[California Energy Commission Letterhead]


STATE OF CALIFORNIA

Energy Resources
Conservation and Development Commission



COMMITTEE RULING RE: PETITION OF INTERVENOR FOR ORDER DIRECTING
DUKE ENERGY TO SUPPLY INFORMATION



I. BACKGROUND

On March 13, 2001 Intervenor Coastal Alliance on Plant Expansion (CAPE) delivered to Applicant Duke Energy North America (Applicant) 287 data requests. On March 23, 2001, Applicant filed imely objection to the 287 data requests generally as overly burdensome due to the large number of requests. Applicant stated that it would require at least 60 days to respond to the data requests. In addition, Applicant objected specifically to 12 of the 287 data requests for numerous reasons stated in its filing.

On April 16, 2001, CAPE filed its Petition of Intervenor for Order Directing Duke Energy to Supply Information (Petition). CARE petitions the Committee for an Order directing Applicant to respond to nine of the data requests in dispute. The Committee heard oral argument from Applicant and CAPE at the Committee Status Conference held in Morro Bay on April 24, 2001.


II. DISCUSSION

Section 1716 of our regulations (Cal. Code of Regs., tit. 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 for 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 forgo 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 expectation of the requesting party.

In considering the present Petition, we have evaluated whether the information sought appears to be reasonably available, relevant or necessary for us to reach a decision in this proceeding.

Data Request No. 139

Petitioner CARE argued that Applicant has prior drafts and underlying information regarding the thermal discharge plume from the project. Applicant responded that all prior thermal plume studies held by Applicant are available in the original project's Application for Certification (Appendix 6.5, attachment 5) which Petitioner already has. Better information is now being developed through the Technical Working Group (TWG) and will soon be available to all parties and the public. Applicant provided CAPE a February 28, 2001 first draft of the new study entitled "Morro Bay Power Plant Modernization Project Thermal Discharge Assessment Report" and discussed the draft at a TWG meeting attended by CAPE representatives. A revised draft of the report is expected before the end of April. It appears to us that CAPE has access to the original, out-dated filing on thermal discharge as well as all subsequent, relevant information developed by Applicant and the TWG. We do not therefore, order Applicant to respond to Data Request No. 139.

Data Request No. 150

Petitioner requests drafts and comments made in relation to the "Morro Bay Power Plant Modernization Project 316(b) Resource Assessment Report", Applicant responded that most comments on drafts made by the TWG are verbal, rather than written, and that with the exception of two email messages, Applicant has provided all available comments. Applicant's counsel promised to provide the email messages to CAPE.

CAPE and all other parties will receive the most current information when the latest draft of the 316(b) report is issued. Ultimately, a final 316(b) report will become part of the evidentiary record and we expect that at least some of the TWG members who author the report will be available for cross-examination concerning how the report was developed. We direct Applicant to send CAPE the referenced email messages. No further response is required to Data Request No. 150.

Data Request No. 151, 192, 201

These requests are for additional information, studies, or analysis concerning the Project's seawater use and marine biology. Petitioner argues that it is appropriate to learn if Applicant has analyzed cumulative impacts of the Project and seeks data on a healthy Morro Bay estuary as a biological baseline from which to compare the likely impacts of the proposed Project. Applicant argues that the TWG has designed extensive studies and requested numerous reports on this matter which will all be subject to peer review. TWG is a panel of experts representing the Regional water Quality Control Board, the California Energy Commission, and the California Coastal Commission. While the TWG's opinion regarding the scope of analysis regarding marine biology impacts does not limit this Committee, our experience with the TWG from the Moss Landing AFC leads us to give considerable weight to its determinations. While not dispositive, the requirements of the TWG are persuasive. We fully expect that the TWG members and Applicant will address cumulative impacts of the Project both in the 316(b) report and later at the evidentiary hearings.

Petitioner also argues that the biological baseline for our analysis must be "a healthy Morro Bay estuary". We note, however, that both the Commission's regulations [(Cal. Code Regs., tit. 20, Section 2012(g)(1)] and the Guidelines for the California Environmental Quality Act [Cal. Code Regs., tit. 14, Section 15125] require as an analytical baseline, a description of the environmental setting as it exists before commencement of the project. In this case the estuary includes on its shore a major power plant which has been operating for the last 50 years. We find that the information asked for in Data Requests Nos. 151, 192, and 201 is either beyond the required scope of analysis for this case, or is likely to be included in the anticipated 316(b) study.

