STATE OF CALIFORNIA
Energy Resources Conservation
and Development Commission
In the Matter of:
Application for Certification for the
Delta Energy Center
(Calpine Corporation and Bechtel
Docket No. 98-AFC-3
RE: MOTION TO SET
On March 30, 1999, the Committee issued a Scheduling Order establishing a twelve-month certification review period. On June 25 and July 12, 1999, respectively, the Delta Energy Center (Applicant or DEC) filed a "Motion to Set Schedule" (Motion) and a "Compromise Schedule" (Schedule) requesting the Committee to expedite the schedule by two months. On July 14, 1999, the Committee conducted a Status Conference where the Applicant's motion and the Schedule were discussed by the parties. The parties filed their most recent Status Reports on July 22, 1999.
Under the existing Committee schedule, the Commission will consider the Presiding Member's Proposed Decision (PMPD) at the February 16, 2000, Business Meeting. Applicant proposes to eliminate 60 days from the schedule so that the PMPD would be considered at the December 15, 1999, Business Meeting.
II. APPLICANT'S POSITION
Applicant asserts that its Application for Certification (AFC) presents several unique circumstances that provide an opportunity for the Commission to confirm its commitment to accelerating an AFC schedule for non-controversial projects diligently pursued by an Applicant. In this case, according to the Applicant, the AFC was relatively complete upon filing and required only a modest amount of information to achieve data adequacy. Further, the parties filed only a small number of data requests to which Applicant responded in a timely manner.
Additionally, in its July 22, 1999 Status Report, the Applicant identified several items that have been addressed in the last month including:
- Completion of the Biological Assessment, which was docketed on July 1, 1999 and submitted to the U.S. Army Corps of Engineers (USACE).
- Copies of Applicant's Pre-Construction Notification were submitted to the USACE, the U.S. Fish and Wildlife Service (USFWS), and the California Department of Fish and Game (CDFG). The USACE also submitted its Biological Assessment (BA) to the USFWS. The comment period on the BA ends on July 26.
- Applicant's Notification for Streambed Alteration will be submitted to CDFG by the end of July. CDFG is expected to issue a Streambed Alteration Agreement in two months.
- Applicant's industrial discharge permit application is under review by the Delta Diablo Sanitation District and should be completed in July.
- The Preliminary Determination of Compliance (PDOC) expected to be released in the last week of July. The Final Determination of Compliance (FDOC), which could be released the week of September 13, will be available ahead of the 180 days and 240 days, respectively, specified in the Bay Area Air Quality Management District's (BAAQMD) regulations.
- PG&E's Detailed Facilities Study is adequate for the Cal-ISO to grant preliminary interconnection approval at this time. Applicant requested additional analyses for business purposes but these analyses are not necessary for Cal-ISO approval.
- Applicant has identified a location for the transition station that is within the area previously surveyed for the AFC and which is highly disturbed.
- Applicant's height limitation variance application will be considered by the Pittsburg City Council in mid-September. The City Council is expected to adopt a Resolution that would provide a recommendation to the Committee.
In its Motion, the Applicant submits that its accomplishments merit a favorable response to the request to expedite the schedule. The Applicant notes that another factor in support of its request is the close proximity to Enron's Pittsburg District Energy Facility (PDEF) project. It is the Applicant's position that several of the Staff's analyses conducted for the PDEF project are applicable to the DEC. In particular, the Applicant suggests, the Staff has already completed the cumulative impact analyses for PDEF that would necessarily apply to the DEC since those analyses already include DEC. This unique factual situation should allow Staff to rely on the existing analyses and shorten the time for preparing its Final Staff Assessment (FSA). The Applicant also proposes to take the initiative to reduce Staff's workload for this proceeding by drafting proposed Conditions, preparing detailed testimony, and submitting testimony and materials in both electronic form and hard copy formats.
III. STAFF'S POSITION
Staff asserts that there are numerous outstanding issues in this matter that should be resolved prior to the FSA. Otherwise, these disputed issues would be litigated at the evidentiary hearings. Staff also believes that bifurcating the FSA, by separating the air quality or other issues from the rest of the document due to the anticipated late filing of the FDOC, is not in the public interest nor helpful to the reviewing agencies.
Finally, Staff maintains that it is premature to set any FSA release date at this time, as some necessary information remains unavailable or unresolved. Staff proposes a four-week window after the last piece of critical information is provided to prepare the FSA.
IV. POSITIONS OF THE PARTIES
Intervenor CAP-IT objects to Applicant's Schedule for several reasons, including the proposed reduction of time for public comment on the Preliminary Staff Assessment (PSA) and the proposed bifurcation of air quality issues from the PSA and FSA.
Intervenors CURE and the City of Antioch do not oppose Applicant's Schedule, but are concerned about its feasibility.
V. COMMITTEE DISCUSSION
The Committee, the Staff and Commission recognize the importance of completing the certification review of all proposed projects in as expeditious a manner as possible. Any opportunity for accelerating the traditional 12-month review schedule merits close scrutiny and a favorable pre-disposition.
