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									                            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: blchurney@bryancave.com

                                                Attorneys for Intervenor The
                                                Coastal Alliance on Plant Expansion




                                          2
               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




                                              3
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 recyclable4
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

1
       1/29/02 RT 65:23-69:2.
2
       1/29/02 RT 63:20-65:22.
3
       1/29/02 RT 32:11-33:9.
4
       SCR catalyst and oily water. See, Exhibit 4, AFC Table 6.14-6, p. 6.14-22.
5
       See, e.g., 1/29/02 RT 63:13-19; 69:20-70:21.


                                                  4
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

6
         The draft Agreement to Lease (ATL) between Duke and the City of Morro Bay, attached as
Exhibit A to Exhibit 119, contemplates a delay of up to 10 years. See, e.g., §§5.1, 5.4, both of which
contemplate demolition of the existing plant (a three year process) to be completed no later than December
15, 2015, meaning the new MBPP could delay commencement of operations until the end of 2012.
7
         1/29/02 RT 69:20-70:21.


                                                     5
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 noise8), 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 materials9 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.


8
       See, §II.C. below.
9
       1/29/02 RT 130:6-24.
10
       1/29/02 RT 131:2-132:16; 133:9-139:16.


                                                6
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)



11
       1/29/02 RT 123:18-20.
12
       1/29/02 RT 122:20-24.
13
       1/29/02 RT 145:1-19.
14
       Mr. Mantey, 1/30/02 RT 30:14-20.


                                             7
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


15
         Exhibit 4, AFC Appendix 6.12-1, Tables NTA 3-1 through 3-6.
16
         Exhibit 4, AFC §6.12.2, p. 6.12- 36, 1st ¶.
17
         There may be very significant noise levels associated with periods of relatively low personnel
counts, e.g., 4 months of auger pile driving is very noisy at 95 dBA at 50 feet, but occurs in the period of
low personnel counts. See, e.g., Exhibit 4, AFC §6.10, Figure 6.10-4, p. 6.10-33 and Exhibit 58, Figure
6.10-4A, Work Force Loading Project Construction (Revised Demolition Schedule).
18
         Exhibit 58, Figure 1-7A (Project Schedule of Activities Revised Demolition Schedule).
19
         1/30/02 RT 67:6-23.


                                                       8
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
               This is unacceptable in that the NOISE COCs do not put a cap of any kind
on construction noise levels other than for steam blows in NOISE-4. Duke takes the
position that the noise limitations in the Noise Element of Morro Bay‟s General Plan do
not cover construction or demolition noise at all.21 But this is not usual construction/
demolition by Morro Bay standards and it will last at least 5 years. Under CEQA the
Committee can and should consider these noise levels to be significant and not temporary
in nature.
               In addition, the analysis by Mr. Mantey of construction/demolition noise is
simply an estimate and clearly not a worst case estimate at that. Unlike air quality
modeling, for example, where Duke purports to examine worst case scenarios, the noise
analysis is prepared quite differently. The latter as explained by Mr. Mantey22 is based on
a “reasonable estimation” of the number and type of usage of typical construction
equipment for each phase, based on Duke‟s “preliminary construction schedule.” This
factor analysis is at best speculative and only a “best” guess as opposed to worst case
estimate. For example, in Mr. Mantey‟s written testimony,23 he states as to the last
demolition phase, that: “Noise levels for this stage of construction will be intermittent
with occasional high noise levels associated with the cutting and breaking process.”
When asked about this very general statement, how often these “occasional high noise
levels” occur, Mr. Mantey admitted there was no way of knowing: “That‟s difficult to
say at this time because I have no way of speculating how many actual pieces of breaking
equipment will be used, where they will be oriented and located throughout the site.

20
       Mr. Buntin 1/30/02 RT 95:1-21.
21
       Mr. Mantey 1/30/02 RT 21:19-25.
22
       Exhibit 4, AFC Appendix 6.12.1, Attachment 6.12-3; 1/30/02 RT 65:10-67:5.


                                                9
There‟s just too many unknowns and too many variables to be able to definitively say.”24
As noted above, these intermittent high noise levels have a greater annoyance factor than
more continuous noises.
                  The construction usage factors used in Mr. Mantey‟s analyses25 also
appear to be highly suspect, based on his testimony at the public hearing. For example,
on Table NTA3-2 regarding the Pile Installation Phase, Mr. Mantey uses a minuscule
0.04 construction usage factor for two auger pile installation pieces of equipment, as
compared to a usage factor of 1.00 for one trencher. This is preposterous and belied by
his testimony that auger pile driving activities are 95 dBA as an aggregate and these
activities will proceed for 3-4 months.26 Mr. Mantey further testified that unlike the
intermittent “ka-thump” of traditional pile driving, the augering method “is more of a
diesel engine noise and it‟s more continuous.”27 Clearly, further investigation of the
appropriate usage factors should be required by the Committee. If in fact the noise level
were closer to the top of the specified range at 98 dBA for auguring and the use factor
was closer to 1.00 than to 0.04, the predicted “average” noise level could be considerably
higher than the 95 dBA derived by Mr. Mantey, with even greater peak noise levels. As
set forth below in §II.C.5, CAPE‟s position is that Duke must be limited at all times to
specific peak noise levels during construction with appropriate monitoring to ensure the
limitation is being met.
                  Finally, even if the construction/demolition noise levels could be held to
ambient noise levels, these noises remain detectable,28 and therefore can be distractive



23
          Exhibit 134, p. 57.
24
          1/30/02 RT 33:21-34:1.
25
          Exhibit 4, AFC Appendix 6.12.1, Technical Attachment 3.
26
          1/30/02 RT 29:18-30:20. Mr. Mantey‟s credibility is further in doubt given his initial direct
testimony that in almost all cases, lower operational noise levels will result from the new MBPP than with
the existing plant. 1/30/02 RT 8:1-9:5. This is the same line that Duke has used in its public promotional
materials. See, Exhibit 34, Duke‟s Response to March 9, 2001 Data Request No. 283 and attached
promotional materials that stated the new MBPP will be quieter than the existing plant . On redirect,
however, Mr. Mantey testified that as to nighttime operational noise levels, the new MBPP (operating at
100% load capacity, which is clearly within its permitted capacity): “[I]n general, at the residential
receptors that were analyzed the noise from the full load proposed plant at night will be imperceptibly
louder than the existing plant when it‟s at ramp down low load.” 1/30/02 RT 61:1-9, emphasis added.
27
          1/30/02 RT 27:20-28:11.
28
          Mr. Mantey 1/30/02 RT 27:20-28:11.


                                                    10
and annoying. This distraction/annoyance factor over a 5 year period should itself require
full mitigation.
        2. Analysis of Operations Noise Is Inadequate By Failing to Account for
           Offensive, Annoying and Unhealthful Nighttime Noise Levels.

                   After initially emphasizing that operational noise from the new MBPP will
result in overall lower noise levels than the existing plant at all locations except the RV
Park,29 Mr. Mantey subsequently acknowledged that during the more sensitive nighttime
hours, the new MBPP at full capacity will be “imperceptibly” louder than the existing
plant during its typical evening ramp-down. This is a very critical admission by Duke.
                   Although Duke‟s counsel questioned whether there was any sleep
disturbance of residents from the existing plant,30 CAPE‟s rebuttal witnesses left no
doubt that there were ongoing serious sleep disturbances arising from the existing plant‟s
nighttime operations. Ms. Joan Carter, a resident of south Morro Bay, testified that when
she awoke at night and heard the plant noise, she had to mask it with the radio in order to
go back to sleep.31 Likewise, Ms. Betty Winholtz, another south Morro Bay resident,
testified that on many occasions she was unable to fall asleep at all until after 1 a.m.
because of the existing plant‟s noise (despite a hill between her home and the plant).32
She further testified that she had made frequent complaints to the City and occasionally to
the plant about this excessive noise. Id. Moreover, in her public comments to the
Committee, Ms. Winholtz quantified that she had filed no fewer than 26 code
enforcement concerns with the City regarding the Duke plant‟s noise in the last year
alone.33
                   Mr. Mantey, when asked if those who are disturbed by the current plant at
night would no longer be disturbed at night with the new plant operating, indicated he
“can‟t say because there‟s so many psychological effects and subjective impressions that
come into play there.”34 Clearly, with the MBPP operational noise levels being louder


29
        See footnote 25 above.
30
        1/30/02 RT 64:6-10, 68:15-70:15.
31
        1/30/02 RT 71:10-72:22.
32
        1/30/02 RT 75:4-23.
33
        1/30/02 RT 116:5-8.
34
        1/30/02 RT 3:24-64:5.


                                               11
(“imperceptibly” or not) than the existing plant, those residents disturbed by the existing
plant can expect to be disturbed by the new MBPP to an even greater extent.
               It is clear that residents‟ personal observations about existing noise levels
are quite relevant and appropriate and constitute substantial evidence under CEQA. Oro
Fino Gold Mining Corp. v. County of El Dorado, 225 Cal.App.3d 872, 882, 274 Cal.Rptr.
720, 726 (1990) (“Oro Fino”). That project involved exploratory oil drilling and a
similar project had already occurred nearby. The project proponent argued that only two
noise complaints were made on the prior project and the noise standards were not
exceeded. The Court rejected that argument stating:
       These arguments would carry weight if the evidence showed the noise standards
       were monitored and enforced vigorously. But numerous residents testified at the
       Planning Commission and the Board hearings that they made multiple complaints
       to pertinent county officials about then noise from [the earlier] project. Other
       residents echoed this testimony in letters to the Commission and the Board.
       Relevant personal observations such as these can constitute substantial evidence.
       [Citations] Id.

Ms. Winholtz‟s testimony makes quite clear in this case as well that there was no
enforcement of the noise standards for the existing “grandfathered” plant,35 despite her
many complaints. One can easily surmise that many others had similar complaints, but
did not bother to report them, given the lack of enforcement. This is particularly relevant
here, where the modeled nighttime noise levels of the new MBPP are “imperceptibly
louder” than those of the existing plant.
               Clearly the operational life of the new MBPP is of direct relevance here.
Will Morro Bay residents be subjected to 30 or 50 or 100 years of increased nighttime
operational noise levels? The cumulative impacts of this type of sleep disturbance are
enormous. Regardless of whether Staff considered any differences in effects between a
30-year and a 100-year project, this is a significant adverse effect over the lifetime of the
Project if not fully mitigated, making it critical that the proposed General Condition on
Recertification described above in §II.A be adopted here.
               In addition, and totally contrary to the conservatism that should be applied
by the Committee in its CEQA considerations of significant adverse noise effects, even if

35
       1/30/02 RT 59:21-60:6.


