Californians for Renewable Energy, Inc.
Michael Boyd
821 Lakeknoll Drive
Sunnyvale, CA 94089
12/1/1999

State of California
State Energy Resources
Conservation And Development Commission



In the Matter of:                       )
                                        )     Docket No. 99-AFC-3
                                        )     Motion to Disapprove
Metcalf Energy Center                   )     Application For Certification
________________________________________)



This is a joint Motion by interveners Californians for Renewable Energy, Inc., represented by Michael Boyd, and the Santa Teresa Citizens Action Group represented by Elizabeth Cord. The Motion requests Energy Commission disapproval of the Application for Certification, 99-AFC-3. The Motion is made pursuant to the California Environmental Quality Act (CEQA) Section15109, which states "an agency may disapprove a project application where there is unreasonable delay in meeting requests." Interveners contend that the applicant, Metcalf Energy Center (MEC), has unreasonably delayed the project and failed to respond to specific written data requests from Energy Commission staff and Interveners. The Energy Commission is in position to dismiss the MEC for it's failure to comply with CEQA requirements for timely responses to Data Requests addressing the project and its alternatives.


I. THE FACTS ILLUSTRATE DELAY

The following facts outline the sequence of events in this case that apply to this Motion.

  1. April 30, 1999: Application for Certification filed.

    On April 30, 1999, MEC filed an Application for Certification (AFC) with the Energy Commission (99-AFC-3). On July 23, 1999, the Energy Commission staff served Data Requests on MEC requesting additional data on the project's alternatives. Staff notified the applicant that, "Written responses to the enclosed data requests are due to the Energy Commission staff on or before August 23, 1999, or a later mutually agreed upon date. If you are unable to provide the information requested, need additional time to provide the information, or object to providing it, you must send a written notice to both Commissioner Robert A. Laurie, and to me, within 15 days of receipt of this notice. The notification must contain the reasons for not providing the information, the need for additional time and the grounds for any objections (see Title 20, California Code of Regulations section 1716 (e)).

  2. July 23, 1999: Staff Data Requests Issued.

    Dated July 23, 1999 and directed to Kenneth E. Abreu, Development Manager for MEC, staff's data requests on alternatives numbered 13 through 25, (copies of the data requests are attached hereto as "Attachment A"and are incorporated as if set forth in full), ask MEC for significant and additional data.

  3. MEC Makes No Request For Time Extension or Objection.

    The Docket Log for a siting case is available for public inspection. Interveners have examined the MEC docket log. There is neither a MEC written request stating the "need for additional time to provide the information" or objection to Data Requests 13 through 25 within the 15 days specified in the notice issued on July 23,1999.

  4. August 3, 1999: Staff Data Request Workshop.

    After the Energy Commission staff filled Data Requests 13 through 25 in July, the staff held a Data Request Workshop on August 3, 1999. At the workshop MEC stated that, "They will also attempt to better clarify their criteria for the alternatives analysis in the August 23, 1999 filing for the data responses". See Energy Commission staff's "SUMMARY OF THE AUGUST 3, 1999 METCALF ENERGY CENTER (99-AFC-3) DATA REQUEST WORKSHOP" a copy of which is attached hereto as "Attachment B" and incorporated as if set forth in full.

  5. August 23, 1999 MEC Data Responses, Set #1a.

    On August 23, 1999, MEC submitted Data Responses Set #1a. Interveners have reviewed this public document which fails to ".better clarify their criteria for the alternatives analysis in the August 23, 1999 filing for the data responses".

  6. No further Data Responses filed by MEC.

    Interveners contacted Energy Commission staff Gary Walker who confirmed that no further MEC data responses have been received by staff. MEC has not complied with the due date for the alternatives analysis data request made on July 23, 1999.

  7. September 3, 1999, Staff Status Report states concern(s) over delay.

    MEC's failure to respond to Energy Commission staff Data Request(s) is further amplified when Staff states "Staff has several concerns about the delay in obtaining responses to its data requests and the potential for the supplement to constitute a significant change to the AFC". (See the "Metcalf Energy Center Application for Certification Review - Status Report" dated September 3, 1999. A copy of which is attached hereto as "Attachment C" and is incorporated as if set forth in full.)

