The California Energy Commission SMUD Cosumnes Committee (Committee), on its own motion, is establishing a procedure for disposition of SMUD’s request to the Commission for a determination allowing it immediately to conduct its Test Pile Program at the Cosumnes Power Plant project site. Under this procedure, the Committee’s is issuing this Ex Parte Order after consideration of the information in the administrative record and is referring the Order to the full Commission for its consideration after a public hearing at which time oral intervenor and public comments can be presented.


Test Pile Program Proposal

The Committee’s regulatory review process was extended since additional time required for SMUD to submit needed biological data required for necessary federal permits. SMUD seeks, if the project is approved, to begin construction as soon as feasible to meet its anticipated energy demand.

SMUD proposes to conduct the Test Pile Program to verify the findings in two site geotechnical reports. This is necessary in order to provide final design information for the nearly 2,000 production pilings needed to build the project foundations. SMUD proposes to drive 35 concrete piles, 15 of which are test piles and the remaining 20 are indicator piles.

SMUD asserts that there is no other method of determining soil suitability and the feasibility of pile driving. If SMUD were not permitted to proceed with the Test Pile Program, SMUD would have to put off ordering the production piles until after final disposition of the Application for Certification and, as a result, would miss most of the remaining construction window available in 2003. SMUD states that in order to meet as much of its summer 2005 peak demand as possible, it needs to complete its geologic investigations to allow ordering of piles.

SMUD understands that the final disposition of the Application is unknown at this time, that approval of the Test Pile Program does not presuppose the disposition of the Application, and that SMUD bears the risk for contracting for materials in advance of disposition of the Application.

Committee Discussion

The Committee addresses itself to the question as to whether the Test Pile Program is potentially impermissible construction of the project. Public Resources Code section 25500 states in part that:


[N]o construction of any facility…shall be commenced without first obtaining certification for any such site and related facility by the commission….


Public Resources Code section 25105 defines construction as "onsite work to install permanent equipment or structure for any facility." Certain activities are specifically excluded, including soils or geological investigations.

SMUD’s position is that the proposed activities constitute a soil or geologic investigation and are therefore specifically excluded from the statutory definition of "construction". Staff agrees with SMUD that the proposed activities are excluded from the definition of construction. SMUD is seeking the concurrence of this interpretation by the Committee and Commission.

The Committee finds that the Test Pile Program is a geological investigation and does not constitute impermissible construction of the project. The Committee is also aware that in order to be an accurate geological investigation providing the best information for the project’s foundations some of the 35 test or indicator piles may be within the project foundation footprint. Once driven, it is not practicable to remove the pilings. Therefore, the Committee also finds that the fact some test piles may later be incorporated into the foundation is incidental to construction and does not make the Pile Test Program impermissible construction. The fact that the Test Pile Program is for 35 piles, whereas construction may require as many as 2,000 piles, supports the Committee’s finding that this activity is not reasonably considered construction.

The Committee has information and proposed conditions which address community impacts from "construction" pile driving in the evidentiary record from which it is preparing a Presiding Member’s Proposed Decision. The Committee directs that advance notification of the Test Pile Program be given by mail to residents with 1.5 miles of the site and that the substantive elements of the following proposed conditions appearing in the Staff’s FSA be implemented to mitigate any community noise/vibration and dust impacts from the Test Pile Program: AQSC-4 [dust control], NOISE-8 [noisy activity limitation], and NOISE-9 [vibration limitation].


Commission Review

The full Commission will consider and possibly adopt this Order at its regularly scheduled Business Meeting as follows:

Wednesday, August 6, 2003
Beginning at 10 a.m.
California Energy Commission
1516 Ninth Street
Sacramento, California

Parties in the SMUD Cosumnes Power Plant proceeding and general public may make oral comments at the hearing or submit written comments to the Energy Commission, Docket Unit (01-AFC-19), 1516 - 9th Street, Sacramento, CA 95814 before August 4, 2003. A separate notice of this meeting will be sent to the proceeding Proof of Service list.



Dated: July 23, 2003








Commissioner and Presiding Member

Commissioner and Associate Member

SMUD AFC Committee

SMUD AFC Committee