[California Energy Commission Letterhead]


Energy Resources
Conservation and Development Commission

In the Matter of:                           )     Docket No. 99-AFC-3
Application for Certification for the       )     RULINGS Re: CONSOLIDATED MOTIONS 
Metcalf Energy Center [Calpine              )     -and- INTERIM SCHEDULING
Corporation and Bechtel Enterprises, Inc.]  )     ORDER


Several Intervenors have filed Motions seeking various rulings in this case. {Footnote 1: Intervenors Coyote Valley Research Park (CVRP), Mr. Robert Williams, Santa Teresa Citizens Action Group (STCAG), and Californians for Renewable Energy (CARE) each filed separate Motions. CVRP filed its Motion on June 13, 2000, the other parties on July 11, 2000. Applicant and Staff filed written responses to CVRP's Motion on July 11, 2000, and responded orally to the Motions by the other parties at the July 19, 2000, Conference.} The substance of these filings overlaps to a large degree. We consolidated these Motions for discussion at the July 19, 2000 Status Conference, and follow a similar convention here.

a. Motions to Terminate Application for Certification

Mr. Robert Williams, Californians for Renewable Energy (CARE), and the Santa Teresa Citizens Action Group (STCAG) each believe these Application for Certification (AFC) proceedings should be terminated because the Preliminary Staff Assessment (PSA; May 15, 2000) characterizes aspects of the Metcalf Energy Center as either: 1) being currently inconsistent with certain applicable laws; or 2) likely to create significant adverse environmental impacts.

As we have stated in two previous Rulings, {Footnote 2: Committee Ruling re: Motion to Disapprove Application for Certification, page 3 (January 13, 2000); Committee Ruling re: Motion to Rescind Application for Certification and Motion for Stay of Proceedings, page 2 (January 24, 2000).} a project need not be immutable in our process. Rather, the PSA reflects Commission Staff's independent analysis of likely project impacts at the time of its issuance and emphasizes areas/impacts which may pose obstacles to licensing. This analysis may stimulate further mitigation proposals, or may lead to litigation in future evidentiary hearings. Regardless of the result, however, the PSA analysis represents only Staff's initial opinion of a project, and is by its nature subject to revision. As such, it is not dispositive of a project proposal, but forms only a basis for further analysis/discussion. To end consideration of a proposed project because of the preliminary conclusions contained in this document is simply unwarranted. The Motions to Terminate the AFC are therefore DENIED.

b. Air Quality Matters

Mr. Williams, CARE, and STCAG each opine that the Bay Area Air Quality Management District's (BAAQMD) Preliminary Determination of Compliance (PDOC) is insufficient, and that that agency should not issue its Final DOC "until a hearing at the BAAQMD on the adequacy of their BACT [Best Available Control Technology] analysis takes place." (CARE, p. 2; STCAG, p. 2.) Mr. Williams also believes that BAAQMD must include analysis of the SCONOx technology, that one year of on-site monitoring is required, and that the aerodynamic effects of Tulare Hill require analysis. (Williams, p. 4.)

Typically, a representative from the local air quality management district sponsors and explains the FDOC during the course of our evidentiary hearings. We have no authority, however, to direct the process by which the BAAQMD arrives at its FDOC. We are aware that the parties have provided comments on the PDOC to the BAAQMD, and can only assume that that agency will give those comments full and fair consideration. Similarly, a local air district relies on information and may require such analysis as it determines is necessary to enable it to reach a conclusion concerning consistency with applicable laws and regulations. Commission staff examines this conclusion, and may perform supplemental analysis as appropriate.

At this time, there is no convincing reason to conclude that these normal regulatory review processes are deficient. The Motions on Air Quality matters are therefore DENIED.

c. Motions Regarding Conditions of Certification

Mr. Williams has moved that any Conditions of Certification (which may be adopted, should the Commission ultimately certify the project) provide for the possibility of "derate and shutdown" as a consequence of violation. (Williams, p. 6.) As explained at the Conference, Mr. Williams may participate via workshops and written comments in developing appropriate Conditions. Furthermore, the intent/meaning/enforceability of any proposed Condition of Certification may be explored at future hearings. We therefore encourage him to make his views known on this issue to Staff, Applicant, and the other parties, but DENY his Motion for hearing on this distinct issue as unnecessary.

d. Motions Regarding Project Configuration

Mr. Williams, STCAG, and CARE have each raised concerns over Applicant's choice of emissions abatement and cooling technologies.

At the July 19 Conference, Applicant confirmed that the project is proposed to use selective catalytic reduction (SCR) and wet cooling. While the sufficiency of these technologies for their respective intended purposes and the severity of their respective impacts remains an open question, the Applicant's proposed use does not. We therefore discern no reason for ambiguity on the technology choices proposed.

Similarly, these parties desire further clarification of the project, including " a single defining document" describing the project. (STCAG, p. 2; CARE, p. 3.) At the July 19 Conference, Applicant indicated reissuing the AFC would be unreasonably burdensome and that the periodic status reports have enumerated the topics affected by project changes and identified specific relevant filings as the proposed project has evolved. Moreover, the PSA describes the principal attributes of the project, and provides an independent, detailed analysis of individual topic areas. These documents thus describe and analyze all project components.

Nevertheless, we understand the Intervenors' (and the public's) desire for a single source summary to which they may refer. Applicant shall, therefore, in conjunction with its next status report as directed below, provide a summary of the project as currently configured. This summary shall describe all principal project elements (e.g. emissions and cooling technology, transportation routes, linear facilities, site layout, etc.), as well as other pertinent elements (e.g., proposed emission levels, water source and use, etc.)

