidelands at the time that 5 the State intervened. 6 Owens Lake was such a lake. This is not a lake 7 that somebody thought was a big investment opportunity at the 8 State level and bought. 9 This is a lake that came into State ownership as a 10 condition of the State of California entering the Union. 11 It has been in ownership since September 1850 by 12 the State. The State Lands Commission has been endeavoring 13 to, and for the most part, successfully participating in the 14 process of this Owens Valley air quality problem for 15 15 years. 16 There were several studies mentioned earlier, among 17 them a study by Dr. Tom Cahill, who is recently retired from 18 the University of California at Davis, who has been, and 19 still is a consultant for the State Lands Commission on this 20 issue, the other was the Westech Study, which was funded in 21 part by funds budgeted by the Legislature to the State Lands 22 Commission. 23 We agree, I think, with everybody who has spoken 24 that this is an important public health issue, and that work 25 needs to commence soon, as in immediately, to begin dust PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 192 1 remediation on the lake. 2 We know, you saw the pictures this morning, we know 3 what happens when you don't do anything. So, it's time to 4 begin, I think the ARB staff agrees with them, and I think 5 everyone agrees, it is time to begin promptly the placement 6 of control measures on the Lake. 7 We have in the past, and we still believe that 8 there are environmentally sensitive control measures that can 9 have an air quality benefit and other ecological benefits. 10 We also think that it makes a great deal of social, 11 environmental and economic sense to have control measures in 12 place that have ecological endpoints. 13 By ecological endpoints I mean a point at which the 14 engineers can say, hey, you know, this is a stable 15 environment, and air quality goals are being achieved, we can 16 now take our hands off this process. 17 Otherwise, the numbers that you heard talked about 18 this morning in terms of dollars run, well, as long as the 19 diversions run, or until the end of time, these are serious 20 expenditures in anybody's book. 21 We also agree with statements made by Council 22 Member Galanter and others that there ought to be an 23 acceptable proposal and acceptable and agreeable solution to 24 this problem. 25 The principal parties, being the Great Basin PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 193 1 District and the City of Los Angeles, have on numerous 2 occasions butted heads over all of these issues, but in my 3 opinion, that is largely, as an observer of this process and 4 a sometime participant, they are not as far apart as their 5 attitudes today and in recent months would lead one to 6 believe. 7 We would like to see -- whatever decision you make 8 here today, we would like to see a process in which some of 9 the environmentally sensitive measures I mentioned in my 10 letter can be addressed and incorporated into the plan, and 11 in which we at State Lands Commission can participate with 12 the District staff, the ARB staff and the City of Los Angeles 13 to come up with methods to achieve the public health goals 14 that we all share. 15 In deference to your schedule and the other demands 16 on your time, I will close on that note. I realize that I 17 skimmed over very briefly over the State Lands jurisdiction 18 and what our participation in the process has been, but if 19 there are questions on those, or any other issues, I will be 20 happy to respond to them. 21 CHAIRMAN DUNLAP: If I could ask a question. 22 In the May twenty-first letter, which is an 23 augmentation, I guess your earlier submission to us, you talk 24 about one of the District's SIP measures, specifically 25 gravel, and you express some concern there, and I know you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 194 1 are in a difficult position as it relates to this issue, you 2 want to see some positive action occur and you have said 3 that. 4 I am not looking to put you in a place you don't 5 want to be, but you are troubled by this measure in 6 particular. Could you talk a little bit about the basis for 7 your concern? 8 MR. VALENTINE: Our concern is, A, we believe it 9 would be ecologically destructive. 10 It would be esthetically displeasing if nothing 11 else. It would be endless, and we fear that in time of high 12 flows the gravel will not stay in place either, and therefore 13 it will end up in places in the Lake where it will not be 14 helpful and that there will then be a perceived need to 15 continue placing gravel on the Lake with continued trucks 16 traveling on the Lake and to the lake and gravel, I don't 17 know exactly what the source of that amount of gravel would 18 be, but some mountain nearby would have to be eaten up in 19 order to supply this gravel. 20 CHAIRMAN DUNLAP: So, your concern is that the cure 21 or part of the cure could be ecologically harmful and not get 22 the desired result over time? 23 MR. VALENTINE: Yes. 24 CHAIRMAN DUNLAP: All right. Thank you. 25 MR. VALENTINE: I could make one other note. There PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 195 1 was some mention, actually quite a bit of mention earlier on 2 Mono Lake and how the cost differential, $200 compared to 3 $5,000, I should probably remind you that Mono Lake the goal 4 there was one, air quality, but it was also an attempt to 5 preserve and restore an entire ecosystem. 6 It was not solely an expenditure for air quality 7 purposes only, which is what we are talking about here. 8 This ecosystem is not going to be restored by the 9 measures that we are talking about here, nor can it be 10 restored even at the top end of the water we are talking 11 about, about 15,000 acre feet per year. So this is air 12 quality remediation. 13 It's not an ecosystem restoration project. 14 CHAIRMAN DUNLAP: And it shouldn't be perceived 15 that way. 16 Mrs. Riordan and then Ms. Edgerton. 17 BOARD MEMBER RIORDAN: This really is a question 18 that probably doesn't bear on what we are here today, but 19 just a curiosity of mine. 20 The underground water basin is controlled by what 21 entity, is it your responsibility? 22 MR. VALENTINE: To the extent that the basin 23 underlies lands under the jurisdiction of the State Lands 24 Commission, people who wanted to pump that water would have 25 to get an authorization to enter onto the Lake and place PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 196 1 those wells and drill from the State Lands Commission. 2 BOARD MEMBER RIORDAN: But we, the State, under 3 your supervision, do we have the responsibility, or do we own 4 this water? 5 Is it adjudicated basin? 6 MR. VALENTINE: I don't believe it is adjudicated 7 basin, but at the very least, if it was going to be pumped 8 from the surface, we would say a lease is required. 9 BOARD MEMBER RIORDAN: Thank you. 10 BOARD MEMBER EDGERTON: Yes. Thank you. 11 Could you follow up on that before I have my other 12 question, could you tell me how much groundwater is in that 13 closed basin? 14 MR. VALENTINE: I don't know. 15 BOARD MEMBER EDGERTON: Can you tell me if the 16 State Lands Commission has any studies that would indicate 17 the range of water that might be available? 18 MR. VALENTINE: No. 19 There is commencing now, a process now, a 20 cooperation between the City of Los Angeles and the County of 21 Inyo, a process which I hope will ultimately tell us how much 22 water is there and how much it is safe to yield to that, the 23 basin may be, but at this point, there are studies that have 24 been done by the Great Basin District, but there is no, in my 25 opinion, at least no definitive answer as to how much that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 197 1 basin can yield without results that I think everyone would 2 consider very destructive. 3 BOARD MEMBER EDGERTON: One of the things that 4 perplexes me was that you weren't more active parties in 5 this. 6 I would be interested to know what your 7 participation has been since you have control over the water? 8 MR. VALENTINE: There is two ways for an agency 9 such as ours to proceed when it has jurisdiction over a piece 10 of ground where there is a problem. 11 One is to be involved in every process and try to 12 influence in some way, however small, every single decision 13 that's made on that, in that matter. 14 The other is to make sure that the principal 15 agencies have a clear statement of what your jurisdiction is, 16 have a statement of what your concerns are and then you stand 17 back and let the specialized agencies that have jurisdiction 18 over air quality, such as the Great Basin District and the 19 Air Resources Board, to do what it is that they are legally 20 empowered to do. 21 Just to be blunt about it, there is not one 22 physicist, there is not one air quality expert, there is not 23 one organic chemist working at the State Lands Commission. 24 BOARD MEMBER EDGERTON: I just want to quote, I was 25 intrigued, and I did make an effort to read all 151 pages of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 198 1 each side of whatever, and on 90 of the amended brief of the 2 City of Los Angeles, they quote, part of their argument is 3 they say that these control measures are unreasonable 4 because -- 5 CHAIRMAN DUNLAP: Who says this, Lynn? 6 BOARD MEMBER EDGERTON: The City. 7 It is in the City's amended brief, it's like the 8 second, not the last one, but the one before the last, when 9 they are heading the groundwater beneath the Owens Lake is 10 not known to be available for use, and then it says, the 11 District believes the Air Board and City to speculate if 12 groundwater beneath the Owens Lake is available and under 13 what conditions. 14 Neither the State nor its lessee is a party to this 15 action. It is unreasonable to speculate that the State will 16 readily make available lake access, let alone use of the 17 groundwater which it owns by the District for control 18 measures. 19 Further, even should the State determine to make 20 some water available, we are again left to speculate as to 21 how much for how long and under what terms. 22 Then they quote from a staff position that was 23 included in a Draft Environmental Impact Report prepared by 24 the District, and it says, the State Lands Commission staff 25 notes that it is not yet ready to even consider a lease of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 199 1 State owned lands, it says, for example, quote, the State 2 Lands Commission can consider a lease of State owned lands 3 for the construction and operation of specific control 4 measures only after subsequent project design and 5 environmental review are completed. 6 The DEIR candidly states many aspects of this are 7 conceptual only. As a responsible agency, the SLC will be 8 required to adopt findings pursuant to CEQA. 9 This would not be possible using only the DEIR in 10 the absence of a definitive information in the DEIR on which 11 conclusion could be based as to whether environmental impacts 12 to the project will be mitigated. 13 So, finally, on the next page it says, it should be 14 noted here that final legally binding decisions authorizing, 15 or for that matter prohibiting, certain activities on State 16 sovereign lands, such as the bed of Owens Lake, can only be 17 made by the State Lands Commission itself at a formally 18 noticed public hearing. 19 The staff can and will continue to provide guidance 20 on public trust issues and Commission policies when relevant. 21 However, in the final analysis, the Commission 22 acting as owner of the lake bed will decide what activities 23 it permits there. 24 My concern is that what the City has said is that 25 the reason why it has taken them so long is in part because PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 200 1 the State Lands Commission has not agreed to let them on the 2 dry bed, or said what they could do on the dry bed, or even 3 indicated that the other water that might be available 4 underneath the dry bed could substitute for the aqueduct 5 water, so in that sense you are part of the issue, aren't 6 you? 7 MR. VALENTINE: I think that it is clear that State 8 Lands is part of the issue, but there are two points 9 addressed in the City's comments. 10 The first is apparently that they believe that 11 before a SIP, or an order be relatively adequate all of the 12 permits issued by every other agency in the State that may 13 have permit jurisdiction have to be lined up, and I don't 14 believe that to be the case. 15 The second is while it is true that the State Lands 16 Commission has not issued advisory opinions, or whatever on 17 what it will permit out on the lake, it's also true that 18 nobody is relying on them for anything. 19 The State Lands Commission is not in the habit of 20 acting on hypotheticals. People make a proposal for 21 activities on its property, and the lease is either issued or 22 its denied. 23 There have been no applications -- 24 CHAIRMAN DUNLAP: There is a process that exists 25 for them to be able to apply, correct? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 201 1 Could I ask you to do me a favor? 2 Would you send an application to the City for me? 3 MR. VALENTINE: It will be my pleasure. 4 CHAIRMAN DUNLAP: Any other questions for the 5 witness? 6 Thank you, very much. Now, Owens, or the Great 7 Basin lawyer, Mr. Lamb. 8 You have been doing a fine job thus far, anything 9 else that you want to tell us?. 10 MR. LAMB: Mr. Chairman, I am so confident that 11 your decisions will be correct, but I want to make sure they 12 are free of any arguable legal error. 13 I want to advise the Board that the Bagley-Keane 14 Open Meeting Law you mentioned earlier that you might limit 15 the amount of time that speakers address the Board. 16 Under Government Code, it's 11125.7, subsection B, 17 provides the only authority in the Bagley-Keane Law for you 18 to limit the amount of time that people can address, and it 19 provides that those limitations must be done pursuant to duly 20 adopted regulations. 21 So, in the absence of regulations that your Board 22 has adopted -- 23 CHAIRMAN DUNLAP: What I am going to do is I am 24 going to turn to our Deputy Attorney General, Ms. Barnes, and 25 I am going to ask her view on this and then we will render a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 202 1 decision. 2 MS. BARNES: Thank you, Mr. Chairman. 3 Counsel is accurate in the sense that 11125.7, the 4 Government Code, section B, does state the State Board may 5 adopt reasonable regulations. 6 Unless this Board wants to adopt a rule of future 7 application for all situations on its face, this Board can 8 make decisions on a case by case situation regarding the 9 amount of time that individuals can speak, and that can vary 10 on a case to case basis, as long as the public is allowed to 11 comment on items on your Agenda. 12 CHAIRMAN DUNLAP: All right. So, you are telling 13 us that it is up to our discretion? 14 MS. BARNES: On a case by case situation, yes. 15 CHAIRMAN DUNLAP: Here is what I would like to do. 16 Counselor, I appreciate those concerns. 17 I have great respect, and I know my colleagues on 18 this Board do, for the folks who have come a long distance to 19 testify before us today. I know it took great personal 20 sacrifice to be able to do that. 21 My intent in limiting the time in which people can 22 comment is not to shut you off. It's not to keep you from 23 having a right to be exercised, but it's for us to be able to 24 have an efficient use of time. 25 Several of my Board Member colleagues have other PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 203 1 places they need to be late in the afternoon, and I fear 2 losing a quorum. That's my primary concern. 3 This is, by the way, the second day of a two-day 4 cluster hearing that we are having, or meeting. So, when I 5 left to lunch with the Board, I asked that those of you that 6 wanted to could meet with our Clerk to consolidate your 7 testimony to emphasize your points, because I imagine some 8 folks, as in cases based upon my six or eight years as a 9 Chairman of different bodies, I have seen folks be redundant, 10 so my counsel to you was to get with her and see if you could 11 consolidate remarks or emphasize points. 