)
APPLICATION FOR CERTIFICATION OF THE	)	DOCKET NO. 01-AFC-12
LOS ESTEROS CRITICAL ENERGY	)	APPLICATION COMPLETE
FACILITY (LOS ESTEROS)	)	SEPTEMBER 25, 2001
_________________________________________	)

I. NOTICE OF EVIDENTIARY HEARINGS And HEARING ORDER

The Los Esteros AFC Committee assigned to the aforementioned proceeding will conduct formal evidentiary hearings as follows:

MONDAY, March 11, 2002
and
TUESDAY, March 12, 2002 (if necessary)
WEDNESDAY, March 13, 2002 (if necessary)
Beginning at 10:00 a.m.
Berger Center, Building 2
1555 Berger Drive
San Jose, California 95112
[Wheelchair Accessible]

The Committee has designated Tuesday, and Wednesday, March 12, and 13, 2002, as CONTINUATION DATES ONLY. No scheduled hearings will be conducted on these dates should those matters scheduled for hearing on March 11, 2002, be fully concluded. If hearings proceed to March 12, however, they will commence at 3:00 p.m.; if hearings proceed on to March 13, they will commence at 10:00 a.m.

At these hearings, the parties (Applicant, Staff, and Intervenors) will present evidence consisting of sworn testimony and exhibits on each topic area. Unless a party's written request for a change is granted, presentations will follow the agenda shown on APPENDIX A.

II. BACKGROUND

1. Summary

   At the February 25, 2002, Prehearing Conference, the parties agreed that they are prepared to proceed to formal evidentiary hearings on all technical topic areas. Therefore, the Committee's Hearing Order, which follows, schedules those hearings to be conducted as set forth above in the City of San Jose, California.

   Calpine filed its Application for Certification (AFC) under our four-month process anticipating that the project would be completed and operational during the summer of 2002. (Pub. Resources Code, § 25552.) Section 25552 requires that AFC's filed under this process must be online by December 31, 2002, and requires the Energy Commission to expedite, to the extent feasible, the processing of such AFC's.

   The City of Milpitas has filed a motion to remove the AFC from the four-month process. Having already been briefed, following the Committee's November 28, 2001 briefing schedule, that motion was addressed at the Prehearing Conference on February 25, 2002.

   Qualification and licensure for the four-month process contemplated by section 25552 requires an AFC to demonstrate that the simple-cycle, thermal power plant and related facilities will comply with a number of enumerated conditions. [Pub. Resources Code, §§ 25552 (d) & (e).] On November 15, 2001, a Committee Ruling found that despite Schedule delays inherent in the process, LECEF has "the potential to comport with the eligibility requirements set forth in Public Resources Code section 25552." After our Ruling, on November 26, 2001, the City of Milpitas filed a petition to remove the project from the four-month process.

   The record here repudiates the notion that LECEF could achieve licensing under a strict four-month schedule. For example, Staff's Assessment was filed on December 31, 2001, followed by a Supplement on February 5, 2002. The City of San Jose took its land use action, approving necessary zoning changes to the LECEF site, by the City Council on February 19, 2002. Thus, the Committee scheduled a Prehearing Conference for February 25, 2002, with an adequate evidentiary basis upon which to schedule and conduct evidentiary hearings. With Evidentiary Hearings now scheduled for March 11-13, 2002, the Committee's expectation is that a PMPD will be released in an expedited fashion after receipt of the reporter's transcripts of the proceedings.

   In addition, the Committee expects that the full Commission will be able to issue its Final Decision in these proceedings no later than May 2002. Under our extended four-month schedule, this will place the Energy Commission within an approximately eight month AFC review period that began on September 25, 2001, when the Energy Commission accepted the AFC as data adequate.

   Accordingly, in view of the protracted nature of LECEF's procedural history set forth above, the City of Milpitas agreed with the Committee's assessment that its removal petition is largely moot. Unlike a typical four-month process, the Energy Commission's actual process in this matter will span some eight months. Due to the environmental, engineering, and administrative time required by Staff and the City of San Jose's land use review process, a two-fold increase in our licensing proccess has occurred. Therefore, LECEF's current posture places it closer to our traditional 12-month regulatory process than to our more discreet four-month process. Under these review circumstances, we find the City's motion to be moot.

   Accordingly, the Committee will conduct formal hearings to receive evidence on all aspects of the proposed project as set forth below in Appendix A. This Notice provides a schedule for these hearings, a notice of witnesses for each topic area, and dates for filing prepared testimony.

   
   
2. Formal Evidentiary Hearing Procedures

   The purpose of the evidentiary hearings is to establish the factual record necessary for the Energy Commission to reach a decision on the proposed project. The record is developed by the presentation of oral and written testimony, as well as documentary evidence submitted by the parties. Evidentiary hearings are more structured than the informal workshops and Committee Conferences that have already occurred. The rules of evidence pertaining to these hearings may be found at Sections 1212-1213 of the Energy Commission's regulations.

   [Cal. Code of Regs., tit. 20, §§ 1212, 1213; see also, § 1702 (h).] The regulations may be viewed on the Energy Commission's Internet website at: http://www.energy.ca.gov/siting/title20/tofc.html.

