Santa Teresa Citizen Action Group

Santa Teresa Citizen Action Group
Elizabeth Cord, President
286 Sorrento Way
San Jose, CA 95119


State Energy Resources
Conservation and Development Commission


In the Matter of               )
                               )     DOCKET NO.: 99-AFC-3
Metcalf Energy Center          )     MOTION TO RESCIND
                               )     COMMISSION ACCEPTANCE OF
                               )     APPLICATION FOR CERTIFICATION

Santa Teresa Citizen Action Group hereby requests a Rescission of the Commission's Acceptance of the Application for Certification:


The California Energy Commission issued an Order Deeming Subject AFC Data Adequate on June 23, 1999. This request is made on the grounds that there is irreparable harm to Santa Teresa Citizen Action Group because the above-referenced AFC, submitted by Applicant Calpine/Bechtel, accepted by the CEC is no longer under review; changes and additions to the AFC have rendered the original project effectively withdrawn, and the new project currently under review by the CEC has not followed proper Data Adequacy review.


  1. Project has undergone material (not minor) changes.
  2. Applicant has modified project description and must file a new AFC on the current project.
  3. Alternative site analysis inadequate and invalid under CEQA.
  4. Energy Commission regulations require that the Applicant's proposal conform to LORS
  5. Key staff change within CEC during already overly complicated review process.

    The above is true to the best of my ability:

    __________________________  _______________________________________
    Date                                                    Signature

    X Continuation pages are attached

    Motion to Rescind the Commission Acceptance of the Application for Certification,  filed December 16, 1999, is seconded by the following parties to the Siting Case:

    ________________________________ ______________________________________
    Date                                                                 Jeffrey Wade, Intervener

    ________________________________ __________________________________________
    Date                                                                 Scott Scholz, Intervener

    ________________________________ __________________________________________
    Date                                                                 Jim Cosgrove, Intervener

    ________________________________ __________________________________________
    Date                                                                 Mike Boyd for Californians for Renewable Energy, Intervener

    ________________________________ __________________________________________
    Date                                                                 Michael Murphy, Intervener

    ________________________________ __________________________________________
    Date                                                                 Michael Grothus, Intervener

    Above-mentioned Interveners in the State Energy Resources Conservation and Development Commission (Energy Commission site certification proceedings for Docket No 99-AFC-3), hereby jointly request that the Energy Commission rescind its acceptance of the Application for Certification ("AFC") filed by the Metcalf Energy Center Power Project1. The AFC, as filed and amended by applicant Calpine/Bechtel was vague and failed to provide a definitive project description. Furthermore, the AFC is based on stale data and incorporates several assumptions that are unsettled or erroneous. The Energy Commission's acceptance of the AFC for review should be rescinded under the California Environmental Quality Act of 1970 ("CEQA")2 and the Warren-Alquist State Energy Resources and Conservation and Development Act (the "Warren-Alquist Act").3


      1. Calpine/Bechtel's Original AFC

        On April 30, 1999, Calpine/Bechtel4 filed its original AFC seeking Energy Commission approval for the siting and development of a 600-megawatt natural gas-fired generation facility in the southern section of the community of San Jose, California. It is Interveners' understanding that the Energy Commission staff determined the AFC filed by Calpine/Bechtel was in compliance with the information requirements of Section 1704 and Appendix B of Title 20 of the California Code of Regulations ("CCR"), and that the Energy Commission accepted the AFC for review on June 17, 1999.5

      2. Calpine/Bechtel Has Made Significant and Substantial Project Modifications

        Since the Energy Commission accepted the AFC, Calpine/Bechtel has proposed numerous significant modifications to its generation facility project. The project has undergone material (not minor) changes. The changes are so material that even the "footprint" has changed.

        For example, Calpine/Bechtel proposes changes to: 1) Site configuration; 2) Architectural design, changing visual impact and creating additional "downwash" effect, increasing ground level concentration of emissions to local area; 3) Route of recycled water line, now to involve construction along Santa Teresa Boulevard, the main transportation artery to South San Jose through the heart of the community; 4) Computer modeling to be used in air quality analysis (Calpine/Bechtel have requested use of the ISCPrime computer model which is not EPA-approved and has been rejected by the Bay Area Air Quality Management District; it is unknown at this time which other model will be advanced as a replacement for this); 5) Total amount of projected emissions from proposed power plant (see Supplement B, 10/99).

