Department of Water & Power v. Energy Resources Conservation & Development Com.

Citation2 Cal.App.4th 206,3 Cal.Rptr.2d 289
Decision Date31 December 1991
Docket NumberNo. B055524,B055524
CourtCalifornia Court of Appeals Court of Appeals
Parties, Util. L. Rep. P 26,246 DEPARTMENT OF WATER AND POWER, CITY OF LOS ANGELES, Plaintiff and Respondent, v. ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION, Defendant and Appellant.

William M. Chamberlain, Gen. Counsel, John D. Chandley, Jonathan Blees and Steven M. Cohn, Deputies Gen. Counsel, for defendant and appellant.

James K. Hahn, City Atty., Edward C. Farrell, Chief Asst. City Atty., and Stanton J. Snyder, Deputy City Atty., for plaintiff and respondent.

ORTEGA, Associate Justice.

California Energy Resources Conservation and Development Commission (Energy Commission) appeals from the judgment ordering the issuance of a peremptory writ of mandate commanding the Energy Commission to cease its exercise of certification jurisdiction over the Harbor Generating Station Repowering Project. We affirm the judgment.

FACTS & PROCEDURAL BACKGROUND

Respondent Department of Water and Power of the City of Los Angeles (DWP) owns the Harbor Generating Station (station). The station, which encompasses a 20-acre site in Wilmington, California, provides "voltage support, transmission support,

southern system security and emergency support" for the DWP's electrical system.

A. South Coast Air Quality Management District Rule 1135

The station, which was in existence before the Energy Commission's creation, has not previously been subject to the Commission's certification jurisdiction. The present certification controversy arose when the DWP selected the station for a repowering project to comply with Rule 1135 of the South Coast Air Quality Management District (SCAQMD).

Rule 1135, enacted in August 1989, applies to "all existing, electric power generating steam boiler systems and all affected repowered units and non-combustion resource[s]." Rule 1135 establishes "District-Wide Daily Allowable Emissions" for the DWP's electric power generating steam boiler system, and a schedule for achieving such decreasing emissions rates. Rule 1135 requires in part that the DWP " 'repower at least 240 megawatts of existing steam boilers by December 31, 1993[,] with repowered capacity such that NOx emissions from the repowered unit[s] do not exceed 0.25 pound of NOx per net megawatt hour.' " 1

B. The Repowering Project

The station (before repowering) contains nine electrical generating units and auxiliary facilities including fuel oil tanks, water tanks, shops, a warehouse, offices, and a substation. The station has two types of generators: Rankine cycle or steam turbine generators (units 1 through 5) which were built during the 1940s, and Brayton cycle or simple cycle gas turbine generator units (units 6 through 9) which were installed in 1972. The repowering project will convert the station over to a combined cycle process which physically combines both Rankine and Brayton cycles in a more efficient system.

Units 1 through 5 (before repowering) use natural gas-fired boilers to produce the steam which is transferred to the steam turbines. The steam turbines then use the resultant energy to turn the electrical generators. The steam is condensed back into water and returned to the boilers where the Rankine cycle is repeated.

Units 6 through 9 (both before and after repowering) use fossil fuel-powered engines to produce hot air which carries the heat of combustion to the turbines, which in turn spin the electrical generators.

The parties stipulated below to the specific details of how the station will be converted to a combined cycle system. The oldest units (units 1 and 2) will be dismantled and removed from service. 2 In the space vacated by the removal of units 1 and 2, new generators will be installed to run the repowered unit 5 in a combined cycle system.

The new combined cycle system will be powered by two 80-megawatt combustion turbine generators and two heat recovery steam generators. The repowering project will physically combine the Brayton and Rankine cycles by capturing the otherwise wasted heat exhaust from the two new combustion turbine generators (the Brayton cycle portion of the combined cycle) and using that energy to boil water in the two new heat recovery steam generators. The resulting steam will then be used to drive the steam turbine generators (the Rankine cycle portion of the combined cycle), thereby augmenting the gas turbine generators' output and increasing the station's overall efficiency.

