Desal Revocation Presentation

8/9/2019 Desal Revocation Presentation

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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


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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.


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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


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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.


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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.


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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


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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.


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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?


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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.


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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?


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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?


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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.


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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.


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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.


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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.


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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)


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Policy and Precedent


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Conclusion

Desal Revocation Presentation

Documents

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