12 I am going to stick with about a four minute 13 comment period. If you run out of time, I will let you 14 appeal to have a few more minutes if you would like, but that 15 is what I am going to try to do. 16 So, with that, I am going to jump into the public 17 comment period, and I seem to be missing my sheet of paper 18 which had the list, so if I might borrow one. 19 I have the individual sign-up cards, but I will 20 ask, I don't know how the seating looks there in the front 21 row or anything, but I am going to ask people to gravitate 22 towards the front. 23 I am going to ask Mr. Michael Valentine, we have 24 already heard from, Chuck Fryxell, Chuck can I get you to 25 come forward, who is the Air Pollution Control Officer of the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 204 1 Mojave District. 2 After Mr. Fryxell we are going hear from Howard 3 Auld, who is the Vice Mayor of Ridgecrest. I'll ask him to 4 cue up over to the side, then we will hear from Captain Ostag 5 from the Navy, again, I will ask you to cue up there on the 6 right. 7 Lucinda McKee, who is a hydrologist from the United 8 States Forest Service, and then Randell Friedman, who is from 9 the Naval Base in San Diego, so if I could get you to cue up 10 behind Chuck there, we will have you go forward. 11 As it relates to the timer, could I ask you 12 gentlemen to run that for me? 13 Thank you. Chuck, welcome. 14 MR. FRYXELL: Thank you. Good afternoon, Mr. 15 Chairman and Members of the Board. 16 For the record, my name is Charles L. Fryxell, and 17 I'm the Air Pollution Control Officer for Mojave Desert Air 18 Quality Management District and the Antelope Valley Air 19 Pollution Control District. 20 The reason that I am here today is that formally I 21 was the Air Pollution Control Officer at Great Basin Unified 22 Air Pollution Control District and it was mainly my efforts 23 that is why we are all here today, that's why, shortly after 24 my testimony, I am leaving town before anybody can catch up 25 with me. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 205 1 But I just want to give a little perspective, a 2 little bit of history on why we are sitting here today, and I 3 did not come up on beat up at ARB staff, so I will put you at 4 ease. 5 It was, in fact, it was at a hearing, somewhat 6 similar to this, it was our Hearing Board over in Great Basin 7 and I was glad to see that Mr. Schlotman used a little better 8 judgment today and didn't challenge the qualifications of the 9 Board as he did with my Hearing Board, so maybe he has 10 learned something in 15 years. 11 But anyway, the Hearing Board, I had requested that 12 the City of Los Angeles apply for permits for their water 13 diversion activities, which obviously caused air pollution at 14 Owens Lake. 15 They took objection to that and appealed that to 16 the Hearing Board. The Hearing Board upheld my decision. 17 Well, as you might realize, we still don't have 18 permits on those activities. The next thing they did is they 19 got Senator Dills to author a Bill to exempt the City of Los 20 Angeles from air quality regulations in the Owens Valley. 21 Through that process, and with the good help of 22 then Chairman Gordan Duffey, we got that Bill turned around 23 into the compromise Bill, which is the one that you are 24 dealing with today. 25 Now, that was 15 years ago. Where my expertise in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 206 1 PM 10, of course, stems from a lot of the work that I did 2 when I was in Great Basin. 3 I also was selected to serve a nationwide committee 4 to establish RAQCM BAQCM, the kind of control measures you 5 are talking about today. 6 Reasonableness of these control measures are 7 exactly what's in that guidance, it's water, it's cover, it's 8 vegetation, you do whatever you can to keep the dirt down. 9 So, I think that the control measures are very much 10 reasonable. In speaking to the modeling, this is not an 11 uncommon thing for a District and the Air Resources Board to 12 differ on technical issues such as modeling. 13 It will be resolved. I know we have had our lively 14 discussions over the various types of modeling in the desert. 15 I think it can be resolved, but I don't think that 16 it's the reason to hold up the implementation of control 17 measures. 18 I think the City of Los Angeles has had adequate 19 time, 15 years, to figure something out there. They have left 20 the burden on the District, and the District has run out of 21 time. They have run out of patience. 22 It's time to do something at Owens Lake and fix 23 that problem. It's a public health, it's a nuisance, and it 24 affects the health and welfare of everybody in that area. 25 It also floats into my air basin, which I then get PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 207 1 dinged for, and I don't like that. So, I am just coming here 2 just saying that I hope that you support the District, and 3 uphold the conditions and the fees, of course, and also the 4 control measures, as I think they are good, and I think they 5 will work. 6 This Board has been on the cutting edge before and 7 they are on the cutting edge again of forcing something to 8 happen. 9 CHAIRMAN DUNLAP: Thank you. I appreciate that. 10 We will come to the next witness, Howard Auld, who 11 is a Vice Mayor from the City of Ridgecrest. 12 MR. AULD: Good afternoon. I appreciate your 13 taking the time for us to give our testimony. 14 What I have is a letter that has been given to the 15 Board from our Mayor Pro Tem, Steve Morgan. Much of what he 16 has in this letter has already been stated and agrees with 17 what Dr. Hardebeck has already stated. 18 But I did want to read one part of it, and he says, 19 I wish to express my total dismay with the situation of which 20 you are making a difficult decision today. 21 The blowing dust has created health problems that 22 plague many local residents and even halt the operations in 23 the Naval Warfare Center/Weapons Division in China Lake and 24 he states, I, Steve Morgan, am an Air Traffic Controller at 25 the Naval Center and state the later as an absolute fact. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 208 1 As I said, the rest of the letter does agree with 2 Ellen Hardebeck's comments. Also, I have another document 3 from Steve Paxson, who is the Air Pollution Control Officer 4 for the Kern County, APCD, and I think he touches on several 5 things regarding the Implementation Plan. 6 Several paragraphs deal with the plan will protect 7 the public health, control is effective, water is available, 8 the plans modeling is acceptable, Federal, he addresses the 9 Federal Implementation Plan, the SIP, and talks about 10 environmental justice, and I would just read the last 11 sentence in that paragraph, that the City of Los Angeles is 12 the sole creator of what is currently the largest single 13 source of particulates in the United States. 14 It is morally and parenthetically legally 15 responsible for cleaning it up. An 80 year grace period is 16 long enough. 17 And as I said, this is from Tom Paxson, a 18 professional engineer. In addition, if I may, I would like 19 to make some comments about the City of Ridgecrest and the 20 Indian Wells Valley, as it is affected by the Owens dust 21 problem. 22 Ridgecrest is currently in an economic recovery 23 mode. This is necessitated by the Defense Department 24 drawdown, Base closures, etcetera, and mainly drawdown as it 25 affects one-third of the employees have been retired, or PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 209 1 whatever, but have been lost, and that has necessitated this 2 economic recovery for us. 3 Clean air is really important to what we are trying 4 to do. I can cite a few projects that are important. 5 One of them is called Project Saline. This is a 6 project that is in development. 7 Some State money has already been provided for 8 prototype work and for the exploratory work necessary. 9 Project Saline is a high power laser beaming device 10 to reenergize satellites that have lost some of their 11 efficiency in the solar panels. 12 Clean air is really important when you are beaming 13 a light source through the air. There is an element called 14 C-ing, which means there are particulate matters and the beam 15 gets scattered. 16 So, clean air, they are working on how to get the 17 beam through, but clean air is very important to that 18 project. 19 When it is finally completed, and the economic 20 incentive, the economic impact can be billions of dollars. 21 I think you all have a sense of what it costs with 22 the satellites, etcetera. Ridgecrest also is in the process 23 of developing industry, one of them is cinematography. 24 It right now is giving discretionary funds to as 25 much as conservatively $6 million a year comes in as PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 210 1 discretionary money because of the several natural 2 enticements that are there, it is a growing industry. 3 Tourism is also being looked at, and, of course, 4 tourists like the clean air, and the retirement industry is 5 another one that is being worked on. 6 So, all of those do relate. I'm on red. 7 Let me just say that I strongly oppose the City's 8 appeal action and support the Great Basin mitigation. 9 CHAIRMAN DUNLAP: Very good. Thank you. 10 What is the population of Ridgecrest? 11 MR. AULD: Ridgecrest is stated as 28,000. The 12 Valley is probably in the order of 35,000. 13 CHAIRMAN DUNLAP: Thank you for taking the time to 14 join us. I appreciate that. 15 Captain, you are up. Captain Ostag, from the Navy 16 says that he is representing himself as a citizen today. 17 CAPTAIN OSTAG: No, sir, that's not correct. 18 I'm here as a representative of the United States 19 Navy/Naval Air Weapon Station, China Lake, and Captain 20 Douglas, who is the Commanding Officer, was not able to be 21 here, and I represent the China Lake community, as well, and 22 this consists of over 2,800 active-duty military and their 23 dependents, 5,800 civilian and contractor employees, 2,000 24 local children who attend schools and receive day care aboard 25 the Station and 4,500 military and civilian retirees and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 211 1 that, sir, is approximately half the population of the Indian 2 Wells Valley. 3 I have a short statement to make, and then I have a 4 two minute, 15 second video, some precluding remarks, Ms. 5 Barbara Auld has graciously agreed to accede a moment or two 6 or so of her time if I run over. 7 China Lake is the Navy's premier research, 8 development test and evaluation and inservice engineering 9 center for weapon systems associated with air warfare, 10 missiles, missile subsystems, aircraft weapons integration 11 and airborne electronic warfare systems. 12 China Lake is the ideal testing activities due 13 largely to the extremely good visibility that we have almost 14 year-round. 15 However, Owens Lake events seriously decrease 16 visibility about 12 to 15 days per year. On those days, our 17 operations are impacted because we use very high speed video 18 cameras to record precise information about the performance 19 of the item to be tested. 20 During an Owens Lake event, we may not be able to 21 see the item at all and we may lose some data due to lack of 22 clarity and flight safety may be jeopardized due to the 23 reduced visibility. 24 I should point out that all of the flights that 25 take place in the 2508 air space, or VFR, visual flight PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 212 1 rules, the basic rule is see and avoid, and having done this 2 myself, flying at 450 knots you need a long way too see if 3 you are going to avoid another airplane that's traveling at 4 450 knots. 5 One of the things that is a major concern to me as 6 an officer, I'm responsible for the welfare and well-being of 7 the folks that work for me, all of them. 8 One of the things that we have not seen addressed 9 here today are the health impacts to the well-being of the 10 military, civilian, employees and family members in area. 11 Despite the staff's statements to the contrary, 12 Owens Lake dust storms do leave the Great Basin District and 13 do migrate into the Indian Wells Valley and beyond. 14 I will be able to show you some video here, some 15 radar imagery that shows that. Local public health officials 16 have stated that compared to rest of Kern County and 17 California as a whole, an unusually high percentage of deaths 18 that occur in the Ridgecrest area are the result of acute 19 respiratory conditions. 20 I believe that they are here today, and I am not 21 sure if they actually are, but they can comment on that 22 further, but in an effort to better understand the nature and 23 severity of the health effects experienced by the China Lake 24 community, we recently conducted a one time, nonscientific 25 survey of China Lake employees through our internal E-mail PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 213 1 network and we received over 110 responses, which I have 2 provided copies to you all on. 3 These E-mails contain complaints which included 4 allery-like symptoms, sinus infections, migraine headaches, 5 asthma attacks and other respiratory ailments. 6 We were especially distressed to learn of the 7 asthma and other impacts of the thousands of children of our 8 civilian employees and military members. 9 I might point out that it's pretty safe to assume 10 that these same effects and impacts happen outside of our 11 fenceline as well as within. 12 I now would like to show you a short video which 13 demonstrates these dust events. 14 (Thereupon a video was shown.) 15 CAPTAIN OSTAG: By the way, we have been keeping 16 both still photography and videos of Owens Lake events taken 17 from the same place for about three years now, and we have 18 got more than ample evidence, visual evidence that these dust 19 storms take place and to the extent of their severity. 20 I'm a Navy Civil Engineer Corps Officer and I'm 21 also a registered architect, and I have been in private 22 practice and Government service and I have been doing this 23 for 28 years. 24 I have been doing design construction engineering 25 and environment restoration. In the past five years alone, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 214 1 among other things, I have been responsible for the 2 completion of over $90 million in environmental studies and 3 probably $250 million in environmental restoration projects. 4 They all involve uncertainties. In fact, the work 5 that we did in California, the Pacific North West and Alaska 6 have proven more than I ever realized before that the only 7 thing certain about environmental work like this is that it 8 is going to be, there are a lot of uncertainties and you 9 never know what you are going to find. 10 The object here, and the discussion that I have 11 heard today, has been on modeling, and the object is not to 12 discuss modeling, the object is to abate the dust. 13 The only way that we can do this is to get out on 14 the lake bed and go to work. The approach that the Navy has 15 successfully used, and that we would use if we were the 16 remediation project manager here, is to utilize the existing 17 data, adopt a reasonable plan of action, go to work, use 18 common sense, good engineering judgment, honest science and 19 actual field experience to continually modify the play and 20 achieve the desired results, which are dust abatement. 21 It is not conformance with a particular model. 22 Let's face it, we are not talking about rocket science, we 23 don't need to make this any more complicated than it needs to 24 be, we are talking about using gravel and plants and water to 25 control dust. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 215 1 By the way, every square meter of dust that we 2 abate is a square meter, or every square meter of land that 3 we abate is a square meter of dust that's not going to come 4 up in the next event. 5 The Owens Lake problem has been studied for 17 6 years and in the Navy's opinion it is time to act. We should 7 all be committed to that one simple goal, which is to achieve 8 the Federal air quality standards and put a stop to the 9 health impacts on our community. 