[California Energy Commission Letterhead]  
 

STATE OF CALIFORNIA

Energy Resources Conservation
and Development Commission

 
 
In the Matter of:
Application for Certification for the
Sunrise Cogeneration and Power
Project (Sunrise)
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Docket No. 98-AFC-4

NOTICE OF COMMISSION
EVIDENTIARY HEARING
and HEARING ORDER


The full Commission will conduct an en banc hearing to receive evidence on whether certain air quality information submitted to the Commission under a request for confidentiality is eligible for confidential designation or should be released as public records. The evidentiary hearing will take place during the Commission's regularly scheduled Business Meeting as follows:


WEDNESDAY, AUGUST 11, 1999
POSTPONED until the Commission Business Meeting of September 8, 1999
California Energy Commission
[Immediately following the lunch recess]
First Floor Hearing Room A
1516 Ninth Street
Sacramento, California
Wheelchair accessible)

Background

On December 21, 1998, Applicant Sunrise submitted information to the Commission containing the identity of potential sources of emissions offsets anticipated for the Sunrise project. (Submittal 1). The record was submitted with an Application for Confidential Designation pursuant to Title 20, California Code of Regulations section 2505. The Commission's Executive Director granted the request for confidentiality on December 29, 1998.

On March 31, 1999, Sunrise submitted further information consisting of an Option Agreement to purchase certain emission reduction credits (ERCs) anticipated for the Sunrise project (Submittal 2). This submittal also included a request for designation as a confidential record. The Executive Director granted the second request as well, referring to the rationale for determining confidentiality set forth in the December 21, 1998 Decision.

On June 2, 1999, CURE filed a Petition requesting that both submittals be released by the Commission for inspection and copying. The Commission has delegated to its Chief Counsel the responsibility for making decisions on petitions such as CURE's (Cal. Code of Regs., tit. 20, § 2506, subd. (b)(1).) In a letter dated June 3, 1999, Assistant Chief Counsel Jonathan Blees provided a copy of CURE's Petition to Sunrise and requested Sunrise's approval of the release of the records, as required by the Commission's regulations. (Id., § 2506, subd. (b)(2).)

On June 10, 1998, Sunrise submitted its response to the CURE Petition. The response contained "a list of the certificate numbers for those ERCs currently reserved for Sunrise, as they are identified in the local air district's inventory." Sunrise stated that "[t]his information should allow CURE to obtain the information it specifically requested in its Petition." Based on this information, Assistant Chief Counsel Blees stated in a June 14, 1999, letter his assumption that Sunrise believes CURE can obtain from the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) all publicly available information the District has concerning the listed ERCs and that such information will satisfy CURE's Petition.

At Mr. Blees' request, Keith Golden of the Commission staff inspected the confidential records submitted by Sunrise and discussed them with an employee of the SJVUAPCD. Mr. Golden determined two things. First, that the Commission's records contain only two of the categories of information requested by CURE: (in addition to the actual ERC numbers themselves) "location of source" and "specific pollutant(s) available from the source (e.g., NOx, VOC)". Second, he determined that information that is publicly available from the SJVUAPCD would fulfill the entirety of CURE's request.

Based on the above facts, Mr. Blees concluded that because the information requested by CURE is publicly available, there is no longer any justification for the Commission to maintain the confidentiality of the Sunrise records. Therefore, the Chief Counsel's June 28, 1999, Decision stated that the records would be made public for inspection and copying on July 13, 1999, unless prior to that time Sunrise, or some other party, requested reconsideration of the Decision.

On July 12, 1999, Sunrise filed a Petition for Reconsideration of the Chief Counsel's Decision, arguing that regarding both of Sunrise's confidential submittals: 1) the Commission's original grant of confidentiality was correct; 2) circumstances have not changed to warrant disclosure of the records; and 3) the fact that some information in a confidential record becomes publicly available does not destroy the confidentiality of the record. While Sunrise concurs with the findings in the Chief Counsel's Decision, it argues that these findings support only a determination that the records contain some publicly available information and not that the records themselves are public records. Sunrise contends that the confidential records contain protected trade secrets, in addition to the publicly available information.

As a result, Sunrise argues that the Chief Counsel's Decision should be set aside, that the Executive Director's determination of confidentiality concerning Sunrise's Submittal 1 and 2 should remain in effect, and that the Commission should deny CURE's Petition.

Commission Order

In order to reach a timely determination on Sunrise's Petition for Reconsideration of the Chief Counsel's Decision, the Commission will take evidence on the matter at its August 11, 1999 Business Meeting. The issue is whether, in addition to publicly available information, the two Sunrise submittals contain trade secrets, which are properly held as confidential records. To determine this fact, Sunrise and CURE shall provide witnesses to support their respective positions. In addition, the Commission staff shall arrange for a knowledgeable representative of the SJVUAPCD to appear as a witness. All witnesses will provide oral testimony under oath. In addition, each witness shall file written testimony to be received at the Commission's Docket Unit no later than Friday, August 6, 1999. Copies must also be served on all other parties in the Sunrise case.

Further Information

If you want information concerning public participation in this case, please contact Roberta Mendonca, the Commission's Public Adviser, at (916) 654-4489 or, toll free in California, at (800) 822-6228, or email: pao@energy.state.ca.us

Media inquiries should be addressed to Claudia Chandler at (916) 654-4989, or email: energia@energy.ca.gov

Technical questions concerning the project should be addressed to Kristina Bergquist, the Commission's Project Manager, at (916) 654-4242, or email: kberqui@energy.state.ca.us

Questions of a legal or procedural nature should be directed to Gary Fay, the Hearing Officer, at (916) 654-3893. Information concerning the status of the project, as well as notices and other relevant documents, is also available on the Energy Commission's Internet home page at: www.energy.ca.gov/sitingcases/sunrise



Date On-line: July 30, 1999



_________________________
WILLIAM J. KEESE
Chairman
ENERGY RESOURCES CONSERVATION
AND DEVELOPMENT COMMISSION









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