As we intend this document to be a summary reference, it need not contain detailed engineering/environmental analysis, but should contain references to pertinent submittals containing such analyses.

e. Motions Regarding "Need" Analysis

CVRP (July 11, 2000 Comments of CVRP, pp. 11-12) and STCAG (p. 2) requested clarification as to the extent of the "Need" analysis for this case. As discussed at the July 19 Conference, the Commission previously performed an "integrated assessment of need" which, among other things, examined statewide and service area electrical supply and demand as part of its evaluation of the "need" for new generation sources. Recent statutory changes (SB 110, effective January 1, 2000) have eliminated this assessment. {Footenote 3: Public Resources Code section 25523(f), which required the Commission to make findings regarding conformity with the integrated assessment of need, has been repealed.}

We therefore advise all parties that continued reference to a "need" analysis may prove confusing. Public Resources Code section 25525 does, however, highlight three factors -- "the impacts of the facility upon the environment, consumer benefits, and electric system reliability" -- which may potentially become relevant to a Commission decision on a project. We therefore will permit analysis of these items, when and if they become relevant, during this proceeding.

f. Reissuance of PSA

Each moving party has also requested that Staff be required to reissue its PSA and/or issue a supplemental PSA (CVRP, pp. 5-6; CARE, pp. 2-3; STCAG, p. 2; Williams, p. 5.) Applicant and Staff oppose this, based upon the draft nature of this document and Commission regulations specifying the nature of the staff's assessment (Staff's July 11, 2000 Opposition To Motion, p. 3; Status Conference Statement of Calpine/Bechtel, July 11, 2000, pp. 3-4.)

We agree that Staff and Applicant are correct in that neither our enabling statute nor the regulations require other than a "final staff assessment" be available at least fourteen days prior to the start of evidentiary hearings. (Cal. Code of Regs., title 20, section 1747.) We conclude, therefore, that there is no legal basis to require reissuance of the PSA. We note, moreover, that the Interim Schedule set forth below largely renders the substantive relief sought by these Motions moot.

g. Further Discovery

All responding parties addressed the necessity for further discovery, with Applicant suggesting an end to this process by July 31, 2000 and CARE requesting three more months in order to raise funds to employ a technical consultant. Applicant acknowledged, however, that some of its submissions (i.e., partial load data) would not be filed until an as yet undetermined date. Further complicating this matter are the presently uncertain timing for filing of the FDOC and the U.S. Environmental Protection Agency's (USEPA) intended timeline for the Section 7 consultation process. Completion of this latter process may effect release of the FDOC.

We believe that discovery should conclude within a reasonable period. We recognize, however that "discovery" comprises three distinct steps: submission of data, time to digest that data and formulate relevant data requests as necessary, and time to respond to such requests. Thus, given the uncertain dates of forthcoming submissions, it is impossible to establish specific dates for this matter. Therefore, we have established what we view as appropriate timeframes below, with the actual dates for submitting data requests and responses dependent upon the filing dates(s) for yet outstanding data. We believe this adequately addresses the discovery matters raised in the Motions.


Following are the core events necessary before the Committee can realistically schedule a Prehearing Conference. At the Prehearing Conference, filing dates for testimony and other matters relevant to the conduct of evidentiary hearings will be discussed and are not reflected below.

Parties should note that we have dispensed with referring to future Staff Assessment(s) as "preliminary" or "final" due to the apparently misleading significance which has become attached to these terms.

a. Discovery

Applicant submits outstanding data, data responses, etc.

July 31, 2000 Necessary information for Staff Assessment

Parties submit relevant data requests to Applicant

August 25, 2000

(period extended to accommodate vacation schedules)

Applicant files responses to data requests

No more than 30 days following data requests


Applicant files "partial load" data


May be necessary information for Staff Assessment

Parties submit relevant data requests to Applicant re: "partial load" data filing

No more than 15 days following submission of "partial load" data


Applicant files responses to "partial load" data requests

No more than 30 days after data requests are filed

May be necessary information for Staff Assessment

Discovery ends

Actual date depends upon filing of data, data requests, and data responses

b. FDOC and Federal Permitting Action

Applicant provides FDOC and explains effect, if any, of federal permitting action upon FDOC and relevant conditions


Necessary information for Staff Assessment

Applicant provides information on any Conditions imposed as result of federal permitting action


Necessary information by time of evidentiary hearings

c. Issuance of Staff Assessment

Staff files its Assessment

35 days following provision of FDOC as well as responses to final Staff data requests

To include analysis based on most recent data, and responses to comments on May 15 PSA; Assessment may be subsequently amended, as necessary

d. Status Reports

Parties file Status Reports indicating progress on foregoing (and other relevant) items


August 16, 2000

September 11, 2000

October 5, 2000

Applicant’s August Status Report to include Summary required in Order, above; Staff’s September report to explain protocol for use of Staff Assessment by City of San Jose

e. Public Events

Staff Workshops


As determined to be necessary

Will be separately noticed

Workshops on Staff Assessment

Commencing 2-3 weeks after release of Staff Assessment

Will be separately Noticed

Committee Status Conference

Following Staff Assessment Workshops

Will be separately Noticed

Date On Line: August 4, 2000


ROBERT A. LAURIE, Commissioner
Presiding Committee Member
Metcalf AFC Committee

Associate Committee Member
Metcalf AFC Committee

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