In the Matter of: ) Docket No. 99-AFC-3 Application for Certification for the ) METCALF Energy Center [Calpine Corporation ) COMMITTEE RULING re: MOTION TO and Bechtel Enterprises, Inc.] ) DISAPPROVE APPLICATION for CERTIFICATION ___________________________________________) I. BACKGROUND
Intervenors Californians for Renewable Energy, Inc. (CRE) and the Santa Teresa Citizens Action Group jointly filed a "Motion to Disapprove Application for Certification" (Motion) on December 1, 1999. Applicant filed a Response on December 9, 1999. The Committee heard oral argument on this Motion at the December 16, 1999 Status Conference. (See 12/16/99 RT 16-37 1.) Subsequently, on January 3, 2000, CRE filed a supplementary Response.
The Intervenors fundamentally contend that we should dismiss the pending Application for Certification (AFC) because: 1) Applicant has not responded, or has delayed in responding, to various data requests; 2) project changes initiated by Applicant have caused unreasonable delays and prevented meaningful review by the public; and 3) supplemental information provided by Applicant requires "recirculation" for public review.2
We are presently in the "discovery" phase of this AFC proceeding. Essentially, this means that one of the principal current objectives is to develop and exchange analytic information pertinent to the proposed project. This is accomplished primarily though discussions at Staff sponsored public workshops and by written exchanges (data requests and data responses).
CRE contends that Applicant has not responded to all data requests. (12/16/99 RT 20, 24, 33.) Moreover, in its supplementary response, CRE specifically contends that Applicant has failed to respond to several Staff data requests concerning project alternatives.3
Section 1716 of our regulations (20 Cal. Code of Regs., ¤ 1716) sets forth the general procedures for obtaining information. Basically, this section allows formal parties to request relevant information from other formal parties. The responding party is typically obligated to provide relevant information which is reasonably available to it and cannot otherwise readily be obtained [¤ 1716(d)] within thirty days of the request [¤ 1716(e)]. The responding party may also, within fifteen days of receiving the request, object to providing the information sought or indicate its inability to provide the desired information. [¤ 1716(e).] Parties may mutually agree to modify the periods specified.
In the present instance, Applicant has provided a compilation showing data requests and responses. ("Status Report # 4," pp. 2-3.) This listing is supported by docketed materials indicating that Applicant has responded (or objected) to all data requests, or has specified dates by which responses would be provided. (See also, 12/16/99 RT 22.) Staff has confirmed receipt of data responses thusfar expected (12/16/99 RT 26) including, by implication, those referred to in CRE's supplementary response. Therefore, we are not persuaded that Intervenors' difficulties are caused by Applicant's failure to respond. While the regulations require responses, they cannot guarantee that the requesting parties will necessarily be satisfied with each and every response.
We believe that confusion over the status of data submissions could have arisen because of use of an outdated Proof of Service list (see 12/16/99 RT 24, 31) which may have prevented certain Intervenors from receiving information filed thusfar. In this regard, we note that the Proof of Service list is updated with the addition of any new Intervenor and that we have thusfar twice (on October 13, 1999 and on January 4, 2000) sent the most recent list to all parties. We expect each party to comply with its obligation to serve information upon all other parties reflected on the most recent Proof of Service list.
Next, Intervenors contend that Applicant's project changes have caused delays, prejudiced the publicŐs right to review the project, and that "recirculation" of information or additional review time is required. Intervenors cite provisions of the guidelines to the California Environmental Quality Act (14 Cal. Code of Regs., ¤ 15000 et seq.) in support of these contentions. The provisions cited, however, apply only to procedural elements of a traditional Environmental Impact Report process and are inapposite to the "functionally equivalent" process employed in our power plant certification review. [See Pub. Resources Code, ¤ 21080.5; 14 Cal. Code of Regs., ¤¤ 15250, 15251(k).]
Applicant has proposed project changes largely in response to community or local agency concerns (12/16/99 RT 46). The law does not require that a project be immutable, and changes are a normal part of the evolution of a proposed project. Applicant must continue to provide any newly developed information pertaining to project changes (and to other areas) to all parties and submit such information to the CommissionŐs publicly accessible docket unit. This will ensure that such information is available for review.
Moreover, the opportunity for public review and input has not in any way been abbreviated or truncated. Applicant has, in fact, waived the twelve month review process specified in the law (Pub. Resources Code, ¤ 25522; see 12/16/99 RT 43, 54), thereby providing additional time for evaluation of the Metcalf project by the parties, interested agencies, and members of the general public. This additional time we believe, provide all interested an adequate opportunity to understand Applicant's proposal and to cogently participate in the process.
Thus, we conclude Intervenors have not demonstrated that any prejudice to their right to participate in this process has occurred, or is likely to occur, as a result of project changes or Applicant's failure to submit relevant information.
For the reasons discussed above, we deny Intervenors' Motion To Disapprove the Application for Certification. Applicant shall ensure that pertinent information is provided to all parties on the most recent Proof of Service list.
1 "RT" refers to the reporter's transcript for the date and pages indicated.
2 Intervenors also allege that Commission staff may not perform an adequate alternatives analysis. (Motion, p.4.) This contention is entirely speculative since Staff is currently in the process of developing its analysis.
3 These are data request numbers 17, 19, 20, 21 and 22 issued on July 23, 1999.
ENERGY CONSERVATION RESOURCES
AND DEVELOPMENT COMMISSION
ROBERT A. LAURIE, Commissioner
Metcalf AFC Committee
WILLIAM J. KEESE, Chairman
Metcalf AFC Committee
Mailed to List: 700 & Proof of Service List