[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 ORDER RESPONDING TO CAPE'S PETITION TO COMPEL DATA RESPONSES

I. BACKGROUND


Pursuant to the case schedule1 directed by the Committee, Coastal Alliance on Plant Expansion (CAPE) submitted 61 Data Requests (DR) on July 15, 2002, regarding Applicant's proposed Habitat Enhancement Plan (HEP)2. Duke Energy North America (Applicant or Duke) filed objections to answering 21 of the CAPE data requests on July 25, 20023. CAPE responded on August 9, 2002, with a Petition requesting that the Committee direct Applicant to answer 14 of the data requests4.

Prior to ruling on CAPE's Petition, the Committee directed Energy Commission staff (Staff) to provide impartial technical support to aid the Committee. Staff responded on August 16, 2002.

II. DISCUSSION


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.

DR 8: This requests a list, by state, of all industrial facilities in the continental U.S. withdrawing greater than, or equal to, 100 million gallons of cooling water per day through cooling water intake structures (CWIS) for which a HEP is certified as Best Technology Available (BTA). It also: 1) requests identification regarding which of these facilities withdraw cooling water from a tidal estuary; 2) requests the volumes of cooling water withdrawn; and, 3) asks for the static volumes of the estuaries.

While the requested information might be of interest, CAPE has not established persuasively that the requested information is relevant to the unique circumstance of Duke's HEP proposal in the Morro Bay Estuary. Furthermore, the information is not necessary to the Committee's evaluation of, and decision on, Duke's proposal. To the extent that such information is publicly available, any of the parties, including CAPE, can collect the information themselves. Furthermore, the extent of the requests is burdensome. Duke is not required to provide the information.

DR 9: Requests that Duke Provide information about the confidence interval for the Tetra Tech model Duke relies on in its HEP proposal.

This request asks Duke to provide information that is publicly available. CAPE can either conduct the analysis itself or request the information directly from Tetra Tech. Duke is not required to provide the information.

DR 16: Requests that Duke disclose any studies that support its claim that a HEP would adequately mitigate the impact from the proposed once through power plant cooling system.

Duke should provide the sources it consulted regarding the effectiveness of HEP projects. This information is relevant to Duke's proposal and is reasonably available to Duke. However, a discussion of population trends of each species is burdensome. The information is not reasonably available to Duke in that CAPE is requesting Duke to research population trends for each bay species and to discuss all the data it collects for each species of "flora, fauna, and habitat type." Furthermore, such a study and discussion are not reasonably necessary for the Commission to make a decision on Duke's proposal. Therefore, Duke is not ordered to discuss population trends of each of the bay species, but is directed to provide its sources regarding the effectiveness of other HEP projects.

DR 25: Requests that Duke cite and include all sources consulted that support its conclusion that action plans in the RWQCB's Total Maximum Daily Level (TMDL) and the Soil and Conservation Service's (SCS) CCMP are appropriate mitigation for the proposed cooling water intake system's entrainment impacts.

The Committee believes that the requested information is relevant and is reasonably available to Duke. Therefore, we direct Duke to answer this request.

DR 26: This asks that Duke explain why more money is needed to reduce sedimentation that is already controlled significantly by the existing Chorro Flats project.

This information is publicly available and CAPE can obtain the requested information directly from the sources, National Estuary Plan (NEP) and the Regional Water Quality Control Board. We do not require Duke to answer the request.

DR 29: Requests information about the effectiveness of the Elkhorn Slough Environmental Enhancement Plan and its relevance to the proposed Morro Bay HEP.

Duke refers to the Elkhorn Slough to support its HEP proposal for Morro Bay. The Commission's familiarity with the Elkhorn Slough and its plan make information regarding successes at the Elkhorn Slough relevant to the current HEP proposal. We believe that such information is reasonably available to Duke and therefore we require Duke to answer the request.

DR 32: This request asks Applicant to disclose the basis for its claim that the primary problem threatening the Morro Bay Estuary is sedimentation.

This information is publicly available from the NEP, which has conducted relevant studies. The information is not reasonably necessary for the Commission to make a decision about Duke's proposal. Applicant is not required to answer the request.

DR 35: Requests that Duke provide the range of estimates that the Soil Conservation Service used and what the level of confidence was for the estimates. In addition, CAPE asks whether Duke's proposed HEP will attempt to mitigate sediment due to development.

We find that this request is redundant in that it requests information which is already available to the record. The information is also publicly available and CAPE can request the information directly from the source, either the RWQCB or Soil Conservation Service, regarding TMDL limits and sediment estimates. Duke is not ordered to collect information from sources that could just as easily provide it directly to CAPE.

DR 36: Requests information as to whether Duke has attempted to validate the estimates of sediment concentration preliminarily published by the RWQCB.

This request calls for a simple yes or no answer. If Duke has made an attempt to validate the estimates for sediment concentrations, it should disclose the results of that attempt. Applicant is directed to answer the request.

DR 44: Requests any maps that show the decrease in volume of the Morro Bay estuary including maps that show the loss in the volume of the estuary due to man-made landfill.

Duke is directed to conduct a reasonable search to provide the requested maps.

DR 49: Requests any data that relate to the alleged loss of habitat in Morro Bay due to sedimentation.

This request appears to seek information which is already in the record of this proceeding. Furthermore, the request for information regarding habitat loss from "all causes" is burdensome. We do not require Duke to answer this data request.

DR 52: Requests that Duke cite specific scientific references for the scientific basis of NEP's choice of priority actions.

CAPE can obtain the requested information directly from a NEP representative. The Committee will not direct Duke to collect information from sources that could just as easily provide it directly to CAPE instead. Furthermore, the requested information is not reasonably necessary for the Commission to make a decision on Duke's proposal.

DR 53: Requests that Duke identify all sources of funding that are available for the implementation of the action items identified by the NEP.

We find that this requested information is not reasonably necessary for the Commission to make a decision on Duke's proposal. The information appears to be available from public agencies. Therefore, CAPE should obtain the requested information directly from a NEP representative. Duke is not required to provide the information.

DR 55: Requests that Duke disclose the basis for its claim that preliminary investigation of land acquisition and related costs suggest that there are sufficient opportunities to offset the proposed plant's cooling water effects on Morro Bay.

Information requested regarding Duke's "efforts to date to identify potential land suitable for this project" is reasonably available to Duke and therefore Duke is ordered to respond. However, the locations and costs of parcels based on Duke's preliminary investigation are not reasonably necessary for the Commission to make a decision on Duke's proposal. While Duke is not required to provide information regarding exact location and land price, it must document its claim that sufficient land purchase opportunities exist for projects consistent with the HEP.

By order of the Committee on August 28, 2002

_____________________________
WILLIAM J. KEESE
Chairman and Presiding MembeR
Morro Bay AFC Committee


_____________________________
JAMES D. BOYD
Commissioner and Associate Member
Morro Bay AFC Committee


1Committee Schedule for Review of Applicant's Habitat Enhancement and Aquatic Filter barrier Proposals issued on June 28, 2002.
2Data Requests on Behalf of Intervenor the Coastal Alliance on Plant Expansion to Duke regarding Habitat Enhancement Program.
3Applicant's Notice of Request for Additional Time and Objections to Certain Data requests.
4Petition for Order Directing Duke to Respond to Data requests Propounded by Coastal Alliance on Plant Expansion (CAPE). CAPE's Petition requests the Committee direct Duke to answer Data Request 8, 9, 16, 25 through 29, 31, 32, 35, 36, 44, 47, 49 through 53, 55, and 60.



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