STATE OF CALIFORNIA
Energy Resources Conservation
and Development Commission
In the Matter of: ) Docket No. 98-AFC-3 ) Application for Certification ) COMMISSION ORDER for the Delta Energy Center ) DENYING PETITION (Calpine Corporation and ) FOR RECONSIDERATION Bechtel Enterprises, Inc.) ) ________________________________)
The Commission's written decision certifying Calpine/Bechtel's (Applicant's) Delta Energy Center (DEC) was docketed on February 15, 2000. Any party may file a petition for reconsideration of a decision granting certification within 30 days of the adoption date.1 (Cal. Code of Regs., title 20, section 1720.) Southern Energy Delta (Petitioner), a party to the proceeding, timely filed a "Petition for Reconsideration and, in the Alternative, for Reopening the Record" (Petition) on March 16, 2000. The Applicant and Commission Staff timely filed responses to the Petition and the Commission conducted a public hearing on the matter at its business meeting on April 5, 2000, at which we denied the Petition (Commissioner Moore dissented). In this Order, we provide our rationale for denying the Petition.
[Note 1: For purposes of calculating deadlines, the date that a Commission decision is deemed adopted is the date that it is docketed. (Cal. Code of Regs., title 20, section 1720(a).)]
II. THE PETITION
Petitioner asserts that the Commission's decision is "incomplete, ambiguous, and/or inaccurate with respect to the project description, and facility and engineering assessment pertaining to transmission system engineering, linear facilities, and the first point of interconnection." Petitioner raises three basic issues: (1) whether the Applicant's possible consideration of a transmission interconnection other than the one approved in the decision requires reopening the record; (2) whether the Commission failed to address adequately potential environmental impacts of possible measures that may be used to mitigate transmission congestion; and (3) whether the Applicant should be required to acquire its transmission right-of-way by private agreement with Petitioner, rather than by an eminent domain proceeding brought by the City of Pittsburg. In our view, the answer to all three questions is no. We note also that Petitioner offered no evidence during the proceeding on any of the matters raised by the Petition, nor did Petitioner make an offer of proof concerning such matters in the Petition. We take this as a strong indication that there is no evidence that would contradict any of the findings and conclusions in the decision.2
[Note 2: Petitioner moved to strike the "Intervention of PG&E" and its attached declaration of Robert Lambert as well as Staff's declaration of Al McCuen in Staff's Response. We took the motions under submission during the hearing. Since this Order does not rely upon either PG&E's submittal or Staff's references to Mr. McCuen's statements, the motions are now moot.]
With regard to the transmission interconnection, the Applicant denies that it intends to change the first point of interconnection at the Pittsburg Power Plant. The Applicant has contracted with PG&E to perform congestion management studies for its two facilities in Pittsburg (Los Medanos and DEC). However, according to the Applicant the studies are merely planning studies that do not reflect any intent by the Applicant to change the project description as defined in the Commission's certification decision. Similarly, Staff states that the point of interconnection is specifically approved in our decision and that a new proceeding would be required to change it. Under section 1769 of the Commission's regulations, the project owner must file an amendment if it intends to change the project description. (Cal. Code of Regs., title 20, section 1769.) We agree with Staff. Any analysis of an alternative would be premature at this point. The Commission will conduct all appropriate analyses if and when the Applicant proposes an alternative.
With regard to potential impacts of possible measures to mitigate transmission congestion, Staff notes that the California Independent System Operator, which controls most of the transmission grid in California, testified that it is impossible at this time to determine which of many mitigation alternatives currently being considered might be necessary and, therefore, it is impossible to assess what the potential impacts Šif any- may be. Staff asserts that once an agency has determined that potential impacts are not "reasonably foreseeable," no further analysis is required under CEQA. (Cal. Code of Regs., tit. 14, ¤ 15145.) We agree. Moreover, if any future congestion mitigation measure results in significant environmental impacts, the state or federal agency responsible for permitting the measure would have to analyze those impacts.
Finally, with regard to the method by which the Applicant obtains the right-of-way for the transmission interconnection (or any other property necessary to construct and operate the facility), Staff argues that granting the Petitioner's request would give Petitioner veto power over Applicant's project. We agree that doing so would be inappropriate, and we also note that under the Commission's jurisdiction it is not necessary (or appropriate) to consider such methods, in the absence of evidence showing that different methods of property acquisition would result in significantly different impacts. There is no such evidence in the record and Petitioner offers none.
The Petition is DENIED.
Dated: April 6, 2000
ENERGY RESOURCES CONSERVATION
AND DEVELOPMENT COMMISSION
WILLIAM J. KEESE
- Dissented -
MICHAL C. MOORE
ROBERT A. LAURIE
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