  8. It's December 1999 and there are no Data Responses from MEC.



II. UNREASONABLE DELAYS LEAD TO DISAPPROVAL OF PROJECT

Under CEQA, MEC's unreasonable delay in meeting Lead Agency requests necessary for the preparation of a Negative Declaration or and Environmental Impact Report (EIR) shall suspend the running of the time periods described in Sections 15107 and 15108 for the period of the unreasonable delay.

Alternatively, an agency may disapprove a project application where there is unreasonable delay in meeting requests. Public Resources Code Section 21083,21087. Also Public Resources Code Section 21100.2 and 21151.5, and Carmel Valley View, Ltd., v Maggini, 91 CalApp3d 318.

Given that the Energy Commission has a one-year time limit to complete analysis of the project, MEC's intentional delays in providing Data Requests from a due date of August 23, 1999, and still not submitted as of the November filing of this Motion, would constitute "unreasonable" delay.

Under CEQA, the Public Resources Code and case law, the Energy Commission has the option of disapproving the MEC project in response to unreasonable delays. Interveners support disapproval for these reasons:

  1. The AFC was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded. (Mountain Lion Coalition v. Fish and Game Com. (1989) 214 Cal.App.3d 1043)

  2. Requests to provide information regarding a feasible project alternative or mitigation measure considerably different from others previously analyzed which would clearly lessen the environmental impacts of the project, was declined by MEC.



III. UNDER CEQA, SIGNIFICANT NEW INFORMATION REQUIRES RECIRCULATION.
THE ENERGY COMMISSION SHOULD ACT SIMILARLY WHEN APPLICANTS
ADD SIGNIFICANT NEW INFORMATION

Under CEQA Section 15087, a lead agency is required to recirculate an EIR when significant new information is added to the EIR after public notice is given of the availability of the draft EIR for public review. As used in this section, the term "information" can include changes in the project or environmental setting as well as additional data or other information. Intervenors believe that the similar rule should apply to the MEC project.

In MEC, the new information added to the application is "significant" because the application was changed in a way that deprived the public of a meaningful opportunity to comment upon the substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project's proponents have declined to implement.

In MEC there are hundreds of pages of "significant new information" requiring re-circulation. One example is the recent disclosure showing that redecorating the cooling towers to appear as office barns creates a new significant environmental impact (increased PM10) would result from the project.



IV. OTHER REASONS TO DISAPPROVE METCALF

  1. Conflict of Interest: Intervenors assert that the resignation, dismissal, or reassignment of Lorraine White, the Energy Commission's first MEC Project Manager creates the appearance of a conflict of interest between the Commission and the applicant. Ms. White clearly identified MEC's failure to respond to data requests regarding the alternatives analysis. As project manager, Ms. White identified several potential unmitigated adverse impacts including air, water, biological, and cultural resource impacts. Ms. White's intended to produce an independent staff analysis and did not become an "advocate" for the project.

  2. Full Investigation of Alternatives: Intervenors contend that the Energy Commission is failing to investigate meaningful "alternatives" while analyzing the impacts from this project. There are two reasons for the failure.

    1. First, the MEC did not provide meaningful information on alternatives. This position has been discussed above.

    2. Second, the Energy Commission staff may not provide an adequate alternatives analysis. In the absence of a meaningful alternatives analysis, the Energy Commission fails to properly mitigate adverse impacts which must take place before acting to approve this project. Intervenors are concerned that current project manager has a bad "track record" on the alternatives issue. Specifically, he was the project manager in the recently certified Sutter Power Project. As the first of ten "Notice of Intention-Waiver" projects under consideration by the Energy Commission, the project's manager failed to provide an adequate alternatives analysis consistent with the requirements of CEQA. The lack of full alternative consideration, (previously available with an NOI), has resulted in legal action before the California Supreme Court Foster v. CEC, and an air permit appeal before the EPA Environmental Appeals Board PSD99-6. Additionally a similar appeal is before the EPA Environmental Appeals Board on the Pitts burg California Delta Energy Center PSD99-76.


