[California Energy Commission Letterhead]


Energy Resources
Conservation and Development Commission

Application for Certification of       )
Duke Energy for the                    )    Docket No. 00-AFC-12
Morro Bay Power Plant Project          )      



On December 12, 2002, the California Coastal Commission (CCC) submitted a written report (Report) containing an assessment of the conformity of the Morro Bay Power Plant Project (Project) with the California Coastal Act (Pub. Resources Code § 30000 et seq.). The Report was submitted pursuant to Public Resources Code section 30413(d), which requires the CCC to participate in siting proceedings of the Energy Commission and provide a written report on the suitability of the site, including an assessment of specific factors as well as any other matters the CCC deems appropriate. [Pub. Resources Code § 30413(d) (1)-(7)].

On January 7, 2003, Duke Energy Morro Bay, LLC (Applicant), submitted a letter to the Commission raising a number of legal and substantive challenges to the Report. Applicant argued: 1) that the Report is not required for the Application for Certification (AFC) process; 2) that the timing of the submission of the Report deprived Applicant of due process; and 3) that the Report does not contain the analysis required by statute.

In a Motion filed February 6, 2003, Commission staff responded to the three points raised by Applicant. Addressing the second point, Staff "…in an abundance of caution,…" moved to re-open the record for the limited purpose of accepting the CCC Report.

Applicant argues that Commission consideration of the CCC Report would violate Duke's due process rights because the Report was filed after the evidentiary hearings were concluded. In response, Staff noted in its Motion that Applicant had an opportunity to identify its concerns about the Report at the CCC's December 12, 2002, public hearing, at which time the Report was considered and adopted by the CCC. Applicant took advantage of this opportunity and presented comments about the Report at that time. Nevertheless, Staff states that the simplest way to address this issue is to re-open the record for the limited purpose of accepting the Report, thereby erasing any doubt regarding the ability of the Commission to meet its responsibilities under Section 25523(b).


In this Order, the Committee does not address the specific points of Duke's argument that the CCC Report is not required as part of the AFC process nor do we address Applicant's substantive disputes with the Report. Furthermore, after due consideration of the Staff motion, the Committee does not find that a hearing is required nor that the evidentiary record must be re-opened concerning this matter. This is consistent with our method of receiving the CCC Report in the Moss Landing case.1 We do, however, intend to take official notice of the CCC Report and to apply the Report in a manner consistent with Public Resources Code section 25523(b). The taking of official notice acknowledges the official action of the CCC in adopting its Report pursuant to Public Resources Code section 30413(d), and includes the Report in the record of this case. It does not, however, independently establish the truth of the matters stated in the Report.

Any party wishing to oppose the Committee's taking of official notice of the CCC Report shall file its statement of opposition at the Commission Docket Unit (indicate Docket No. 00-AFC-12) and shall serve the statement on all parties no later than 5:00 p.m., Monday, March 6, 2003.

So Ordered.

Dated: February 20, 2003, at Sacramento, California.

Chairman and Presiding Member
Morro Bay AFC Committee

Commissioner and Associate Member
Morro Bay AFC Committee

1In that case the evidentiary record was closed on 6/20/00 and the CCC Report was received by the Commission, without additional hearing, on 7/25/00. (Moss Landing Power Project Decision, p. 9, Docket No. 99-AFC-4, Pub No. P 800-00-008.)

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