10 At China Lake we are meeting our obligations to 11 clean up after past environment practices despite the 12 projected cost to the Navy of over a $150 million. 13 We believe that the City of Los Angeles should meet 14 that same obligation, especially given the magnitude of the 15 health impacts caused by these dust events. 16 The Navy respectfully requests that the Board deny 17 the City's appeals. 18 CHAIRMAN DUNLAP: Very good. 19 Mrs. Auld, are you here? 20 Do you want to add to that? 21 He has used a couple of your minutes. I believe we 22 heard from your husband. I appreciate you yielding. 23 MRS. AULD: Some of the things my husband 24 neglected to tell you that we are 53 year residents of China 25 Lake, Ridgecrest. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 216 1 All our children, all our grandchildren and all of 2 our great grandchildren and other relatives live in 3 Ridgecrest. 4 We for years have watched that get worse as it 5 comes down. I personally am vitally interested and have 6 supported the Saline project for more than four years. 7 Another that I'm vitally interested in is the South 8 West Defense Complex, of which China Lake is vitally 9 important, and they need the clear air. 10 My feeling is that we need immediate remedial 11 mitigation, immediate. 12 Thank you, very much. 13 CHAIRMAN DUNLAP: How long has your husband been on 14 the Council there, by the way? 15 MRS. AULD: Howard was ten years Planning 16 Commission and he's finishing up eight and a half years on 17 the City Council, and I have actively accompanied him and 18 supported him and am deeply involved in economic development 19 in the Indian Wells Valley, and I feel that the South West 20 Defense Complex is vital to national defense. 21 CHAIRMAN DUNLAP: Very good. Thank you. 22 Lucinda McKee and Randal Friedman and Mr. Gibbons, 23 if I could get you to cue up followed by Mr. Mooney and 24 Richard Knox, he has become a pen pal of mine, I think, if he 25 is here we will have him come up. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 217 1 MS. McKEE: Ladies and gentlemen of the Board. I'm 2 here today representing Jeff Bailey, the Board Supervisor of 3 the International Forest who was unable to attend. 4 The United States Forest Service has a strong 5 interest in ensuring the timely resolution of the Owens Lake 6 dust problem. 7 After review of the ARB staff report, we do not 8 support the staff recommendation to deny the reasonableness 9 of the control measures proposed by the Great Basin Unified 10 Air Pollution Control District. 11 Denial of the reasonableness of control measures 12 will delay the attainment of the Federal PM 10 standard and 13 allow the unacceptable impact to human health and resources 14 to continue unabated. 15 The Forest Service manages thousands of acres 16 within the Owens Valley PM 10 nonattainment area that are 17 directly impacted by dust in the dry lake including the class 18 one John Muir Wilderness, the Golden Trout Wilderness and the 19 South Sierra Wilderness. 20 All three Wilderness areas are within ten miles of 21 the dry lake and the Golden Trout Wilderness boundary is 22 actually within one mile of the dry lake bed. 23 In addition, pollutants from the lake bed are 24 regularly transported to the ancient Bristlecone Pine Forest 25 area in the Inyo and White Mountains. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 218 1 Dust storms impact these sensitive areas in many 2 ways. In the short term, high concentrations of PM 10 and 3 associated pollutants reduce visibility, alter plant 4 respiratory and photosynthetic activity and irritate the 5 respiratory tracts of recreational visitors, U.S. Forest 6 Service employees and wildlife. 7 The long-term impacts of he dust events on the 8 forest ecosystems and employees are unknown. The Forest 9 Service is mandated by the Federal Clean Air Act to protect 10 air quality related values, such as plants, wildlife and 11 visibility from unacceptable impacts due to air quality. 12 As such, we must encourage you to take action 13 immediately to begin implementation and control measures to 14 reduce PM 10 in the Owens Valley area. 15 Careful review of the ARB staff report, the 16 District's reply brief and the LADWP closing brief indicate 17 that a compromise is possible that will allow control 18 measures to be implemented at Owens Lake while details 19 concerning the model and other pertinent issues are resolved. 20 The Forest Service proposes the control measures is 21 defined in the SIP adopted by the District's Governing Board 22 be implemented immediately for the nondisputed source areas 23 of dust on the dry lake. 24 Figure 2-4 of the ARB staff report defines 25 approximately 28 square miles of frequent dust areas which PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 219 1 coincide with the source areas defined by the District. 2 The ARB staff report did not dispute the type of 3 control measures, but rather the aerial extent of the source 4 areas requiring control. 5 Therefore, the opportunity exists to begin control 6 of the dust while still resolving the issues regarding the 7 model. 8 If the LADWP is correct in stating that the model 9 overpredicts the source areas, implementation of the control 10 measures for the nondisputed area result in attainment of the 11 PM 10 standard and no further measures will be necessary. 12 If LADWP is incorrect, implementation of the 13 control measures will be the first step towards attainment. 14 To not allow the largest source of PM 10 in the 15 country to continue unabated, while more research is 16 conducted and more lawsuits are filed, you have the 17 responsibility and the opportunity to take action to improve 18 the air quality for human health and environmental resources 19 in the Owens Valley PM 10 nonattainment area. 20 After 18 years of research, we urge you to support 21 the compromise and reject the City's appeals. 22 CHAIRMAN DUNLAP: Thank you. 23 Any questions of the witness? 24 Mr. Parnell. 25 BOARD MEMBER PARNELL: No. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 220 1 I think she has been very clear. I assume that you 2 have peaked in on the wildlife implications as well, on the 3 flooding proposal and concur U.S. Fish and Wildlife is not 4 here, State Fish and Game is not here, I'm taking your word 5 for it that those issues have been looked at resolved. 6 MS. McKEE: Well, I guess that I will take Ellen's 7 word for it, Dr. Hardeback, because I would not want to speak 8 for the U.S. Fish and Wildlife Service, nor the California 9 Department of Fish and Game. 10 BOARD MEMBER PARNELL: They do communicate 11 together, I assume? 12 MS. McKEE: Yes, we do. 13 CHAIRMAN DUNLAP: One thing, while we have you 14 here, I appreciate your commentary, you watch those 15 controlled burns, okay, because sometimes they get away from 16 you. 17 MS. McKEE: I thought that might come up. We are 18 doing our best. 19 CHAIRMAN DUNLAP: You can assure, any time I see 20 somebody that works for your organization, I make that point, 21 but that's important. 22 Mr. Friedman. Good to see you. 23 We already heard from the Navy a moment ago, now, 24 what are you going to say that 's different? 25 MR. FRIEDMAN: In a minute and a half, I will tell PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 221 1 you. Thank you, Mr. Chairman and Board Members. 2 The staff recommendation is before is not a 3 productive one, but one that stalls the process. My goal 4 here is to try to make this productive and pose a question 5 for you. 6 As a nonlawyer in a room crowded with lawyers, I 7 have a simple question, your staff has shown that large areas 8 of the Owens Lake are highly emissive, there is a map of 9 them. 10 Your staff agrees with their mitigation. Now, for 11 the simple question: How can you grant an appeal for areas 12 where impacts are identified and the mitigation is 13 reasonable? 14 If your true intent, and the true intent of the 15 City, is solving this problem in a timely manner, find a way 16 to allow a significant portion of this mitigation to proceed. 17 At a minimum, deny the City's appeal on those areas 18 where there is no dispute. For disputed areas, give the 19 parties a few months to come back here with a plan, including 20 a commitment of resources for full attainment. 21 Would such an action be legal? 22 Your staff has already said that Health and Safety 23 Code 42316 is unclear as to how you can proceed. 24 I think you could justify it. The legal question, 25 however, is irrelevant if the City does not litigate. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 222 1 The City has told me repeatedly of their genuine 2 desire to be installing mitigation by this fall. You have an 3 opportunity to either open that door today, or to put this 4 room full of lawyers to work. 5 The choice is yours, and I hope you choose wisely. 6 Thank you. 7 CHAIRMAN DUNLAP: Yes, Supervisor Roberts. 8 BOARD MEMBER ROBERTS: Mr. Friedman, our Witness 9 List says you are representing the Naval Base, San Diego. 10 MR. FRIEDMAN: Yes. 11 We are the California Regional and Environmental 12 Coordination Office. We work on Statewide environmental 13 issues for the Navy under Rear Admiral Frohman in San Diego. 14 BOARD MEMBER ROBERTS: So, you are here in that 15 capacity? 16 MR. FRIEDMAN: Yes. 17 CHAIRMAN DUNLAP: We see Mr. Friedman on our 18 issues, Ron, in Sacramento, and he's worked with us, well, 19 most of the time, I think. 20 BOARD MEMBER ROBERTS: I was just curious because 21 the Navy has their own problems in San Diego with a little 22 dredging issue. 23 I wanted to make sure that I understood the 24 capacity of this gentleman. 25 BOARD MEMBER RIORDAN: You want to know who to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 223 1 call. 2 CHAIRMAN DUNLAP: Send a card up here, 3 Mr. Friedman. 4 All right. Mr. Gibbons. 5 I must apologize, sir, I can't pronounce your first 6 name, I am not even going to attempt it. 7 MR. GIBBONS: The correct pronunciation is LaJoie. 8 For the record, I'm LaJoie Herald Gibbons, Junior. 9 I want to tell you that my presentation is going to 10 be disjointed because I had not anticipated the strict time 11 limits. 12 Nonetheless, I will tell you that I have waited for 13 30 years to appear before an impartial group of citizens on 14 the Owens Lake problem, and this clearly appears to be that 15 time and I am very hopeful that you are that impartial group 16 of citizens. 17 My qualification as an environmentalist, or a 18 scientist are minimal. I don't know much about pollution. 19 I have served Inyo County as their District 20 Attorney through five and a half terms. In that regard, at 21 least I know a little bit about what is reasonable, because 22 all of criminal law deals with what is reasonable. 23 Truly, what is reasonable in one context, or one 24 problem is different from other problems, but there are 25 certain levels that apply to all, because reasonable is not PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 224 1 just a legal concept, it is a function of the human 2 condition. 3 I have watched juries, and I have witnesses, and I 4 have watched judges for 30 years to try and promote that 5 which is reasonable. 6 To the extent that I have succeeded, I have never 7 lost a conviction on appeal. So, hopefully, I know 8 reasonable when I see it most of the time. 9 If you are going to be reasonable, you need to look 10 at this problem in context. If an officer shoots a criminal, 11 we don't take a close-up of the bullet wound to the head and 12 decide whether it was reasonable, we put it in context. 13 You have to put what is reasonable in this 14 situation in context by realizing that for at least 30 years 15 Los Angeles has conducted itself as a serial killer of the 16 environment in Inyo County. 17 It sounds like a harsh statement, doesn't it? 18 Let's look at the record. Only litigation backed 19 negotiation prevented them from killing Mono Lake, you know 20 that. 21 The Owens George, one of the premier trout 22 fisheries in the world was eliminated by the Department, it 23 is now being resuscitated only because of litigation. 24 They completely killed and eliminated over 40 miles 25 of the Owens River, which only now may be allowed to come PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 225 1 back because of negotiations following 20 years of 2 litigation. 3 Water conservation in Los Angeles was a dead victim 4 until Inyo County went to court in the seventies to require 5 it. 6 I could go on and on, but what you have before you 7 now is the death of Owens Lake, and you seem, when I say you, 8 I don't mean you particularly, I'm going to say perhaps your 9 staff, seem to forget that the only reason that we have the 10 problem in the first place is because the City eliminated the 11 Lake for their own selfish purposes. 12 Let me tell about the health hazard. 25 years ago, 13 I approached a doctor in Lone Pine, and I said please, help 14 me get autopsies on people who die in Lone Pine so we can see 15 what the health hazard really is. 16 Do you know what the doctor told me? 17 He said, gee, I don't think I can do that, I do 18 physicals for the Department of Water and Power. 19 So, this has been an illusive issue, but it is 20 nonetheless serious. I believe I can see, as I look around 21 this room and at this horseshoe, that there is a concern for 22 the price tag that you are hearing as to what it's going to 23 cost to fix the mess, but think about what you are thinking 24 if you are really thinking that. 25 What you are thinking is that their conduct has PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 226 1 been so extreme as to carry with it a price tag for trying to 2 make it right. 3 That is not Inyo's problem. Now, I guess the thing 4 that bothers me the most are the gentle words of various 5 capable advocates here today for certain parties who say, 6 gee, why can't we work together? 7 The answer is, because without litigation, and the 8 potential for an ultimately fair decision making body, Los 9 Angeles does not give up anything. 10 They guard their near total autonomy with the same 11 arrogance that a 20 year old Don Juan guards his sexual 12 prowess, and it has not changed yet, so we can see. 13 Let me tell you of my opinion as a nonscientist, 14 that if you get enough Ph.D.'s together they can make any 15 problem look difficult. 16 I did my own research on this problem yesterday 17 before I left to come over here. I sat down with my 18 daughter's six year old, and Megan, let's suppose you are a 19 rancher and you own a large piece of land with the river that 20 flows into a lake, and for whatever reason you decide to 21 divert the river elsewhere and then something bad happens, 22 and what happens is the lake drys up and when the wind blows 23 there is dust in your food, dust in your lungs, dust in your 24 clothes and you can't even see the barn; what would you do to 25 solve the problem? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 227 1 Admittedly, this is a pretty bright six year old, 2 and said looked at me quizzically and said, direct the river 3 back into the lake. 4 Now come on, we can make it complicated, but it is 5 not that complicated. The District has come to you with a 6 model, which according to some of your own treatment and 7 defensive comments by your staff members, even underestimates 8 the problem, and how can you complain about that if the 9 District's model is conservative? 10 I guess I want to close, because I must almost be 11 out of time. 12 CHAIRMAN DUNLAP: You are, but since you waited 30 13 years I am giving you a few extra minutes. 14 MR. GIBBONS: I appreciate your graciousness. 15 Sometimes it's good to look at one's own homebase to find out 16 how their actions are viewed, and you would expect that I and 17 my colleagues from Inyo have a different view on measures 18 from what LA has. 19 Let's look at the Los Angeles Times, of the writing 20 of a very well known writer for that newspaper, Bob Jones, 21 who after detailing the series of environmental blunders of 22 the City over this century, concluded as follows: Now the 23 almost deregulated DWP will face a last test in the eastern 24 Sierra, after 14 years of study, the Inyo Air Quality Board 25 has DWP to join in a n effort to curtail the huge dust storms PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 228 1 that blow off the Lake, and what is the Departments response? 