                                              12
there were in fact only “imperceptibly” louder noise levels with the new MBPP relative to
the existing plant, there would logically be an expansion of the area in which the noise
levels that disturb sleep are noticeable in Morro Bay and an increased number of residents
affected. Ms. Winholtz testified that she lived at least 1 ½ miles from the existing plant,
with a hill between her home and the plant. Yet there are obviously numerous occasions
on which her sleep is disturbed by the existing plant, varying perhaps with specific
operational levels and with weather conditions.
                 Mr. Mantey testified that the sleep disturbance level which occurs per the
Staff‟s FSA Part 1, Appendix A, p. 3.3-27 (3rd ¶) begins to occur at noise levels greater
than 45 dBA measured in the bedroom, which is 15 dBA quieter than the outdoor ambient
noise level.36 That means that the outdoor ambient noise level must be greater than 60
dBA to begin to generate sleep interference effects. Clearly the existing plant is
generating these interference effects on a fairly significant level and even an
“imperceptibly louder” nighttime noise level will only increase these adverse health
effects with the new MBPP. Also these measures of adverse health impacts from noise
are quite dated (USEPA 1971).37 Staff testified that the literature, specifically studies
done by the World Health Organization in the last 3-4 years are “more conservative” than
the EPA recommendation, thus presumably showing greater adverse health impacts from
lower noise levels than the USEPA figures, even though this literature has not yet been
applied in the western region of the U.S.38
                 Also of critical importance, but wholly ignored by Duke and by Staff, are
the varying impacts of changes in weather conditions on the noise levels from the new
and old plants that will be heard in various parts of Morro Bay. Duke and Staff focused
totally on the nearest resident receptors, despite the fact that other more remote locations
may bear the highest noise burden in certain weather conditions. For example, when
CAPE inquired as to variable impacts that may result on foggy nights versus clear nights,
Mr. Mantey admitted that under certain weather conditions there could be higher noise

36
        1/30/02 RT 57:8-58:18.
37
        Exhibit 115, FSA Part 1, Appendix A, p. 3.3-27.
38
        1/30/02 RT 107:3-108:2. This sleep disturbance at 60 dBA outdoor levels appears to be in
accordance with Mr. Buntin‟s testimony that hearing interference also occurs at 60-65 db. 1/30/02 RT
108:3-109:2.


                                                   13
levels than shown in his analysis. “But these are intermittent and short term and were not
considered in the analysis because they‟re not consistent, and they‟re not long term as
required by a CEQA analysis.”39
               This is a faulty statement of the law under CEQA. In Berkeley Keep Jets
Over the Bay Comm. v. Board of Port Commissioners (“Berkeley Jets”), 91 Cal.App.4th
1344, 111 Cal.Rptr.2d 598 (2001), the facts involved a proposed expansion of the
Oakland Airport that would have resulted in an increased number of nighttime flights
over the City of Berkeley. The intervenors complained that the Airport Development
Plan‟s (ADP) EIR omitted significant information about the ADP‟s potential interference
with sleep, including physiological response and annoyance from increased nighttime
overflights. 111 Cal.Rptr.2d 598, 619. The court concluded that contention had merit.
               The EIR in Berkeley Jets evaluated the increased aviation noise from the
ADP using only a cumulative noise descriptor, the CNEL, which is the 24-hour average
sound level, in decibels obtained from the accumulation of all sound sources.
       The CNEL calculates the total sound exposure, in decibels, at a given location and
       then divides the total by 24 hours to derive an average. To this is added 10
       decibels to sound levels in the night from 10:00 p.m. to 7:00 a.m., and the
       addition of 5 decibels to sound levels from 7:00 a.m. to 10:00 p.m. This
       additional weighing of nighttime sound is intended to take into account the usual
       increased interfering effects of noise during the nighttime hours. 111 Cal.Rptr.2d
       598, 619-620

               As in Berkeley Jets, the FSA here contains a fixed standard of 65 dBA for
measuring nighttime noise to determine any significant environmental effect, in
accordance with the Morro Bay General Plan Land Use Element that uses a CNEL metric.
As in Berkeley Jets, percipient resident witnesses testified about existing sleep
disruptions from the existing plant, even though they lived significant distances away
from the closest receptors. “Residents, whose home fell well outside the 65 CNEL
threshold limitation defined by the EIR, reported often being awakened in the middle of
the night by aircraft noise and being unable to talk on the telephone or carry on ordinary
conversations when planes fly overhead.” 111 Cal.Rptr.2d 598, 621. As in Berkeley Jets,
the proposed Project here in full operation will be louder than the existing plant.

39
       1/30/02 RT 53:3-14.


                                             14
               Unlike Berkeley Jets, the FSA and AFC here do not even attempt to assess
the impacts of varying noise levels, whether caused by changes in weather or otherwise
(including specific intermittent noises, as discussed below). At least in Berkeley Jets, the
draft EIR indicated that “a single noise event with a [Single Event Level] SEL 61 or
higher will disturb the sleep of about 30% or more of the people exposed to such noise
[and a]bout 17% or more of these people so exposed may be awakened from sleep, if only
briefly, and possibly without remembering.” 111 Cal. Rptr.2d 598, 622. Duke takes the
position here that intermittent and short term noise impacts need not be taken into
account, just as the lead agency in Berkeley Jets retreated to the CNEL methodology for
measuring acceptable noise limits.
               In Berkeley Jets, the court agreed with the petitioners that the EIR‟s
exclusive reliance on the cumulative CNEL metric does not provide a true or complete
picture of the noise environment resulting from the project. CAPE‟s position is that the
MBPP‟s noise analysis likewise fails to provide, in addition to and not in lieu of the
averaging metrics analyses, the most fundamental information about the Project‟s noise
impacts, specifically the peak noise levels that may occur under varying weather and
operating conditions, the frequency with which they will occur, and their effects on sleep.
               The Berkeley Jets court cited a similar decision, Davison v. Dept. of
Defense, 560 F.Supp. 1019 (S.D.Ohio 1982), which similarly dealt with expanded flight
operations under the National Environmental Policy Act (“NEPA”). The EIS there
likwise relied only on an averaging noise metric (DNL, similar to CNEL).
       The court held that DNL, even when coupled with a time-above analysis, did not
       adequately inform the public about how an increase in nighttime flights would
       affect sleep in a nearby residential area. The court concluded that while the
       nighttime “penalty” in the cumulative noise calculations gave some indication of
       the increase in nighttime flights, “the great magnitude of this difference should
       have been made plain in the EIS.” (Id. at p. 1036) The court stated, “The reader
       … cannot gain any real appreciation of the potential disruption simply by being
       told the number of minutes that aircraft noise will occur when all of the overflight
       peak level events are strung together.” (Id. at 1037) 111 Cal.Rptr.2d 598, 623.

This is likewise true here where Duke merely claims the highs and lows “cancel out.”
Even though citing a NEPA case, the Berkeley Jets court emphasized that the concerns
were even greater under CEQA, which imposes its own requirements for assessing


                                             15
environmental impacts from noise. “The Legislature has declared in CEQA that „it is the
policy of the state‟ to „[t]ake all action necessary to provide the people of this state with
… freedom from excessive noise.‟ (§21002, subd (b)) … Thus, through CEQA, the
public has a statutorily protected interest in quieter noise environments.” 111 Cal. Rptr.2d
598, 625.
                Although many of the changes in noise levels from the Plant will not be
sudden, single event noises like overhead air flights, there will be “short term and
intermittent” changes according to Duke that can occur with changing weather conditions,
for example. In the AFC,40 Duke states: “In general, there will be times and
[meteorological] conditions that will result in diminished as well as in enhanced, long-
range noise propagation to several receptor areas around the site. These better or worse
situation[s] are, however, expected, on average, to cancel out and yield community noise
levels close to the predictions given in the previous contour maps.” Emphasis added.
This is nonsense when it comes to what residents will experience. As but one example,
the health effects of alternating nights with high (e.g., 80 dBA) and low (e.g., 40 dBA)
noise levels, where the highs are sufficient to cause sleep disturbance, are not “canceled
out” by the low noise level nights, even though the average may be 60 dBA. As in
Davison, the potential magnitude of the differences within the average should be
addressed under CEQA.
       3. The FSA Does Not Adequately Assess Intermittent or Periodic Noise
          Levels from the Project, Especially Startups During Normal Operations.

                The AFC (§6.12.2.3) and the FSA Part 1 (p. 3.3-13) both discuss the most
likely high noise level single events or incidental noise events that are expected from the
Project‟s operations, i.e., steam discharges or blows. Duke has classified these steam
blows into three types: (1) commissioning and initial start-up phase (“Commissioning
SBs”); (2) controlled startups during normal operations (“Startup SBs”); and (3) unusual
or emergency events (“Emergency SBs”).




40
       Exhibit 4, §6.12.2.3 (p. 6.12-60, 1st ¶).


                                                   16
                 Temporary vent silencers are to be used for the Commissioning SBs which
if left unsilenced would produce 100 to 110 db at 10-12 feet41 or 70 to 74 db at the
nearest residential receptor (Scott Avenue).42 Duke has indicated that with the silencer,
the latter location will experience 40-44 db during Commissioning SBs.43 Despite that
representation, Duke is not willing to agree even to a 70 db limitation for these
Commissioning SBs. See, the discussion below in §II.C.5. Unplanned “trip” or
emergency releases would result in SB noise levels of 110 to 130 db at 10-12 feet44 which
could be heard throughout Morro Bay.45 These will be unvented and will clearly exceed
the Morro Bay noise standards,46 but Duke believes these will be infrequent and therefore
insignificant. CAPE is not disputing that these Emergency SBs should remain unvented
for safety reasons.
                 The Startup SBs that will occur throughout the life of the Project are
“planned steam vent discharges … limited to controlled start-ups of the one of more
GTG/STG/HRSG trains”47, even though these vented sounds may be discernible and a
potential source of annoyance in the adjacent community. CAPE strongly disagrees with
Duke‟s and Staff‟s assessment in this regard.
                 The evidence indicates that there has been no adequate modeling or other
noise assessment of the Startup SBs. The AFC48 perfunctorily addresses the normal
Startup SBs and addresses the noise levels from only a single turbine startup without
consideration of cumulative noise impacts if there are two turbines in startup
simultaneously. The testimony of Mr. Mantey makes clear that his modeling includes no
Startup SBs at all.49 However, both the FDOC (Condition 28) and AQ-28 (FSA Part 1, p.
3.1-41) clearly allow two concurrent Startup SBs and contain no time limitations when


41
        Mr. Mantey 1/30/02 RT 44:15-22.
42
        Exhibit 115, FSA Part 1, p. 3.3-13.
43
        Exhibit 4, AFC, Appendix 6.12.1, Technical Attachment 6.12.5; Exhibit 115, FSA Part 1, p. 3.3-
13.
44
       Mr. Mantey 1/30/02 RT 49:18-50:1.
45
       Mr. Mantey 1/30/02 RT 47:9-48:8.
46
       Mr. Buntin 1/30/02 RT 96:17-25.
47
       Exhibit 4, AFC, p. 6.12-59 (2nd and 3rd lines of ¶(2)).
48
       Exhibit 4, §6.12.2.3(2), p. 6.12-58 and Technical Attachment 6.12-5 (¶ (2) on last page) of
Appendix 6.12-1 of the AFC.
49
       1/30/02 RT 50:8-14.


