TABLE OF CONTENTS
Page
I. INTRODUCTION ...... 2
II. LEGAL ARGUMENT ...... 3
A. CAPE’s Position on WASTE COCs ...... 3
B. CAPE Supports Staff’s Recommended Hazardous Materials COCs . . 5
C. The AFC and FSA Do Not Adequately Account for Significant
Adverse Impacts From Project Noise ...... 6
1. The Extended Periods of Construction/Demolition Noise Will
Have a Significant Adverse Effect on Morro Bay Residents and
Are Not Adequately Mitigated ...... 6
2. Analysis of Operations Noise Is Inadequate By Failing to Account
For Offensive, Annoying and Unhealthful Nighttime Noise Levels . 10
3. The FSA Does Not Adequately Assess Intermittent or Periodic
Noise Levels from the Project, Especially Startups During
Normal Operations ...... 15
4. The CEC’s Standard of Noise Significance Is Inappropriate,
Even If It Could Be Met By the Project ...... 21
5. The Proposed COC’s for Noise Impacts Are Inadequate
And Must Be Modified ...... 23
D. The FSA Does Not Adequately Address Significant Adverse Impacts
On Traffic Safety ...... 27
1. Safety Issues at the Intersection Require Additional COCs . . . . . 28
2. Safety Issues Regarding the Transition Lane Require
Additional COCs ...... 32
3. Further Mitigation Can Eliminate the Greatest LOS Impacts
During Construction ...... 34
E. The AFC and FSA Fail to Address All Significant Adverse
Socioeconomic Impacts from the Project ...... 38
1. The Direct Fiscal Benefits of the Project Have Been Overstated . . . 39
2. The Adverse Socioeconomic Impacts Have Not Been Adequately
Addressed by Staff or Duke ...... 40
3. Staff’s Environmental Justice Analysis Is Inadequate Under CEQA . . 41
4. Dr. Schniepp’s Testimony Regarding Terrorism Risks Is Baseless . . . 43
III. CONCLUSION ...... 44
STATE OF CALIFORNIA
State Energy Resources
Conservation and Development Commission
In the Matter of: ) Docket No. 00-AFC-12
)
Application for Certification for the ) OPENING BRIEF OF INTERVENOR THE
MORRO BAY POWER PLANT ) COASTAL ALLIANCE ON PLANT
PROJECT ) EXPANSION RE GROUP II TOPICS
______)
BRYAN CAVE LLP
BONITA L. CHURNEY, ESQ.
P.O. Box 764
Morro Bay, California 93443
Telephone: 805-772-5726
Facsimile: 805-772-5726
E-mail:
Attorneys for Intervenor The
Coastal Alliance on Plant Expansion
Intervenor The Coastal Alliance on Plant Expansion (“CAPE”) hereby submits its Opening Brief re Group II Topics.
I. INTRODUCTION
The seven Group II topics which have been completed are Waste Management, Hazardous Materials, Worker Safety, Noise and Vibration, Traffic and Transportation, Socioeconomics and Cultural Resources. CAPE has no issues with respect to Worker Safety and Cultural Resources. The remaining topics are addressed in the above order.
CAPE opposes Duke’s requested changes to certain Waste Management conditions of certification (COCs) to eliminate specific recycling goals for both hazardous and nonhazardous materials and urges a new condition limiting certification of the Project to no more than 30 years given substantial speculation about available landfills for Project waste after 2034. In the area of Hazardous Materials, CAPE supports Staff’s recommended use of carbohydrozide rather than hydrazine and supports further analysis of a worst case simultaneous release of both aqueous ammonia tanks.
In the area of noise impacts, CAPE believes the Project’s construction/
demolition phase will have significant adverse effects that are neither adequately considered nor mitigated, especially for the peak or intermittent noise levels smoothed over by an averaging metric. In addition, the evidence indicates that at night the new MBPP will be louder than the existing plant, which already disturbs residents’ sleep, again requiring further mitigation. The noise from controlled startups in normal operations is analyzed inappropriately as well, again necessitating further mitigation. Finally, there will be significant adverse noise effects from the Project, even if such levels do not exceed L90 + 5db or the Morro Bay Noise Element. Accordingly, CAPE offers modified NOISE COCs.
Likewise, traffic safety issues resulting from the MBPP have not been adequately assessed nor mitigated. CAPE is particularly concerned about safety issues at the intersection of Atascadero Road and Main Street, at the bike path crossing of Atascadero Road and at the Transition Lane (described in §II.D below). Worsening LOS conditions only exacerbate such problems. Again CAPE offers a number of specific mitigation proposals.