Data Requests No. 214 and 215

These data requests seek information regarding alternative sites for the Project. Applicant responds that in its view the Warren-Alquist Act exempts the Project from an alternative site analysis. Petitioner argues in part, that the cited exemption found in Public Resources Code Section 25540.6(b) applies only to a modification of an existing facility, rather than what Petitioner characterizes as an entirely new facility.

Pursuant to that provision of the Warren-Alquist Act, the Commission may accept an AFC for a project at an existing industrial site without requiring a discussion of site alternatives if the Commission finds that the project has a strong relationship to the existing industrial site and that it is therefore reasonable not to analyze alternative sites.

By accepting the AFC for this project as "data-adequate" notwithstanding the lack of any alternative site analysis, the Commission has implicitly determined that the Project has "a strong relationship to the existing industrial site... ." Although this is clearly the case regarding the Project's intake and outflow ocean cooling facilities, most of the Project will involve entirely new construction. While Applicant was not required to submit alternative site analyses in the AFC, Staff has nevertheless made numerous data requests of Applicant regarding alternative sites. This is consistent with the Staff analysis conducted in the Moss Landing case (The Commission addressed the merit of alternative sites to an existing industrial site in its Decision on the Delta Energy Center (Pub. No. P800-00-001 at pp. 33-34.) and also in the Decision on the Moss Landing Power Project (Pub. No. P800-00-008 at pp. 26-27.).).

Furthermore, Staff and the Central Coast Regional Water Quality Control Board have requested analyses of alternatives to the proposed once-through ocean water cooling system. We believe it would be illogical to examine cooling alternatives which are not ocean-dependant without also conducting some examination of alternative sites not located on the coast. However, having said that, we point out that under CEQA, the analysis of alternatives is subject to a "rule of reason" which means that our analysis of alternatives may me limited to alternatives "... that would avoid or substantially lessen any of the significant effects..." of the Project while meeting most of its basic objectives. [Cal Code of Regs., tit. 12, Section 15126(d)(5).] With this in mind, Applicant is ordered to respond to data requests which address a screening analysis of alternative sites. However, such analysis need not go to the same depth as would be expected for a project which is proposed at a site not already dedicated to industrial use.

Data Request No. 217

This request is for information related to projected future operating scenarios of the existing facility and the new Project. Applicant responds that it is preparing a response to Staff Data Request 23 involving actual plant operation over the last few years. Applicant also notes that internal competitive and trade secret information regarding potential future operations would only be a projection of future operations and furthermore is privileged information. Petitioner responds that the information is relevant to assess the relative impacts of allowing the existing plant to serve out its remaining life as a "no project' alternative. Petitioner notes its willingness to enter into an agreement not to disclose any confidential information which Applicant may make available.

We believe that it is reasonable to estimate future operations of the existing facility based upon actual past operations. However, the higher efficiency of the new Project makes it likely it will operate more frequently that the existing one. While Applicant need not disclose internal competitive trade secrets, we do require a reasonable "high-run" estimate, which will account for the new Project's higher efficiency.

Data Request No. 270

This request is for "all possible mitigation measures" to limit noise from the Project. Applicant responds that its analysis clearly shows compliance with all noise standards and requirements. Discussion of the Project's noise mitigation measures are described in the AFC. Petitioner argues that it is entitled to all relevant information relating to possible noise mitigation measures.

We point out that Applicant bears the burden of proof in this case. If it can establish that its design for limiting Project noise meets applicable laws and imposes no significant environmental impact, then it has met the burden. It need not explore every possible noise mitigation measure. No response is required by Applicant.


III. RULING

The Committee Orders Applicant to respond to disputed data requests in accordance with the above discussion.



Date Online: May 2, 2001



MICHAL C. MOORE
Commissioner and Presiding Member
Moss Landing AFC Committee


WILLIAM J. KEESE
Chairman and Associate Member
Moss Landing AFC Committee




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