                                                   17
they may occur during the night or day. This quite possible and allowable scenario
should have been analyzed by Duke and Staff, but was not.
                  In the AFC Appendix 6.12.1,50 Duke states only that “these venting
sources may be discernible and a potential source of annoyance in the adjacent
community, but they are not expected to produce levels at receptors that are in excess of
the standards established in the Morro Bay Noise Element. Further, they would be
experienced only intermittently and temporarily and are, therefore, not considered as
significant impacts.”51
                  However, there appears to be some discrepancy in the testimony of Mr.
Mantey, Mr. Buntin and the FSA Part 1 (p. 3.3-17, Exhibit 115) with respect to the
expected noise levels from controlled startups. The FSA (p. 3.3-17, 2nd ¶) in discussing
intermittent noises from operations states: “The applicant has also stated that noise
control system vents will be installed on the HRSG penthouse to mitigate the intermittent
noise from pressure relief valves. The Applicant estimated that the noise levels
associated with the steam system vents would be in the range of 40 to 44 dBA at the
receptors at Scott Avenue (Measurement Site 1), and would be less than 42 dBA to 45
dBA at the Morro Dunes RV Park (Site 5).”
                  The Scott Avenue estimate of 40-44 dBA is the same as that for line
cleaning Commissioning SBs, described above. This is consistent with Mr. Mantey‟s
testimony that both Commissioning and Startup SBs, if unsilenced, would result in noise
levels of 100-110 db at 10-12 feet. However, when asked how loud these controlled
startups would be, Mr. Mantey in his oral testimony gave no indication that these startups
would be silenced in any way.
                Q. How loud will these startups be per turbine, do you know, at the
                   highest receptor area?
             A. I‟m sorry, you‟re talking about startup vents?
                Q. Yes.



50
         Exhibit 4, Appendix 6.12.1, Technical Attachment 6.12 (¶(2) on last page).
51
         It is amazing how facile Duke is in referring to continuous and intermittent types of noises when it
suits Duke‟s purpose. For example, here the Startup SBs are “only” intermittent and thus not significant.
When it comes to pile driving, however, Mr. Mantey was praising the virtues of the continuous drone of
diesel engines as less annoying than intermittent noise.


                                                     18
               A. I believe I used a factor of 100 to 110 dba at 10 to 12 feet for a trip-
                  related steam vent, which is the factor what would used for startup
                  conditions.52

               When asked about the same issue, maximum noise levels during
operational Startup SBs, Mr. Buntin responded similarly but went on to indicate the noise
level for startups at Scott Avenue would be 70-74 dBA.53 However, in testifying that the
Startup SBs would be as much as 20 decibels lower (id.), Mr. Buntin appears to have
confused the Emergency SBs of as much as 130 decibels with the Commissioning SBs of
100 to 110 decibels at 10-12 feet. Clearly a controlled Startup SB at 70-74 dBA before 7
a.m. would exceed the City‟s noise ordinance at Scott Avenue and other locations.54 Mr.
Buntin also testified that the Startup SB noise levels “are going to be highly dependent on
where the steam vent is located on the structure … whether there‟s … part of the structure
between that source and the receiver, which way the outlet is directed, things like that.”55
All of these parameters have yet to be established. Accordingly the Committee should
consider the worst case Startup SB noise levels in the mitigation analysis.
               Duke has failed to provide the underlying information to make that
analysis. The FDOC Condition 28 and AQ-28 allow for 400 hours of startup and
shutdown time per turbine per year of no more than 4 hours duration, i.e., at least 100
Startup SBs per turbine multiplied by four turbines is up to 400 Startup SBs per year, i.e.,
more than one a day. Given Duke‟s insistence on this high number of startups in AQ-28,
the noise analysis should likewise take into account this maximum scenario. With 400
startups each lasting for two to three hours, at 70-74 dBA at Scott Avenue, for example,
there can be a huge number of very loud noise events during the year.
               Yet, astonishingly, Duke did not even model startup noise at all,56 let alone
the possible cumulative effects of two turbines in startup mode simultaneously.57 When
asked what the cumulative effect of two turbines in startup simultaneously would be on
noise levels, Mr. Mantey simply failed to answer the question, lamely relying on his


52
       1/30/02 RT 50:15-24.
53
       1/30/02 RT 97:1-98:12.
54
       1/30/02 RT 96:17-25; Exhibit 115, FSA Part 1, p. 3.3-4 Table 2.
55
       1/30/02 RT 98:2-9.
56
       1/30/02 RT 51:15-19.


                                                 19
colleagues at the hearing who told him that “typically you would bring one turbine up at a
time and get it stabilized before you start bringing up subsequent trains.”58 The
Committee must look at the worst case that is allowed in its existing conditions. Even in
the situation noted by Mr. Mantey, i.e., seriatum startups of four turbines, there could be
up to 12 hours of the very high startup noise levels in a single day (based on his estimate
of 2-3 hour startups per turbine). Because Duke is insisting on the flexibility to do this in
connection with the Air Quality COCs, it must likewise be made subject to appropriate
noise limitations for this situation. If, in fact, these startups will occur much less often
than the permitted maximum, Duke should not be prejudiced with such a limitation. See,
the discussion below in §II.C.5 for a suggested COC.
               Given the 2-3 hour duration of a normal startup, it would appear highly
likely that such startups will occur before 7 a.m. in order to have full operational capacity
before peak daytime hours begin. Clearly a noise level of 70 to 74 dBA can cause
significant adverse health effects in the form of sleep disturbance. As noted above, Mr.
Mantey testified that the FSA Part 1 §3.3 reference to sleep interference effects at noise
levels above 45 dBA was understood to be the noise level within the bedroom which is
15 db quieter than outside noise levels.59 Even with that reduction, outside noise levels
of 70-74 dBA are equal to 55-59 dBA in the bedroom, well above the onset of sleep
interference effects.
               Duke inevitably will argue that it will somehow be able to bring Startup
SB noise levels down to the 40-44 dBA level referenced by Staff in the FSA Part 1 (p.
3.3-17). This would appear to be highly unlikely given the following. First, the Startup
SBs are at the same noise level of 100-110 dB at 10-12 feet as are the Commissioning
SBs. Second, Duke claims it can (with a special temporary silencer) get these
Commissioning SBs down from 70-74 dBA at Scott Aveue to 40-44 dBA. Yet Duke
claims it needs special clarification of Condition NOISE-4 because there may be no
generally commercially available silencer that is capable of even meeting 70 dBA, let
alone 40 dBA. If Duke cannot be confident of reducing Commissioning SBs to below 70

57
       1/30/02 RT 52:13-15.
58
       1/30/02 RT 51:20-52:15.
59
       1/20/02 RT 57:8-58:23.


                                              20
dBA, it certainly cannot be believed if it claims to be able to limit routine controlled
Startup SBs to 40-44 dBA. Even if, miraculously, the routine Startup SBs could be
diminished to 40 dBA at Scott Avenue, they would still be detectable above existing
ambient noise levels.60 Based on the testimony of Ms. Carter and Ms. Winholtz, it is not
just a few residents on Scott Avenue who will be disturbed by such noise levels. Finally,
if Duke is confident it can reach the 40 dBA level, a condition requiring that should not
be prejudicial in any way.
                  In terms of other intermittent or short-term variances in noise levels, it is
not unusual to have varying weather conditions in Morro Bay. In the Technical
Attachment 6.12-6 to Appendix 6.12.1 of the AFC [Exhibit 4], Mr. Mantey notes for
example that some of the literature “indicates that the normal spreading loss (with
distance) factor of 6 dB per doubling of distance can be reduced to around 3 dB per
distance doubling due to downward refraction [in a temperature inversion or downwind]
(Ingard).” That suggests that in those weather conditions, the sound levels of Startup SBs
at Scott Avenue could be as high as 85 to 92 dBA61 (or 70 to 77 dBA in the bedroom).
Startup SBs in these conditions before 7 a.m. would result in significant adverse health
impacts, given that Appendix A of §3.3 of the FSA Part 1 (p. 3.3-27, 3rd ¶) states: “At 70
dBA sleep interference effects become considerable.”
                  These controlled startups which are part of normal operations of the new
MBPP have no counterpart in the normal operations of the existing plant. The only high
noise level events the two plants have in common are the very high 110-130 dBA
unvented emergency steam blows.62 Thus, these quite intrusive and potentially extensive
periods of high noise levels from controlled Startup SBs during normal operations (up to
1200 hours per year) have not been experienced in Morro Bay in the past. Moreover



60
         1/30/02 RT 42:8-17.
61
         Given the figure of 100-110 db at 10-12 feet, this estimate is based on the following calculation
(100-70)/2 + 70 for the lower end and (110-74)/2 + 74 for the upper range.
62
         Mr. Mantey testified that he did not know the comparable noise levels of emergency steam blows
from the existing plant [1/30/02 RT 44:23-46:3], which he clearly should have known in order to make
relevant comparisons between the noise levels expected from the new MBPP compared to the existing
plant. Nonetheless, CAPE assumes for this purpose that the steam blows from the existing plant do not
exceed the noise levels specified for the new MBPP emergency steam blows.


                                                    21
these routine occurrences belie Duke‟s claim that it will be able to meet the limitations of
proposed NOISE-6, i.e., L90 + 5 db and the Morro Bay Noise Element.
       4. The CEC’s Standard of Noise Significance Is Inappropriate, Even If It
          Could Be Met By the Project.

