Committee Briefing Schedule
[California Energy Commission Letterhead]


In the Matter of:                   )      DOCKET NO. 03-AFC-2
Application for Certification       )      APPLICATION COMPLETE
FACILITY (LOS ESTEROS 20            )


I.   Committee Ruling

On April 27, 2004, in its Proposed Schedule, and again at the May 4, 2004, informational hearing, Applicant requested that the Committee consider its suggestion that we direct Staff to issue a single Staff Assessment, rather than the customary Preliminary Staff Assessment (PSA) followed by a Final Staff Assessment (FSA). (5/4/04 RT 59:11-61:2.) Presumably this request is based on the fact that this Commission has already undertaken a nine-month examination of this site and the first phase of this project (construction of the simple cycle facility) and that the second phase (conversion to a combined cycle facility) has been contemplated from the start. Applicant apparently believes that a shortage of contested issues merits our consideration of this matter.

While we understand the Applicant's position and agree that this site has already been the subject of significant scrutiny, the Committee declines to constrain Staff's independent environmental review. Since the parties have all acknowledged at the informational hearing that we remain subject to the timetable of sister agencies on whose reports and evaluations we must rely (5/4/04 RT 62:18-67:10), it is at best premature to decide that staff's normal procedures should be curtailed.

It is even possible that by ordering Staff to produce a single document we could lengthen rather than shorten the review process, as Staff's project manager, Robert Worl, pointed out at the informational hearing. We tend to agree with Staff's concerns that to remove one important element of a review process designed to ensure meaningful input by the public and governmental entities is more likely than not to cause further delay, rather than a speedier review. (5/4/04 RT 63:18-64:1.) We do encourage Staff to work diligently to expedite this case, especially if failure to do so could result in an existing facility having to curtail or cease its operations pending completion of construction of the second phase of the project. We note this possibility due to legal uncertainties addressed in the briefing order below, and we suggest that if the existing power plant could have its operations suspended, the public interest requires all parties to undertake this licensing proceeding with unusual diligence in avoiding unnecessary delay. This could include a single Staff Assessment.

From its vantage point, the Committee has signaled its intent to keep our schedule flexible and if needed, to expedite the review period by other appropriate means. (5/4/04 RT 66:12-67:10.)

Applicant's request is therefore DENIED.

II.   Briefing Order

This case is unique in that it is the only case in which a simple cycle power plant was licensed under the special four-month licensing process established temporarily in response to the energy crisis of 2000-2001, which now requires licensing of the second phase-conversion to a combined cycle power plant. Public Resources Code section 25552 established the expedited licensing process for qualifying simple cycle projects in an effort to ease an energy shortage that threatened the state's economy at that time, but the statute clearly contemplated that all such projects would have to commit to converting the simple cycle facilities to combined cycle (or cogeneration) operation to improve their efficiency, and in order to qualify for the expedited treatment, such facility applicants were required to enter into a binding agreement that they would either cease operation after three years or obtain certification of the anticipated cogeneration or combined cycle facility with best available control technology and all required offsets within that period. What is not clear in the statute is:

  • when the three year period begins to run,

  • whether the "binding agreement" can be modified, if both parties (Applicant and the Energy Commission) agree to the modification, for the purpose of extending the period in which the cogeneration or combined cycle facility can come on line, and

  • whether the Energy Commission retains legal authority to license the simple cycle project under its regular certification authority-either temporarily or permanently-if it appears, for any reason, that the actual construction of the combined cycle project may not be possible to be completed and operation commenced within the three-year period.

The Committee seeks the briefs of the parties on these questions and notes that while the statute clearly required this Applicant to enter into the prescribed binding agreement, the statute was enacted in an effort to ease an energy shortage. If the parties believe that the statute cannot be interpreted to allow the simple cycle project to operate beyond the prescribed three year period, we ask them to address why the Legislature would have intended, potentially, to create a second energy shortage at the end of that period by taking simple cycle capacity out of service while the combine cycle phase of the facility was being constructed.

Opening briefs from all parties must be filed with the Commission's Docket Unit, 1516 9th Street, MS-4, Sacramento, California 95814, and served upon all other parties no later than 3:00 p.m. on June 7, 2004. Reply briefs must be filed as set forth above no later than June 14, 2004. Identify all submissions with "Docket No. 03-AFC-2." In addition, all briefs are to be sent electronically in either Microsoft Word or Adobe Acrobat format to the Hearing Officer [], by 5:00 p.m. on the above indicated dates.

III.   Committee Scheduling Order

The Committee Schedule (Schedule) is set forth in Appendix A. As we noted above, several of the Schedule's objectives are contingent upon reviews to be conducted by federal, state, and local agencies. The Committee recognizes that delays in the completion of those reviews may necessitate further Schedule modifications.

Although the Energy Commission staff is responsible for meeting Committee deadlines for the filings produced by Staff, Applicant bears the ultimate burden of proof in this proceeding. Therefore, Applicant must be responsible for the timeliness of its own filings as well as those of all other agencies outside the Energy Commission. Thus, a delay by any agency other than the Energy Commission staff in filing a required document generally will result in a further commensurate slip in the Committee's Schedule.

Public Adviser and Public Participation

The Energy Commission's Public Adviser is available to assist the public in participating in the certification review process. Members of the public may participate in all aspects of the review process in a variety of ways. If you need information concerning public participation, please contact the Commission's Public Adviser, Margret J. Kim at (916) 654-4489 or (800) 822-6228 or e-mail: []. She is available to assist the public in participating in all phase of the Application for Certification (AFC) review process. Members of the public may participate in all aspects of the AFC administrative process in a variety of ways. Members of the general public are welcome to attend and provide public comment. It is not necessary to become an Intervenor to participate in the public process.


Technical questions concerning the project should be addressed to Robert Worl, the Commission's Project Manager, at (916) 651-8853 or e-mail at:

Questions of a legal or procedural nature should be directed to Major Williams, Jr., the Hearing Officer, at (916) 654-3893 or email at [].

If you require special accommodation to participate in this event, contact Lou Quiroz at (916) 654-5146 or email at: [].

Media inquiries should be directed to Claudia Chandler, Assistant Executive Director for Media and Public Communications at (916) 654-4989 or e-mail at:

Dated at Sacramento, California on May 21, 2004

___________/ signed /___________
Chairman and Presiding Member
Los Esteros 2 AFC Committee

___________/ signed /___________
Commissioner and Associate Member
Los Esteros 2 AFC Committee

Appendix A


Event Date
AFC Data Adequate March 17, 20041
Staff conducts Data Response/Issues Resolution Workshop # 1 May 19, 2004
Staff Issues Data Requests (Set 2) to Applicant* Late May
Applicant Submits Data Response (Set 2) * Mid-June
Opening Briefs From All Parties Due On Phase 1 Project Eligibility June 7
Reply Briefs Due From All Parties On Phase 1 Project Eligibility June 14
Staff conducts Data Response/Issues Resolution Workshop # 2* Early July
Applicant Files Preliminary Determination of Compliance (PDOC) from the Bay Area Air Quality Management District (BAAQMD); other Preliminary Determinations by Local Agencies Mid-July
Staff Releases PSA Mid-August
Staff Conducts PSA Workshop Late -August
Applicant Files Final Determination of Compliance (FDOC) from the Bay Area Air Quality Management District (BAAQMD); other Preliminary Determinations by Local Agencies Early-Mid September
Staff Releases FSA Mid-October
Committee Conducts Prehearing Conference Late October

* denotes "if necessary"

1 All dates are for 2004.

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