8/9/2019 Desal Revocation Presentation
1/20
City of Carlsbad Poseidon ResourcesDesalination Project
REQUEST FOR CDP REVOCATION
Marco A. Gonzalez
Coast Law Group LLP
SD Coastkeeper
CERF
Joe GeeverSurfrider Foundation
California Coastal Commission
Item 9(a)December 9, 2009
8/9/2019 Desal Revocation Presentation
2/20
1
2 3
4
5
8/9/2019 Desal Revocation Presentation
3/20
Fundamentals
Theres a reason the CCC usually waits to act
The process was flawed from the beginning.
Poseidon misrepresented the status of the Project and processbefore the Regional Board
Regional Board primary jurisdiction argument used to preclude
inconsistent MLMPs, but ended up the case anyway
Ultimately, played agencys conditional approvals against each other
Revocation impingement issues are highly technical and
required significant time and effort by agency staff and public
to identify. But now we know the truth.
8/9/2019 Desal Revocation Presentation
4/20
Revocation Standard
Legal Standard: 14 CCR 13105
Intentional inclusion of inaccurate, erroneous or incomplete
information such that accurate and complete information would
have caused additional or different conditions or denial.
- Intentional submission v. nefarious intentions-Vadnais v. CCC (2001) The regulations do not state that the
intentional inclusion of erroneous information must be in bad
faith.
- Whats the point of the provision?
- CA compliance; different outcome would have occurred with
accurate submission.
-Commission is the authority, deserves full and accurate
information
- Its not the Commissions job to find the error or dig for
information
8/9/2019 Desal Revocation Presentation
5/20
Request for Revocation
Poseidon intentionallywithheld impingement data when
the Project first came forward, rendering the submission
incomplete.
Poseidon intentionallysubmitted incomplete and
inaccurate impingement data; (and now has admitted) it
knew of a significant calculation error, which resulted in CCC
adoption of an inadequate MLMP.
Poseidon intentionally submitted inaccurate information
regarding intake velocities, thereby skewing likely
impingement impacts.
8/9/2019 Desal Revocation Presentation
6/20
8/9/2019 Desal Revocation Presentation
7/20
Impingement Data HistoryCDP granted Nov. 15, 2007 with Conditions
Poseidon gave staff impingement sampling data summary(Tenera 2007); staff could not verify conclusions, so askedfor full data.
Asked/forced to rely on Poseidons consultants calculations Samples taken over course of year (2004-2005), per protocols
Total # of taxa, total weight of organisms collected
Poseidon divided total weight by 365 days = .96kg/day[THIS ERROR WAS NOT KNOWN UNTIL DISCOVERED BY REGIONAL BOARD STAFF IN APRIL 2008,AND WASNT DISCLOSED TO ENVIRONMENTAL GROUPS UNTIL MARCH 2009]
With summary, staff had no way of verifying calculations Poseidon only provided summary of all data by taxa, not by day
and with no flow data.
Why data withheld? Who knows? But Poseidon had the 04-05
data, and intentionally did not disclose all of it.
8/9/2019 Desal Revocation Presentation
8/20
Staff and Commissions concernsembodied in Special Condition 8 Required: documentation of expected impacts to
marine life due to entrainment and impingement andProduction of Marine Life Mitigation Plan
Impacts verification by submission of full 2007 Tenerastudy (more than just the summary)
Issue was not brought back to CCC for fulldiscussion until August, 2008 But with intervening history regarding findings
disagreements
Impingement Data HistoryCDP granted Nov. 15, 2007 with Conditions
8/9/2019 Desal Revocation Presentation
9/20
What happened 11/07-8/08?
Regional Board Proceedings
Feb. 2008: board staff also points out lack ofimpingement data (specifically dates, times,
flow rates of sampling events)
Mar. 6, 2008: Poseidon revised Flow Plan,gave full data by date, but no flow volumes
Apr. 9, 2008: Conditional board approval, butrequired full impingement calculations within 6months, with submission of final Flow Plan.
8/9/2019 Desal Revocation Presentation
10/20
Regional Board Proceedings
Apr. 17, 2008: Board staff finds calculation error
and asks Poseidon for justification
Apr. 30, 2008: Poseidon acknowledges error
and emails staff new calculations
Extrapolation and statistical significant
relationship results in claim of1.56kg/day
impingement rate
2 outlier surveys removed = ?????