As to Socioeconomics, CAPE demonstrates that (1) Dr. Schniepp’s estimate of fiscal benefits to the City of Morro Bay is drastically overstated, (2) the study used by Duke to support its contention that there will be no significant socioeconomic impacts on Morro Bay as a result of the Project is suspect (in not including truly similar locations) requiring additional mitigation, and (3) Staff’s environmental justice analysis of lower income populations is inadequate.
II. LEGAL ARGUMENT
A. CAPE’s Position on Proposed WASTE COCs
CAPE does not oppose Duke’s requested changes to WASTE-3, -5, and -6 and the deletion of WASTE-7, with which Staff is in agreement as well.[1] CAPE further supports the Staff in its position that not all of Duke’s requested changes to WASTE-2 are appropriate.[2] Finally, as argued in CAPE’s Opening Brief on Group I Topics (§II.B.1), CAPE suggests an additional new General Condition requiring recertification of the Project as described below.
CAPE opposes Duke’s requested changes to WASTE-2, which would eliminate specific stated recycling goals and the exclusion of hazardous materials from recycling goals altogether. Dr. Greenberg summarized the reasons why no changes should be made in these two areas quite succinctly in his oral testimony.2 It is laudable that the new MBPP would generate much less waste than the existing plant,[3] but that does not justify the absence of recycling goals for both hazardous and nonhazardous wastes for the MBPP. Significant portions of the wastes are already acknowledged to be recyclable[4] and with technological advances more of the waste will likely become recyclable.
CAPE has consistently taken the position that certain significant adverse effects of the Project’s operations will occur if such operations extend beyond the 30 year design life of the MBPP and Staff disagrees.[5] Waste Management is one area (along with efficiency, air quality/public health, biological resources and noise) where it appears from the evidence that there could well be significant impacts if operations continued beyond 30 years.
Dr. Greenberg’s analysis in the FSA Part 1 [Exhibit 115, pp. 3.9-5 - 3.9-6] on “Impact on Existing Waste Disposal Facilities” indicates that the closest landfill that accepts nonhazardous solid wastes and which is presently used by the existing plant is Cold Canyon Landfill. That landfill is expected to remain operational only until 2020. The two other landfills in the area (Chicago Grade and Paso Robles) are likewise expected to remain operational only until 2020 and 2034, respectively. If the MBPP Project were approved this year and construction proceeded without delay, the MBPP could be operational by the end of 2004. After 16 years of MBPP operations, the Cold Canyon and Chicago Grade landfills would be full and after 30 years of plant operations, the Paso Robles landfill would be full as well. There is thus a significant adverse effect from the considerable waste generated by the MBPP from operations beyond 30 years. There is no discussion of how this problem will be addressed in either the FSA or AFC.
Similarly, the FSA (p. 3.9-6, 2nd ¶) notes three Class I landfills in California that accept hazardous materials with operational lifetimes up to 2050. If the MBPP operates longer than approximately 46 years, the same issue arises for hazardous as well as nonhazardous wastes. There is also no indication that Staff has considered the impacts if Duke delays construction of the new plant, e.g., by 5 or 10 years.[6] In the latter case, two of the three local landfills would be full only 5 years after the new MBPP begins its operations.
When questioned about this issue, Dr. Greenberg indicated that there might be extensions of these landfills’ life or new landfills might be opened.[7] This is clearly pure speculation and not a basis on which the Committee can determine there will be no significant adverse effects from the MBPP as to waste. Because of its speculative nature, the certification of the MBPP should be limited to no more than 30 years of operations, with a substantive CEQA review, including the then availability of sufficient landfills, required before operations can be continued. See, Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692, 270 Cal.Rptr. 650, 674 (1990) (“Kings County”), where the court required a subsequent EIR if a cogeneration power plant operated beyond its existing 20 year PG&E contract, because future environmental impacts were too speculative beyond that 20 year period.
Because there are other substantive areas that have significant adverse impacts on a cumulative basis (efficiency, air quality/public health, biological resources, and noise[8]), CAPE strongly urges the Committee to adopt the following General Condition:
RECERTIFICATION: Unless there has been an earlier permanent closure, the facility must be recertified by the Commission on or before the 30th anniversary of its most recent certification by the Commission before continuing further operations.