2 By the way, this article was February 12, 1997. 3 Here was Mr. Wixer's response, the Owens Lake is very minor, 4 the problems at the Lake are very minor, and the Agency will 5 do nothing until more studies have been completed, in other 6 words, delay, delay, delay, stall, stall, stall. 7 Why, it occurs to me, would you want to be part of 8 that for a minute? 9 When I read the grand sign outside this room, and 10 what you stand for, I think you would not be. I am going to 11 finish with this then, the title of Jones essay, by the way, 12 which I didn't tell you, was, "The Death of Chinatown", a 13 clear reference to the movie by the same name and the writing 14 on which it was based, which detailed the treachery of the 15 City of Los Angeles and Inyo County. 16 If there is a sequel to that movie, I'm certainly 17 at peace with how my small role at Inyo will be portrayed. 18 What you decide today is going to craft how your 19 role in that continuing sage may be portrayed. With that, I 20 know only one thing for certain, when I go home tonight, or 21 tomorrow, as the case may be, I can talk to my children and 22 tell them that I did the best I could to require a public 23 agency to deserve it's stewardship of the public trust. 24 I certainly hope that when you go home to your 25 children you can tell them the same. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 229 1 Thank you. 2 CHAIRMAN DUNLAP: Thank you, Mr. Gibbons. 3 Mr. Mooney, followed by Richard Knox and then Tim Rimpo and 4 Andrew Morin, if I could get you to cue up to the right. 5 Good afternoon. 6 MR. MOONEY: Thank you, very much, Mr. Chairman. 7 My name is Don Mooney, I am a partner in the law firm of 8 Decair and Silmac here in Sacramento. 9 I also represent, I am here on behalf of Bill and 10 Barbara Manning who are residents of the Owens Valley. 11 I have also represented, or members of firm have 12 represented, the Owens Valley Committee in the EIR litigation 13 since 1984, and I personally have represented the Owens 14 Valley Committee since 1990. 15 There is a strong commitment in my firm to help 16 provide legal services on environmental matters to the Owens 17 Valley. 18 On behalf of Bill and Barbara Manning, I'm the one 19 that filed the notice of intent to sue the EPA for failure to 20 adopt the findings. 21 The EPA, in response to that notice of intent to 22 sue, did, in fact, adopt the findings, which is the 23 mechanism, or the trigger that requires the FIP to be 24 implemented by August of 1999. 25 I want it to be know that if there is any doubt PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 230 1 about EPA's resolve to do the FIP by August 1999, that there 2 be no doubt about my clients resolve to enforce the Clean Air 3 Act and to seek Federal court jurisdiction over the matter if 4 the EPA doesn't follow through on its discretionary duties. 5 Moreover, there has been a lot of talk about the 6 water and the limitations of the water issues with regard to 7 Health and Safety Code 42316. 8 It should also be pointed out to the Board that if 9 the FIP goes into place and EPA takes jurisdiction over that, 10 EPA will not been bound by any limitations or obligations 11 within that Code section. 12 Federal preemption does not require them to be 13 bound by State law. Also, I have some concerns about the 14 process that has been has taken place here today. 15 This is adjudicatory based hearing that's supposed 16 to based upon the administrative record. When I review the 17 ARB staff report, it doesn't make reference to the 18 administrative record in terms of its findings and the 19 conclusions it made with regard to the modeling. 20 Also, I'm concerned that the staff, with the 21 presentation that the staff gave here today as well as some 22 of the discussion that went back and forth with the staff 23 with regards to some of the witnesses, amounted to testimony 24 before adjudicatory hearing, testimony that was not subject 25 to cross-examination, testimony that's outside the scope of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 231 1 the administrative record, and in essence, the result of that 2 is the failure to have such testimony subject to 3 cross-examination is actually denial of the due process of 4 the District in this proceeding. 5 I would also like to point out that the ARB staff 6 report, one, in the way that it was prepared and the method 7 of being submitted, is that it had the effect, and it is not 8 the legal, but the practical effect, as well as maybe the 9 legal effect, of actually shifting the burden of proof in 10 this hearing. 11 This was an appeal filed by the City of Los 12 Angeles. They have the burden of proof to come to your 13 agency and show that based upon the administrative record 14 that this plan was not reasonable. 15 The effect of this hearing is that the burden of 16 proof has been shifted to the District and its scientists, 17 and its lawyers to prove that it is, in fact, reasonable. 18 That is not the normal adjudicatory process, and I 19 know that this is new area for you folks, but as someone who 20 practices in administrative law, it has been an interesting 21 process to watch this afternoon, and this morning. 22 CHAIRMAN DUNLAP: Is there anything about this 23 process that you like at all? 24 MR. MOONEY: Yes, there is, actually. 25 CHAIRMAN DUNLAP: Why don't you get to that point, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 232 1 I just wouldn't mind hearing it. 2 MR. MOONEY: As a lawyer, you don't want to hear 3 good news from lawyers, do you? 4 CHAIRMAN DUNLAP: You are not alone, with that, and 5 it is new ground, and you have mentioned that, which I am 6 grateful for. 7 We are doing this for the first time. We are 8 trying to do it right, and I appreciate your expertise being 9 shared with us, but we want to get through this thing and 10 deliberate, and hopefully come up with the right outcome 11 here. 12 MR. MOONEY: Well, I think it has been a wonderful 13 opportunity for the -- you provided the citizens and others 14 to come up and provide comment. 15 I think that is a very worth while process. The 16 one thing that I do want to point out is some of the 17 timelines, there has been talk of the implementation of the 18 FIP coming in if this plan, or if the control measures are 19 not approved. 20 If these control measures are not approved, as best 21 as I can tell, the process needs to have more data collected, 22 you have to revise the model, they are going to have to 23 revise the control measures, they are going to have to then 24 prepare a subsequent, or at least maybe, possibly, even a 25 brand new environmental impact draft report that will then PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 233 1 have to go out to public comment, there will have to be 2 response to public comment, they will have to adopt the final 3 EIR, they will have to then adopt the new control measures 4 and then it comes back to the ARB for review, assuming that 5 there isn't an appeal of it, and then it has to be submitted 6 to the EPA and the EPA has to review it and it has to approve 7 it, and all of that has to happen in 15 months. 8 CHAIRMAN DUNLAP: So, your counsel to us, since you 9 are out of time, is to not approve the appeal; is that 10 correct? 11 MR. MOONEY: My advice to you is to, yes, not 12 approve the appeal, adopt the control measures, and submit 13 the matter to EPA, and avoid having either the EPA take 14 jurisdiction, or the Federal court taking jurisdiction over 15 these issues. 16 CHAIRMAN DUNLAP: Thank you. I appreciate that. 17 Mr. Knox, welcome to Sacramento. 18 MR. KNOX: Thank you. It is a ways from Bishop to 19 get here. 20 I guess I never want to have to follow Buck Gibbons 21 again, but here I am. First of all, I would like to say 22 Ms. Galanter, I believe that she sincerely wants to make some 23 changes in the way the City of Los Angeles postures itself. 24 I think at this point she is having minimum impact, 25 although she is trying very valiantly to do that. So, that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 234 1 aside, and also I would like to point out when you are 2 talking about models, when you let correlation coefficients, 3 if you square them you get the amount of variance, the 4 variability of the data that is accounted for, and looking at 5 those numbers Great Basin accounts for over 80 percent, well, 6 the test model that your staff used accounts for less than 40 7 percent of the variabilities, so I would say that is 8 significantly different amounts of variation accounted for. 9 Also, I would like to say, contrary to your staff's 10 fears, I am not here to below dust in your face, though 11 sometimes I am known as a radical and propose things like 12 that, I did request permission to simulate the conditions 13 experienced by the community of Keeler during a dust storm, 14 your staff turned me down, apparently they are not willing to 15 experience, even for a brief period, the conditions 16 experienced by Keeler residents on a regular basis. 17 It also appears staff is unwilling to form the dust 18 cleanup, which would have been a God awful mess, no question, 19 that also are a routine matter in Keeler. 20 I do want to make it clear that I absolutely would 21 not have considered performing any kind of action without 22 your permission. 23 CHAIRMAN DUNLAP: We appreciate that compliant 24 behavior. 25 MR. KNOX: It's probably the last that you are PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 235 1 going to see in the statement, but here we go. 2 You are a charming fellow, Mr. Dunlap. 3 CHAIRMAN DUNLAP: I will take that as a compliment. 4 Mr. Knox, I don't mean to focus you for a minute, but you, of 5 any single individual, I have seen a lot of correspondence, 6 you have strong beliefs about this. 7 Bottomline, what would you have us do here today? 8 MR. KNOX: I believe that you should deny the 9 appeal and let this process move ahead, but I do want to 10 address some of the issues. 11 I performed blue collar work for the Department of 12 Water and Power for over five years. I have a 30 year career 13 with them and I do believe I understand how they work. 14 I assure you that there were many changes and 15 revisions during the construction of their heat thermal 16 generating station. 17 They started to build one plant and wound up 18 building one that was considerably different, just like this 19 project will not be exactly what we are looking at on the 20 piece of paper now. 21 I don't think that is a reason not to go ahead with 22 this. I also served as the Conservation Manager for over 12 23 years. 24 I have considerable education, a Master's in Social 25 Psychology. I, also during that time, served on both the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 236 1 General Manger's staff and in the Water Services Director's 2 Executive Office. 3 I really think it is important to understand the 4 force that is behind the City of Los Angeles' attitude. 5 For promotion the rules of the game are simple, 6 slavish loyalty to management, never raise ethical questions, 7 ruthlessly pursue your superiors objectives, if you are 8 successful at achieving this, promotions will be yours. 9 I can tell you when I talk to people, because I 10 dealt with the people at City Hall, I dealt with people at 11 the State level, the Energy Commission rather than this 12 Board, I saw much the same pattern, and I think the staff's 13 behind the scenes often agreed with what my assessment of 14 that is. 15 So, I have got to wonder what the motivation behind 16 your staff's behavior is. I am suspicious, Mr. Dunlap, I'm 17 suspicious of your motives and I'm suspicious of Mr. Kenny's 18 motives. 19 You know, you spent ten years at South Coast. I 20 have got to ask myself, is your loyalty to South Coast and 21 the entities that make that up, or is your loyalty to this 22 Board. 23 I have to ask myself, what are you going to do when 24 a new Governor is elected, and what if the Head of the South 25 Coast position is open, and I have to ask what that means, I PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 237 1 don't know, maybe the hidden agenda is very different from 2 the one that I perceive, but I believe, given your staff's 3 rather shaky support and their position, that there is 4 something going on here, over and above what we see when we 5 look at this. 6 Thank you. 7 CHAIRMAN DUNLAP: Any questions of the witness? 8 All right. Very good. 9 Thank you. Mr. Rimpo from Jones and Stokes and 10 Associates, and Andrew Morin, next and Dorothy Alther, an 11 attorney, Harry Williams, Eric Bergh, Nick Sprague, and the 12 last witness, Paul Lamos. 13 Is Mr. Rimpo not here? 14 All right. We are going to cross him off. 15 Are you Andrew Morin? 16 BOARD MEMBER EDGERTON: Mr. Chairman, just before 17 that goes, I would just like to respond. 18 I found those last series of comments rather 19 offensive and unacceptable, and I just want to go on the 20 record, I may have differences of opinion with staff, or in 21 some instances with Mr. Chairman, but this is on the above 22 board and it's on the top, I just can't sit here and let it 23 go by without jumping in. 24 Thank you. 25 CHAIRMAN DUNLAP: Thank you. Welcome. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 238 1 MR. MORIN: Thank you. My name is Andrew Morin and 2 I am a resident of the southern part of the Owens Valley. 3 I am probably the only person in this room who's 4 house actually can see part of the Lake. I live down on the 5 northern portion of the Lake. 6 The last couple of weeks, in fact, have been some 7 of the worst dust storms in the last few years because we had 8 so much rain this winter, the amount of dust, or the amount 9 of percolation of the dust to the surface of the Lake has 10 increased a lot and when the wind is blowing as these fronts 11 have been coming in, because it has been staying cool as you 12 know, the dust has been terrible. 13 There has been repeated times when I have been 14 unable to see the Inyo's across the Valley, which isn't a 15 very far distance, so that's aside. 16 What I wanted to bring up are some topics that have 17 not been discussed that I think need to be discussed since we 18 have been discussing context a lot and, so I'm going to just 19 quickly review some information. 20 At Statehood, California assumed ownership of Owens 21 Lake when it was a lake under the United States Public Trust 22 Document, which delegated ownership and responsibility for 23 management of navigable bodies of water to States when they 24 were admitted to the Union. 25 Under the Public Trust Doctrine, the State of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 239 1 California was delegated the sole authority and 2 responsibility for ongoing management of the public trust 3 resources of California, including Owens Lake. 4 In a pivotal court ruling reviewing the Public 5 Trust Doctrine and its application to the States, Illinois 6 Central Railroad Company versus the State of Illinois, the 7 court emphasized the level of importance that it ascribed to 8 the state's responsibility under the Public Trust Doctrine 9 when it ruled, and I quote, the state can no more abdicate 10 its trust over property in which the whole people are 11 interested, like navigable waters and soils under them, than 12 it can abdicate its police powers in the administration of 13 government and the preservation of peace. 14 In the National Audobon Society versus Superior 15 Court cas involving Mono Lake the California State Supreme 16 Court found that the Public Trust Doctrine protects navigable 17 bodies of water from harm caused by diversions of its 18 tributaries. 19 Quoting from that Court's decision, if the Public 20 Trust applies to constrained fills which destroy navigation 21 and other Public Trust uses in navigable waters, it should 22 equally apply to constrain the extraction of water that 23 destroys navigation and other public interests. 