        There are three significant ramifications to these changes (1) A new project is now being pursued by Applicant and the original project has been abandoned; (2) The original AFC (some 1,200 pages) was in fact "data inadequate" requiring more than 2,500 pages of new, revised, and/or supplementary data. The new project data must now be reviewed for data adequacy and follow the one-year timeline for analysis; and (3) In the absence of a new filing (or refiling) of an AFC, the public has no way to determine/define "the project," which is a clear violation of CEQA.

        To illustrate the significance of this point, the only document information available to the public is the original AFC – on the Energy Commission website and in public libraries. Applicant and Energy Commission do not have a document that describes the current project, nor is such a document available to the public. Even if all changes, revisions, and new data were readily available, it would be impossible for a clear determination to be made as to which portions of the AFC are operative, which have been corrected, revised, changed, updated, or modified, which have been superseded by submittal of new data, and which portions abandoned entirely. Accurate, meaningful and comprehensive review and analysis of the AFC is precluded under these conditions. Energy Commission must not allow scarce staff time to be wasted in "assembling" a project by patching together diverse elements and documents (in fact, CEC staff become Proponents of the project when they "create" a project for the Applicant), but must require a complete project be submitted.

        Project changes are not the result of discussion between parties to this Siting Case. Changes have been brought forward by Applicant that were not requested by community members or Energy Commission staff, but are clearly changes sought by Applicant as a result of the inadequacy of their original AFC. The AFC submitted April 30, 1999, is seen as nothing more than a "placeholder" to secure Applicant's desired timeline while the project was not fully defined at that time, has undergone substantial revision and modification, and continues to be modified. Applicant will, in effect, gain an advantage over competitors in California's newly deregulated energy generation industry who have complied with guidelines, fulfilled required components of their proposals, and prepared complete applications before bringing their projects forward for CEC and public review. CEC should not allow incomplete projects to be "developed" within the context of the current one-year review process, but must provide a level playing field for all applicants by enforcing CEQA guidelines uniformly.

        When an AFC is vague and fails to provide a definitive project description, the public's right to participate in the project is severely compromised. Neighbors of the proposed project have spent thousands of hours studying and reviewing an AFC deemed "Data Adequate" by the Energy Commission. However, based on recent Applicant changes, substantive revisions have been made to the AFC such that a completely new set of data must now be analyzed. Thousands of calculations meticulously prepared (including extremely time- and labor-intensive computer analyses) during the first five months of review will no longer be admissible in evidentiary hearings, as they apply to a project no longer under review.

        Thousands of hours of new research and calculations must now be undertaken by neighbors who, unlike Applicant, will not be able to focus on the project full-time, but must continue to fulfill commitments to jobs and families full-time while devoting scarce and finite personal "leisure" time to the new review. This places an undue burden on the public and severely restricts ability to participate in what should be a public process. Allowing the current project to be reviewed under cover of a now-abandoned project precludes meaningful public participation and sanctions waste of neighbors and Intervener's time. Staff time by City of San Jose employees, County employees, BAAQMD employees, and other agencies is wasted when multiple configurations are reviewed then withdrawn. It is the duty of the Energy Commission to disallow or rescind acceptance for incomplete or developing projects. In failing to do so, CEC must accept responsibility for wasted taxpayer resources if projects not in compliance with CEQA and CCR guidelines are allowed to continue in the review process. Concerned individuals and agencies need a single, complete AFC and at least a full year to review that document.

      3. Calpine/Bechtel's "Straw-Man" Alternatives Analysis Fails To Comply With CEQA

        Calpine/Bechtel has publicly stated on numerous occasions that all three alternative sites listed in the original AFC are not feasible alternatives. If alternatives are not feasible, they are not realistic alternatives. Clearly, an AFC is not complete until feasible alternatives are explored and included, and Applicant has not complied in good faith with this requirement.

