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 Metcalf Energy Center [Calpine Corporation ) RE: CVRP PETITION and Bechtel Enterprises, Inc.] ) TO COMPEL PRODUCTION ________________________________________________) OF DOCUMENTS
On July 18, 2000, Intervenor Coyote Valley Research Park, LLC and Coyote Valley Properties, LLC (jointly "CVRP") filed "Data Requests of Intervenor Coyote Valley Research Park, LLC and Coyote Valley Properties, LLC Set No. Three (3)" (Data Requests No. 3). These multi-part requests sought to obtain specified information from Applicant. On August 3, 2000, Applicant filed an objection to portions of Data Requests No. 3, and responded to other portions on August 18, 2000.
On October 11, 2000, CVRP filed a "Petition to Compel Production of Documents" (Petition). In this Petition, CVRP requested we direct Applicant to provide the information specified in numbers 1-4, 6F, and 7 of Data Requests No. 3 (Petition, p. 2). We then issued an Order (October 12, 2000) directing responses to CVRP's Petition. On October 25, 2000, Staff provided what limited information it had available; Applicant also responded, answering several questions and repeating its objections to other portions of Data Requests No 3. Finally, CVRP filed a Reply to Applicant's Responses (November 14, 2000).
Section 1716 of our regulations (Cal. Code of Regs., title 20, section 1716) contains the basic framework for information exchanges (i.e., data requests and responses) for licensing proceedings. The procedure is straightforward. A party may request from an Applicant "...information which is reasonably available to the applicant which is relevant to the ...application proceedings or reasonably necessary to make any decision on the ...application." [ section 1716 (b).] The Applicant may then answer or object to the request. If the Applicant objects, the requesting party may then forego the request, seek alternative means of obtaining the desired information, or petition for an Order directing the Applicant to provide the information. The regulations do not, however, require that the information provided necessarily satisfy the expectations of the requesting party.
In considering the present Petition, we have disregarded the rhetorical elements of the pertinent filings and have evaluated whether the information sought appears to be reasonably available, relevant, or necessary for us to reach a decision in this proceeding. *We conclude as follows regarding the appropriate portions of Data Requests No. 3:
Question 1 (Re: Air Quality). CVRP's Petition expresses doubt over the appropriateness/applicability/accuracy of source test data and accompanying information provided by Applicant (Petition, pp. 6-10.) In CVRP's estimation, the information sought is "...essential to determine whether... [the proposed project and the facility from which the tests originated] are sufficiently similar to justify basing permit limits on a single source which conflicts with vendor guarantees and numerous other source tests." (Petition, pp. 8-9.)
The Bay Area Air Quality Management District (District) issued its "Final Determination of Compliance" (FDOC) for the Metcalf Energy Center on August 25, 2000. The FDOC contains emissions limitations and permit conditions which the project must meet to comply with applicable law. Presumably the District formulated these conditions and limitations after obtaining and reviewing such information as it deemed necessary. We have no reason to believe the District acted other than in compliance with its rules and procedures, including considering comments offered on its preliminary and final determinations. It seems to us that the information sought by CVRP is principally relevant to questioning the permit limits and risk factors as determined by the District, and that CVRP should therefore direct any concerns it has with terms of the FDOC to the District. We do not therefore order Applicant to respond to Question 1.
Question 2 (re: acrolein emission factor). CVRP asserts that source test results and reports containing information on the acrolein emission factors are essential "...to assure that public health impacts are properly evaluated and mitigated...". (Petition, p. 12.)
The District's FDOC states that the "...results of the source tests support the original emissions estimates for ...acrolein... utilized in the [District's] health risk assessment..." and that the proposed project "...will not cause a significant health impact in accordance with the [District's] Toxic Risk Management Policy." (FDOC, p. 22.) Furthermore, Appendix A to the FDOC explains the derivation of the acrolein emission factor, as well as the responses of the District to comments questioning the emission factor used. (FDOC, pp. A-4 to A-9.) As with Question 1, it seems to us that CVRP's concerns are more appropriately addressed to the District. We do not, therefore, direct Applicant to respond to Question 2.
Question 3 (re: oxidation catalyst). CVRP contends that "...CARB [California Air Resources Board] and other regulatory agencies have concluded that BACT [Best Available Control Technology] for CO [carbon monoxide] is an oxidation catalyst" and that BACT must be used to comply with the federal prevention of significant deterioration (PSD) program. (Petition, p. 12.)
The District, in the FDOC, discusses BACT for CO (pp. 12-14), and has designed appropriate conditions that provide for retrofit of an oxidation catalyst if necessary to meet permit limitations (p. 14). Once again, it appears to us that CVRP is seeking to challenge the basis for the conclusions reached and conditions proposed in the FDOC, and therefore we suggest CVRP direct its concerns to the District. Insofar as federal PSD criteria are concerned, we trust that this determination will be reviewed, and that the appropriate agencies (such as the United States Environmental Protection Agency) will evaluate any concerns raised. Therefore, we do not direct Applicant to provide information sought in Question 3.
Question 4 (vendor guarantees). This query is apparently intended to gain information used to "support proposed [air quality] permit limits" (Petition, Attachment 1, p. 4). CVRP asserts that this type of information is commonly provided in our licensing proceedings (Petition, pp. 13-14); Applicant resists producing the guarantees, in part claiming that such information is "...precisely the type of proprietary information that is protected..." as being confidential (Response, p. 10).
We agree with CVRP that Applicant's generalized claim of confidentiality is too non-specific, and recognize that there are methods to control the disclosure, use, and distribution of genuinely confidential material. We do not, however, perceive the material sought in the data request as being relevant in this instance. The permit limitations established by the District presumably are based upon all information necessary to ensure conformance with applicable law. As such, it is these limitations and conditions with which Applicant must comply should the project proceed.
CVRP's request for these vendor guarantees seems to be essentially an attempt to challenge the basis of the FDOC. As such, the proper avenue to pursue is that provided by the District. We, therefore, do not order Applicant to provide the information in Question 4.
Questions 6F and 7. These questions generally pertain to the types of cooling technologies available for power plants.
The information sought can become relevant if the evidence establishes that the cooling technology proposed by Applicant : 1) causes a significant adverse environmental impact which is not mitigated below a level of significance; and 2) Applicant asserts that mitigation (such as the use of an alternate cooling technology) is infeasible. Such is not the present circumstance. Therefore, we conclude that the information sought appears currently irrelevant, and do not require Applicant to respond. We advise, however, that this information could be relevant in the future, under the circumstances mentioned above.
As discussed above, we do not require that Applicant provide the information sought in Data Requests No. 3, Questions 1 through 4, since that information seems principally relevant to matters appropriately analyzed and contained within the Bay Area Air Quality Management District's Final Determination of Compliance (August 25, 2000) and the pending federal prevention of significant deterioration review. We presume the appropriate air regulatory agencies have, or will, arrive at proper determinations within the context of their applicable procedures and legal requirements. Furthermore, we do not require Applicant provide the information sought in Questions 6F and 7 since that information appears to address matters which are presently speculative.
Date On Line: November 21, 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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