               FSA Part 1 (§3.3, p. 3.3-3, Exhibit 115) clearly states the CEC “has
interpreted the CEQA criteria such that noise produced by the permitted power-producing
facility that causes an increase of more than 5 dBA in the background noise level (L90) at
a noise sensitive receiver during the quietest hours of the day is usually considered a
significant effect.” With all due respect, this standard is not in accord with recent CEQA
case law, if the 5 db increase is used as a floor for determining significance, as is
apparently the case. 63
               The point at which increased noise levels may be significant under CEQA
cannot be a standardized, fixed point. Guideline §15064(b) states that: “An ironclad
definition of significant effect is not always possible because the significance of an
activity may vary with the setting. For example, an activity which may not be significant
in an urban area may be significant in a rural area.” This was echoed by the court in
Berkeley Jets, supra, 91Cal.App.4th 1344, 111 Cal.Rptr.2d 598, 625 in the context of
emphasizing a site-sensitive threshold of significance for noise.
               This same standard of significance of 5 dB above ambient noise levels
suggested by Staff was the subject of the court‟s decision in Los Angeles Unified School
Dist. v. City of Los Angeles, 58 Cal.App.4th 1019, 1024, 68 Cal.Rtr.2d 367, 379 (1997).
In that case, the EIR reasoned that because the existing noise levels (72 dBA) around the
schools at issue were already beyond the maximum level permitted under Department of
Health Guidelines, a worsening of the noise levels by another 2.8-3.3 dBA from traffic
noise from the project was insignificant. The court disagreed, citing Kings County,
supra, 221 Cal.App.3d 692, 720, 270 Cal.Rptr. 650, 662 (1990). “One of the most
important environmental lessons evident from past experience is that environmental
damage often occurs incrementally from a variety of small sources. These sources appear
insignificant, assuming threatening dimensions only when considered in light of the other

63
       See also, Mr. Buntin 1/30/02 RT 90:5-16.


                                                  22
sources with which they interact.” 58 Cal.App.4th 1019, 1025, 68 Cal.Rptr.2d 367, 371.
Because the City of Los Angeles as lead agency in that case had not investigated and
analyzed the question of the possible significance of an increase in noise from 72.1 to
75.4 dBA, the EIR was insufficient under CEQA. The FSA suffers from the same
problem here in addressing only increases of 5 dBA or more and in automatically allow 5
dBA increases in NOISE-6.
                  Nor is it adequate to simply assume that any noise level within the City of
Morro Bay‟s Noise Element will be insignificant. This was made quite clear by the
courts in Berkeley Jets, supra, 91Cal.App.4th 1344, 111 Cal. Rptr.2d 598, 625-626, and
Oro Fino, supra, 225 Cal. App.3d 872, 882, 274 Cal.Rptr. 720, 726. In Berkeley Jets, the
lead agency was relying on federal (FAA) noise standards that a significant noise impact
would occur if a noise analysis indicated the proposed action results in an increase within
the DNL 65 db contour or greater in any noise sensitive area. The court, citing the then
applicable CEQA Appendices,64 found it “noteworthy that CEQA Appendices G and I
could have defined significant noise impacts simply in terms of whether a project would
violate applicable local, state, or federal noise standards [but] [i]nstead … adopt[ed] a
site-sensitive threshold of significance for noise.”
                  Of most direct relevance here, the court in Berkeley Jets stated the
following:
                 Given the uniqueness of the CEQA standard, the fact residential uses are
         considered compatible with a noise level of 65 decibels for purposes of land use
         planning is not determinative in setting a threshold of significance under CEQA.
         For example, in Oro Fino [supra], the court ruled that citizens‟ personal
         observations about the significance of noise impacts on their community
         constituted substantial evidence that the impact may be significant and should be
         assessed in an EIR, even though the noise levels did not exceed general planning
         standards. (Id., at pp. 881-882). 111 Cal.Rptr.2d 598, 625-626. [Emphasis added]
64
          Appendix G presented different scenarios where “a project will normally have a significant effect
on the environment…” It defined a significant noise effect as an action with the potential to “increase
substantially the ambient noise levels for adjoining areas; …” (As quoted in Lewis v. Seventeenth Dist.
Agricultural Assn (1985) 165 Cal. App. 3d 823, 829, fn 7, 211 Cal. Rptr. 884, 887). Appendix I, the initial
study checklist, stated that any proposal which results in increases in existing noise levels or exposure of
people to severe noise levels may require mitigation measures. The current CEQA Guideline Appendix G
sets forth the Environmental Checklist and under Section XI concerning noise similarly asks both whether
the proposed project will generate noise levels exceeding noise standards and whether either a substantial
permanent or temporary or periodic increase in noise levels above the ambient noise levels without the
project will occur.


                                                     23
In the earlier Oror Fino case, the project proponent argued simply that there could be no
issue regarding significant noise impacts because the proposed mitigated negative
declaration there prohibited noise levels above the applicable county general plan noise
standard of 50 dBA. As noted above, that notion was rejected by the court under CEQA.
               There are highly significant noise effects associated with the Project here,
given both the continuous operational noise levels, day and night, as well as the periodic
but more temporary increased noise levels associated with controlled Startup SBs during
normal operations. There is inadequate mitigation of these impacts as addressed below in
§II.C.5.
       5. The Proposed COCs for Noise Impacts Are Inadequate and Must Be
          Modified.

               In the FSA Part 1 (§3.3, Exhibit 115), Staff has proposed ten NOISE
COCs. Duke, in the written and oral testimony of Mr. Mantey,65 proposed a variety of
changes to the proposed NOISE COCs on which Mr. Buntin commented in his testimony
on behalf of Staff.66 Because of the various deficiencies described above in the noise
analysis of the MBPP, CAPE is proposing a number of modifications to the Staff‟s
proposed NOISE COCs as well. These range from procedural (the noise complaint
process) to substantive limitations on both construction/demolition noise levels and
normal operation noise levels.
               a.       Proposed Procedural Modifications
               First as to the procedural changes, as CAPE argued in its Opening Brief on
Group I Topics (see, §II.B.3), Duke has a history of inadequate responses to citizen
complaints in general. Moreover, because of the “grandfathered” status of the existing
plant, Duke has made absolutely no attempt to respond to citizens‟ complaints about the
existing plant‟s noise levels, and the City has been powerless to enforce the City‟s normal
noise standards.67 Duke‟s lack of regard for and unresponsiveness to noise complaints
warrants further procedural steps to ensure that citizen noise complaints regarding the


65
       Exhibit 134, pp. 58-60; 1/30/02 RT 11:2-14:9, 64:12-65:9.
66
       1/30/02 RT 79:3-87:18, 88:14-89:23, 96:6-16, 103:13-106:7.
67
       Ms. Winholtz 1/30/02 RT 75:18-23, 115:23-117:5.


                                                24
“imperceptibly louder” MBPP are taken seriously. Accordingly, the words “within one
mile of the site” in the first sentence of NOISE-1 should be deleted and the words “of
Morro Bay” substituted, i.e., “At least 15 days prior to the start of ground disturbance, the
project owner shall notify all residents of Morro Bay [within one mile of the site], by mail
or other effective means, of the commencement of project construction.” Mr. Buntin, on
behalf of Staff, testified that he had no objection to this change.68 An additional sentence
should also be added to the end of NOISE-1 as follows: “The project owner shall verify
receipt of a complaint received on an unattended telephone within 24 hours after receipt
of the complaint to assure the caller that his or her complaint was received.”
               Similarly, NOISE-2 regarding noise complaints in general should be
modified as follows: The fifth bullet point under Protocol should be revised to add the
following sentence at the end of the fifth bullet. “The project owner shall provide a copy
of the written noise complaint report to the complaining party at the same time the report
is submitted to the CPM, provided that the complainant has left a contact number or
address with his or her complaint.” Again Mr. Buntin, on behalf of the Staff, testified
that he had no objection to such a change.69
               Finally, NOISE-5 requires direct advance notice of the Commissioning
SBs only to residents within one-half mile of the site. For the reasons noted above in
connection with NOISE-1 and in CAPE‟s Opening Brief on Group I Topics (§II.B.3),
CAPE believes this notice should be provided to all residents of Morro Bay. Accordingly
the first sentence of NOISE-5 should be modified to read as follows:
       NOISE-5 At least 15 days prior to the first steam blow(s), the project owner shall
       notify the City of Morro Bay and all residents of Morro Bay in writing [within
       one-half mile of the site of planned steam blow activity and shall make the
       notification available to other area residents in an appropriate manner].

Mr. Buntin likewise had no objection to this change.70




68
       1/30/02 RT 104:4-10.
69
       1/30/02 RT 104:12-19.
70
       1/30/02 RT 105:14-19.


                                               25
               b.      Agreed Modifications to NOISE COCs
               Duke proposed a number of changes to the NOISE COCs that are
acceptable to CAPE, if acceptable to the Committee and Staff. Specifically, CAPE has
no objection to Duke‟s proposal for NOISE-6 (issues 1 or 3) [Exhibit 134, p. 58],
proposed NOISE-9 or NOISE-10 [Exhibit 134, p. 59] but does disagree with proposed
changes to NOISE-9 on p. 60 of Exhibit 134. In addition, CAPE supports Staff‟s
response71 to Duke‟s proposed change in construction hour limitations, i.e., 7 a.m. to 7
p.m. during weekdays but 8 a.m. to 5 p.m. for weekends and holidays in NOISE-4 and
NOISE-8.
               c. Substantive Modifications to NOISE COCs
               Given the substantive significant adverse noise effects raised above, CAPE
believes NOISE-4, -6, -7 and -9 as currently proposed are inadequate. Each of these
conditions (as well as a newly proposed NOISE-11) are discussed in further detail below.
               First, CAPE strongly supports a change in NOISE-4 regarding high-
pressure Commissioning SBs to the effect that these noises with the temporary silencer
and any other available noise mitigation measures (such as positioning of the outlet, etc.)
be limited to 40 dBA (rather than 70 dBA). CAPE fully understands that Duke and the
Staff support the 70 dBA level based on the existing Morro Bay Noise Element.72
However, the extended 5 year period of construction and demolition includes a number of
significant adverse noise impacts that exceed the Morro Bay Noise Element. Given these
excesses over such an extended period, it is only fair and reasonable to hold Duke to its
representations that the 2-3 week period of repeated line cleaning or Commissioning SBs
be limited to 40 dBA at the nearest receptor, particularly given Mr. Mantey‟s testimony
that such SBs, even at the lower levels, will be detectable.73 As noted in §II.C.4 above,
significant adverse noise impacts can occur below general plan standards.
               With respect to both NOISE-6 and NOISE-7, CAPE strongly supports a
change in the references to “80 percent or greater of rated capacity” to “100 percent of
rated capacity and, in addition, with two turbines in startup simultaneously and two

71
       1/30/02 RT 84:24-85:8.
72
       1/30/02 RT 40:14-41:6, 96:6-16.
73
       1/30/02 RT 42:8-17.