24 The public interest and Public Trust here also 25 refers to the protection, I quote this, to the protection of PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 240 1 recreational and ecological values, and that such, this is 2 really important, such uses should not be destroyed because 3 the State mistakenly thought itself powerless to protect 4 them. 5 In allowing Owens Lake to dry up, the State of 6 California has abdicated its Public Trust responsibilities. 7 In allowing the lake bed to become a public and 8 environmental nuisance, which threatens the public health and 9 the health of the environment, the State has abdicated its 10 Public Trust responsibilities and is in violation of Federal 11 and State Clean Air laws. 12 State approval of the dumping of toxic mining waste 13 on the lake bed exacerbates its violation and its abdication 14 of the Public Trust. 15 So, it is not all DWP. I have heard repeated 16 mentions that DWP is the polluter here. 17 DWP does not own the lake bed of Owens Lake, the 18 State, which, in fact, you represent, owns the lake bed. 19 You are presently in violation of State and Federal 20 Clean Air laws, and you are in violation not because the 21 water was diverted in 1913, you are in violation because the 22 water is being diverted this moment. 23 The State of California holds priority water rights 24 over all the water that once flowed into Owens Lake, not the 25 City of Los Angeles, or the Federal Government, who owns the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 241 1 water rights up river. 2 The State needs to move, once again, to obtain 3 those water rights that are its by law, while the City of Los 4 Angeles has been the beneficiary of the draining of Owens 5 Lake, it is the State of California that is responsible. 6 The Public Trust Doctrine unambiguously delegates 7 the State with both the authority and the responsibility to 8 manage and protect Public Trust resources, and it needs to be 9 pointed out repeatedly, as I just mentioned, that the 10 violation doesn't just go back to 1913, but the State is in 11 violation today. 12 This is perhaps the one that I want to finish up 13 this by stating that while the Air Resources Board, I 14 believe, should reject Great Basin's proposal, I know it 15 sounds strange, but not because the plan cleans up too much 16 dust, which some people have mentioned, this is too much dust 17 I have heard mentioned today, or because it won't clean up 18 enough, in fact, Great Basin APCD has done an admirable job 19 given the circumstances, other than the use of gravel, which 20 the State Lands Commission has correctly and repeatedly 21 informed Great Basin, is not consistent with the protection 22 and restoration of the Public Trust values. 23 The proposed SIP provides a workable plan to 24 mitigate the great majority of the air pollution emanating 25 from the dry lake. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 242 1 ARB should reject Great Basin's proposal because 2 the State of California must by law fulfill the Public Trust, 3 and there is only one way to do this, Owens Lake needs to be 4 refilled. 5 The California State Supreme Court's decision 6 regarding the diversion of water from Mono Lake applies 7 verbatim to Owens Lake. 8 Water diversions that destroy the navigable waters 9 and ecological values of Owens Lake are a violation of the 10 Public Trust Doctrine. 11 To repeat the Court determined that such uses 12 should not be destroyed because the State mistakenly thought 13 it thought itself powerless to protect them. 14 So, that is why I believe that, in fact, the ARB 15 should reject Great Basin's plan, but not because it's not a 16 workable plan, but because the Lake should be refilled and, 17 in fact, if you do reject the plan, it is extremely likely 18 that the State, including State Lands Commission, and perhaps 19 ARB, will be seen in court, not due to the air pollution 20 necessarily that's emanating, although, certainly the State 21 could be taken to court at any time, and should have already 22 been taken to court, not regarding the air pollution, but 23 because of its violation to fulfill the Public Trust. 24 Thank you. 25 CHAIRMAN DUNLAP: Thank you. Dorothy Alther, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 243 1 representing the California Indian Legal Services for Owens 2 Valley tribes, the Timbisha and Shoshone Tribes. 3 MS. ALTHER: I am here today representing the 4 Timbisha Shoshone Death Valley tribes, the Lone Pine Piute 5 Shoshone tribe for an independent tribe, Big Pine Piute tribe 6 and Bishop Piute tribe. 7 Two of my clients reservations are set in the 8 nonattainment area for the dry lake, and they do have 9 representatives here today, unfortunately given the long 10 distance not all of the tribal representatives could make it. 11 You have a very difficult task here today. I 12 realize that the DWP obviously is not supporting the 13 implementation order. 14 Great Basin obviously is supporting the order and 15 that is why we have lawyers. My clients, very much, as you 16 find yourself in the same position of not knowing who to side 17 with, or really understand all of the data in this case, so 18 we went and we hired an independent, neutral, unbiased 19 environmental consulting firm, and we gave them your staff 20 report so that we could have a better understanding of what 21 this report was saying and what the information contained in 22 it meant. 23 According to your staff report, the recommendation 24 is that due to uncertainties as to the fundamental basis of 25 the control measures, they not found to be valid. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 244 1 Your staff offers no control measures as an 2 alternative, but believes that the District should revisit 3 these issues and expeditiously adopt control measure strategy 4 for PM 10. 5 One of my clients said, what the heck does that 6 mean? 7 And the best of my interpretation was that they are 8 telling the District to go back and do it again. That was an 9 unacceptable answer to my client. 10 However, after considering the report that was 11 submitted to me by our environmental consulting firm, we 12 concluded that we had several questions that we needed 13 answered and they were to our satisfaction. 14 One of the first questions that I had is what is 15 the staff of ARB's problem with the plan. They don't seem to 16 have a problem with the control measures, they don't seem to 17 be questioning the modeling, but what we were told is that 18 the problem is more with the performance of the model. 19 The staff's issue is the modeling performance 20 needed to be on an hourly concentration approach. Great 21 Basin instead used an emissions averaging approach. 22 Well, this brought me to the next set of questions, 23 what's the consequences of using different criteria, and more 24 importantly, which criteria is more appropriate. 25 The consulting firm that we hired advised us that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 245 1 the ARB looked to a guidance document that pertains to photo 2 chemical modeling for ozone concentrations on an hourly 3 basis, but that this approach does not address PM 10 modeling 4 procedures or performance criteria. 5 The District, however, approach was based on an EPA 6 guidance for modeling used for developing SIP's and the 7 PM 10. 8 I don't know if EPA is still here, but I thought 9 that they might be able to offer some better understanding of 10 what that guidance was if the Board had questions. 11 Why would ARB staff rely on ozone modeling? 12 This was an answer that my consultant could not 13 give me. The second question that I had was what is the 14 differences between these approaches, and I think that this 15 issue has been brought out several times. 16 According to the mapping done by my consulting 17 firm, there is 29 mile area that would be identified by ARB 18 as being an area to be looked at for high concentrations of 19 emissions. 20 Great Basin is proposing 35 miles. I think we are 21 very, very close in the area that we would like to see fixed. 22 Believe me, if we could all agree on even 29 miles, 23 my clients would be prepared to support that. 24 CHAIRMAN DUNLAP: In conclusion, what would you 25 have us do? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 246 1 MS. ALTHER: I think that's very obvious, in 2 conclusion, my clients would like you to uphold the SIP and 3 allow us to continue to work towards resolving this problem. 4 CHAIRMAN DUNLAP: So, are you talking about denying 5 the appeal? 6 MS. ALTHER: Yes. 7 CHAIRMAN DUNLAP: Okay. Thank you. 8 I appreciate your clients being interested in this 9 issue. I think that is a good thing. 10 MR. KENNY: Mr. Chairman, could I take a moment 11 just to have the Technical staff address some of the issues 12 that have essentially been repeatedly raised? 13 CHAIRMAN DUNLAP: Mr. Kenny, let's just go through 14 the witnesses, okay? 15 I know you are there, and I know that if the Board 16 has any questions, Mike, we are going come right to you as 17 soon as we are done here. 18 Good afternoon. 19 MR. WILLIAMS: My name is Harry Williams. I come 20 here as a representative of Bishop tribe of the Owens Valley. 21 Most of all, I come here as a human being, and like 22 all human beings we have basic needs, a need for food, a need 23 for water, a need for clean air, a need for shelter. 24 In the Owens Valley since the Department of Water 25 and Power has been there they have taken away all of these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 247 1 needs from my people, from the settlers who moved into the 2 area. 3 They have people call the Owens dry lake, the Owens 4 dry lake. No. It is a hazardous waste created by the 5 Department of Water and Power as a diversion of water. 6 Every time that the wind blows into the Keeler and 7 Lone Pine areas it is a hazardous effect. It is not just a 8 dust storm, there is arsenic, there are things that are 9 happening, there are people that are being affected. 10 You, like everybody else in this room, we have our 11 basic needs and our basic needs have not been met by the 12 State, have not been met by the Federal Government, it is not 13 being met by this Board, their staff has changed the rules of 14 the game at the last minute. 15 We are being forced to live in a hazmat area every 16 time we get a little bit of wind. Last Saturday I drove 17 through Lone Pine, I could taste the metallic taste in my 18 mouth, my eyes got dried out until I went to Independence. 19 All the way along, the wind was blowing from the 20 south, you see this big brown cloud above you. If you people 21 don't think that is a problem, I don't know what is a 22 problem. 23 We flew in here today, it was a beautiful day, we 24 see everything, it looks nice. When the wind blows, that all 25 changes. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 248 1 That changes and people throw numbers around. 2 There is every year 300 tons of dust, it goes some place. 3 It does not drop back down on the dry lake bed. 4 That dust goes other places. 5 We are talking 80 years of 300 tons, I don't know 6 what that adds up to, but it's landing some place. It's 7 landing on wetlands. 8 It's landing on the animals. Things are being 9 affected. 10 The Forest Service is telling you the oldest things 11 in the world, it's up that high. The fish, the amphibians, 12 they are all being affected. 13 If you don't live in the area, you don't be 14 affected. The only effect you guys get is from the lawyers, 15 it's from the attorneys, it's from the Department of Water 16 and Power. 17 The only effect that I see here is lip service by 18 another government agency to what, to what avail? 19 I almost hope that you don't approve, and EPA comes 20 in and fills the lake up. That is my hope that that 21 ecosystem will be recharged and things will become normal. 22 The balance of the world has been changing so much, 23 there is out of control growth, and where is the fresh water 24 going to come from? They are pumping us, and they want more. 25 They don't want to give nothing back. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 249 1 I'm afraid for this world as a whole. I'm afraid 2 for the survival of the human race. 3 That's why I come here today. I come here to speak 4 on behalf of the animals, the balance of power. 5 You are one of the balances of power, and that is 6 why I am here, and that is why I came here to say what I have 7 to say, and I hope you come to the right decision. 8 I almost hope that you don't do anything and EPA 9 comes in and fixes it all, and I hope they fill that lake 10 back up. 11 I thank you for listening to me. 12 CHAIRMAN DUNLAP: Thank you, Mr. Williams. We 13 appreciate your making the trip to testify today. 14 Mr. Bergh. Eric Bergh, then Nick Sprague, and the 15 final witness, Paul Lamos. 16 I will have you gentlemen cue up over to the right. 17 We will hear from you in quick succession. 18 MR. BERGH: Mr. Chairman, Members of the Board, my 19 name is Eric Bergh, I am Manager of Resources with the 20 Calleguas Municipal Water District located in Ventura County. 21 We are a public agency that provides water service 22 to the residents within Ventura County. Similar to us, the 23 Angeles County deliberates the Metropolitan Water District, 24 however, unlike Los Angeles, we obtain our entire drinking 25 water supply from Metropolitan and reductions in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 250 1 Metropolitan's supply would have major impact on over 2 one-half million customers. 3 We are concerned that as your Board makes a 4 decision, which may impact water supplies for the City of Los 5 Angeles, that you should also be aware of the 6 interrelationship of water supplies throughout the State. 7 The water supply for California is interconnected 8 and any impact on one major source of supply will effect 9 users in other areas of the State. 10 As an example, if Los Angeles exports from the 11 Owens Valley are reduced, LA will seek replacement supplies 12 most likely from Metropolitan. 13 Metropolitan will in turn most likely seek to 14 increase the imports from Bay Delta through the State Water 15 Project since available supplies from the Colorado River are 16 being fully utilized. 17 In the event that the State Water Project does not 18 have enough water to allow Metropolitan to meet the request 19 of all its member agencies, including Calleguas and the other 20 26, the shortages will be felt throughout all of the southern 21 California. 22 Given such implications, these third party impacts, 23 as you consider measures that may require Los Angeles to use 24 a portion of Owens Valley supply to mitigate environmental 25 impacts from the intermittent dust storms generated by Owens PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 251 1 Lake, we believe that you should also consider the 2 environmental impacts that will result elsewhere from a 3 reduction of Los Angeles' water supply in the Owens Valley. 4 It would seem prudent to adopt a phased approach 5 for solving the dust problems to allow for a more thorough 6 evaluation of the benefits, as well as a full consideration 7 on the impacts on water supplies throughout California. 8 In close, I want to highlight that many don't 9 realize and appreciate the true interdependence among 10 regional water supplies, particularly those in southern 11 California. 12 Any significant reduction in water supply for any 13 single agency adversely impacts all water agencies. We are 14 truly in this together. 15 On behalf of Calleguas, I thank you for your time 16 and I appreciate being able to comment on this matter. 17 CHAIRMAN DUNLAP: Thank you, Mr. Bergh. 18 You are from Ventura County, you say? 19 Mr. Sprague, and then Mr. Lamos. 20 MR. SPRAGUE: Thank you for the opportunity to make 21 some comments. I did provide some written comments, you have 22 those, so I am not going to spend a lot of time going through 23 those. 24 CHAIRMAN DUNLAP: Are you with Owens Valley Indian 25 Water Commission? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 252 1 MR. SPRAUGE: I am here as a private citizen. 2 Interestingly enough, Chairman Dunlap, you mentioned that PM 3 10 is the issue of the next century. 