What does Poseidon do once error is discovered
and new method for calculation devised?
8/9/2019 Desal Revocation Presentation
11/20
Poseidons Immediate Response to CCC
Did Poseidon notify CCC of error? NO Claim earlier submission reflected some data for52
sampling events, good enough
Poseidon did nothing to correct CCCsunderstanding of impingement calculations.
Poseidon decided whether error and changedimpingement rate warranted change in finding.
Note: Regional Board still didnt have flow data.
Look at Latham letter, 10/15/2009, pp 10,11.
Regional Board figured it out despite our error, so raw datasubmission to CCC was good enough.
Cant prove we were trying to hide anything from anyone; nointent to defraud CCC.
8/9/2019 Desal Revocation Presentation
12/20
MLMP and Revised Findings at CCC
August 6, 2008
CCC found compliance with SC 8 becausePoseidon submitted 2007 Tenera Studyclaiming di minimis impingement impacts
But: No revised impingement calculations for CCC
No mention of Regional Board uncovering math error
Revised findings still at original .96kg/day
Poseidon knew of error at least 5 months earlier, butintentionally submitted a MLMP that reflected incorrectimpingement data conclusions.
Why didnt they disclose this to the Commission?
8/9/2019 Desal Revocation Presentation
13/20
Because once error revealed, higher
impingement results triggered revised
methodology for quantifying impacts.
The real problems were just starting!
CCC and Environmental Groups were not
made aware of revised calculation
methodology (re: outliers) until 2009!
Why not disclose?
8/9/2019 Desal Revocation Presentation
14/20
The Innocent Error
Poseidon: with outliers removed = 1.56kg/day (3.43 lbs/day)
Dr. Raimondi, CCC expert found:
4.7kg/day at 50% confidence interval
7.4 kg/day at 80% confidence interval
9.1 kg/day at 95% confidence intervalCompare .96kg/day to upper limit of 9.1 kg/day, a 10x increase!
For entrainment impacts, CCC previously followed Dr. Raimondisrecommendation for mitigation acreage based upon 80% confidenceinterval.
Regional Board found 50% confidence interval sufficient Regional Board calculated productivity requirement based on 4.7kg/day
impact
Regional Board expressly rejected the notion that impacts di minimis.
CCC required no impingement mitigation, finding such impacts diminimis.
8/9/2019 Desal Revocation Presentation
15/20
How could this be?
- April 1, 2009 Review of Impingement Study and Mitigation Assessment for Regional Board
Dr. Pete Raimondai,
Commission staff indicated CCC would require permit amendment
Poseidon pursued legislative fix ; rebuffed by more than 100 groups
Poseidon worked out a settlement agreement with staff, outside of the
purview of the Commission and the Public.
Can someone explain the voluntary 11 additional acres of mitigation?
The project as approved by the CCC will result in significant impingement
impacts without mitigation in violation of the Coastal Act.
Poseidon had knowledge of data discrepancies and intentionally failed to
disclose complete and accurate information.
8/9/2019 Desal Revocation Presentation
16/20
Intake Velocity
Poseidon promised .5 fps; which equates to EPAstandard for power plant BAT
CCC staff report admits it was led to believePoseidon was committing to through screenvelocity rather than approach velocity
Poseidon knew what it was proposing, andchanged it in May 2009 such that new velocitiesare 40 to 250 times greater than original .5 fpsproposal.
8/9/2019 Desal Revocation Presentation
17/20
No question findings were based upon .5fps atintake bar racks.
No question this assertion was intentionallymade.
Staff report rests upon no finding of bad faith.
Bad faith is not the standard. Poseidonintentionally led the Commission to believesomething which now turns out to be flat wrong.
8/9/2019 Desal Revocation Presentation
18/20
Poseidon point of velocity measurement --
20 feet away from bar rack .
Width = 79 feet (48 + 16 + 15)
(Staff Report p. 9; Latham & Watkins Letter,
October 15, 2009, p. 13)
Actual Coastal Commission point of velocity
measurement -- at point of impingement .
Width = 34 feet ((4 x 10) 1-inch bar every 3.5
inches)
(Staff Report p. 9)
8/9/2019 Desal Revocation Presentation
19/20
Policy and Precedent
8/9/2019 Desal Revocation Presentation
20/20
Conclusion
Top Related