V. CONCLUSION

Interveners are concerned that this project fails to meet the alternatives analysis standards required by CEQA. Public Resources Code Section21083, 21087; Reference: Public Resources Code Section 21092.1; Laurel Heights Improvement Association v. Regents of the University of California (1993) 6 Cal.4th 1112.

Interveners request that you grant this Motion to Disapprove the Application for Certification 99-AFC-3 pursuant to CEQA Section 15109. Intervener has shown the applicant's unreasonable delay has hurt the public process and "an agency may disapprove a project application where there is unreasonable delay in meeting requests."




_________________________________
Michael E. Boyd
Representing Intervenor, Californians for Renewable Energy, Inc.



_________________________________
Elizabeth Cord
Representing intervener Santa Teresa Citizen Action Group




'ATTACHMENT A'

Energy Commission Data Requests


July 23, 1999



Kenneth E. Abreu
Development Manager
6700 Koll Center Parkway, Suite 200
Pleasanton, CA 94566

Dear Mr. Abreu,

METCALF ENERGY CENTER DATA REQUESTS

Pursuant to Title 20, California Code of Regulations, section 1716, the California Energy Commission staff requests the information specified in the enclosed data requests. The information requested is necessary to: 1) more fully understand the project, 2) assess whether the facility will be constructed and operated in compliance with applicable regulations, 3) assess whether the project will result in significant environmental impacts, 4) assess whether the facilities will be constructed and operated in a safe, efficient and reliable manner, and 5) assess project alternatives and potential mitigation measures. Data requests are being made in the areas of: air quality, alternatives, biological resources, cultural resources, power plant efficiency, facility design, geology, hazardous materials management, land use, noise, public health, socioeconomic, transmission system engineering, visual resources, waste management, and water resources. Written responses to the enclosed data requests are due to the Energy Commission staff on or before August 23, 1999, or a later mutually agreed upon date.

If you are unable to provide the information requested, need additional time to provide the

information, or object to providing it, you must send a written notice to both Commissioner Robert A. Laurie, and to me, within 15 days of receipt of this notice. The notification must contain the reasons for not providing the information, the need for additional time and the grounds for any objections (see Title 20, California Code of Regulations section 1716 (e)).

Technical Area: Alternatives

Author: Eileen Allen, Lorraine White and Gary Walker

ISSUE: Staff believes that Calpine/Bechtel may be able to realize its stated objective of "generating and selling electric power in the newly deregulated electric power market" at another site(s) and by connecting to another substation. Staff needs to assess the options for alternative sites that would avoid or reduce the potential for significant impacts.

  1. Please discuss the advantage of an interconnection at the Metcalf Substation versus any other substation in the Greater San Francisco Bay Area. Please explain why other substations in the region are not feasible for this project. If other substations are feasible, please identify these substations.

  2. Please discuss the feasibility of repowering or expanding Calpine's existing power plant at Gilroy Foods. Please include the following information:

    1. The acreage, current land use, and general plan/zoning designations of any vacant or unused parcels adjacent to or near the Gilroy Food's plant.

    2. Cooling water and transmission interconnection options.

    3. If not feasible, please explain the nature of the constraint precluding the re-powering or expansion of the Gilroy Foods power plant.


  3. Please discuss any other existing plant re-powering or expansion options considered by Calpine/Bechtel within the Greater San Francisco Bay Area.

  4. Please discuss the feasibility of any potential project sites suggested to Calpine/Bechtel by the Planning and Community Development staffs at the Cities of San Jose, Morgan Hill, and Gilroy, and Santa Clara County. Please include acreage, current land use, and general plan/zoning information for any parcels suggested by these agencies. If no consultation occurred please explain why.

  5. Please provide the following information regarding Alternative Site B, which is west of the IBM facility:

    1. The assessor's parcel number.

    2. The mapped locations of the residences located on the hillsides surrounding the alternative site.

    3. The distance of each residence, the IBM facility, and the golf course (see AFC Figure 9.2-1b, south of Bailey Avenue) from the alternative site.

    4. The feasibility of a transmission interconnection via a short tie line from the alternative site to PG&E's Metcalf-Moss Landing 500 kV line.