        The problem is exacerbated because lacking the Notice of Intention review (waiver of Notice of Intention ["NOI"] granted after applicant filed NOI exemption 2/17/99), the usual "scoping" or "project objectives" elements of a CEQA impact study are missing. By eliminating the NOI requirements, without any other CEQA-equivalent process, the public's ability to meaningfully participate in the project's environmental review is woefully diminished.

        The Public Resources Code states: "In order to achieve the objectives set forth in Public Resources Code § 21002.1, the Legislature hereby finds and declares that the following policy shall apply to the use of environmental impact reports prepared pursuant to this division:

        (a)The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided."

        The California State Bar Association states: "It has been suggested that EIR's should be required to clearly define project objectives to provide a more definitive basis for screening alternatives. Ordinarily, however, there will not be a single, clearly defined set of objectives for a project. The applicant, the lead agency, and each responsible agency will have its own objectives. If environmental review focuses too narrowly on declared objectives of the applicant or lead agency, feasible alternatives may be ruled out of consideration based simply on how the applicant or lead agency initially chooses to state the objectives of the project. The process of considering project alternatives serves to sort out the project objectives, helping to distinguish between basic project objectives and those outweighed by the objective of avoiding environmental damage."

        "Commonly voiced concerns are that in attempting to comply with CEQA's alternatives requirement, agencies include only infeasible "straw men" as alternatives in the EIR, or so narrowly define the project as to exclude analysis of clearly available alternatives. Neither approach is consistent with the Guidelines, which require consideration of alternatives that can feasibly attain the basic objectives of the project. The "rule of reason" standard applied by Goleta II should address these problems. Moreover, while the obligation is on the lead agency to identify and consider alternatives, the public has the opportunity to propose additional alternatives and to submit independent analyses of alternatives, and the agency is required to make a reasoned response to such proposals and analyses. Thus, interested parties can force the EIR to discuss any alternative that is timely proposed. (See also, Goleta II, 52 Cal. 3d at 567-68 (even untimely alternative proposals must be addressed, although they may be addressed outside the EIR).)"

        Intervener's position is that the alternatives identified by the AFC are such "straw men" that the AFC should never have been accepted as data adequate. These concerns were raised by Interveners (then community members seeking Intervener status) during the CEC Data Adequacy hearing on June 23, 1999, and can be found in the transcript of that meeting. If the Energy Commission and the applicant share these "straw men" objectives and narrowly define the project objectives, such analysis is developed in the absence of the affected public's participation. The Energy Commission staff ceases to be an unbiased evaluator of the project impact and instead becomes an advocate for the project.

      4. Defined As California's "Energy Policy Makers," the Energy Commission Should Not Grant "Data Adequacy" Status to Project With Major "LORS" (Laws, Ordinances, Regulations, and Standards) Conformity Issues.

    The power plant certification process in California is changing under deregulation. The California Energy Commission is in a pivotal position to shape policy. What policy is guiding data adequacy decisions? Today, in the absence of an NOI to "scope" potential sites and alternatives, and in the absence of an overall assessment of Electricity Need (previously required Electricity Reports), combined with a projected deficit of capacity to generate electric power, should the Energy Commission grant "data adequacy" status to a proposed project with major LORS conformity issues instead of giving priority to proposed projects with resolved LORS issues? At what cost to CEC staff time and taxpayer dollars to pursue certification for projects that will ultimately not be built because of failure to secure compliance with, or changes to, LORS?

    This concern was raised but not resolved by several Commissioners at the June 23, 1999 Data Adequacy Hearing for the Metcalf project. A portion of the discussion (which can be found in entirety in the Transcript of the June 23, 1999 Business Meeting) is excerpted below:

    Vice Chair Rohy: "I am very upset with any case that comes forward to us that does not have land control prior to us beginning our work on a case. Here is another example where we are going to get involved, we are going to put a lot of resources into it with an uncertain future as to whether land control will actually be achieved.

    It is my urging to myself and fellow Members here that we need to change our data adequacy so we do not get into this trap. We have done this before. It cost us and the applicants a lot of time. It is confusing to the public. I would like to see us take the action to correct this issue. Thank you."

