Certification Granted on December 29, 1982, with minor revisions upon reconsideration on February 23, 1983.

Staff Counsel: Lisa Trankley

Presiding Member: Commissioner Gene Varanini

AFC Filing

On December 1, 1981, Southern California Edison (SCE) filed Solar 100 as a "Solar Supplement" to its ongoing Lucerne Valley Project AFC for a contingency oil-burning peaker plant, Docket No. 80-AFC-2. This new 100 MW central station solar facility would substitute for two of Lucerne Valley’s combustion turbines. It also represented an example of SCE’s announced commitment to renewable and alternative energy resources. The Committee determined that Solar 100 should be treated as an entirely separate AFC.

Project Description

The Solar 100 site was a two square mile area of open, undeveloped, desert scrub in upper Johnson Valley in San Bernardino County, 32 miles southeast of Barstow, and 21 miles northeast of Lucerne Valley. Solar 100 was intended to occupy a portion of the same site as the Lucerne Valley Project.

With central station solar, a collector field of reflective mirrors (heliostats) directs the sun’s energy at a large receiver. The Solar 100 receiver would then heat molten salt or another fluid used to generate electricity through a steam turbine. Solar 100 was designed as a bigger version of SCE’s Solar 1, an operating experimental facility at Daggett.

Issues

Unlike the Lucerne Valley Project, for which no contingency need could be established, Solar 100 was found to conform to the CEC’s forecast for new resources in the SCE service area. (Pages 16-17 of the CEC Decision.) Demand conformance was thus never an issue in the Solar 100 case.

Nor was biology contested, as SCE agreed to the purchase and preservation of desert tortoise habitat of approximately the same size and character as the land it would disturb. (Biology Condition of Certification 3, pages 46-47 of the CEC Decision.) This was a l to 1 ratio, which the California Department of Fish and Game accepted for this protected species. (Note that for the Luz projects, beginning with Docket No. 87-AFC-1, the Department of Fish and Game had dramatically changed its position, insisting upon a 5 to 1 ratio, five acres of tortoise habitat preserved for every one destroyed.)

Land Use Non-Conformities

CEC staff and the Committee identified a local land use non-conformity early in this proceeding, which was first thought to involve the San Bernardino County General Plan. After an October 21, 1982 public hearing, the problem was clarified. Although Solar 100 was consistent with the General Plan, the site lacked the required zoning designation. Additionally, the Bureau of Land Management (BLM) California Desert Conservation Area Plan needed an amendment to accommodate Solar 100’s proposed water pipeline. (Pages 326-327 of the CEC Decision.)

Both San Bernardino County and BLM indicated to the Committee that they would rectify the non-conformities, if requested to do so by SCE. However, it appeared that Edison would not make the necessary applications, hoping, at least with the county, to induce the Energy Commission to utilize its override power under Public Resources Code section 25525.

The Committee was thus confronted by a set of undesirable options. It could delay the case well beyond the statutory one year deadline, while seeking to induce Edison to take those steps necessary to eliminate the non-conformities. If Edison cooperated, (a big if), and conformity was achieved, the Committee could then make the finding specified in Public Resources Code section 25523(d)(1) and complete the AFC. The drawbacks of this option were uncertainty and delay.

Alternatively, the Committee could attempt to override the San Bernardino County Zoning Ordinance in order to create conformity. This Public Resources Code section 25525 override power was intended as a last resort. It had only been used once before, in PG&E Geysers 16 (Docket No. 79-AFC-5), where Sonoma County’s land use standards conflicted with a major PG&E transmission line that the county strongly opposed. An override was clearly inappropriate for Solar 100, where the continued non-conformity resulted from applicant intransigence, rather than established county policy as in Geysers 16. Furthermore, the Commission could not override BLM, a federal agency, so that second non-conformity would still remain. Trying to override San Bernardino County was clearly out of the question.

The Committee chose a third option due to the unusual circumstances of Solar 100: the condition subsequent. The Public Resources Code section 25523(d)(1) findings of land use conformity would be based upon the clear likelihood of a zoning change and BLM Desert Plan amendment, both of which were expected to occur after certification.

Special Conditions of Certification were drafted at pages 328-329 of the decision under which the Energy Commission itself would request San Bernardino County to make the zoning change, with SCE directed to provide the county with necessary cooperation. The case could be re-opened if there was a failure to correct the zoning non-conformity, and SCE would then be able seek an override. The Commission further ordered SCE to obtain the necessary BLM Desert Plan amendment, or equivalent, in order to eliminate that second non-conformity. No construction of Solar 100 would be allowed until both the San Bernardino and BLM land use non-conformities were removed.

The drawback of this approach was Commission approval of an AFC, with a condition subsequent (future conformity), instead of the clear and present finding of conformity specified in Public Resources Code section 25523(d)(1). The prohibition of construction until conformity was achieved did create an equivalent result.

However, Solar 100’s conformity finding through a condition subsequent set an unfortunate, but short lived, precedent. When CEC staff counsel in SANDER, Docket No. 85-AFC-4, relied upon Solar 100 to assert that another land use non-conformity could be corrected after the AFC was approved, his legal theory was rejected by the CEC General Counsel. The Solar 100 approach was disapproved, and the doctrine put forth that all non-conformities must be corrected prior to certification. (Executive Director Rhoads’ June 19, 1987 letter to the San Diego City Attorney.) This legal doctrine has been followed ever since, most notably in SEPCO, Docket No. 92-AFC-2.

Adoption

The Energy Commission unanimously certified Solar 100 at the December 29, 1982 Business Meeting. Reconsideration was granted on February 23, 1983, at the request of the San Bernardino County Air District, to correct clerical errors in the Determination of Compliance.

Southern California Edison never constructed Solar 100. It's parent AFC, the Lucerne Valley Project, Docket No. 80-AFC-2, was denied a license by the Energy Commission.