[California Energy Commission Letterhead]


STATE OF CALIFORNIA

Energy Resources
Conservation and Development Commission




In the Matter of:                 }            Docket No. 00-AFC-12
                                  }
Application for Certification of  }            Application complete 	 		
Duke Energy for the               }            January 10, 2001	
Morro Bay Power Plant Project     }
__________________________________}		



COMMITTEE RULING RE: PETITION OF INTERVENOR, FILED MAY 23, 2001, FOR ORDER DIRECTING DUKE ENERGY TO SUPPLY INFORMATION



I. BACKGROUND

On May 23, 2001, Coastal Alliance for Plant Expansion (CAPE), an Intervenor in this proceeding, filed its Petition of Intervenor for Order Directing Duke Energy to Supply Information [1716(g)] (Petition). The Petition was timely filed pursuant to Title 20 California Code of Regulations, section 1716(g). It requests the Committee to issue an order directing Duke Energy North America (Applicant) to answer Data Requests 294 and 333. These are among the various data requests submitted by CAPE in its second set of requests. Applicant objected to five of the requests and CAPE takes issue with two of the five objections.

On June 7, 2001 the Committee issued an Order directing Duke Energy (Applicant) and the Commission staff (Staff) to respond to CAPEās Petition. Both parties responded in writing on June 15, 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 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 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. 294

CAPE asks that Applicant provide a table showing the maximum modeled project impact for all criteria pollutants emitted by the project when operating without supplemental duct firing. CAPE argues that while duct firing adds a 14 percent increase in plant output (amounting to 168 additional MW), this increased output adds a 21 percent increase in PM10 emissions. CAPE states that the requested analysis would allow the Committee to evaluate whether the added PM10 emissions are justified by the increase in power output. (CAPE Petition at page 2.)

Applicant objects to the request on several grounds. Duke points out that the requested analysis is not required by any laws, ordinances, regulations or standards (LORS); that none of the information is reasonably available to the Applicant; and that the requested information is not necessary in order for the Committee to reach its decision in the case. Staff notes that its Preliminary Staff Assessment (PSA) on the project as proposed by Duke and assuming duct firing, has determined that the project will have no significant adverse impact on air quality. Therefore, Staff does not propose to conduct an analysis of the project without duct firing.

Applicant is correct that the specific requested information is not required by any LORS. Petitioner does not dispute this fact. The requested information would require Applicant to perform additional modeling analysis which is both time consuming and costly. Such expense might be justified if the resulting information was clearly required for the Committee to make an informed decision. Here, however, it is not. Air district rules require that the project fully offset PM10 emissions. The Staffās PSA has determined that the project with duct firing will not have a significant air quality impact. CAPE does not argue that Dukeās mitigation for PM10 will be insufficient to mitigate those PM10 impacts to insignificant levels.

It is undisputed that CEQA does not require mitigation for impacts that are less than significant. Here the Applicantās AFC, Staffās preliminary determination, and requirements of applicable LORS reveal that the project is not likely to cause significant PM10 impacts. If CAPE seeks to challenge the position of Applicant and of Staff on this issue, CAPE may attempt to do so by presenting its own direct evidence and by cross-examining witnesses of other parties and agencies at the evidentiary hearings. Petitionerās request is denied.

Data Request No. 333

Here CAPE requests measurement of the influence of tidal currents on the projectās cooling water intake system (CWIS) approach velocity during all lunar stages of the tide. This would be done by measuring across the face of the intake structure to profile approach velocities at two hour intervals for a period of two calendar months. CAPE seeks the information so that the Commission and the Regional Water quality Control Board (RWQCB) may have sufficient data to analyze the environmental impacts of the projectās CWIS upon the marine life of the Morro Bay Estuary.

Applicant responds that the measurement studies are not required by LORS, are costly, burdensome, and beyond the scope of discovery for this proceeding. Duke also notes that the requested tidal study would be untimely, since it could not be conducted and analyzed within the case schedule. Staff does not dispute CAPEās contention that impacts from the CWIS should be determined. However, Staff states that it is more appropriate to determine project impacts by examining actual impingement losses themselves, rather than historical intake velocities. Nevertheless, Staff notes that it is considering recommending the addition of a requirement that Duke monitor intake velocities once the new project is operating.

The information which CAPE seeks is not required by LORS, is costly, and unlikely to be made available in a timely way. More importantly, the information is less useful than actual monitoring of the proposed facility, both for velocity and its relationship to actual impacts. Petitionerās request is denied.

Date Online: June 22, 2001, at Sacramento, California.


MICHAL C. MOORE
Commissioner and Presiding Member
Morro Bay AFC Committee


WILLIAM J. KEESE
Chairman and Associate Member
Morro Bay AFC Committee




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