Motions
CARE'S Motion for California Environmental
Quality Act (CEQA) Review of CC8
CARE filed a motion asking the Commission to determine whether the CEQA was applicable to the CC8 project. CC8 comes to the Commission with a CEQA history. The California Energy Commission (CEC) reviewed CC8 under CEQA and approved Mirant's Application for Certification (AFC) in 2001. CARE acknowledges that, but questions whether the CC8 plant still complies with applicable regulations since there has been a five-year lapse in time since the CEC approval. Specifically, CARE asks whether CC8 complies with current state Best Available Control Technology (BACT) requirements, Federal Lowest Achievable Emission Requirements (LAER) and Bay Area Air Quality Management District (BAAQMD) regulations for emissions of air pollution from the plant. CARE argues that these requirements have all changed substantially since the AFC was first issued, and it would be appropriate for the Commission to conduct a new CEQA review. In addition, CARE claims that the CEQA review would be appropriate since there is a fundamental change in ownership and operators, from Mirant, a private owner/operator, to PG&E, a public utility owner/operator, and other changed circumstances.
PG&E's position is that CEQA does not apply to the CC8 application. PG&E argues that under the California Legislature's direction, CEQA review is to be done by the CEC of applications to construct new thermal powerplants with over 50 MW of generating capacity. CC8 has a capacity of 530 MW, and therefore, under both Public Resources Code Section 25500 and Public Utilities Code Section 1002(b), the CEQA review of CC8 was conducted by the CEC. In May 2001, the CEC issued a Decision (P800-01-18) on PG&E's Application for Certification (00-AFC-1). Furthermore, PG&E argues that the CEC's certificate shall be conclusive as to all matters determined by it. After conducting a full environmental review, the CEC determined that "the conditions of certification it imposed will ensure protection of environmental quality and assure reasonably safe and reliable operation of the facility, and will also assure that the project will neither result in, nor contribute substantially to, any significant direct, indirect, or cumulative adverse environmental impacts."8
In addition, PG&E argues that under Legislative direction, and the code sections, the CEC is the lead agency for any further review necessitated by amendments to the license it already issued. Since the CEC is the lead agency, this Commission has no independent responsibility to conduct further environmental reviews, and that is consistent with the position taken in Commission decisions on other facilities already certified by the CEC.9
However, the Commission is a responsible agency and under some circumstances, we have the authority to issue supplements to the lead agency's EIR. (Pub. Res. Code Section 21166.) A responsible agency may choose to do a supplemental EIR if (1) there are substantial changes to the proposed project; (2) substantial changes to the project's environmental effects; or (3) new information is known that goes to the project's effects, mitigation measures or alternatives. (Pub. Res. Code Section 21166 and CEQA Guidelines Section 15163.)
While CARE's motion enumerates reasons, set forth above, why it believes a supplemental EIR is necessary, none of those concerns detail a substantially changed project or project effect, nor are they new information that goes to effects, mitigations or alternatives. In summary, CARE's arguments go to the validity of the EIR and as such are properly addressed to a reviewing court of law, not the Commission as a responsible agency.
SCE's Mountainview application (A.03-07-032) presented the Commission with an analogous situation. In Mountainview, Sequoia Generating Company, LLC. (Sequoia), the previous owner of the facility, filed an AFC with the CEC for the 1,580 MW facility. The CEC conducted a CEQA review of the project and issued a decision in March 2001 granting the certificate. Some parties to the Mountainview proceeding questioned whether the passage of time since the CEC certification and the change of ownership from Sequoia to SCE should trigger a CEQA review by this Commission. In that decision we determined "[w]hile this Commission takes its responsibilities under CEQA seriously and is not reticent to perform environmental reviews, under the CEC licensing provisions, the CEC functions as the lead agency under CEQA. This Commission has no independent responsibility to conduct further environmental reviews. We have determined that the CEC's AFC process exempts projects, in this case Mountainview, from the requirements of CEQA. We therefore determine that no further CEQA review is triggered by Edison's application."10
CARE also argues that despite the CEC's previous CEQA review of CC8, we must conduct CEQA review of the ratemaking aspects of CC8. PG&E believes that the Legislature specifically exempts ratemaking from CEQA review and the Commission itself has held that CEQA does not apply to ratemaking.
Based on Legislative direction, the Public Resources Code, the Public Utilities Code, the Commission's Rules of Practice and Procedure, Rule 17.1(c), General Order 131-D(VII), and Commission decisional precedent, we determine that we do not have concurrent responsibility with the CEC to conduct CEQA review of CC8, including its ratemaking aspects, and on that basis deny CARE's motion.
Other Motions
Other motions filed during the course of this proceeding that have not already been ruled on or are not addressed in this decision are deemed denied.
8 CEC Decision, May 2001, p. 191.
9 D.03-12-059, p. 61, D.04-04-019, p. 5, Commission's Rules of Practice and Procedure 17.1(c), and General Order 131-D (VII).
10 D.03-12-059, mimeo., p. 58.
