STATE OF CALIFORNIA
|APPLICATION FOR CERTIFICATION OF THE||)||DOCKET NO. 01-AFC-12|
|LOS ESTEROS CRITICAL ENERGY||)||APPLICATION COMPLETE|
|FACILITY (LOS ESTEROS)||)||SEPTEMBER 25, 2001|
On September 25, 2001, the Energy Commission accepted the Application for Certification (AFC) for the Los Esteros Critical Energy Facility (LECEF) under our four-month process. (Pub. Resources Code, § 25552.) Calpine anticipated that the project would be completed and operational during the summer of 2002. Section 25552 requires, inter alia, that a proposed project filed under this process must be in service by December 31, 2002, and requires the Energy Commission to expedite, to the extent feasible, the processing of such an AFC. Our initial four-month schedule was modified and protracted due to Applicant's delays in providing necessary information for Staff to complete its Staff Assessment and subsequent Supplement (Staff Assessment).
On March 11, 2002, immediately after the Staff Assessment was released, this Committee conducted an Evidentiary Hearing at which the parties presented evidence on the proposal. We have reviewed the record in preparation of the Presiding Member's Proposed Decision (PMPD) and determined that the evidence does not support a finding that LECEF can be in service by December 31, 2002. Further, the record is incomplete in several topics, which prevents us from finding that LECEF, as currently described, would comply with applicable laws, ordinances, regulations, and standards (LORS).
The AFC states specifically that "[c]onstruction of the project is expected to last approximately 12 months.")1 ; (Ex. 2, [Vol. 2], App. 8.1D.)2 At the March 11, 2002, Evidentiary Hearing, however, Applicant advocated an expedited construction schedule of four to six months, which would call for two, 10-hour shifts--essentially construction around the clock. (3/11/02 RT 572:18-574:5.) Applicant's inconsistent representation of its construction schedule resulted in an incomplete environmental analysis.
For example, in the Air Quality section, Staff's environmental analysis and evaluation of the LECEF project envisioned the construction schedule would occur over a period of 12 months, with a five-day workweek, which would include a single, 10-hour work shift, per day. ["Facility construction is expected to take about 12 months;" (Ex. 1, pp. 4.1-12/13 and Table 6.)]3
At the Evidentiary Hearing, Staff's expert witness testified that he had never seen Applicant's documentation to support a compressed construction schedule nor had Staff conducted air quality modeling under such a compressed schedule. (3/11/02 RT 198:15-199:12.) Our review of the record discloses that Staff did not specifically consider construction impacts resulting from an expedited construction schedule for topics such as nighttime noise, increased traffic, and air quality issues, all concerns arising from around the clock construction.
The Committee expressed concern in our Briefing Order as to whether LECEF could reasonably be expected to be in service by the December 31, 2002, deadline in light of testimony that:
According to the Staff Assessment, PG&E and the CPUC had different estimates of the potential cost of constructing the substation, and, therefore, the substation project was suspended until these differences could be resolved. On December 11, 2001, the CPUC approved the project, but at a lower cost than that proposed by PG&E. Consequently, PG&E is not certain it will go forward with project construction. (Ex. 1, p. 4.5-7.)
At the March 11, 2002, Evidentiary Hearing, Applicant testified that negotiations with PG&E over a Generator Interconnection Agreement (GIA) and a Generator Special Facilities Agreement (GSFA), and with the City of San Jose over a right-of-way easement were continuing4. Applicant's witness stated that a verbal understanding was reached with the City of San Jose, but that the PG&E GIA and GSFA concerning the tap line were not expected for several months. (3/11/02 RT 90:21-108-16.)
Applicant's post-hearing brief contains an attached letter from PG&E that identifies certain timelines for completing the GIA and GFSA. We direct Applicant to provide testimony on these issues at the May 20, 2002, hearing.
We are further concerned by the lack of evidence in the record to demonstrate that final design plans or permitting has begun for the construction of a stormwater drain to the low-flow channel of Coyote Creek. This construction could require permits from the California Fish and Game (CDFG) and possibly the U.S. Army Corps of Engineers. Staff notes that additional mitigation measures may be required to protect biological resources. (Ex. 1A p. 4.2-26.) However, none of the parties presented such mitigation proposals. We direct the parties to provide testimony on mitigation measures for Biological Resources that should be included in the conditions of certification.
Finally, the Committee has serious concerns about the state of the record on Visual Resources. We believe that additional mitigation measures are needed consistent with some of the proposals that have been recommended to us by the City of Milpitas. (See City of Milpitas Opening Brief, pp. 4-7.) We direct Applicant to confer with Milpitas in an effort to develop an appropriate mitigation plan to screen the proposed project consistent with local LORS. Applicant shall include such a plan in its testimony on Visual Resources at the May 20, 2002, hearing.
In conclusion, upon consideration of the entire record we cannot find that Applicant was successful in meeting its burden of proof under the statutory mandate for approval of an expedited project that can reasonably be in service by December 31, 2002. [Pub. Res. Code, §§ 25552 (d) & (e).]
Accordingly, the Committee hereby Orders:
Dated April 24, 2002, in Sacramento, California
WILLIAM J. KEESE
Chairman and Presiding Member
Los Esteros AFC Committee
JAMES D. BOYD
Commissioner and Associate Member
Los Esteros AFC Committee