                                             26
turbines at full load.” CAPE fully understands that Staff‟s objective is to determine
actual noise levels as soon as practicable.74 Nonetheless, it is crucial to obtain an apples
to apples comparison of the modeled results to actual results at 100% levels (the AFC
clearly indicates the anticipated overall operating load is 90% and up to 24 hours a day, 7
days a week75) and Duke‟s modeling was based on 100% operation levels with no
controlled Startup SBs. A measurement at 80% load levels will not provide such a
comparison. Either the modeled results must set forth the 80% load level noise
projections, or the actual measurements must be done at the modeled load capacity.
Otherwise, the results are meaningless. In other words, actual results at 80% of rated
capacity will not provide the Commission with any meaningful data if the only modeled
projections are at 100%.
               In terms of Project construction and demolition noise levels, CAPE
believes that resultant noise levels will indeed exceed the ambient background noise level
(L90) at the most affected receptor by more than 5 dBA at many times, particularly during
the auguring and foundation phases, as well as the jack-hammering phase of breaking up
the concrete of the existing structures during the demolition phase. The limitation in
NOISE-9 thus is totally impracticable.
               Moreover, the L90 metric does not provide adequate protection against the
adverse impacts from the intermittent and period construction/demolition noises. If this
condition is nonetheless retained by the Committee, at minimum Paragraphs A and B of
the proposed Protocol should be revised to require continuous, real time noise monitoring
at no less than 4 nearby receptors (perhaps on the property line of the site) to ensure the
L90 metric is not exceeded. In fact, the L90 metric should be supplemented with an
LMAX limitation to adequately ensure estimated “intermittent” noise levels will not be
significantly adversely impacted. As argued above in § II.C.4, the most annoying and
disturbing noise impacts are from intermittent or periodic loud noises; there has been no
modeling of these noise peaks to date; so, specific daytime LMAX levels of 45 dBA and
nighttime LMAX levels of 40 dBA should be established in the NOISE COCs. This is of



74
       1/30/02 RT 105:20-106:7.


                                             27
most concern with respect to the periodic and high level normal operational controlled
Startup SBs.
                  Similarly, NOISE-6 is inadequate in requiring noise mitigation for normal
operations that is aimed only at assuring that residential receptors not exceed L90 +5 dBA
and comply with the noise standards of the Morro Bay Noise Element. Mr. Buntin
testified that there were a number of ways in which noise impacts could be mitigated
beyond silencers.76 CAPE urges that the first paragraph of NOISE-6 be modified to
delete the words “by more than 5 dBA.”
                  To assure that normal Startup SBs do not impose significant adverse noise
impacts, a new condition NOISE-11 should be added that states as follows:
         NOISE-11. No normal controlled startups of the Project‟s gas turbines (whether
         occurring singly or simultaneously) shall occur at any time before 7 a.m. or after
         10 p.m. that exceed 40 dBA at any residential receptor in Morro Bay. Such
         permitted normal controlled startups at any time between 7 a.m. and 10 p.m. shall
         not exceed 45 dBA at any residential receptor in Morro Bay.

CAPE believes it is appropriate to allow Duke with the CPM‟s approval to devise
specific mitigation measures to allow this condition to be met, including additional noise
controls, orientation of all vents away from residences, internal sound walls on site, etc.
D.       The FSA Does Not Adequately Address Significant Adverse Impacts on
         Traffic Safety.

                  Staff acknowledges that “level of service” or LOS measures are “a
description of a driver‟s experience at an intersection or roadway based on the level of
congestion (delay). However, it is not a measure of safety or accident potential.” [Exhibit
115, p. 3.6-61 The potential LOS impacts of the Project are described extensively by
both Duke and Staff, whereas the safety impacts are all but ignored.
                  The concerns raised by CAPE on behalf of the residents of Morro Bay
primarily relate to safety issues, although traffic delays at the intersections of Atascadero
Road and Main Street (the “Intersection”) and related on and off ramps to Highway 1 are
also of secondary concern and in turn impact the safety issues. There are two significant

75
         Exhibit 4, AFC, §2.1.2, p. 2-30. As a proposed peaker or load following Project, 100% load
capacity for extended periods (especially during summer and fall months) is a very realistic possibility that
must be considered.


                                                      28
areas of safety concerns with Duke‟s proposed traffic and transportation plan during the
construction and demolition phases of the Project. One relates to the street intersections,
particularly at times when schoolchildren pedestrian traffic is high, and the other relates
to the safety of the transition between the southbound (SB) Highway 1 onramp from
Atascadero Road and the off-ramp for SB Highway 1 traffic to Main Street (the
“Transition Lane”).
       1.      Safety Issues at the Intersection Require Additional COCs.
               As evidenced by Mr. Crotzer‟s undisputed testimony, the Morro Bay
Elementary School will be closed at the end of the current school year and almost all of
its students will be transferred to Del Mar Elementary School,77 which is about 2 ½ miles
north of central Morro Bay.78 It is anticipated that many of these students will be
commuting to school by bicycle, scooter, skateboard or walking, which will bring them
through the Intersection.79
               The proposed TRANS-6 regarding a construction Transportation
Management Plan, with the change proposed by Duke in its testimony, requires the Plan
to establish construction work hours outside of the ambient peak traffic periods ( defined
to be 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 5:00 p.m.) to ensure that construction
workforce traffic occurs during off-peak hours. The Plan must likewise schedule heavy
vehicle equipment and building materials deliveries to occur during off-peak hours.
There currently are no restrictions on the lunch period for Morro Bay High School or the
peak 2:00 p.m. to 3:00 p.m. after school departure time for the high school or the 2:30
p.m.80 to 3:30 p.m. departure peak for Del Mar Elementary School.
               Staff notes the City of Morro Bay‟s concern about safety during the high
school‟s lunch time in the FSA Part 1 (Exhibit 115, p. 3.6-10, 1st ¶). Staff‟s response to
this concern is as follows:
               … the concurrent use of this roadway segment by students and project
               workers is not expected to occur due to the scheduling of project-related


76
       1/30/02 RT 81:8-82:22, 98:2-9.
77
       1/30/02 RT 205:19-206:9.
78
       1/30/02 RT 168:16-169:2.
79
       1/30/02 RT 207:13-209:14.
80
       Mr. Fore 1/30/02 RT 169:8-14.


                                             29
                  trips outside of student peak hours (i.e., a.m., noon, and p.m. peak hours).
                  Therefore no impact is expected. [Emphasis added]

Similarly, in Staff‟s response to the City‟s comment on this issue on p. 3.6-22 (last ¶) of
the FSA Part 1, Staff states:
                  This comment is addressed in Condition of Certification TRANS-6.
                  Mitigation measures are provided in the FSA that include the preparation
                  of a Transportation Management Plan for the Construction Phase of the
                  project. The TMP includes measures to ensure non-use of the segment of
                  Atascadero Road directly adjacent to the High School during AM, Noon,
                  and PM peak hours.” [Emphasis added]

                  The latter is simply untrue – there is no ban in TRANS-6 on the use of this
segment of Atascadero Road during school lunch time (which may not be noon) for either
workforce traffic or heavy vehicle and construction material traffic. Moreover, the ban on
PM peak hours does nothing to eliminate this type of traffic during the 2:00 p.m. to 3:30
p.m. period when children will be departing school (either Del Mar Elementary or the
High School). Both of these periods should be included in the banned traffic hours set
forth in TRANS-6.81
                  In addition to the relocated and substantially larger Morro Bay Youth
Center, this section of Atascadero Road contains both Lila Kaiser Park (with softball
fields and leagues) and a BMX recreational facitlity (as well as a miniature golf course
and fun center near the High School) and is thus a draw for children year round.82 Mr.
Fore‟s perfunctory analysis on behalf of Staff is insufficient as demonstrated by his
testimony regarding the youth center: “The Youth Center will open during construction,
but they indicate that they expect approximately 20 to 30 youths there on an average
basis. And the timing is 2:30 to 9:00 p.m. and most of the youths will be dropped off,
will not be driving to the intersection. So it will be adults basically delivering them to
it.”83 This presumption that the youths will not use the newly extended bike path to this

81
         With the great flexibility afforded Duke by the offsite laydown areas (see Mr. Cannon, 1/30/02 RT
131:3-19, 132:11-20), this change should still leave adequate time corridors during the afternoon (as well in
the morning and evening) for construction deliveries. If indeed the planned day work shift starts at 7:00
a.m. and ends after 5:00 p.m. there should be no inconvenience to Duke whatsoever in changing TRANS-6
as proposed by CAPE with respect to workforce traffic either.
82
         1/30/02 RT 209:15-22; see also, public comment by Mandy Davis 1/30/02 RT 228:23-230:19.
83
         1/30/02 RT 170:9-12.


                                                     30
facility appears to be without any factual basis in terms of safety issues. As to LOS
issues, this is also a non sequitur. Even if only 30 youths attended daily and they were all
dropped off, as may occur for example during inclement weather, this dropping off and
picking up would result in 60 additional trips. Moreover, Mr. Crotzer testified that the
City expected a significant increase in usage of the new, larger facility.84
               In its comments to the PSA, the City has also focused on the existing
safety of the Intersection (plus the Highway 1 ramps), noting that the “most recent three-
year accident history is significantly above the average or expected rate for similar
intersections.”85 Staff simply refers to its proposed TRANS-6 and TRANS-7 in response
to this comment. However, for the reasons set forth above, CAPE believes these
conditions as proposed are not adequate.
               In response to CEC Data Request No. 222 [Exhibit 37] regarding accident
rates at the Intersection (plus the nearby on and off ramps for Highway 1) and the
intersection associated with the back entrance to the plant site and the Highway 1 ramps
and local street traffic, Duke provided data in Table 3 and 4 of its response showing 21
accidents at the Intersection (plus the closest on and off ramps for Highway 1). In
addition, there were 4 accidents at the Main Street Highway 1 NB and SB ramps closest
to the plant‟s back entrance during 1997 through 1999. This rate demonstrates a
significant traffic safety issue even before: (1) the closure of Morro Bay Elementary
School and resulting increased pedestrian and vehicular trips to Del Mar Elementary, (2)
the opening of the bikeway extension along the High School, (3) the relocation of the
Youth Center, and (4) the heavy traffic that will occur with construction of the Project,
particularly in the PM peak hours. The potential significant adverse impacts on traffic
safety at the Intersection plus the closest Highway 1 ramps, must be fully mitigated and
CAPE has little confidence based on the currently proposed TRANS-6 and TRANS-7
conditions that there is adequate mitigation in this regard.
               CAPE believes the proposed “roundabout” for the Intersection will only
exacerbate the safety concerns and confusion for drivers, for those on bicycles, scooters
or skateboards, and for pedestrians and will not mitigate the safety concerns arising from

84
       1/30/02 RT 210:6-14, 211:14-212:9.