    In this proceeding, Energy Commission staff time and resources are being misused to pursue certification for a project that lacks, and may never receive, the basic entitlements to build. Entitlements for this project that will be required include, but are not limited to:

      1. General Plan Amendment;
      2. Annexation of County Land to City of San Jose (potential LAFCO issues);
      3. Zoning variance for 145 foot stacks in an area restricted to 90 feet;
      4. Riparian Setback Variance – less than 100 foot required setback;
      5. "Significant Tree" removal permits for 73 Significant Trees.

    There is considerable likelihood the project will never receive entitlement to build at the proposed location. The November 8, 1999 City of San Jose City Council General Plan Amendment Hearing was attended by over 400 community members who oppose the project and offered lengthy testimony concerning the negative impact to the community. The Mayor of San Jose acknowledged the public opposition with his closing remarks. Mayor Gonzales stated that the many public comments "have not been lost on me," and further that the San Jose City Council must "protect best interests of the City and the neighborhoods represented here" tonight. There is no indication that the San Jose City Council will ignore the concerns of its own constituents or fail to uphold the City's long-held General Plan by allowing a power plant to be built so close to existing and planned population centers in an area long zoned for high-prestige campus office park use.

    Whether described as "site control" or LORS conformity, the Energy Commission should clearly require that potential projects undergo scrutiny and only accept as "data adequate" an AFC with site control and LORS conformity. This statement would seemingly be self-evident in circumstances where Energy Commission resources must be sufficient to analyze some 21 power projects publicly announced, as well as perhaps a similar number being contemplated.


      1. Due to material and substantive changes to the project, the AFC submitted on April 30, 1999 is not longer under review by the Energy Commission. The new project for which the Applicant seeks review must be submitted separately to follow the prescribed Data Adequacy review process.
      2. The project description has been substantially modified. Basic elements of the project have changed. Applicant's changes have more than doubled the information and data originally filed. Clearly a new AFC is required to adequately describe the new project, and to allow for public review and participation in the new project.
      3. Projects cannot be "Data Adequate" when site control or LORS conformity is lacking.
        Energy Commission staff time and resources are being misused to pursue a project that lacks, and may never receive, the basic entitlements to build.
      4. Alternative site analysis is inadequate. An AFC is not complete or data adequate until feasible alternatives are explored and included. In this project, applicant has publicly stated that all three alternatives sites listed in the AFC are not feasible alternatives. Clearly, applicant has admitted producing "straw men" alternatives with no intention to pursue the required CEQA alternatives analysis. CEC cannot preserve the integrity of the Siting Process, and public and legislative confidence in such, unless applications failing to comply with (or blatantly circumventing) CEQA guidelines are rejected.
      5. The public's right to participate in the current project has been compromised. Besides the time and effort mis-spent on a project that no longer exists, the community cannot go to a single document for a project description. Additionally, key staff change within the Energy Commission complicates an already overly complicated review process. The replacement of the project manager in the middle of this very complicated and changing project environment undermines continuity, is disruptive and inefficient, and creates more confusion to the public as new staff is involved.

    The Santa Teresa Citizen Action Group respectfully requests a Rescission of the Application for Certification filed April 30,1999 as a de facto withdrawn project in that the original documents filed as an AFC are abandoned and no longer valid. In the alternative, Petitioner requests that the Applicant be required to refile a complete, current, and valid AFC in conformance with CEQA guidelines, to describe the current proposal, and that the one-year time frame for project analysis commence at such time when and if correct and adequate information is provided to the Energy Commission, is fully and properly reviewed, and is deemed Data Adequate.

    1 In December, 1999, Interveners also will file a motion for a stay in this site certification proceeding. This "Motion to Rescind the Commission's Acceptance of the Application for Certification" precedes Intervener's motion for a Stay of Site Certification Proceedings. Interveners respectfully request that the Energy Commission act on this motion and grant the Stay pending the ruling on this motion.

    2 California Public Resources Code §21000 et seq. and the implementing regulations known as "CEQA Guidelines," set forth at 14 CCR § 15000 et seq.

    3 California Public Resources Code §25000 et seq. and the implementing regulations set forth at 20 CCR § 1001 et seq.

    4 A joint venture between Calpine Corporation and Bechtel Enterprises.

    5 See Memorandum to Commissioners from Kent Smith, Executive Director, attached hereto as Exhibit A.


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