Morro bay Power Plant
[California Energy Commission Letterhead]


Energy Resources
Conservation and Development Commission

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



On February 25, 2002, an intervenor in the Morro Bay Power Project Application for Certification process, the Coastal Alliance on Plant Expansion (CAPE), filed a request for a subpoena to compel the attendance of Dr. J. Phyllis Fox at the hearings on March 12, 2002 evidentiary hearing. Duke Energy Morro Bay LLC (Applicant or Duke) filed its opposition to CAPE's request on February 28, 2002. On March 1, 2002, California Energy Commission staff (Staff) also filed in opposition to CAPE's request. CAPE responded on March 4, 2002 with its Reply Brief in Support of Request for Subpoena. California Unions for Reliable Energy (CURE) filed an objection on March 5, 2002 to which CAPE responded on the same day.

This Order denies CAPE's request for subpoena and grants CAPE leave to offer rebuttal testimony.

It is clear that the Commission has the legal authority to issue a subpoena when necessary to carry out the purposes of a proceeding. See Public Resources Code section 25210; Government Code section 11181; California Code of Regulations, Title 20, sections 1203(b) and 1716.5. Issuance of a subpoena is at the discretion of the Commission (or Committee) upon a showing of good cause by the requesting party.

Here CAPE, as the requesting party, makes no persuasive demonstration as to why Dr. J. Phyllis Fox is uniquely qualified and required to offer rebuttal testimony in the case. The Committee recognizes that Dr. Fox is a technical expert with experience testifying on power plant applications before the Commission. However, there are many such experts who are so qualified and have so testified in the past. As a complicating factor, Dr. Fox is reluctant to voluntarily testify because she has a previously established relationship as a consultant to, and witness for, CURE. This fact does not establish sufficient cause.

In addition, as noted by both Applicant and Staff, the request for subpoena is not timely. CAPE's own request makes clear that it has been aware of Dr. Fox's abilities for many months and has sought her testimony in this case. (Declaration of Churney, paragraph 6.) Furthermore, CAPE has long been aware of Applicant's position on air quality issues and has challenged them in formal comments on the air district's Determination of Compliance. Applicant's direct testimony was filed on January 15, 2002, and the evidentiary hearing on that testimony took place on February 6, 2002. CAPE made no mention of the need for Dr. Fox's rebuttal testimony or the need for a subpoena prior to or during the hearing and did not file its Request for Subpoena until February 25, 2002.

However, notwithstanding the untimeliness of CAPE's request, the Committee is willing to indulge CAPE's interest in offering rebuttal testimony as outlined in its Request for Subpoena. (Declaration of Churney, paragraph 3.) If Dr. Fox will testify without the compulsion of a subpoena, CAPE may offer her rebuttal, subject to existing time limitations. Of course, CAPE may also use the available time to question the Staff panel of experts on matters raised in its Request for Subpoena1.

The Request for Subpoena is denied.

Dated March 6, 2002, at Sacramento, California.

Chairman and Associate Member
Morro Bay AFC Committee

Commissioner and Associate Member
Morro Bay AFC Committee


1When the Committee was forced to interrupt the evidentiary hearing on February 6, 2002, CAPE was in the process of cross-examining members of the Staff panel on air quality and public health. When the hearing resumes on March 12, 2002, CAPE will recommence with its cross-examination of the Staff panel.



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