B. CAPE Supports Staff’s Recommended Hazardous Materials COCs
CAPE supports Staff’s recommendation to require the use of carbohydrazide (HAZ-3) instead of hydrazine, as proposed by Duke (elimination of HAZ-7). Staff’s effort to require the use of safer alternatives to hazardous materials[9] is well grounded and CAPE believes Staff has set forth all of the reasons why carbohydrazide should be the preferred alternative at the new MBPP.[10] In addition, CAPE has reviewed Dr. Walthers’ supplemental information on carbohydrazide use at the Duke Maine plant, dated February 15, 2002. There is nothing in that document that supports Duke’s claim that carbohydrazide is the cause of the corrosion problems at the Maine plant. Apparently the Maine plant uses a water treatment program that includes a number of organic chemicals, including carbohydrazide, but Dr. Walthers’ transmittal does not implicate carbohydrazide as the source of the problem. It would appear that the problems at the Maine plant are caused by organic chemicals that break down to form organic acids. However, carbohydrazide does not break down to form organic acids, but rather CO2. Thus, these materials do not support the claim that carbohydrazide should not be used at the MBPP.
CAPE urges the Staff and the Committee to do a further analysis of the worse case scenario for aqueous ammonia releases to include a simultaneous release of both tanks, which are located “one diameter away from each other.”[11] Dr. Walthers conceded that one “could certainly conceptualize a release of both tanks, … call it terrorism …”[12] Neither Duke nor Staff modeled this scenario. However, Dr. Greenberg indicated that Staff’s conclusion (that all concentrations exceeding 75 parts per million would be confined to the Project site with only one tank involved) would probably not be the same if both tanks failed at once.[13] Given the close proximity of the storage tanks to one another, CAPE believes this modeling must be done to simulate the terrorism possibility and, depending on the outcome, further containment measures should be added as part of the HAZ COCs.
C. The AFC and FSA Do Not Adequately Account for Significant Adverse
Impacts From Project Noise.
There are numerous significant adverse noise effects from the Project which are being hidden through the estimation process used by Duke or which arise by the reliance solely on averaging metrics with smoothing effects. These impacts are not being adequately mitigated and should be, therefore necessitating modifications and additions to Staff’s proposed NOISE COCs.
1. The Extended Periods of Construction/Demolition Noise Will Have a
Significant Adverse Effect on Morro Bay Residents and Are Not Adequately Mitigated.
Even with the shortened construction/demolition period of 60 months, that is a five year period during which the tank farm will be demolished (3 mos.), followed by three to four months of auger pile driving,[14] followed by a foundation placement phase, the building construction phase, a finishing and cleanup phase (collectively, 24 months) and a subsequent 36 month demolition of the existing plant.[15] Duke tries to limit the significance of this extended period by emphasizing a seven month “intense” period (in terms of workers on site) and that heavy construction occurs during a 21 month period.[16] This is classic misdirection.
Even if construction noise were tied to the number of personnel onsite,[17] there will be significant demolition noise before and after the 18 month construction period.[18] Based on Mr. Mantey’s factor analysis in AFC Appendix 6.12.1 [Exhibit 4], the five phases of construction are expected to result in the following “average noise levels at 50 feet from the center of activity”:
Table NTA3-1 Clearing and Site Preparation Phase 93 dBA
Table NTA3-2 Pile Installation Phase 95 dBA
Table NTA3-3 Foundation Placement Phase 97 dBA
Table NTA3-4 Building Construction Phase 94 dBA
Table NTA3-5 Finish and Cleaning Phase 93 dBA
This demonstrates that there is only a 4 dBA difference over the entire construction period. In addition, Table NTA3-6 reflects an average level of 92 dBA for the Demolition of Existing Tankage and Power House phase. Moreover, these noise levels (even assuming the correct construction usage factors were used) are merely averages, meaning that there be may periods of significantly higher noise levels offset in the averaging process by relatively quieter periods. Both Duke and Staff simply ignore these higher levels altogether by looking only at the average.
Duke itself admits that noncontinuous, intermittent, loud noises are more annoying to the listener than would be a continuous background noise.[19] Staff fails to take this into account in the FSA Part 1 (Table 4, p. 3.3-9) [Exhibit 115] by focusing only on the average noise level at the 7 listed receptors and using the 7 month peak period to define these noise levels as “temporary,” rather than the full construction period wherein the “averages” vary by only 4dBA. Even using just the averages, Staff found 5.5 dBA increases from construction noise at Scott Avenue, the RV Park and Coleman Park (Receptor 11), but because they were daytime and “temporary” Staff concluded these increases are insignificant. Id. This finding is wholly unsupported given the extended construction hours (from 8 a.m. to 5 p.m. to 7 a.m. to 7 p.m., i.e., 5 more hours a day of construction noise) and the fact that actual noise levels periodically will be much higher than the average.[20]