The Committee is persuaded that the DEC schedule presents an opportunity for attempting an expedited review. We are in general agreement with the Applicant that relative to many other siting cases the Commission has or will review, the DEC will have a limited number of contested issues. Additionally, the municipalities in which it is located are generally supportive of the project. No zoning or General Plan amendments are required. (A variance to height limit for the current zone is the only zoning related question in the case.) Considerable work completed for the Pittsburg-Enron facility should allow some economies of effort on the DEC.
At the same time, however, the Committee recognizes staff and Applicant's lengthy list of unresolved matters. Among these are:
- The height variance recommendation from the City of Pittsburg, expected around September 17, 1999;
- Visual resource issues and the City of Pittsburg desire to maintain crew corridors to the shoreline. These should be resolved along with the stack height variance around September 17, 1999;
- The FDOC anticipated for release around September 30, although Applicant is hopeful it will be available sooner;
- The Biological Opinion, which may not be available until November 15, 1999 if the US Fish and Wildlife Service (USFWS) requires formal consultation and review regarding the discovery of an endangered species (vernal pool fairy shrimp) at the site;
- The final decision of Burlington Northern & Santa Fe Railroad on use of their right-of-way for the underground transmission line that would require the Applicant to file an amendment to the AFC describing the route;
- Results of the compatibility study regarding landscaping on the 8th Street corridor where the underground transmission line will be located;
- Water issues including approvals of permits from the Delta Diablo Sanitation District and the San Francisco Bay Regional Water Quality Control Board.
The Committee notes that the Applicant and Staff are making diligent efforts to provide information needed for a timely licensing process. In particular, we commend Staff for early release of the PSA, which allows for expedited scheduling of the next major procedural event, the Prehearing Conference (PHC), on August 23, as proposed in the Schedule.
All parties must recognize however, that timely completion of the FSA and PMPD is fundamentally dependent upon the actions of other regulatory entities on four key issues:
- Height variance and visual impacts (City of Pittsburg)
- Final Determination of Compliance (BAAQMD)
- Biological Opinion (USFWS)
- Water-related permits (DDSD and SFWRCB)
Independent of these agency determinations, the Applicant must provide resolution and detailed documentation of:
- Transition station and pump station location, including legal map
- Right-of-way for underground transmission line, including formal AFC amendmen
- Fire protection funding
- Compatibility of landscaping for 8th Street median park
VI. COMMITTEE'S PREFERRED ACCELERATED SCHEDULE
The challenges presented by these substantial unresolved subjects are significant and the probabilities of successful, timely resolution unknown at this time. In the interest of encouraging expeditious resolution, the Committee is revising the case schedule as indicated in Figure 1.
Figure 1: Preferred Accelerated Schedule
Committee conducts Status Conference July 7 Status Report #4 due to Committee July 22 Staff releases Preliminary Staff Assessment (PSA) July 27 Staff conducts PSA Workshops August 10, 11, 18, 19 Parties file Prehearing Conference Statements August 17 Committee Prehearing Conference August 23 Deadline for petitions to intervene August 31 City of Pittsburg decision on height variance September 17 Staff releases Final Staff Assessment (FSA) as testimony
Applicant and all other parties submit testimony (not including air quality, biology, water & land use)
September 20 Parties file rebuttal testimony September 27 USFWS and CDFG submit Biological Opinions September 30 Delta Diablo Sanitation District submits water-related permits September 30 Final Determination of Compliance (FDOC) filed by BAAQMD September 30 Evidentiary hearing on non-contested issues October 5 Staff releases FSA Supplement
Applicant and parties submit testimony (air quality, biology, water & land use)
October 15 Rebuttal testimony filed October 21 Evidentiary hearing -remaining issues October 26-27 Presiding Member's Proposed Decision (PMPD) issued November 24 Conference on PMPD December 14 Parties file comments on PMPD
(close of comment period on PMPD)
December 24 PMPD Errata released January 6 Commission Considers PMPD and Errata January 19
This "preferred accelerated" schedule reflects several elements of the Schedule proposed by the Applicant, including an early PHC, no briefing by parties, use of an Errata rather than a Revised PMPD, and an expedited Commission consideration hearing schedule. It maintains adequate time for workshops on the PSA and FSA as requested by CAP-IT. An FSA Supplement mechanism is utilized to accommodate a likely, yet still optimistic, schedule for release of key agency products.
VII. COMMITTEE DIRECTION
The Committee emphasizes that this schedule is contingent upon action of Applicant, Staff and agencies. While it prefers and respectfully orders products to be filed as delineated, feasibility is contingent upon action of the parties. If these actions do not occur or unforeseen controversy requires extended evidentiary hearings, briefing, or a revised PMPD, it may prove necessary to revert to the March 30, 1999 Scheduling Order.
Date Revision On-line: August 5, 1999
_______// signed //_______
WILLIAM J. KEESE
Chairman and Presiding Member
Delta Energy Center AFC Committee
ENERGY RESOURCES CONSERVATION
AND DEVELOPMENT COMMISSION
Mailed to list: #714
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