4 Well, the next century is 18 months away, and maybe 5 it is about time that we started focusing on that and working 6 to get this problem solved. 7 A lot of my comments involve the modeling, and I'm 8 trying to learn a little bit about modeling in the last 9 couple of days, and actually, going back to that memo from 10 your staff, an internal memo of May sixth, one line in there 11 says, and this is a quote, straight line trajectory models 12 such as calcium models won't apply with time varying wind 13 fields, such as Owens Valley, are not expected to estimate 14 time and space concentrations exactly. 15 If that's what your staff tried to do to find out 16 what the concentration was at a particular hour, at a 17 particular space in the Keeler site, in fact, there is 18 40 CFR 51, the EPA guidance regarding modeling that 19 specifically addresses some issues such as that, saying that 20 models aren't accurate at a specific time, but they may tell 21 you what the maximum concentration may be in a generalized 22 area, but not at that specific location. 23 I could go on, but that more or less hits some of 24 those issues. Another thing that is somewhat curious, I know 25 the reason that everyone is here today is regarding the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 253 1 Federal PM standard of 150 micrograms per cubic meter on a 2 24-hour average, but if I am not mistaken, isn't the State 3 standard 50 micrograms per cubic meter in a 24-hour average, 4 and that's the CARB's responsibility to uphold that as well, 5 that hasn't been discussed, but your staff was saying that 6 the modeling put our by Great Basin predicts a measure of 7 concentration of 67 micrograms per cubic meter, that was 8 excessive. 9 Well, it may be excessive in the intent of the 10 Federal Implementation, or reaching that regulatory standard 11 put out by EPA, but actually it is in excess of the State 12 standard. 13 I do not know what efforts are going to be made to 14 achieve that State standard, but it certainly seems like 15 Great Basin is making a good stride to not only achieve the 16 Federal standard, but come very close to achieving the State 17 standard. 18 Those are my comments on that. I also have a 19 letter here from the National Park Service, the Regional 20 Office, I will read this briefly. 21 It is addressed to Pat Hutchens and the Board. The 22 National Park Service, NPS, is concerned about the issues of 23 wind blown dust from the dry lake bed of Owens Lake. 24 The ambient particulate matter pollution caused by 25 the lake bed fugitive emissions continues to pose potentially PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 254 1 serious local and regional human health and resource impacts, 2 including visibility impairment in Death Valley National Park 3 and Manzanar National Historic site. 4 Death Valley National Park is largest designated 5 wilderness area in the 48 contiguous states and is an 6 international biosphere reserve. 7 Owens Lake is the single largest particulate matter 8 source in the county. It is estimated to emit over 300,000 9 tons of PM 10 per year. 10 Human health and environmental impacts associated 11 with these emissions, although not well documented, are 12 potentially significant. 13 This is established by the fact that Owens Valley 14 and Inyo County's designated as a serious PM 10 nonattainment 15 area. 16 I will just jump down to the next paragraph, to be 17 more specific, the Great Basin Unified Air Pollution Control 18 District has been studying the problem of dust emissions in 19 the Owens Lake area for over 18 years, and discussing the 20 control strategies, as well. 21 On page 2, based on discussions with Great Basin, 22 it is our understanding that the CARB has some reservations 23 concerning the model conclusions provided in the proposed 24 SIP. 25 We question whether the technical concern about PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 255 1 modeling is sufficient cause for inaction, delay or 2 disapproval by the State regarding the proposed SIP. 3 In any case, we urge the State to consider the 4 overwhelming data about the contributions from Owens Lake to 5 the PM 10 nonattainment problem in making its decision about 6 the adequacy of the plan. 7 The National Park Service also requests the State 8 consider visitors to Death Valley National Park and Manzanar 9 National Historic site, over one million annually, and the 10 park employees and others who live and work in the area, when 11 deciding the fate of the Owens Valley SIP. 12 Further delay in implementing emission control 13 strategies at Owens Lake would perpetuate the current 14 unhealthy air quality of this severely polluted area. 15 It is signed by Martha Leister for 16 John J. Reynolds, who is the Regional Director of the Pacific 17 West region of the Park Service. 18 My personal opinion is that quite of bit of time, 19 effort, expertise and money has gone into this, it has been 20 studied, there are uncertainties in the model, there will 21 always be uncertainties in the model, you could certainly try 22 to go out on to the lake in specific locations, the model 23 events that may not occur ever again. 24 Also, once you start implementing control measures, 25 hopefully you will not be having those sale of dust events in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 256 1 that location. 2 CHAIRMAN DUNLAP: So, you recommend. 3 MR. SPRAGUE: I urge you strongly not to approve 4 the appeal for the City of Los Angeles. 5 CHAIRMAN DUNLAP: Thank you for reading the letter 6 from the Park Service. Okay. 7 We have a new witness. Martha Davis and Paul 8 Lamos. 9 Paul, did I pass you, or are you being a gentleman? 10 MS. DAVIS: Mr. Chairman, I will be very brief. I 11 am a former Executive Director of the Mono Lake Committee and 12 I continue to serve on the Board of the Mono Lake Committee 13 and the Sierra Nevada Lands. 14 I understand the concerns in southland about water 15 supply, it was a major issue in the Mono Lake case. One of 16 the things we did was to work very closely with the City of 17 Los Angeles and with Metropolitan Water District to develop 18 water conservation, water recycling, groundwater management 19 programs that would develop new water supplies to replace 20 imported water in the southland. 21 Millions of dollars from the Federal and the State 22 Government Title 16, Governor Wilson's AB 444, have been 23 invested in these programs, and today the City of Los Angeles 24 is using approximately the same amount of water that it used 25 in 1975, but it's serving almost a million more people. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 257 1 Woody Wadraska yesterday at Ventura County 2 Calleguas indicated that water conservation programs have 3 been so successful in the southland that from a peak of 2.6 4 million acre feet of imported water sales in 1990, they are 5 now selling less than 1.8 million acre feet and it will 6 probably be closer to about 1.6 this year. 7 So, conservation programs, water recycling programs 8 are doing a lot to firm up southern California's water 9 supplies and make it possible for water to be available to 10 protect Mono Lake and Owens Lake and San Francisco Bay Delta. 11 Thank you. 12 CHAIRMAN DUNLAP: Thank you. Our final witness, 13 Paul Lamos, from Lake Minerals Corporation. 14 MR. LAMOS: Thank you. Actually, I filled out a 15 card pretty much just in case something came up that I would 16 like to state. 17 I have nothing that is going to be pertinent to 18 your decision today. I would like to thank the Great Basin 19 Unified Air Pollution Control District and the State Lands 20 Commission for keeping our company in the loop on development 21 of the SIP plan. 22 Thank you. 23 CHAIRMAN DUNLAP: You are not going to give us a 24 bottomline on what you want us to do? 25 Thank you. You weren't a lot of help, for the last PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 258 1 witness, for goodness sakes. 2 Okay. I'm going to close, I am going to do this at 3 some personal peril. 4 Is there anybody here that wants to testify that 5 hasn't already? 6 All right. Then I am going close the record on 7 Agenda Item number 98-6-1. 8 MS. WALSH: Excuse me, Chairman Dunlap. I am going 9 to suggest that what you do right now is close the Public 10 Comment Period, since this is a different type of proceeding 11 than you normally use, we are going to keep the record open. 12 CHAIRMAN DUNLAP: Okay. I am sorry. 13 That's fine. I will close the Public Comment 14 Period then. 15 What I am going to do now is ask Ms. Barnes to 16 frame for us the appeal. What I'm going to try to do, the 17 Board is going to have an opportunity to say what needs to be 18 said and ask questions. 19 I am going to ask the Legal Counsels to be ready, 20 but I want Ms. Barnes to frame the two appeal parts. 21 What I am going to try do is segment them, you 22 know, separate them. I am going to deal with the one that I 23 think is the easiest to deal with first. 24 So, Ms. Barnes, why don't you tell us what this 25 Board can and cannot do relative to this process. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 259 1 MS. BARNES: Thank you, Mr. Chairman. I think the 2 proper scope of what the Board is to hear today, or decide 3 today has been mentioned by the parties and by different 4 members of the public. 5 I think the simplest thing is to look towards the 6 enabling Legislation statutory scheme that gives you the 7 authority to be here today. 8 Under Health and Safety Code section 42316, 9 subsection B, it states that the City of Los Angeles may 10 appeal any measures or fees imposed by the District to the 11 State Board within 30 days of the adoption of the measure or 12 fees. 13 The State Board, on at least 30 days notice, shall 14 conduct an independent hearing, and this is the directive 15 part, on the validity of the measures, or reasonableness of 16 the fees, which are subject of the appeal. 17 Today, you have in front of you the appeal from the 18 City of Los Angeles on the reasonableness of the fees that 19 have been imposed by the District. 20 Also, you have in front of you the validity of the 21 control measures that have also been imposed by the District. 22 Basically, your direction is to decide whether or 23 not the measures are valid and whether or not the fees are 24 reasonable, period. 25 CHAIRMAN DUNLAP: All right. What I would like to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 260 1 do is take up the fee item first, okay. 2 So, what I am going do, the staff has a 3 recommendation before us that the Board find that all Owens 4 Lake projects and fees requested by the District's first 5 fiscal year 1997-98 Special Projects Budget, which is a Board 6 Order number 041697-05, that they are reasonable. 7 That is staff recommendation. The total dollar 8 amount is $1,159,757. 9 So, what I would like to do is that item first. 10 BOARD MEMBER RIORDAN: I don't know if there is 11 discussion or not, Mr. Chairman, I might offer a motion that 12 then can be discussed, and I would like to move then the 13 ratification of the staff recommendation on that appeal. 14 BOARD MEMBER PATRICK: Second. 15 CHAIRMAN DUNLAP: There is a second? 16 By Supervisor Patrick. 17 Yes, Supervisor Roberts. 18 BOARD MEMBER ROBERTS: Just a quick question, there 19 was one point that was brought up about those, there was some 20 section of that, about $150,000, that was legal fees, and I 21 didn't hear a response clarifying that. 22 CHAIRMAN DUNLAP: I will come to you in a second. 23 I am going to try to be my own lawyer, which is always 24 dangerous here. 25 I don't think we can segment that out. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 261 1 BOARD MEMBER ROBERTS: I wasn't asking to segment 2 it out. 3 I understand we can't segment it out. It has to be 4 yes or no, but I am curious as to the response of the 5 validity of the argument that was made. 6 If that part of it is flawed, I think that raises a 7 question. 8 CHAIRMAN DUNLAP: Right. It does. 9 BOARD MEMBER EDGERTON: I would offer a substitute 10 motion that part be deleted from the motion in that it could 11 be withheld until we see which party wins or loses. 12 The point that was made that I understood -- 13 CHAIRMAN DUNLAP: Lynn, you are taking us to 14 presuppose what would happen after our action. So, indulge 15 me for just a moment. 16 Ron, I think the question Supervisor Roberts has is 17 the fact that the District is trying, not trying, put forward 18 a fee assessment, if you will, to pay for legal fees. 19 The City of LA, the lawyer made a, I think, a fine 20 presentation about how unusual that was, that that is out of 21 the ordinary, etcetera. 22 I think Ron wants to know is that, in fact, the 23 staff's view, and Ms. Barnes, I don't know, do you know much 24 about that element of the law, and you may not, I don't know, 25 so, Kathleen I am going to ask to hear from you, and I am PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 262 1 going to ask Ms. Barnes to attempt to answer that question. 2 MS. WALSH: Staff's position is contrary to the 3 arguments presented by the City of Los Angeles. 4 Basically, the argument you heard was that the 5 American rule regarding the payment of attorneys fees, which 6 is embodied in the Code of Civil Procedure here in 7 California, precludes an award of attorneys fees to the 8 District in this case. 9 I would say, make a couple points, first, we don't 10 think that the fees that are at issue here are attorneys fees 11 in the sense that those two legal concepts intend to address. 12 We have indicated in the staff report, our belief 13 that these are fees that come within the activities that are 14 contemplated under Section 42316, that is that those are 15 services, administrative types of activities, that are 16 associated with the development of the mitigation measures 17 and the cost to the District of developing those measures, so 18 it is our recommendation, yes, we believe they are justified. 19 CHAIRMAN DUNLAP: You think they are justified. 20 Does it fly in the face of this rule or common 21 operating process? 22 MS. WALSH: It is not consistent with this rule, 23 but what we argue is that this rule is not directly 24 applicable to the case before you. 25 CHAIRMAN DUNLAP: Okay. Because this is an unique PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 263 1 situation. 2 Mr. Kenny, you are comfortable with that response, 3 I mean, you are a lawyer yourself? 4 MR. KENNY: I am comfortable with that. 5 CHAIRMAN DUNLAP: Ms. Barnes, do you have a 6 different view, or are you consistent with this? 7 MS. BARNES: I think I would come down and be 8 consistent. 9 I would also add that there is some, apparently the 10 City of Los Angeles has in the past paid for in-house counsel 11 through this process as well, and is one who works for an 12 agency that on occasion will retain outside counsel, that is 13 not necessarily an unusual extension of those types of fees. 14 CHAIRMAN DUNLAP: Supervisor Roberts, does that 15 give you -- 16 BOARD MEMBER ROBERTS: I understand that these are 17 in effect administrative legal expenses that were anticipated 18 on being incurred. 19 I feel comfortable with that. 20 BOARD MEMBER RIORDAN: Mr. Chairman, if I might, I 21 probably need to amend the motion just slightly to strike 22 some words. 23 It's late, and I used the word ratified. Ratify is 24 not the best of words to use. 25 I would like to go back to some words such as the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 264 1 Board finds these fees are reasonable. 2 CHAIRMAN DUNLAP: The total assessed cost of 3 projects and what they represent in the special projects item 4 are reasonable and therefore, the motion is to approve it. 5 Is that okay with Supervisor Patrick, the seconder 6 of the motion? 7 Okay. Any further discussion that we want to have 8 on this item? 9 BOARD MEMBER EDGERTON: Yes. 10 I would like to offer a substitute motion with 11 respect to fees, and I would move that the issue with respect 12 to fees be referred to adjudicatory hearing that had evidence 13 presented and cross-examination, and followed the California 14 Administrative Procedure Act. 15 CHAIRMAN DUNLAP: Well, unless, Lynn, I don't want 16 to quibble with you over this. 17 BOARD MEMBER EDGERTON: It is just a motion. 