[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       )
Duke Energy for the                    )     Application Complete	
Morro Bay Power Plant Project          )     January 10, 2001
_______________________________________)


COMMITTEE RULING RE:
PETITION OF INTERVENOR FILED JULY 17, 2001,
FOR ORDER DIRECTING DUKE ENERGY
TO SUPPLY INFORMATION

On June 4, 2001, the Coastal Alliance on Plant Expansion (CAPE) submitted thirty-one data requests to Duke Energy Morro Bay LLC (Duke or Applicant). Applicant responded on June 15, 2001 with objections to several of the requests. On July 17, 2001, CAPE filed a petition asking the Committee to order Applicant to respond to three of the objectionable data requests. In addition, CAPE's July 17, 2001 petition objects to Duke's April 23, 2001 responses to CAPE's Data Request nos. 323, 324, 326, 327, 328, 329, and 332.

On July 20, 2001 the Committee directed Staff and Applicant to respond to CAPE's petition. Applicant and Staff responded in writing on August 3 and August 10, 2001, respectively.


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 Requests 323, 324, 326, 327, 328, 329, and 332

These data requests were actually docketed on April 23, 2001. While Applicant did not object to providing the requested information, CAPE argues that Duke has either failed to respond or has responded inadequately.

Data Request 323 asks Applicant to supply raw data related to impingement survey numbers MBIASOO1 through MBIASOO53. Applicant argues that it would take significant efforts to complete the request, while CAPE urges that the information is readily available on computer database files. Commission staff notes that in light of the proposed Project's potential to cause significant impacts due to impingement, the requested data is relevant and useful to confirm estimates of impacts from the Project. Staff urges that Applicant make the data available to the parties.

The Committee agrees. The value of the information outweighs the burden to Applicant. Therefore Applicant is directed to provide the information by the date indicated below.

Data Requests 324, 326, and 327 ask for calculations and numerical data concerning the geometry of the Project's cooling water intake structure (CWIS). CAPE alleges the information is important because cooling water approach velocities provided by Duke to the Regional Water Quality Control Board (RWQCB) do not match those contained in the Application for Certification (AFC) and in the 316 (b) Resource Assessment. CAPE argues that the data would allow other parties to reproduce the calculations which support Applicant's conclusions. CAPE also requests scaled elevation maps of the bay floor and the dimensions of the opening to the CWIS. CAPE asserts that previous responses by Duke were either incomplete or inaccurate. Staff opines that the requested information is important to Staff's analysis of marine impacts from the Project.

The Committee finds that the information requested is relevant to the decision before the Committee. Applicant is directed to make available to the parties all information which it possesses related to Data Requests 324, 326, and 327.

Data Request 328 requests nameplate performance ratings for the new cooling water intake pumps. Applicant responds that it is too early in the design process to identify detailed specifications for specific pumps. However, Staff points out that Applicant has already determined how much water will be pumped through the power plant cooling system. Staff adds that if Duke has not yet selected a particular pump model, it should be able to provide a table listing the water pump models under consideration along with pertinent performance ratings. Staff further notes that having this information would improve the accuracy and thoroughness of Staff's assessment of environmental impacts.

The Committee finds that the requested information is relevant to the Committee's decision. We therefore direct Applicant to provide the information requested in Data Request 328.

Data Request 329 asks for hydrographic and approach velocities related to the Morro Bay Power Plant and previously collected for purposes of the plantŐs NPDES permit. While the information is publicly available through the Regional Water Quality Control Board, CAPE counters that it is unable to get all the data it seeks and no data more than ten years old. Staff sees no need for the information and notes that the data has already been discussed with the Technical Working Group.

The requested information does not appear to be reasonably necessary to the Committee's decision. Petitioner's request concerning Data Request 329 is denied.

Data Request 332 requests one copy each of two impingement studies: PG&E #026.22-80.1 (1980) and an intake current velocity study by V.L. Wyman (1979). Applicant claims these reports are not available to them. Staff points out that the studies in question are based on data collected in Morro Bay and are both highly relevant and useful to an accurate determination of impingement impacts on biological resources. CAPE considers the information essential to evaluating Applicant's intake velocity claims for the CWIS.

The Committee finds that the reports are relevant and reasonably necessary to the Committee's decision. Therefore, Applicant is directed to make its best efforts to obtain the studies and make them available to the parties.


Data Requests 407, 408, and 409

These requests for information were part of a series of 31 data requests issued by CAPE to Applicant on June 4, 2001. Applicant objected to nineteen of the requests. CAPE petitioned the Committee to direct Applicant to respond to three of the data requests, all regarding Applicant's decision to use ocean longshore current data from Diablo Canyon in lieu of site-specific data from Morro Bay. It also asks if Applicant provided original information on Morro Bay currents within the last five years and it requests the tabulation of certain taxa data. Applicant objected to providing the data on the grounds that the requests were argumentative, irrelevant, and burdensome to the Applicant. Although CAPE argues that the information could dramatically affect entrainment study results, CEC staff is neutral on the requests, having addressed these issues in depth as part of the Technical Working Group.

The Committee finds that the requests are relevant to the case and directs Applicant to provide brief answers to Data Requests 407 and 408. If Applicant already possesses in table format the data referred to in Data Request 409, Duke is directed to make it available to the parties, otherwise Petitioner's request as to Data Request 409 is denied.

Applicant is directed to comply with this order by serving the appropriate responses on all parties within thirty days.


Applicant's Cooperation on Analyses of Cooling Intake Mitigation

At the Committee Status Conference held on August 16, 2001, the Committee directed Applicant to cooperate with and assist Commission staff in the Staff's analysis of cooling intake mitigation measures, including dry-cooling, aquatic filter barrier technology, and habitat enhancement. This comment memorializes the Committee's direction given at the August 16, 2001 Status conference.

So Ordered.

Dated August 24, 2001, at Sacramento, California.

ENERGY RESOURCES CONSERVATION
AND DEVELOPMENT COMMISSION




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




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


Date On Line: August 27, 2001





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