    5. Details regarding ownership, availability, and access for staff reconnaissance.

    6. A thorough, detailed comparison of the paleontological and cultural resources sensitivity of Alternative Site B compared to the proposed site.

      Note that in AFC Table 9.2-2 Alternative Site B and the proposed site are both classified as "high" for potential paleontological sensitivity, and Alternative Site B is classified as "moderate-to high" for potential cultural/archaeological sensitivity.

    7. Weight limits for trucks traveling on Bailey Avenue and the unnamed roadswest of the IBM facility.


  6. Please discuss the feasibility of siting the project on any vacant, or unused parcels in the vicinity of Zanker Road, north of Alviso-Milpitas Road and south of Estero Road. Please include the following information:

    1. The acreage, current land use, and general plan/zoning designations of any vacant or unused parcels adjacent to or near the City of San Jose's reclaimed water facilities.

      ISSUE: The AFC (Section 9.2) discusses alternative sites. However, the discussion does not appear to be accurate, and staff needs additional information about the site selection process.


  7. The AFC (Table 9.2-2) describes the Potential Visual Sensitivity for the proposed site as "Moderate," although the site is near a heavily traveled road. Please explain why Potential Visual Sensitivity is not "High" like Site A. If Potential Visual Sensitivity for the proposed site should be "High" please revise the table.

  8. The AFC (Table 9.2-2) states that use of Site A would remove prime agricultural land.

    However, the text of the AFC (p.9-8) states that soils at Site A "are designated 'non-prime agricultural land.'" Please correct the table.

  9. The AFC (pp.9-6 to 9-7) states that "use of Sites A or B would remove land from agricultural use. The proposed site is also zoned for agricultural use by the County, but it is considered part of a Campus Industrial planning area by San Jose. It is therefore within an area that will be developed for industrial and other business uses. The proposed site, therefore, would have less impact on land use than any of the alternatives." However, examination of AFC Figure 9.2-4 reveals that Site B also has a Campus Industrial designation. Therefore, the proposed site would not have less impact on land use than Site B, based on land use designation. Please revise the text to make this correction. Please also revise Table 9.2-2 to include this factor for all four sites.

  10. The AFC (p.9-12) states in regard to the proposed site that "its impacts are the same as, or in some cases, less than, the best alternative site." However, elsewhere (p.9-9) the AFC describes the potential for Site B to create impacts to visual resources as "low" which is reflected in Table 9.2-2, lower than for the proposed site. In addition, as discussed in the previous data request, Site A is preferable to the proposed site in regard to the removal of prime agricultural lands. Please correct the statement concerning comparative impacts, in regard to visual resources as well as agriculture and soils.

  11. The AFC (p.9-3) lists the alternative site selection criteria, one of which is "location of site in southern San Jose area." Please specify the area that was examined for potential alternative sites, and provide a map of the area.

    ISSUE: The alternatives analysis does not discuss alternative capacity outputs for the MEC. As a result staff is not aware of any compelling reasons why the proposed power plant must have a generating capacity of 600 MW, and thus, have the associated site requirements.

  12. Please provide an analysis of alternative capacity outputs (e.g., 120 MW and 240 MW) scenarios that discusses whether or not a facility with a smaller capacity (with the associated ability to reduce site requirements) would meet local site requirements (e.g., height restrictions, setback requirements and/or avoid the removal of significant/Ordinance-sized trees).

  13. Please provide a description of and site plan for the largest sized (capacity output) facility that would address the following three scenarios:

    1. meet all setback requirements and avoid the removal of Significant/Ordinance-sized trees;

    2. meet all setback requirements and height limitations;

    3. meet all setback requirements.





'ATTACHMENT B'

ALTERNATIVES (LORRAINE WHITE AND GARY WALKER)

Ms. White began the discussion on the alternative data requests by briefly summarizing the issues covered in the data requests that staff will be addressing in their analysis. The applicant did not have questions about the specific data requests, but, instead, wanted to inform the staff that Calpine/Bechtel will be objecting to many of these data requests. Mr. Abreu stated that if the applicant answered these questions, they would be disclosing their business plans.

