Order Denying Petition for Committee Workshop
[California Energy Commission Letterhead]


STATE OF CALIFORNIA

Energy Resources
Conservation and Development Commission



In the Matter of:                   )      Docket No. 01-AFC-24
                                    )      ORDER NO. 03-0909-05
Application for Certification       )      ORDER NO. 03-0909-06
PALOMAR ENERGY PROJECT              )
BY SEMPRA ENERGY RESOURCES          )
____________________________________)

COMMISSION ORDER UPON RECONSIDERATION


Background

On February 6, 2002, the Commission accepted the application for certification filed by Sempra Energy Resources to construct and operate the Palomar Energy Project ("project"), a 550 megawatt natural gas-fired power plant in the City of Escondido in San Diego County. The Commission assigned a Committee of two Commissioners to review the project. This process included several public workshops and evidentiary hearings to consider testimony on the potential environmental impacts of the project. After reviewing the evidence of record, the Committee issued a Presiding Member's Proposed Decision (PMPD) recommending that the project be certified. At its August 6, 2003, business meeting, the Commission conducted a hearing on the project and adopted the PMPD as the Decision in this matter, certifying the project for construction and operation.

The Commission provided a toll-free teleconference number at this business meeting for the convenience of parties and members of the public who could not attend in person. On August 25, 2003, Cory Briggs, an attorney representing Intervenor Bill Powers, a party to the proceeding, filed a document styled Request that Commission Order Adopted on August 6, 2003, be Nullified and Voided. Mr. Briggs contends that he was denied the opportunity to present oral argument at the Commission's adoption hearing on August 6, 2003, because the teleconference operator failed to indicate to the Commission that he was on hold and wished to address the Commission.

On September 3, 2003, Mr. Briggs filed a Petition for Reconsideration on behalf of his client, Mr. Powers, asserting that the Commission failed to consider several issues raised by Mr. Powers regarding the project's use of recycled water and arguing that the Commission should therefore modify the Decision and require the project to employ dry cooling technology instead. Mr. Powers filed an Addendum to the Petition on September 5, 2003.

Discussion

It is not clear to the Commission whether Mr. Briggs was unable to speak to the Commission on August 6, 2003 because of some failure by Commission personnel or contractors or because his own actions suggested to those who were operating the telecommunications link that he did not wish to speak. There is evidence to suggest that he did not make up his mind to speak until after the Commission had acted and/or that he did not remain on the line waiting for his turn to speak.

In addition, even if we accept Mr. Briggs' version of the facts relating to his attempts to address the Commission by phone at the August 6, 2003, hearing, we note that his client did address the Commission at length at the hearing and had also filed written comments on the PMPD. Nevertheless, we desire to ensure that we have heard and considered all relevant arguments relating to the project prior to our issuing the final Decision in this matter. For this reason, we treated the Request filed by Mr. Briggs as a Petition for Reconsideration under Public Resources Code section 25530 in that it asserts procedural grounds for reconsideration. We therefore granted the Request on procedural grounds for the limited purpose of considering all the arguments that Mr. Briggs and his client wished to present.

Mr. Briggs participated by teleconference at the Commission's September 9, 2003, hearing on his Request. He indicated he would address the concerns raised in the Request. Although we asked him to present the comments he would have offered at the August 6, 2003, hearing, he stated he was not prepared to make those comments. He also declined to offer any additional comments other than to repeat the assertions in the Request and to request an inquiry into the technical difficulties related to his attempt to participate via teleconference on August 6, 2003.

We find that Mr. Briggs has not presented any persuasive reason why we should void or annul our August 6, 2003, adoption of the Decision. Neither Mr. Briggs nor Mr. Powers have shown any potential disadvantage to Mr. Powers' position due to the telecommunication failure on August 6, 2003, especially since Mr. Powers very competently addressed the Commission for an extended period at that hearing. Moreover, the record reflects that Mr. Briggs participated and represented his client's interests throughout the proceeding. We conclude it is unnecessary to extend the effective date of the August 6, 2003, Decision in order to conduct an investigation into technical problems with the telecommunication process on August 6, 2003. We view a delay for this purpose, which does not address the merits of the Decision, as a dilatory tactic since we offered Mr. Briggs the opportunity to cure the matter and he was not prepared to go forward or to explain how, if he had spoken on August 6th, it would have made a difference.

