STATE OF CALIFORNIA
|)||Docket No. 00-AFC-12|
|Application for Certification of||)|
|Duke Energy for the||)|
|Morro Bay Power Plant Project||)|
On June 13, 2003, Intervenor Coastal Alliance on Plant Expansion (CAPE) filed a Petition to Reopen the Record (Petition). In the Petition, CAPE alleges that subsequent to the close of evidentiary hearings concerning aquatic biology, new information has come to light. CAPE requests the record be reopened to permit parties and members of the Committee an opportunity to evaluate the implications of the alleged discrepancy between the estimates of the volume of Morro Bay carried out by Phillip, Williams & Associates (PWA) and the estimates of bay volume made by Tetra Tech's 1999 report. CAPE states that the 1000 acre-foot discrepancy between the two studies may have significant implications regarding either the magnitude of power plant entrainment impacts or the adequacy of the Habitat Enhancement Plan (HEP).
In an Order dated July 10, 2003, the Committee directed the parties to respond in writing to CAPE's Petition and to address other matters in the case. Parties responded on July 21, 2003. CAPE filed a reply on July 31, 2003.
CAPE argues that a discrepancy exists between the estimates of Morro Bay volume made in Tetra Tech's 1999 report, and the estimates of bay volume made by PWA, and published in August of 2002. The PWA study was available to CAPE at the time of its publication and was later introduced into evidence by the Applicant on November 4, 2002. It was marked as Exhibit 288 in the evidentiary record. Exhibit 288, on page 16, points out and partially explains the apparent discrepancy in bay volume between the two reports. Thus, the difference in volume estimates was clearly apparent at the evidentiary hearing of November 4, 2002, when the Committee received evidence on Applicant's HEP proposal. At that time CAPE exercised its right to cross-examine authors of the PWA report, and representatives of the Regional Water Quality Control Board, for whom the report was prepared. However, CAPE did not address the apparent volume discrepancy in its questioning of the witnesses. To the extent that the apparent discrepancy in bay volume estimates could impact the adequacy of the HEP, CAPE failed to seek timely clarification of its concerns when the appropriate witnesses were available for cross-examination.
However, even setting aside the question of timeliness, it appears to us that the apparent difference between bay volume estimates contained in the PWA Report and those in the Tetra Tech Reports is not significant to either the HEP or the estimates of entrainment. In fact, the two studies appropriately rely on different bay volume estimates because the studies were conducted for different purposes and evaluate different types of environmental concerns. For the purpose of assessing sedimentation effects over time, Phillips Williams needed to make comparisons to the volume of the historic Morro Bay, using the historic estimates as a starting point. By contrast, Tetra Tech used the modern configuration of Morro Bay for the purpose of assessing the entrainment effects of the modern plant proposal contained in the AFC. The responses to the CAPE Petition which were filed by Duke, as well as those by the Energy Commission staff in consultation with the Regional Board staff, each persuasively support this determination.
The Petition to reopen the record is DENIED.
Dated: September 25, 2003