                                              31
the construction traffic described above, even if the roundabout were completed before
construction of the Project begins. CAPE proposes, at a bare minimum, if the bans on
traffic are not extended to lunch time and after-school hours, that Duke be required to
reimburse the City of Morro Bay or San Luis Coastal Unified School District, as the case
may be, for providing crossing guards at all key locations along this segment of
Atascadero Road and the Intersection during lunch time and between 2:00 p.m. and 3:30
p.m. to assist pedestrians and schoolchildren during school peak times, for the expected
PM peak workforce commute hours (5:00 p.m. to 6:00 p.m.) at least during the summer,
and for any special events scheduled for the High School or the Youth Center.86
                 Finally, because of the consistent dedication of the City of Morro Bay to
promote pedestrian footpaths and bicycling (as well as safe pathways for those on
scooters or skateboards), the newly extended bike path heading north now exits very near
the SB Highway 1 on ramp from Atascadero Road. This requires users to cross
Atascadero Road to pick up the marked bike path which juts west before continuing
northbound between the High School and Highway 1. This path would be used, for
example, by those going to Del Mar Elementary School.87
                 Duke itself acknowledges that the bike path at Atascadero Road ends
“adjacent to a busy intersection.”88 The mitigation proposed there, which presumably
will be what Duke offers as part of the TRANS-6 TMP, is woefully inadequate. “The
Project has proposed addition of signs at that location warning bikers of traffic on
Atascadero Road. The Project has also agreed to monitor conditions on all bike paths in
the Project Study Area to determine if further cautionary steps are warranted.” Warning
signs are simply inadequate and of no assistance to the users of the bike way who need to
get across Atascadero Road to continue on the bike path when there is heavy traffic.



85
           Exhibit 115, FSA Part 1, p. 3.6-21 (4th ¶).
86
           Based on his experience as a two term member of the Morro Bay City Council, Mr. Crotzer
testified that such special events at the Youth Center could include dances and teen-hang-arounds. 1/30/02
RT 210:10-14, 211:14-212:9.
87
           Mr. Crotzer 1/30/02 RT 207:15-209:14. See also, Exhibit 4, AFC Figure 6.11-4, p. 6.11-15 which
shows the newly opened section as “Future City Sponsored Bikeway.”
88
           Exhibit 19, Duke‟s Response to the CEC‟s Data Adequacy Request Regarding Appendix
B(g)(5)(B)(vi), prepared prior to the recent extension of the bike path.


                                                    32
                 To better protect the users of this bike path, CAPE further proposes that
the TMP in TRANS-6 (fifth bullet) include provisions for a signaled pedestrian crossing
triggered by pushing a button, at the crossing of the bike path over Atascadero Road.
Without such a signal, it would be virtually impossible to safely cross from one side of
the bike way to the other during at least the Project‟s peak PM hour.
        2.       Safety Issues Regarding the Transition Lane Require Additional
                 COCs.

                 Ms. Soderbeck, as a resident of Morro Bay with significant personal
experience using the Transition Lane, identified the Transition Lane as an area where
considerable traffic safety issues already exist.89 As set forth in her Declaration,90 this
Transition Lane “involves a relatively short distance of a shared lane where drivers
entering Highway 1 must merge left with southbound traffic at the same time that drivers
exiting Highway 1 must merge right into the Main Street exit.”91 She further notes (¶33
of her Declaration) that she has witnessed numerous close calls as these cross-transitions
(or weavings) occur during various hours of the day and early evening, especially during
special events and tourist season in Morro Bay.92
                 It is through this Transition Lane that the southbound (SB) departing
construction workforce and delivery vehicles will be traveling under Duke‟s proposed
PM Construction Employee Outbound Route (AFC Figure 6.11-9, p. 6.11-37). Duke
anticipates that at least half (51%) of the construction traffic volume will be coming from
south of Morro Bay [AFC, p. 6.11-32]. Thus at least half of the PM construction traffic
volume will be using this Transition Lane during peak workforce departure time (5 p.m.-6
p.m.). During the peak construction period, 425 trips are expected during this Project PM
Peak Hour, of which presumably up to 217 would utilize the Transition Lane.




89
         Duke‟s Response to CEC Data Request 222 [Exhibit 37] shows one accident at the intersection of
Highway 41 and the Highway 1 SB ramps, but does not address any accidents that may have occurred in the
Transition Lane itself on Highway 1.
90
         The last declaration in CAPE‟s Exhibit 139, p. 16, ¶32.
91
         This phenomenon is apparently described as “weaving” in Duke‟s Appendix H2 of the AFC
Appendix 6.11-1 [Exhibit 4].
92
         1/30/02 RT 219:14-221:6.


                                                  33
                  In addition, non-workforce construction truck trips (up to 50 per day
during short time periods)93 would likewise utilize this Transition Lane at various times
throughout the day (other than the AM peak hours of 7 a.m. to 9 a.m. and the PM peak
hour of 4 p.m. to 5 p.m., as presently proposed by TRANS-6). It is only common sense
that many of these construction vehicles will be of extended length (semis, flatbeds,
concrete trucks,94 dirt delivery trucks and even double length dirt trucks95) and slow
moving. Just two of these vehicles proceeding up the SB Highway 1 onramp, back to
back, could make it impossible for Highway 1 SB traffic to exit safely on Main Street
across the Transition Lane.
                  As proposed mitigation, CAPE suggests that TRANS-6 regarding the
Traffic Management Plan be expanded to require that Duke undertake all necessary steps
with all regulatory authorities for the installation of either a temporary or permanent
signal at an appropriate location on the onramp to assure adequate distance between
vehicles entering Highway 1 and to allow exiting SB traffic on Main Street to safely
weave or merge across the Transitional Lane. These monitors are used effectively
throughout the greater Los Angeles area during peak traffic times to moderate the rate at
which traffic can enter the freeways. At a minimum, a signal of this type should be
required throughout the construction stages identified on Traffic and Transportation Table
2 of the FSA Part 1 [Exhibit 115, p. 3.6-8]. During the critical Project PM Peak Flow it
would be primarily the construction workforce that may be inconvenienced by any delays
to maintain an adequate margin of safety.
                  In addition, some (perhaps even half) of the “steady stream” of workforce
departing traffic during the Project‟s PM Peak Hour could be diverted by exiting through
the Project‟s Embarcadero Street entrance turning left or EB on Beach Street, turning left



93
          Exhibit 34, p. 68, last ¶.
94
          See, 1/30/02 RT 123:23-124:6, where Mr. Cannon testified that his firm supported “Duke‟s
decision to use a local concrete operator at the end of Atascadero Road, because, of course it supports local
business … But also because it allows the concrete pours, which tend to be the higher volume delivery days,
to be focused at the end of Atascadero Road. Just going back and forth across the bridge, away from nearly
all City activity.” It was only on cross-examination, however, that Mr. Cannon indicated the negotiations
between Duke and the local concrete provider on Atascadero Road have not been completed. 1/30/02 RT
162:7-18. Accordingly, concrete trucks from elsewhere may be utilizing the Transition Lane.


                                                     34
(NB) at the intersection of Main and Beach, and then entering the SB Highway 1 onramp
nearest the back entrance of the Project. This would relieve some of the pressure on the
Transition Lane (in terms of safety issues) without further increasing existing LOS
problems at the Main Street/Quintana Road intersection and its nearest Highway 1 on
ramps.
                  It should be emphasized that Ms. Soderbeck‟s testimony was uncontested
as to the safety hazards of this intersection. Mr. Cannon on behalf of Duke testified only
that existing levels of service, which do not address the safety issues, would be
maintained there.96 Although Mr. Fore testified he believed “staff has addressed that
intersection to satisfy the safety concerns and traffic potential there,”97 there is nothing in
the FSA discussing any safety issues regarding the Transition Lane. In addition, Mr.
Brown testified that “there is no analytic analysis” in the FSA of accident potential, and
that instead staff only made observations of the “geometry of the roadways.”98
         3.       Further Mitigation Can Eliminate the Greatest LOS Impacts During
                  Construction.

                  Although safety is CAPE‟s utmost traffic and transportation concern, there
is at least one significant decline in the level of service during the Project‟s PM Peak
Hour to LOS D at the Intersection.99 This much additional delay with the extra vehicles,
as well as the many more impatient or frustrated drivers, only exacerbates the safety
concerns noted above for pedestrian traffic at these critical areas. In addition, AFC Table
6.11-9 [Exhibit 4, p. 6.11-69] demonstrates Worse Movement conditions of LOS E for
the Highway 1 SB ramp at Atascadero Road during the Project PM Peak Hour.
                  Apparently, both Duke and Staff have taken the position that all other
increases in traffic that result in lower LOS ratings are not even potentially significant
adverse effects under CEQA, unless they produce an LOS below C, the minimum



95
           This seems highly likely, given the 15,000 cubic yards of dirt required to fill the existing plant‟s
basement after demolition, even after use of all recycled concrete for fill. See, Exhibit 4, AFC, §6.14.2.1.3,
3rd ¶, p. 6.14-21.
96
           1/30/02 RT 155:11-24.
97
           1/30/02 RT 170:17-171:12.
98
           1/30/02 RT 176:7-177:4.
99
           Exhibit 115, FSA Part 1, p. 3.6-14 (2nd 3rd ¶¶‟s), p. 3.6-16, Table 4.