18 CHAIRMAN DUNLAP: All right. 19 Is there a second to that substitute? 20 The motion dies. It is dead. 21 What we will do then is I am going to proceed with 22 a voice vote. 23 All those in favor of the motion to approve the 24 project fees as outlined by Mrs. Riordan's motion, or excuse 25 me, total assessed of project costs that they are finding PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 265 1 that they are reasonable, all those in favor of approving 2 that, say aye. 3 Any opposed? 4 BOARD MEMBER EDGERTON: Aye. 5 CHAIRMAN DUNLAP: Are you a nay? 6 BOARD MEMBER EDGERTON: I'm a nay, for the reasons 7 in the motion. 8 CHAIRMAN DUNLAP: All right. Now, we have got the 9 fee element over with. 10 Now, let's come back to what some people would 11 argue is the heart of the issue here. 12 MS. WALSH: I apologize for getting to you on this 13 at the last minute. We are working here, as you know, under 14 rules that we have not been utilizing in the past. 15 We have, the staff has prepared for consideration 16 by the Board a proposed resolution, as we typically do on a 17 rulemaking item, we also have a proposed decision and finding 18 document, and perhaps it would be best now for us now to make 19 that document available both to the Board Members, and we 20 have copies for members of the public. 21 CHAIRMAN DUNLAP: That is fine, Kathleen, but I 22 want get things moving here on this other item. 23 You can run that up here. 24 Is there anything that we just did, Ms. Barnes, or 25 Ms. Walsh that is inconsistent with the package that you are PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 266 1 offering up for us to consider? 2 MS. WALSH: Absolutely not. 3 CHAIRMAN DUNLAP: Good. 4 BOARD MEMBER EDGERTON: Mr. Chairman, I would like 5 to make an additional comment with respect to my vote. 6 Another reason why I voted against this is that I 7 don't think it's mature enough in terms of the hearing that 8 we have had, because of the way that the opinion -- 9 CHAIRMAN DUNLAP: I know how you feel about the 10 hearing. You have been consistent with it the whole way. 11 Indulge me, let me get to this next item. 12 You have been clear on that point. 13 BOARD MEMBER EDGERTON: Okay. 14 CHAIRMAN DUNLAP: The second item. The heart of 15 the issue. 16 My Board Member colleagues can certainly look at 17 what staff provided. We are doing this a little bit out of 18 the normal framework. 19 MR. LAMB: We have not seen the proposed findings. 20 CHAIRMAN DUNLAP: Ms. Walsh, you get it where it 21 needs to go while I take care of the Board's business at this 22 point. 23 What is going to drive this discussion for us is 24 not what the staff presented, that is going to be adjunct to 25 our deliberation here, okay. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 267 1 I want to get to the heart of the issue. Now, we 2 have before us the second half of the appeal. 3 I want to cover what the staff recommended for a 4 moment. The staff recommends that the Board uphold the City 5 of LA's appeal of the Great Basin's District's Board Order, 6 number 070297-04. 7 Our staff was unable the find that the scope of the 8 control measures specified in the District Board Order is 9 reasonable because of the likely overprediction of the 10 emission reductions needed to attain the Federal Standard. 11 This overprediction is the result of the air 12 quality modeling analysis which predicts the 35 miles of lake 13 bed must be controlled to an efficiency, or to a level of 99 14 and a half percent. 15 Now, I'm not even going to attempt to summarize 16 from all the witnesses and all the testimony, much of which 17 was expert, from the City, as well as the Great Basin 18 District, and our own staff giving us the background. 19 Let's suffice to say that the overwhelming 20 commentary of the folks, the witnesses today, were in support 21 of us denying the appeal, which is not our staff's position. 22 The arguments that leapt out at me, that resonated, 23 were the fact that despite there being a back and forth 24 discussion about the modeling and how accurate it was and 25 correspondence that was sent, the Great Basin District PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 268 1 presented today, as did the City of Los Angeles, I think the 2 right attitude before us about wanting to work together and 3 wanting to make this work. 4 The Great Basin District at least said in their 5 oral commentary today that they were willing to continue to 6 do technical evaluative work, if they miss the mark, there is 7 a potential for them to back off some things that they 8 previously thought would be necessary. 9 The City of LA, of course, is concerned about being 10 required to do things to a level that proves to be 11 unnecessary and the efficiency level that had been asserted 12 by the Great Basis District was off, and it was going to be 13 costly and wrong-headed, if that's a fair assessment, I hope 14 it is, that is my view. 15 Our staff, I'm trying, Mr. Kenny, I know that any 16 time you are embroiled in a discussion trying to mediate, I 17 know it doesn't always work out the way that you want, and I 18 certainly aware of how committed you and your team have been 19 to this issue. 20 I was struck by the magnitude of the particulate 21 matter problem there. I have also been quite taken by the 22 working relationship, while not perfect, between the City and 23 the Air District. 24 I think they are working together, and despite the 25 long history and some conflict, certainly historically over PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 269 1 many years, I think there is some healthy respect and a 2 working relationship. 3 I'm saddened, personally saddened, that this had to 4 come to us, because this has been a difficult issue, 5 particularly because I know both of the legal counsels have 6 been concerned that this be conducted in a proper way, as 7 Ms. Edgerton has, and my own staff has not been available to 8 us on this, which has caused me some concern, because I am 9 not used to that. 10 We usually have issues that are worked out a little 11 bit differently than this. 12 So, I have kind of summed it up here as far as what 13 I think the issues are, and my Board Members, I'm certainly 14 looking to you to pipe up about it, so I would like to hear 15 what people think about it, and I am going to ask Mr. Calhoun 16 to share his two cents. 17 BOARD MEMBER CALHOUN: I have listened to the 18 staff's testimony, the arguments made by the City and by the 19 Great Basin Unified Air Pollution Control District, and I 20 will also share with you I read most of this material that 21 was submitted to the staff and to the Board, and I think that 22 there will always be some errors in modeling, and I don't 23 think that there is any question about that, I think the 24 staff has pointed out some errors here, and staff suggested 25 that this may result in overcontrol and perhaps that is the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 270 1 basis for their not recommending approval of the Great 2 Basin's plan. 3 I listened to Dr. Friedman this morning, and I 4 think he is basically where I am and that is that what I 5 would like to do is to lock the City of Los Angeles and the 6 Great Basin people up in a room and don't allow them to come 7 out until such time as they come to a resolution of these 8 problems, something that everyone can live with. 9 I think we need to move ahead with some type of 10 control measure. I'm concerned that if we approve the Great 11 Basin's plan that the City of Los Angeles' concern about it 12 being an open check book would be a worry of mine. 13 I am also concerned that if we deny the Great 14 Basin's recommendation that there will be more stalling, more 15 stalling and more stalling, and I think we need to move 16 ahead, so at this point I'm prepared to support the denial of 17 the City's appeal. 18 CHAIRMAN DUNLAP: Okay. Mr. Parnell. 19 BOARD MEMBER PARNELL: I will be brief, but it 20 seems to me that our assertions that the overestimated 21 controls necessary to meet the PM 10 standards is somewhat 22 overstated perhaps, as well. 23 As the District has used GPS triangulation to 24 identify after a storm event what part of the lake bed is 25 impacted by that event, it would seem to me that they have PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 271 1 done a reasonable job, and I guess that I would recommend 2 that the Board find that the City's appeal be denied with a 3 caveat, and I think I share my colleagues reference, get 4 together and to work hard at trying to find, if certain 5 segments of the plan are not practical, to work hard to find 6 some that are. 7 I personally am confused about the gravel piece, 8 so, I will say no more. It just appears to me that if we 9 were to deny this appeal that it would be incumbent upon you 10 to lock yourselves in that room and try to come to some 11 agreement as to what is practical. 12 CHAIRMAN DUNLAP: Okay. Mark. 13 BOARD MEMBER DeSAULNIER: Okay. For all of you 14 don't know, we got paid a $100 a meeting to do this. 15 CHAIRMAN DUNLAP: Some argue that is too much. 16 BOARD MEMBER DeSAULNIER: I'm in the restaurant 17 business, and I had to promise somebody that worked for me in 18 the restaurant, I promised them $50 of my $100. 19 So, it's really hard as somebody who is very much a 20 latecomer to this to sit here and not feel connected 21 emotionally to the people from the District, but on the other 22 hand, in my experience here, I have the utmost respect and 23 feeling of integrity for the staff, so as I sit here trying 24 to figure out the validity of the monitoring devices in 25 particular, I feel as if I confident relying on the staff, so PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 272 1 in that regard, I agree with my two colleagues, in spite of 2 the fact that being from San Francisco, I am a good San 3 Franciscan and hate LA, I will uphold the appeal. 4 BOARD MEMBER ROBERTS: Mr. Chairman, I am having a 5 little trouble here. I thought I heard Mr. Parnell say, deny 6 the appeal, and then I heard the next speaker say that he was 7 agreeing with staff, and somehow, I don't think those are one 8 and the same. 9 CHAIRMAN DUNLAP: Well, first of all, everybody is 10 going to have a chance to speak for themselves. 11 BOARD MEMBER ROBERTS: I was just trying to 12 understand what was going on. 13 CHAIRMAN DUNLAP: Mr. Calhoun and Mr. Parnell just 14 indicated a moment ago that they are supportive of denying 15 the appeal, the City of LA's position. 16 Mark indicated to uphold the appeal. 17 BOARD MEMBER DeSAULNIER: I'm in favor of the City. 18 BOARD MEMBER ROBERTS: My time is very limited and 19 so I will make my comments. 20 First of all, Mr. Chairman, earlier in the meeting, 21 you were somewhat attacked for your motives and how you might 22 decide this issue, and let me just at least suggest that 23 where I come from we are not terribly sympathetic to the City 24 of Los Angeles. 25 Having said that, it seems to me the issue is a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 273 1 very narrow one, do you agree or don't you agree. 2 There are two things that concern me as I listened 3 to the debate today. One is the matter of the mitigations, 4 whether the mitigations are appropriate, effective 5 mitigations, and I have heard some questions that remain 6 major concerns with me as to the appropriateness, but the 7 second is, is this model a good model. 8 I'm not saying it is the, what was suggested by our 9 staff, the better model, but the actual model that is being 10 used, and by their own graph it appears to me that their own 11 model leaves something to be desired. 12 It also suggests to me that when you get to a more 13 accurate model you might find the mitigations may even have 14 to exceed what is being proposed because I notice enormous 15 differences between the blue line and the red line, whatever 16 it was, but the fact of the matter is that it does not appear 17 to be, the model appears to be flawed, and the mitigations, 18 particularly the gravel, seems to be questionable, and for 19 that reason I am going to vote for the staff recommendation. 20 CHAIRMAN DUNLAP: Okay. If anyone else wants to 21 speak, they are welcome to. 22 If not, I am going to frame a motion and then we 23 will see how this goes. I will take a stab at my commentary, 24 and we will follow with a consideration of a motion. 25 I certainly have been moved by the testimony today. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 274 1 I, like Supervisor DeSaulnier, I have a lot of respect for 2 our staff, they are right almost every time. 3 I think that we have an opportunity to see some 4 serious air quality progress occur. The only thing that 5 gives me, really the comfort, to be supportive of a denial of 6 the appeal is that of the attitude that I am hearing 7 expressed by the officials from the Great Basin District that 8 have been here today, including the Board Member and the 9 staff. 10 In that kind of flexibility, and that kind of 11 reasonableness needs to be exercised, in my view, or we will 12 have put you in a role that you are ill equipped to manage. 13 To manage it requires some sensitivity, one needs 14 to put behind them as best one can some of the past issues, 15 no matter how deeply ingrained they may be in that region's 16 mind set. 17 So, I am inclined to support the Great Basin 18 District at this juncture because of the arguments outlined 19 today. 20 Again, I thank the staff, and I do want to 21 acknowledge that our staff has certainly been committed, and 22 I am respectful of all of the work that they did, and I know 23 that if there is miscommunication it certainly was 24 unintentional. 25 So, I am willing to entertain a motion to deny the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 275 1 City of Los Angeles' appeal of the Great Basin Unified Air 2 District's Board Order. 3 BOARD MEMBER CALHOUN: So moved. 4 CHAIRMAN DUNLAP: There is a motion by Mr. Calhoun 5 and a second by Mr. Parnell. 6 Any further discussion that we need to have? 7 BOARD MEMBER RIORDAN: Mr. Chairman, if I just 8 might, I am going to explain my reluctance to support your 9 motion. 10 I had the opportunity to tour with the District and 11 the City last week, and I recognize a problem that is 12 probably the most complicated one that I have yet to see 13 while serving on this Board. 14 I am very concerned about the future of how we go 15 about solving the problem, and my great concern is, I 16 suspect, is that the Federal Government, in some way, will 17 come in and whether as the District or the City you think you 18 might have a special in with the Government, I'm not sure 19 either of you want them to be the source of the plan and the 20 protection of your health there in the Owens Valley. 21 I think it ought to be done by the District and the 22 City jointly. I'm very sorry that we didn't have the 23 opportunity to see if we couldn't come together on some, what 24 I believe, are some rather narrow issues that perhaps could 25 have brought us to a point where we could have all agreed, at PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 276 1 least on an implementation plan in a phased way and in 2 recognition of some, I guess ability to adjust to amend as 3 information came forward we could adjust the plan, but we are 4 not in that position today based on the appeal that is in 5 front of us. 6 So, Mr. Chairman, while I have the greatest respect 7 and empathy for those who are part of the District, I truly 8 feel that unless the unpinnings of the plan, meaning the work 9 and the modeling and all are just as accurate as they can 10 possibly be, then there is going to be a lot of work that is 11 going to take place that perhaps did not need to take place. 12 Having said that, I respect the other side because 13 I think this is a difficult one to call and we don't often 14 disagree, but I am going to disagree this time, and I am 15 going to take the other position. 16 CHAIRMAN DUNLAP: Supervisor Patrick. 17 BOARD MEMBER PATRICK: Thank you, Mr. Chairman. 18 I would like to make a remark or two as well. I am 19 going to support the motion. 