In addition to the new generators, the DWP will supply unit 5 with new "condensate polishers, fuel gas compressor stations Parts of units 3, 4, and 5 will be retained for use in the repowered unit 5. 3 Unit 3's "condenser would be used as a bypass for steam from the [heat recovery steam generators] only in the event that both the Unit 4 and Unit 5 steam turbines were inoperative." The units 4 and 5 "steam turbine generator, feedwater system, condensers, auxiliary power, boiler feed pumps, circulating water pumps, generation transformers, foundation, and exhaust stacks would remain on site unchanged[.]" "[T]he only changes to Unit 4 and Unit 5 steam turbines would be to modify the process controls and instruments, the hydraulic controls, and to convert the water seals to steam seals on the steam turbine to receive steam from two Heat Recovery Steam Generator units ... instead of a boiler."

water treatment equipment, and a Selective Catalytic Reduction (SCR) System[.]" And the DWP will either add to or modify unit 5's "auxiliary steam generator, gland steam condensers, vacuum pumps, turbine bypass, exhaust gas stacks, and air filter assemblies."

Other parts of units 3, 4, and 5 will be permanently removed from service. Unit 3's "boiler, steam turbine generator, feedwater system, auxiliary power, process controls and instrumentation, boiler feed pumps, circulating water pumps, generation transformers, foundation, and exhaust stack would remain on site, but would not be used, even in an emergency." And unit 4 and 5's steam boilers "would be permanently removed from service and would not be used, even in an emergency."

Units 6, 7, 8, and 9, which each have a capacity of 19 megawatts and are used for "peaking duty," will not be affected by the repowering project. These units will continue to operate during the repowering project.

In general, the repowering project will affect the station's overall operation as follows: "Over 60 percent of the equipment within the building which contains the steam turbine-generators would be left in place after the repowering. Approximately 95 percent of the square footage of the existing 20-acre facility site would not be changed by the repowering project. [p] ... After the repowering project is completed, none of the boilers would operate, and 20 percent of the steam turbine generators (excluding condensers) would operate on a normal basis (40 percent counting the back-up turbine)." 4

C. The Energy Commission's Jurisdiction

In 1974, the Legislature enacted the Warren-Alquist State Energy Resources Conservation and Development Act (Pub.Resources Code, § 25000 et seq., hereafter the Act). 5 The Act states that "electrical energy is essential to the health, safety and welfare of the people of this state and to the state economy, and that it is the responsibility of state government to ensure that a reliable supply of electrical energy is maintained at a level consistent with the need for such energy for protection of public health and safety, for promotion of the general welfare, and for environmental quality protection." (§ 25001.) The Act also enunciates a policy and intent The Act established the Energy Commission. (§ 25200.) The Energy Commission's five members 6 are responsible for establishing the state's energy policy and "insuring adequate electricity supplies with minimum adverse effect on the state economy and environment. [Citations.]" (Public Utilities Com. v. Energy Resources Conservation & Dev. Com. (1984) 150 Cal.App.3d 437, 440, 197 Cal.Rptr. 866.)

to "establish and consolidate the state's responsibility for energy resources, for encouraging, developing, and coordinating research and development into energy supply and demand problems, and for regulating electrical generating and related transmission facilities." (§ 25006.)

The Energy Commission's certification jurisdiction is set forth in section 25500. After the effective date of the Act, "no construction of any facility or modification of any existing facility shall be commenced without first obtaining certification for any such site and related facility by the commission, as prescribed in [the Act]." (§ 25500, italics added.) Section 25500 supplies the Energy Commission with the exclusive power to certify all "sites" 7 and "related facilities," 8 "whether a new site and related facility or a change or addition to an existing facility." (§ 25500.)

Section 25500 would require the DWP to obtain the Energy Commission's certification if the Harbor repowering project is found to constitute either the "construction" or the "modification" of a facility. (For the sake of convenience, we hereafter use the shorthand terms "construction jurisdiction" and "modification jurisdiction.")

The Act supplies definitions for both "construction" and "modification." As used in the Act, " 'Construction' means onsite work to install permanent equipment or structure for any facility." (§ 25105.) The term "facility" includes a " '[t]hermal powerplant' ... with a generating capacity of 50 megawatts or more...." (§§ 25120, italics added; 25110.) 9

The term "modification" as used in the Act means "any alteration, replacement, or improvement of equipment that results in a 50-megawatt or more increase in the electric generating capacity of an existing thermal powerplant...." (§ 25123, italics added.)

D. The Administrative Hearing

The DWP maintained at the...

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