                                                      35
standard specified by the City of Morro Bay General Plan Circulation Element.100 In this
case, the Project will also result in a decline at the Intersection from LOS B to C in the
AM and PM street peak hours.101
                Under CEQA, it is improper to simply assume that such declines cannot be
significant. Gentry v. City of Murietta, 36 Cal.App.4th 1359, 1416, 43 Cal. Rptr.2d 170,
209 (1995). The court there did not agree with project proponents “that a project‟s effects
cannot be significant as long as they are not greater than those deemed acceptable in a
general plan.” Id.; accord, Oro Fino, Berkeley Jets, supra, discussed in §II.C.4 above in
connection with noise levels within general plan standards. As in this case, the
proponent‟s traffic report in Gentry found that with the project the level of service would
go down at several intersections, but with mitigation would not go below those deemed
acceptable in the City‟s general plan and would “meet county requirements for the
resulting levels of service.” 36 Cal. App.4th 1359, 1413, 43 Cal.Rptr.2d 170, 207.
                In Gentry, the project at issue also was expected to result in a 129%
increase in traffic (average daily trips or ADT). Although not quite as high as that figure,
the traffic counts are expected to increase by a substantial percentage on Atascadero Road
as a result of the Morro Bay Project‟s departing workforce during the Project PM Peak
Hour, based on Duke‟s Traffic Study included as AFC Appendix 6.11-1 [Exhibit 4].
                Exhibits 8 and 9 of that appendix set forth a Traffic Volumes Comparison
(based on existing traffic levels at various intersections on various dates) and a Project
Construction Trip Generation summary, respectively. The latter indicates the ADTs
during peak construction staffing during the 5 p.m. to 6 p.m. hour are 425. AFC Figure
6.11-9 (p. 6.11-37) demonstrates that all of these trips are on Atascadero Road. Exhibit 8
shows the ADT for that time period for the Intersection on specified weekdays, an
uneventful weekend, the weekend of the Morro Bay Car Show and Memorial Day
weekend. The additional 425 ADT would result in up to a 41% increase in total traffic
volume.102 Presumably 51% of that outbound PM traffic would be entering the Highway
1 SB on ramp before reaching the Intersection itself. These are quite significant increases


100
       Exhibit 115, FSA Part 1, p. 3.6-6 (last ¶).
101
       Exhibit 4, AFC Table 6.11-9, p. 6.11-69.


                                                     36
in traffic volume at one of the City‟s worst intersections, and far exceed the 1 to 2%
increase in traffic volume that was deemed insignificant in Citizens Action to Serve All
Students v. Thornley, 222 Cal.App.3d 748, 755, 272 Cal.Rptr. 83, 88 (1990), where the
City of Hayward considered a 10% increase in delay as significant.
                  Exhibit 8 of the AFC Appendix 6.11-1 also reflects existing traffic counts
on SB Highway 1/Atascadero Road. It is unclear if the counts given are for traffic
utilizing the SB Highway 1 on ramp or driving by it. The following summarizes the data
for the Project PM Peak Hour.
Day/Date       Existing Count                       Project ADT              Increase with Project
Tue 6/8/99            486                           425                        87.4%
             a
Fri 4/28/00           413                           425                      102.9%
Sat 4/29/00a          556                           425                       76.4%
           b
Fri 5/5/00            545                           425                       78.0%
           b
Sat 5/6/00            572                           425                       74.3%
Fri 5/26/00c          509                           425                       83.5%
             c
Sat 5/27/00           705                           425                       60.3%
 a                         b                                c
      Uneventful weekend       Morro Bay Car Show weekend       Memorial Day weekend

Clearly during the most typical conditions, there is between a 76.4% and 102.9% increase
in traffic passing by or using this onramp. Given Duke‟s projection of 51% of the ABT
entering this ramp to go SB on Highway 1, there would likewise be significant increases
in the traffic that would then have to merge through the Transition Lane to continue
southbound on Highway 1. This supports CAPE‟s arguments above concerning the likely
resulting increases in safety hazards at this area as well.
                  These increases in traffic levels clearly would “[c]ause an increase in
traffic which is substantial in relation to the existing traffic load and capacity of the street
system (i.e., result in a substantial increase in either the number of vehicle trips, the
volume to capacity ratio on roads, or congestion at intersections).” CEQA Guidelines,
Appendix G, XV.a. Likewise, the traffic during this period would exceed a level of
service standard established by the City. CEQA Guidelines, Appendix G, XV.b.
                  Adoption of CAPE‟s proposed additional provision to TRANS-6 requiring
the proposed alternative departure route for half of the construction workforce could help


102
        This is based on the Exhibit 8 counts on June 8, 2000. The 5-6 p.m. count was 1,046 ADT
(425/1046 = 40.6%).


                                                   37
to alleviate the significant impacts on the Intersection and the SB Highway 1 onramp
without impacting the intersection of Main Street and the Highway 1 NB ramp that has a
Worst Movement LOS D rating during the PM peak hours.
                Staff has failed to consider any evidence of levels of service beyond the
LOS methodological results reported by Duke. For example, on p. 3.6-19 of the FSA Part
1 [Exhibit 115], Staff notes the comment made by the City of Morro Bay regarding
existing levels of delay on both the NB Route 1 intersection with Highway 41 and the
Intersection (specifically NB on Main Street) as having existing queues that exceed 30
vehicles. The Staff, in effect, responds only that the City was involved in development of
the LOS methodology used by Duke, and Staff itself simply reviewed Duke‟s LOS
calculations using the same protocol.103 The testimony of Ms. Soderbeck (as well as the
public comment by local resident Mandy Davis)104 likewise confirmed that actual delays
at the Intersection often far exceeded the 25 seconds associated with a LOS D rating.105
                It is clear under CEQA that testimony provided by area residents with
personal knowledge about existing traffic safety and volume levels constitutes
appropriate evidence for the Committee‟s consideration. See, Oro Fino, supra, 225
Cal.App.3d 872, 883, 274 Cal.Rptr. 720, 726, citing Citizens Assn for Sensible
Development of Bishop Area v. County of Inyo, 172 Cal.App.3d 151, 173, 217 Cal.Rptr.
893, 907 (1985), which stated in relevant part:
               In this case the record does not support defendants‟ contention that all of
       the public testimony and letters in the administrative record merely represent fears
       unsupported by any evidence. First, relevant personal observations are evidence.
       For example, an adjacent property owner may testify to traffic conditions based
       upon personal knowledge. Although even expert opinions may ultimately be
       rejected because of the expert‟s interest in the matter or for other reasons, an
       agency may not refuse to consider uncontradicted testimony based upon objective
       data. [Citations]

Ms. Soderbeck‟s uncontradicted testimony as to her observations regarding the existing
safety hazards at the Transition Lane clearly constitutes appropriate evidence on this
issue, as well as on existing levels of service and safety at the Intersection. The latter is

103
       Exhibit 115, FSA Part 1, p. 3.6-21 (1st ¶).
104
       1/30/02 RT 227:22-228:7, 230:20-231:5.
105
       1/30/02 RT 222:21-224:4.


                                                     38
further supported by the PSA comments of the City of Morro Bay and public comment by
Ms. Davis, as well as the data provided by Duke regarding preexisting accident rates at
the Intersection.
               It is also important to note that at least the long term operational impacts
on the Intersection appear not to have been adequately analyzed by Duke or the Staff. In
response to the City of Morro Bay‟s inquiry, Mr. Cannon indicated he was “not in a
position to make [a] judgment” as to whether, after the bridge is constructed as part of the
Project, traffic in the area of the Intersection would increase or decrease relative to
existing traffic.106 Mr. Cannon admitted “[t]here is very little traffic extending from
where the bridge would be to Coleman today,” but he was “not in a position to judge
what traffic conditions would be like once the project was constructed.” Id.
               It only stands to reason that with the bridge allowing for an alternative NB
exit from Embarcadero Road, that traffic conditions could dramatically increase from the
dead end/no exit situation existing before construction of the Project (including the
bridge). Traffic exiting the Embarcardero via this NB route would ultimately impact the
traffic conditions at the Intersection and the SB and NB Highway 1 on ramps from
Atascadero Road on an ongoing basis. This traffic, although not attributable entirely to
the MBPP‟s employees, is clearly a foreseeable secondary impact of the Project with
potentially significant adverse effects on the City of Morro Bay and its residents and
therefore requires a thorough investigation and analysis, as well as mitigation of the
effects demonstrated in that analysis. That analysis simply has not been done here and
should be required before the Project is certified.
               Finally, CAPE supports the City‟s request for videotaping of the
subsurface utilities in the vicinity of the bridge and road extension.
E. The AFC and FSA Fail to Address All Significant Adverse Socioeconomic
   Impacts from the Project.

               CAPE‟s concerns in the area of Socioeconomic impacts of the Project are
threefold. Duke‟s testimony significantly overstates the fiscal and socioeconomic
benefits of the Project to Morro Bay and underestimates the potentially significant

106
       1/30/02 RT 158:3-21.


                                              39
adverse impacts, requiring further mitigation measures. In addition, Staff‟s
environmental justice analysis is too limited in its reliance only on U.S. Census data and
USEPA Guidelines.




                                            40
         1.       The Direct Fiscal Benefits of the Project Have Been Overstated.
                  First, the testimony of Dr. Schniepp significantly overstates the fiscal
benefits of the Project to the City of Morro Bay in several ways. Dr. Schniepp testified
that during the five year construction period alone, the value of increased property tax
revenues, increased sales tax revenues, the outfall lease payment, the franchise fees, the
payment for police and fire, the public services direct project liaison, other impact fees,
and the Highway 41 road improvements total $23.7 million.107 He further testified that
the existing plant‟s operations would have yielded about $13.7 million for a net increase
of $10 million with the new Project. Id.
                  This testimony ignores that a significant portion of the net funds are
negotiated “in lieu of mitigation” fees for damages from the Project. For example, the
payments associated with police and fire ($2.7 million), the public services direct project
liaison ($.7 million), the various impact fees ($2.5 million), and the Highway 41 road
“improvements” ($1.4 million), totalling $7.3 million, are all in the nature of mitigation
for damages resulting from the Project, i.e, no net benefit to the City.108 In addition, the
Outfall Lease must be renegotiated in 2004 for the existing plant to continue operations.
In light of the fact that the commercial value of the lease has now been established at
$250,000 per year (or aggregating at least $1 million for 4 years, if construction of the
new plant were to commence in 2003 under both scenarios), Dr. Schniepp‟s estimate of
$10 million in net fiscal benefits is grossly overstated, by at least $8.3 million. Of the
balance, the existing franchise fees and property taxes already exceed the amount
guaranteed by Duke for combined property taxes, franchise fees and the outfall lease
under the draft ATL,109 leaving only Morro Bay‟s relatively small share of increased
property taxes and the $1.8 million in sales taxes as fiscal benefits. The latter is a
pittance for an $800 million project.110
                  These remaining fiscal impacts on Morro Bay are not particularly relevant,
especially in anticipation of the Project alternatives issues to be considered in the Group

107
        1/31/02 RT 31:9-25.
108
        Mr. Schultz 1/31/02 RT 49:25-50:3; Exhibit 138; Exhibit 119, p. 2 (2nd and 3rd bullet), p. 3 (7th and
  th
8 bullets).
109
        Id., 1/31/02 RT 33:24-34:5.
110
        Exhibit 117, p. 24 (last sentence).