20 I am going to support it not because I don't have 21 the greatest respect for staff, because I truly do, but I 22 think what we are dealing with is an imperfect science. 23 I am not comfortable, you know, in the next six 24 months that the science is going to be any better than it is 25 right now. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 277 1 I think it is important that we move forward. I 2 think that we have waited long enough. 3 I think the testimony that has been given has shown 4 real sincerity on the part of both parties. I would hope 5 that if this motion passes, and I don't know that it will, 6 but if this motion passes this will be an impetus to bring 7 both parties together and see if there isn't some reasonable 8 compromise that they both can agree on. 9 But I think when you have imperfect science and you 10 have what everyone has termed the largest and most complex PM 11 10 situation in the nation, I think it is incumbent upon us 12 to make some kind of a motion, and like Supervisor Riordan, 13 one of my key concerns is that the Federal Government will 14 get involved in it, and that's why I think we need to move 15 forward. 16 CHAIRMAN DUNLAP: All right. We are going to lose 17 a Board Member or two to an airline here in a moment, so what 18 I am going to do is call the question. 19 We have a motion and a second to deny the City of 20 Los Angeles appeal. We have had some discussion. 21 I am going to ask you, Pat, to do, not a voice 22 vote, but roll call. 23 MS. HUTCHENS: Calhoun. 24 BOARD MEMBER CALHOUN: For. 25 MS. HUTCHENS: DeSaulnier. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 278 1 BOARD MEMBER DeSAULNIER: No. 2 MS. HUTCHENS: Edgerton. 3 BOARD MEMBER EDGERTON: Pass for now. 4 MS. HUTCHENS: Friedman. 5 BOARD MEMBER FRIEDMAN: No. 6 MS. HUTCHENS: Parnell. 7 BOARD MEMBER PARNELL: Yes. 8 MS. HUTCHENS: Patrick. 9 BOARD MEMBER PATRICK: Yes. 10 MS. HUTCHENS: Riordan. 11 BOARD MEMBER RIORDAN: No. 12 MS. HUTCHENS: Roberts. 13 BOARD MEMBER ROBERTS: No. 14 MS. HUTCHENS: Chairman Dunlap. 15 CHAIRMAN DUNLAP: Yes. 16 Ms. Edgerton. 17 Four to four. 18 BOARD MEMBER EDGERTON: Is it four to four? 19 CHAIRMAN DUNLAP: Ms. Walsh, what do we need? 20 MS. WALSH: You need five to carry the motion. 21 CHAIRMAN DUNLAP: Okay. 22 BOARD MEMBER EDGERTON: It had been my plan to 23 abstain, and this puts me in an awkward position, because 24 I -- 25 CHAIRMAN DUNLAP: It sure does. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 279 1 BOARD MEMBER EDGERTON: Because I very much believe 2 that the process is not one I feel comfortable with, and I, 3 you know, I feel that I have been asked in the space of seven 4 and a half hours to decide issues that affect so many 5 Californians in so many ways with intersecting water and air, 6 and it's -- you know, I can't imagine, I used to think it 7 would be fun to be a judge. 8 I must say that if I were running a court I would 9 take more time on this, but I know you want me to hurry up. 10 Can we take a break and come back? 11 CHAIRMAN DUNLAP: No. 12 I just need a one word response, and I am hoping it 13 is one that is a thoughtful one, so please proceed. 14 BOARD MEMBER EDGERTON: I have been inclined to 15 support the District with respect to whether what they did 16 was reasonable in terms of their modeling. 17 However, one of the issues that wasn't discussed 18 very much was the scope of the mitigation projects, and what 19 I saw, what I saw -- 20 CHAIRMAN DUNLAP: Discussion is closed, we just 21 need an answer, so I need an answer. 22 BOARD MEMBER EDGERTON: Uhm -- 23 CHAIRMAN DUNLAP: Ms. Barnes, would you restate the 24 motion for us? 25 MS. BARNES: The motion, as I understand it, there PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 280 1 is a motion on the table to deny the City of Los Angeles 2 appeal of the control measures issued by the Great Basin. 3 CHAIRMAN DUNLAP: Either for it or you're not. 4 BOARD MEMBER EDGERTON: I again ask for a 15 minute 5 delay. 6 CHAIRMAN DUNLAP: Lynn, you need to make a 7 decision. 8 If you can't, then we are just going to call it a 9 draw, and then we are going to go back and have a long 10 discussion and lose a couple of Board Members. 11 Please. 12 BOARD MEMBER EDGERTON: I don't think it is really 13 fair to put me in this position after this process. 14 I really am uncomfortable with it, but I cannot say 15 honestly that I found the scope of the -- that I found the 16 mitigation measures reasonable on the record, yet I find them 17 reasonable as part of a plan, but I didn't see -- 18 CHAIRMAN DUNLAP: Ms. Edgerton, we just need your 19 vote. 20 BOARD MEMBER EDGERTON: I am going to vote for the 21 City. 22 CHAIRMAN DUNLAP: Okay. The motion fails. 23 All right. What, Ms. Barnes, if it is acceptable, 24 what we are going to do is take a break for five minutes, and 25 we will come back. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 281 1 (Thereupon a brief recess was taken.) 2 CHAIRMAN DUNLAP: Okay. I need the audience to sit 3 down. 4 All right. 5 We just had a motion to deny the appeal fail, so 6 what I would like to do is figure out what the sense of the 7 Board is on the next approach that we take. 8 BOARD MEMBER RIORDAN: Mr. Chairman. You know, 9 again, this is the most difficult decision that I have had to 10 make. 11 You need to know, those of you sitting in the 12 audience, that's a number of years for me. It seems to me 13 that for us to now make the motion to grant the appeal, might 14 be a little premature because, my hope would be that if we 15 allowed for a month to take a final vote, that the parties 16 might be able to get together and resolve the issue and move 17 forward to move to, I see heads shaking, but I think that is 18 a sad sort of situation, but I do think there are reasonable 19 people in this audience that could get together, and I would 20 like to move that we postpone, or continue this item for a 21 month, to our next meeting, which would allow, while we 22 cannot force and there is no indication here of me forcing in 23 the motion, the parties to get together, it is only a desire 24 to see them get together, and then bring this back to the 25 Board to be a final decision made on the appeal. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 282 1 CHAIRMAN DUNLAP: Okay. All right. 2 Ms. Barnes, how does that sit with you due process 3 wise? 4 MS. BARNES: I think that is accurately stated. 5 42316.B says you shall conduct a hearing, but it 6 does not require you to come to a final decision within a 30 7 day period. 8 I think it is most appropriate to continue this to 9 your next properly noticed meeting. However, Mrs. Riordan is 10 correct in stating that this Board, I don't believe, has the 11 authority to force, or to make a condition that the parties 12 get together and negotiate, but certainly, this Board could 13 strongly encourage that, should they wish to do so. 14 CHAIRMAN DUNLAP: Mrs. Riordan, I appreciate that. 15 I think that is a reasonable approach. So, let me 16 try to restate as best I can. 17 We would ask, we are going to take this up in a 18 month. Kathleen, if it can be done in a month, I mean 19 relative to what our public notice requirements are. 20 We are going to ask the parties to get together. I 21 am going to ask Mr. Kenny to facilitate a meeting, not 22 necessarily run by Mr. Kenny, but I am going to ask him to 23 facilitate a meeting, which will have the parties gather and 24 see if they can hammer something out, and I am going to look 25 to proper leadership for Chairs of the Board, significantly PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 283 1 high ranking leadership of DWP there, and I want to see this 2 thing worked out if it can. 3 We will take it up again next month would be my 4 preference. So, what I will do is entertain a motion to do 5 that. 6 Motion by Supervisor Riordan and seconded by 7 Supervisor DeSaulnier. 8 Any further discussion? 9 BOARD MEMBER RIORDAN: The motion probably should 10 include the date. I don't have our date in June. 11 CHAIRMAN DUNLAP: The June twenty-fifth Board 12 meeting. 13 BOARD MEMBER FRIEDMAN: I just want to 14 ask the question, while we can require or assist the parties 15 work together, or even come up with something new, for my own 16 point of view I would just remind everyone that votes can 17 change if they don't. 18 I don't know if that is a legal comment, or what, 19 but it is an absolute fact. One thing is requiring, another 20 thing is anticipating some mutual discourse. 21 CHAIRMAN DUNLAP: I think that is a strong 22 admonishment for the parties to get together. 23 All right. There is a motion and there is a second 24 to encourage the parties to get together. 25 We will take this up at the June Board meeting, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 284 1 June twenty-fifth. 2 Any further discussion the Board needs to have? 3 We will proceed on a voice vote. 4 All those in favor of the motion, say aye. 5 Any opposed? 6 Very good. Motion carries. 7 Before we leave I want to thank everybody that 8 traveled here today. I was extremely impressed with the 9 really high quality presentations and the preparation that 10 went into it at all levels. 11 Thank you, very much. 12 MS. BARNES: Before you adjourn the meeting, I 13 would like to know at this point in terms of the fee issue, 14 the Board has already voted on the fee issue, will you be 15 moving the adoption of findings and a ruling to the next 16 meeting as well? 17 CHAIRMAN DUNLAP: I would like to deal with the fee 18 appeal item if we can now. 19 Is that possible to do? 20 MS. WALSH: We have provided to the Board a 21 combined decision and findings. 22 CHAIRMAN DUNLAP: There is no reason to combine it. 23 We have taken action on the one item. Let's send 24 out the opinion or the Board action on that. 25 MS. WALSH: We will need to prepare a decision and PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 285 1 findings that address the fee issue only. Right now that 2 document does not exist. 3 CHAIRMAN DUNLAP: Can you play catch-up based upon 4 the Board action with the paperwork? 5 MS. BARNES: If I may, on the record, there is one 6 other consideration, according to 42316, should any parties 7 wish to take the Board's decision up on appeal, they are to 8 do so within 30 days of service of the decision of the State 9 Board, and since at this point in time we have a decision on 10 the fee issue but not on the control measures, it might be 11 something for this Board to consider to keep the two together 12 so that that time period runs concurrently, but it's really 13 up to you. 14 CHAIRMAN DUNLAP: Let them go separate. 15 I am okay with it, unless someone wants to 16 recommend otherwise. 17 BOARD MEMBER RIORDAN: Mr.Chairman, there is 18 another item that I think Ms. Barnes and you ought to think 19 about, and that is do we want to close any further testimony 20 at this time, and then have the decision at that time, or are 21 you going to leave this open? 22 It would help me to know. 23 MS. BARNES: At this point the record has not been 24 closed for the control measures. 25 It has for the fee measure, I believe, because that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 286 1 decision has been made. It is up to the discretion of the 2 Board. 3 CHAIRMAN DUNLAP: Why don't we visit it based on 4 some intelligence that we will get from Ms. Barnes, can we 5 get it from you about the fact that a meeting occurred, that 6 kind of thing, can you tell us that? 7 MR. KENNY: I think the question is whether or not 8 next month you wish to hear additional witnesses, or whether 9 at that point in time you simply want to vote on the 10 technical issue. 11 CHAIRMAN DUNLAP: Let me take a minute. 12 Here is what I think ought to happen next month, we 13 ought to have the Great Basin District and the City come back 14 and tell us what has occurred through their two counsels. 15 Mike will, again, despite the concerns that some of 16 the others, that the parties may have, I am going to ask you 17 to say something about it, too. 18 Whether we decide to have witnesses or not at that 19 time, can we wait until the meeting, or do we have to decide 20 now? 21 MR. KENNY: You can wait until the meeting, but I 22 think the difficulty with that is that people will then be 23 almost forced to come because they will not know whether you 24 are going to hear them or not, so it is probably best to make 25 the determination now. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 287 1 MS. BARNES: Just to jump in here, also under 2 Bagley-Keane, the public does have the right to comment on 3 items that are on the Board's Agenda. 4 There can be some limitations to that, but that 5 will also be a possibility for you to consider. 6 CHAIRMAN DUNLAP: Okay. 7 MR. SCHLOTMAN: One is simply a process question, 8 and that has to do that you granted a decision on the fee 9 measure appeal today, but the written decision apparently is 10 going to be down the road a little bit. 11 In order to know what my options are, I need to 12 know the date that the decision issues, is it going to be 13 today, a written decision as of today, or a week or two 14 weeks, or whatever? 15 That's my first question. 16 MS. WALSH: We will move ahead to draft a decision 17 and findings consistent with your decision on the fee issue, 18 and send that out as quickly as possible. 19 The date of the decision should be the date that 20 that is issued, the written document. 21 MR. SCHLOTMAN: That will be satisfactory. 22 The second question and or suggestion regarding the 23 continued hearing, and the City will certainly sit down with 24 the District in the meantime, and we intended to do that any 25 way, that goes to the question of whether this Board might PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 288 1 desire additional argument and discussion from both the 2 District and ourselves. 3 The discussion today focused primarily on the air 4 quality modeling and did not discuss the control measures in 5 view of your staff's recommendation. 6 We had almost no discussion or consideration of the 7 measures themselves, if you should decide that the modeling 8 is not a sufficient issue upon which to hold up the measures, 9 you have no consideration about whether the measures 10 themselves work or don't work. 11 We believe you should have some discussion on that 12 as well before you consider this further. 13 CHAIRMAN DUNLAP: We will provide an opportunity to 14 hear from you and the Basin on that. 15 All right. Ms. Walsh, the date will be from when 16 it is issued from you on the Board's action regarding the 17 fees, which will probably be a week or so, and then we will 18 take the other item up on June twenty-fifth. 19 BOARD MEMBER EDGERTON: Point of information, sir. 20 It's my understanding we continue to be bound by the rules 21 throughout this, so we are not to be talking with anyone? 22 MS. BARNES: That would be accurate in terms of the 23 control measures, which are still unresolved at this time. 24 BOARD MEMBER EDGERTON: Can we talk to each other? 25 MS. BARNES: No. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 289 1 Not outside of the confines of your meetings. 2 CHAIRMAN DUNLAP: Very good. 3 Anything else? 4 All right. We will now adjourn this the May 5 meeting of the California Air Resources Board. 6 (Thereupon the Air Resources Board meeting was 7 adjourned at 3:45 p.m.) 8 --o0o-- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 290 1 CERTIFICATE OF SHORTHAND REPORTER 2 3 I, VICKI L. MEDEIROS, a Certified Shorthand 4 Reporter of the State of California, do hereby certify: 5 That I am a disinterested person herein; that the 6 foregoing hearing was reported in shorthand by me, Vicki L. 7 Medeiros, a Certified Shorthand Reporter of the State of 8 California, and thereafter transcribed into typewriting. 9 I further certify that I am not of counsel or 10 attorney for any of the parties to said hearing nor in any 11 way interested in the outcome of said hearing. 12 IN WITNESS WHEREOF, I have hereunto set my hand 13 this twenty-seventh day of May, 1998. 14 15 16 VICKI L. MEDEIROS 17 Certified Shorthand Reporter License No. 7871 18 19 20 21 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345