   The parties will present evidence in the form of sworn, oral testimony or written declarations in all technical areas as set forth in Appendix A. Any witness offering oral testimony sponsored by a party shall testify under oath or affirmation and will be subject to cross-examination by other parties. Any party sponsoring a witness shall briefly establish the witness's qualifications and have the witness orally summarize the prepared testimony before requesting that the testimony be moved into evidence.

   If warranted, multiple witnesses may testify as a panel, and any relevant exhibits may be offered into evidence by the sponsoring panel member(s). At the conclusion of direct testimony, the Committee will provide all other parties an opportunity for cross-examination, followed by redirect and re-cross-examination of the witnesses, as appropriate.

   By stipulation of the parties, the Committee will accept written Declarations instead of oral testimony in the following topic areas, where the evidence is uncontroverted by the parties:

   1. COMPLIANCE & CLOSURE;
   2. FACILITY DESIGN;
   3. POWER PLANT RELIABILITY;
   4. TRANSMISSION LINE SAFETY & NUISANCE;
   5. CULTURAL RESOURCES;
   6. GEOLOGY & PALEONTOLOGY;
   7. NOISE;
   8. SOCIOECONOMICS;
   9. WASTE MANAGEMENT; and
   10. TRAFFIC & TRANSPORTATION.
   
   
   

   Declarations and testimony shall be filed with the Dockets Unit by 3:00 p.m. on March 8, 2002. All Declarations shall be filed under penalty of perjury, incorporate previously filed documentary materials by reference, and shall briefly establish the witness' qualifications.

   Applicant has the burden of presenting sufficient substantial evidence to support the findings and conclusions required for certification of the site and related facilities. [Cal. Code of Regs., tit. 20, § 1748 (e).]

3. Public Participation

   Members of the public and interested governmental agencies are invited to attend these hearings and may offer unsworn public comment upon the matters discussed. These public comments will be entered into the record of the proceeding and may be used to supplement or explain the evidence of record. Public comments by themselves, however, are not sufficient to support a finding of fact or a decision on an issue.

4. Public Adviser

   The Commission's Public Adviser, Roberta Mendonca, is available to provide information or to assist those interested in participating at these hearings. She may be reached at (916) 654-4489 or, toll free, at 800-822-6228; or by email at: [pao@energy.state.ca.us]. Please contact Priscilla Ross in the Public Adviser's office at (916) 653-6631, or email, [pross@energy.state.ca.us], if you require special accommodation to participate at this meeting.

5. Further Information

   News media inquiries should be directed to Claudia Chandler at (916) 654-4989. Contact Robert Worl, Staff Project Manager, with any technical questions at (916) 651-8853, or 653-0062, or email: [bworl@energy.state.ca.us]. Questions of a legal or procedural nature should be addressed to Major Williams, Jr., the Hearing Officer, at (916) 651-2020, [mwilliam@energy.state.ca.us].

6. Additional Information

   Information concerning the status of the project, as well as notices and other relevant documents, are also available on the Energy Commission's Internet home page at: [http://www.energy.ca.gov/sitingcases/losesteros/index.html].

III. HEARING ORDER

Based upon discussion at the February 25, 2002, Prehearing Conference, the following filing schedule shall apply.

 

FILING SCHEDULE
DATE	EVENT
Monday, MARCH 4, 2002	Applicant files sworn, Written Testimony on 12 disputed topics as set forth herein.
Wednesday, MARCH 6 , 2002	Parties file any Objections to Written Testimony on 12 Disputed Topics.
Wednesday, MARCH 6, 2002	Parties file Statement of Disputed Facts by Topic Area (as discussed at the Prehearing Conference).
Wednesday, MARCH 6, 2002	Parties file any requests for changes to schedule of Topics and Witnesses (Appendix A).
Wednesday, MARCH 6, 2002	Intervenors file Written Testimony
Friday, MARCH 8 , 2002	Applicant files sworn, written Declarations on 10 Undisputed Topics as set forth herein.
Friday, MARCH 8, 2002	Applicant files any Response to Parties' Objections to Written Testimony and Statement of Disputed Facts.
Friday, MARCH 8, 2002	Applicant files any Objections to Intervenors Testimony.
Monday-Wednesday, MARCH 11-13, 2002	Evidentiary hearings in topic areas set forth in Appendix A.

Filings shall be served upon all parties to this proceeding and the Commission's Docket Unit, 1516 Ninth Street, MS-4, Sacramento, CA 95814. Each party is responsible for ensuring that its respective submissions are received no later than 3:00 p.m. on the dates indicated. Identify all documents with "Docket No. 01-AFC-12"

 

Dated February 25, 2002, in Sacramento, California.

 

WILLIAM J. KEESE
Chairman and Presiding Member
Los Esteros AFC Committee

 

 

APPENDIX A

TOPIC AND WITNESS SCHEDULE

The Committee will hear topics according to the following agenda. Any requests for changes/substitutions must be made no later than the party's filing of Monday, MARCH 11, 2002.

²Where no witness is listed by the party's name, the party has reserved only the right to cross-examine other party's witnesses unless the parties timely amend their Prehearing Conference Statements/Prefiled Testimony to list a witness.