                                                     41
IV Topic hearings. For example, the project proponent in San Joaquin Raptor/Wildlife
Rescue Center v. County of Stanislaus, 27 Cal. App.4th 713, 738, 32 Cal. Rptr.2d 704,
719 (1994) argued that “alternative sites should not be considered because they would
necessitate the loss to the town of Grayson of the „substantial benefits‟ the development
project would bring …” The court rejected this out of hand: “It may be true that if the
project were located elsewhere, Grayson would lose these benefits; however, if so,
another community would be similarly enriched. An EIR is not a document of advocacy
but of information.” Id.
               Moreover, the relevant comparison here is not the shut down of the
existing plant, as inquired about by Commissioner Moore.111 Duke has consistently
maintained throughout this process that there is no “no plant” alternative, merely the
continuation of the existing plant for an indefinite period into the future.
       2. The Adverse Socioeconomic Impacts Have Not Been Adequately
          Addressed by Staff or Duke.

               The potentially significant adverse socioeconomic effects of the Project
are soft-pedaled by both Duke and Staff. For example, Dr. Schniepp relies on the study
attached as Appendix 6.10-4 to the AFC [Exhibit 4] to conclude there will be no impacts
on tourism and property values from the Project in Morro Bay. Although the projects
noted in that study bear a few nominal characteristics in common with Morro Bay, none
are particularly close on all the key characteristics of Morro Bay. For example, Diablo
Canyon, although in geographic proximity to Morro Bay, has more distinguishing
features than common ones (such as more limited access and a greater distance from the
plant to motels and restaurants).112 Comparable significant differences in circumstances
exist with respect to the Moss Landing project. Id. The only project noted by Dr.
Schniepp from the tourism study in Appendix 6.10-4 that was even close to addressing a
huge construction project in open view of the coastline (but not in the middle of town)
was a totally different type of project (a mine in British Columbia).113 There was no
evidence produced by Duke or Staff that the visual, noise, traffic, air quality and other

111
       1/31/02 RT 32:16-34:22.
112
       1/31/02 RT 23:12-24:2, 14:17-18:1.
113
       1/31/02 RT 15:23-16:1.


                                              42
related impacts from construction of the mine would be similar in any way to those
occurring in Morro Bay with the 5 year construction/demolition period for and extended
operating life of this Project.114
                  In terms of potential adverse impacts of the construction/demolition period
on property values in Morro Bay, Dr. Schniepp agreed with Staff‟s assessment in the FSA
Part 1115 that actual loss of property values and potential effects resulting from the Project
can only be tested through data from home sales.116 Staff further testified117 that there
may be a “small” negative impact during the construction/demolition period of the
Project on property values, but could was not possibly quantify that. Given that
impossibility, CAPE proposes a new SOCIO-4 to help mitigate potential damages to
private property owners during the construction/demolition period of the Project.118
         SOCIO-4:        Any property owner who can demonstrate (utilizing the
         noncompliance complaint procedures set forth in the General Conditions) to the
         satisfaction of the CPM that he or she sold real property during the
         construction/demolition period at a diminished value resulting from the
         construction of the new facility and/or demolition of the existing facility shall be
         entitled to damages for such diminished value from the facility owner in the
         amount determined by the CPM.

Such a condition would not require Duke to set aside any funding mechanism in advance
but would allow a somewhat simplified process for a property owner who can satisfy the
rather rigorous demands of the condition.
         3.       Staff’s Environmental Justice Analysis Is Inadequate Under CEQA.
                  Staff‟s Environmental Justice Screening Analysis119 for low-income
populations, like its minority population analysis, applies only the USEPA‟s April 1998
National Environmental Policy Act (NEPA) Compliance Analysis, including an arbitrary
analysis of the population only within a 6 mile radius of the Project site and using only

114
          Exhibit 4, AFC, Appendix 6.10-4 (p. 6, 1st ¶) in fact indicates that this Kensington Mine involved
only a 2 year construction period, 12 years of mining and then site restoration. That is hardly comparable to
the 5 year construction/demolition period and operational life of 30 to 50 to 100 years estimated by Duke
for this Project.
115
          Exhibit 115, §3.5, Appendix A, p. 3.5-22.
116
          1/31/02 RT 12:18-16:1, 26:7-27:3.
117
          Exhibit 115, FSA Part 1, §3.5, p. 3.5-14; 1/31/02 RT 41:18-42:15.
118
          All of the proposed mitigation for socioeconomic impacts in the draft ATL are for the City‟s
benefit as opposed to individual residents who may suffer damages.
119
          Exhibit 115, FSA Part 1, §3.5, p. 3.5-14; 1/31/02 RT 39:18-41:8.


                                                     43
U.S. Census Data and poverty definitions. Because all of the significant adverse impacts
occur within a three mile radius of the Project site, i.e., in Morro Bay itself, the City of
Morro Bay should be considered as a distinct community in the environmental justice
screening. Anything else is merely arbitrary. For example, the construction/demolition
and long-term adverse noise and air impacts occur within Morro Bay. Likewise the brunt
of the adverse construction/demolition traffic impacts will occur in Morro Bay itself, as
well as any adverse effects on property values during the construction/demolition period.
Morro Bay‟s 2000 population of 10,350 is substantially (3.5 times) less than the 36,336
population within the six mile radius.120
                 Properly focused on the area where the most significant adverse impacts
occur, i.e., in Morro Bay, Staff should likewise have gone beyond the NEPA standards
and looked at what Morro Bay itself had determined – independent of this Project – that
fully 50% of the population of Morro Bay is categorized as either low or very low
income.121 This substantial low income population will be asked to endure the burdens of
a new MBPP that could operate for up to another 100 years. This is substantially larger
than the 11.4% poverty level indicated in the 1990 U.S. Census data. CAPE is
incredulous that Staff suggests it knows better what the income situation of Morro Bay‟s
population is than the City itself. The Committee should consider only the latter.
                 It is well established that CEQA and NEPA are not identical and CEQA
provides greater environmental protections than does NEPA. See, e.g., Berkeley Jets,
supra, 91 Cal.App.4th 1344, 111 Cal.Rptr.2d 598, 624-625 (noise impacts); San
Francisco Ecology Center v. City and County of San Francisco, 48 Cal.App.3d 584, 590-
591, 122 Cal.Rptr 100, 103-104 (1975).122 The California Supreme Court addressed this
issue in Mountain Lion Foundation v. Fish and Game Com’n, 16 Cal.4th 105, 121, 65
Cal. Rptr.2d 580, 590 (1997), finding that it need not follow federal precedent when the
federal provisions do not parallel those of CEQA. Federal courts acknowledge these



120
          Exhibit 115, FSA Part 1, p. 3.5-16, Table 7.
121
          City of Morro Bay‟s General Plan, Housing Element, VII-5; Table H-2. Source: San Luis Obispo
Council of Governments, Regional Housing Needs Plan, November 6, 1991.
122
          The court noted specifically that NEPA allowed equal weight to economic and environmental
factors, whereas CEQA required greater weight on environmental than economic concerns.


                                                  44
differences as well. Carmel-By-The-Sea v. U.S. Dept. of Transportation, 123 F.2d 1142,
1163 (9th Cir. 1996).123
                  Perhaps the best discussion of the relationship between CEQA and NEPA
was set forth early on in Sierra Club v. Gilroy City Council, 222 Cal.App.3d 30, 41, 271
Cal.Rptr. 393, 398 (1990):
                 Unlike the “essentially procedural” [NEPA] [Citation], CEQA contains
         substantive provisions with which agencies must comply. The most important of
         these is the provision requiring public agencies to deny approval of a project with
         significant adverse effects when feasible alternative or feasible mitigation
         measures can substantially lessen such effects. [Citations]

The environmental justice considerations are clearly substantive and not merely
procedural. CEQA therefore requires an analysis independent of NEPA requirements.
This simply was not done here, but should be. For example, alternative sites for the
Project may well not be in areas that are substantially, disproportionately low income.
         4.       Dr. Schniepp’s Testimony Regarding Terrorism Risks Is Baseless.
                  Dr. Schniepp in his written testimony124 purports to address terrorism risks
at the MBPP. Dr. Schniepp is not an expert on terrorism risks in the United States post
September 11, 2001, but nonetheless states: “Due to the type of fuel and the relatively
small population near the facility, the [MBPP] is an unlikely target for terrorism
compared with many other industrial facilities.” There is nothing in Dr. Schniepp‟s
resume to indicate he has any expertise whatsoever on this subject. Likewise, Dr.
Schniepp‟s testimony that “a modernized plant at MBPP does not necessarily increase the
risk of terrorism and that it may actually be considered less of a visual target because of
the elimination of the 450 foot tall stacks” is pure speculation.125




123
          The Ninth Circuit acknowledged that CEQA and NEPA impose similar procedural requirements,
but substantive differences do exist.
124
          Exhibit 134, pp. 82-83.
125
          It is equally if not more likely that the increased industrial look of the new MBPP (raised by Staff
in the Visual Resources Analysis, FSA Part 1 [Exhibit 115, §3.8, p. 3.8-56] and the open, obvious nature of
the location of hazardous material tanks at the new MBPP will make terrorist attacks more deadly at the
new MBPP.


                                                     45
                                    III. CONCLUSION
                 Based on the foregoing, it is respectfully submitted that Staff‟s and Duke‟s
analyses are inadequate with respect to the five Group II Topics discussed above. Where
possible, CAPE has offered specific proposals to amend the proposed COCs in these
areas. CAPE strongly urges the adoption by the Committee of the recommended COC
modifications.
Dated: March 8, 2002                           Respectfully submitted,
                                               BRYAN CAVE LLP
                                               BONITA L. CHURNEY



                                               By _______________________________
                                                     Bonita L. Churney
                                                 Attorneys for Intervenor The Coastal
                                                 Alliance on Plant Expansion




                                              46

								
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