The September 3, 2003, Petition for Reconsideration and the September 5, 2003, Addendum to the Petition, reiterate the position of Mr. Powers who advocates the use of dry cooling technology rather than the recycled water system described by the project proponent. At the Committee level, Mr. Powers offered testimony and documentary evidence in support of his views. The Committee was not persuaded by this evidence and explained the reasons therefor in the PMPD, which we adopted as the Commission Decision. The record contains extensive analyses by the parties of the dry cooling option proposed by Mr. Powers although these analyses were not required under the California Environmental Quality Act (CEQA) since potential adverse effects resulting from use of recycled water are not significant. In accordance with CEQA and the Warren-Alquist Act, we review proposed projects on a case by case basis. Despite Mr. Powers' insistence that we adopt a statewide policy requiring dry cooling for all power plant proposals, this licensing proceeding is not the appropriate forum for devising a policy on cooling technologies.

We find that Intervenor Mr. Powers has not raised any new issues of law or fact that were not already included in the evidentiary record or previously argued during the course of the proceeding

Upon consideration of the arguments presented in the Request and the Petition for Reconsideration, we find that none of the issues presented warrant any change in the Decision adopted on August 6, 2003. Therefore, upon reconsideration of the August 6, 2003, Decision, we affirm the Decision without change, to be effective and final immediately this 9th day of September, 2003.

Findings

  1. On August 6, 2003, the Commission adopted the PMPD as its Decision in this matter and certified the Palomar Energy Project.


  2. On August 25, 2003, Intervenor Bill Powers' attorney, Cory Briggs, filed a Request that Commission Order Adopted on August 6, 2003, be Nullified and Voided.


  3. The Commission construed Mr. Brigg's Request as a Petition for Reconsideration and granted the Request on procedural grounds.


  4. On September 9, 2003, Mr. Briggs addressed the Commission in support of the Request.


  5. The Request, even as supplemented by Mr. Briggs's argument to the Commission on September 9, 2003, does not establish good cause to delay the effective date of the Decision.



  6. Public Resources Code, section 21000 et seq.
    Public Resources Code, section 25000 et seq.


  7. On September 3, 2003, Mr. Briggs filed a Petition for Reconsideration on behalf of Mr. Powers, with an Addendum filed by Mr. Powers on September 5, 2003.


  8. The Commission granted the September 3, 2003, Petition for Reconsideration, including the Addendum, to review the arguments presented.


  9. On September 9, 2003, Mr. Briggs addressed the Commission regarding both the Petition for Reconsideration and the Addendum.


  10. The Petition for Reconsideration and the Addendum do not raise new issues of law or fact that were not already considered and rejected by the Commission during the course of the proceeding.


It is therefore ORDERED:

  1. The Decision in this matter originally adopted by the Commission on August 6, 2003, is hereby affirmed in its entirety.


  2. The affirmed August 6, 2003, Decision is hereby issued, effective, and final immediately on September 9, 2003.


  3. Judicial review of the affirmed August 6, 2003, Decision is governed by Public Resources Code section 25531 and the statute of limitations for seeking such review is provided by Public Resources Code section 25901.


  4. Dated September 9, 2003, at Sacramento, California.



    WILLIAM J. KEESE
    Chairman



    JOHN L. GEESMAN
    Commissioner



    ROBERT PERNELL
    Commissioner

    Absent
    ARTHUR H. ROSENFELD
    Commissioner

    Absent
    JAMES B. BOYD
    Commissioner



    JOHN L. GEESMAN
    Commissioner




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