STATE OF CALIFORNIA
Energy Resources Conservation
and Development Commission
In the Matter of: ) Docket No. 99-AFC-3 ) Application for Certification for the ) COMMITTEE RULING re: MOTION TO RESCIND Metcalf Energy Center [Calpine ) APPLICATION FOR CERTIFICATION -and- Corporation and Bechtel Enterprises, Inc.]) MOTION FOR STAY OF PROCEEDINGS __________________________________________)
Intervenor Santa Teresa Citizens Action Group (STCAG) has filed a "Motion to Rescind the Commission Acceptance of the Application for Certification" (Motion to Rescind) and a "Motion for Stay of Site Certification Proceedings" (Motion for Stay). Both are dated December 16, 1999, and are supported by several other Intervenors.
The Motion to Rescind essentially requests that the Commission withdraw its prior acceptance of the Application for Certification (AFC) or, in the alternative, require Applicant to refile a complete and current AFC. The Motion for Stay basically seeks to toll the review period pending consideration of the former Motion.
Because of the similarity and overlap of the issues presented, arguments advanced, and relief requested, we discuss these Motions together.1
Footnote 1: Certain matters raised in the current Motions are also basically the same as in the December 1, 1999 "Motion to Disapprove Application for Certification."
As a Committee, we may exercise an array of powers (20 Cal. Code of Regs., sections 1203, 1204), but we may not overturn an action taken or a decision made by the full Commission. Thus, we do not possess the authority to grant the relief requested in the Motion to Rescind, or to require that land use entitlement actions be completed prior to AFC acceptance as suggested in the Motion for Stay. Moreover, we do not believe recommending that the full Commission grant the Intervenors' Motions is warranted.
Our enabling statute and its implementing regulations provide that only the Commission, acting as a body, may determine whether or not an AFC filing2 complies with specified information requirements, and is sufficiently complete in order to permit commencement of the certification process. [Pub. Resources Code, section 25522 (b), 20 Cal. Code of Regs., sections 1709(c), (d); see also, Pub. Resources Code, section 25104.] The full Commission accepted the AFC submission as complete ("data adequate") at its public business meeting of June 23, 1999. (6/23/99 RT3 15.)
The current STCAG representative provided public comment (focused largely on the topic of site alternatives) following this action. (6/23/99 RT 23-29.) The Commissioner presiding at the meeting then inquired whether the Commission could "rescind and revoke" (6/23/99 RT 32:9) the acceptance decision, and whether any members of the Commission desired to reconsider that decision. (6/23/99 RT 32: 16-17.) Although being advised that they could revisit the earlier acceptance determination, no Commissioner moved that such action be taken.
Once an AFC is accepted, the law provides that the Commission then "shall issue a written decision" within twelve months "or at any later time as is mutually agreed" by the Commission and the Applicant. [Pub. Resources Code, section 25522(a).] The law does not prevent an Applicant from modifying a proposed project after AFC acceptance, nor even require that Applicant agree to provide additional time for review of project changes.
It is indisputable that the Metcalf project has been modified, as Intervenors point out, from the version originally proposed in the AFC. Whether these modifications serve to reduce potential impacts to an acceptable level remains to be determined based upon an objective evaluation of the evidence presented. This has not yet occurred, and will not occur, for at least several months. As we explained in our "Ruling re: Motion to Disapprove Application for Certification" (Ruling; January 13, 2000), we are presently in the "discovery" phase of the AFC proceeding wherein the development and exchange of pertinent information are primary goals. In denying that Motion, we noted that Applicant's waiver of the twelve month review process would provide additional time for public review of the proposed project, thus foreclosing the possibility that Intervenors would be harmed by an abbreviated or truncated process. Nothing has since changed, and our "Revised Scheduling Order" (January 14, 2000) sets forth what we consider an appropriate timeframe to allow development of a comprehensive, cogent initial analysis of the Metcalf project.
However, we understand the potential for confusion which may have resulted in the present case due to the volume of supplemental data submitted by Applicant, and the possible failure to use the most current Proof of Service list as noted in our earlier Ruling. It is imperative that all parties have complete and current information. Therefore, we direct Applicant to prepare a list/chart/table which shall reflect: 1) which sections of the original AFC filing have been modified; and 2) in which specific filings those modifications are contained. Our intent is to create a simple reference so that any party may quickly ascertain where the most current information on a particular topic resides.
Applicant shall provide this information to the Commission Docket Unit and all on the Proof of Service list no later than February 8, 2000. Applicant shall also continue to update, as necessary, this information in the periodic status reports specified in our "Revised Scheduling Order." Finally, Applicant shall provide any party who so requests a copy of any supplemental information which Applicant has already filed.
Footnote 2: We note that the Application filing is not the same as an Environmental Impact Report, as is suggested in the Motion to Rescind. In an AFC, an Applicant essentially provides the threshold level of information necessary to begin a comprehensive project review.
Footnote 3: "RT" refers to the reporter's transcript for the date and page(s) indicated.
For the reasons discussed above, we deny the "Motion for Stay of Site Certification Proceedings" and recommend the Commission not grant the "Motion to Rescind the Commission Acceptance of the Application for Certification."
Applicant shall provide the chart/list/table discussed above no later than February 8, 2000, and shall otherwise comply with our directions to ensure all parties have access to current and complete project information.
Date On Line: February 2, 2000
ENERGY RESOURCES CONSERVATION
AND DEVELOPMENT COMMISSION
ROBERT A. LAURIE, Commissioner
Metcalf AFC Committee
WILLIAM J. KEESE, Chairman
Metcalf AFC Committee
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