Mr. Abreu explained that Calpine/Bechtel announced over a year ago that they intended to develop at least four power plants in the Bay Area and have only publicly disclosed two of these locations. Calpine/Bechtel is investigating areas that are viable for development even beyond the four sites under development. Mr. Abreu stated that some of the questions in staff's data requests get to issues of competition, not just alternatives, and will not be answered. According to Mr. Abreu, Calpine/Bechtel is looking for any good, viable site for power development.

In their filing on August 9, 1999, Mr. Abreu stated that the applicant will indicate which specific questions they object to and provide a brief explanation of their objections. They will also attempt to better clarify their criteria for the alternatives analysis in the August 23, 1999 filing for the data responses.

Mr. Scott Scholz, an intervener, voiced concern about the alternatives analysis conducted by the applicant. In particular, Mr. Scholz wanted the applicant to explain why the Almaden Valley site (alternative site C discussed in the AFC) was chosen since it was not a viable site and did not meet Calpine's own criteria for the alternatives analysis."




'ATTACHMENT C'
STATUS REPORT #1

METCALF ENERGY CENTER
APPLICATION FOR CERTIFICATION REVIEW
STATUS REPORT #1

On June 23, 1999, the California Energy Commission deemed data adequate the Metcalf Energy Center (MEC) Application for Certification (AFC) submitted jointly by Calpine Corporation and Bechtel Enterprises, Inc. (Calpine/Bechtel). In its Scheduling Order issued July 16, 1999, the MEC Siting Committee directed parties to submit a status report on September 3, 1999. This document is staff's report.


CONCLUSION:

We are very concerned about the applicant's delayed responses to data requests and potential changes in the site configuration and linear routes for the proposed MEC. Because of our extreme workload, staff will not be able to provide a quality product according to the Committee's schedule if the data responses are delayed and if the project is significantly modified or if staff is asked to evaluate multiple project configurations. We also urge the Committee to hold a meeting to discuss the issues on the project as soon as possible.


STATUS OF STAFF ANALYSIS AND RELATED ISSUES:

  1. Data Requests - On June 23, 1999 staff submitted to Calpine/Bechtel data requests in the areas of air quality, alternatives, biological resources, cultural resources, power plant efficiency, facility design, hazardous materials management, land use, noise, public health, socioeconomics, traffic and transportation, transmission system engineering, and visual resources. In its filings on August 9, 1999, Calpine/Bechtel informed staff that it would need additional time to respond to several of staff's data requests. The applicant has also informed staff that an AFC supplement will be filed no earlier than October 1, 1999. According to the applicant, the supplement will describe an alternate site configuration and visual treatment, as well as identify additional linear routes they want the Energy Commission to consider. As a result of re-configuring the site, all the air quality modeling has to be redone and new data submitted. Staff has several concerns about the delay in obtaining responses to its data requests and the potential for the supplement to constitute a significant change to the AFC. In particular, staff raises the following questions:

    Section Given whatever changes are proposed in the supplement, what will the applicant seek certification of and what is the actual project description?

    Section How will the submittal of the supplement no earlier than October 1, 1999 impact the overall schedule?

    Section Will the supplement contain adequate information at a satisfactory level of detail to allow proper review of the proposed changes to the project?

    Section What is necessitating the changes that will be contained in the supplement and will the reasons and justifications for these changes be clearly discussed? Staff expects that it will make additional filings regarding data requests of the applicant.


  2. MEC Siting Committee Issues and Scoping Hearing - Originally, the Committee was going to hold an Issues and Scoping Hearing to provide guidance to parties in this case. Staff, in its Issues Identification Report, suggested that the Committee hold this hearing no later than August 31, 1999, to ensure parties adequate time to properly analyze the issues the Committee determines to be relevant to this proposal. To date no such hearing has been scheduled. Staff is concerned that: 1) without such a hearing, the Committee will not be aware of the magnitude of issues and concerns surrounding this proposal; and 2) the parties will not be given guidance on the scope or depth of analysis desired by the Committee to prepare its Presiding Member's Proposed Decision." The statement, "Staff has several concerns about the delay in obtaining responses to its data requests and the potential for the supplement to constitute a significant change to the AFC", provides further evidence of the applicants failure to respond to data request in a timely manner, and further the Supplement to the AFC constitutes a new project within the meaning of CEQA.