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    CA Energy Comm'n Says FERC & Port of LB Have Thus Far Blocked Its Access To Safety-Related Info Needed For Agency's Comments on LNG Draft EIR/EIS; Negotiations Pending, Time Extension Sought

    (December 6, 2005) -- In a stunning revelation within an otherwise mundane legal filing, the California Energy Commission (CEC) indicates that the Federal Energy Regulatory Commission (FERC) and the Port of Long Beach (PoLB) have thus far prevented the state agency from seeing information related to state and local safety matters, censored from routine disclosure in the publicly released version of a draft Environmental Impact Report/Statement on an 80+ million gallon Liquefied Natural Gas (LNG) facility proposed to be located in the Port of LB.

    Disclosure that FERC and LB Port staffs have effectively blocked safety-related information from reaching the state agency named by Governor Arnold Schwarzenegger to receive it -- preventing the Governor's office from seeing it -- comes amid charges by critics of the proposed project who say the publicly released FERC/PoLB draft EIR understates the LNG facility's risks.

    In a December 5 motion filed with FERC and PoLB, lawyers for the CA Energy Commission seek an extension of time to file comments on the draft EIR/EIS "in order to receive and analyze Critical Energy Infrastructure Information (CEII)" and "prepare and file supplemental comments addressing solely State and local safety matters arising from its analysis of this CEII."

    FERC defines CEII as "information concerning proposed or existing critical infrastructure (physical or virtual) that relates to the production, generation, transmission or distribution of energy; could be useful to a person planning an attack on critical infrastructure; is exempt from mandatory disclosure under the Freedom of Information Act; and gives strategic information beyond the location of the critical infrastructure." FERC determines what conditions, if any, to place on release of information it deems CEII and "where appropriate" asks those receiving it to sign a "non-disclosure agreement" [our translation: a gag order] promising not to disclose it to others.

    The CA Energy Commission says the PoLB hazards analysis (including "worst case" scenarios) produced by a Port-retained consultant "draws conclusions based upon studies designated by the Commissionís [FERC] staff as CEII. For that reason these studies, as well as other safety-related CEII material are not publicly available." It says "CEC is presently engaged in negotiations with the Planning Division of the Port of Long Beach regarding the terms under which the CEC may gain access to this data. It is expected by both sides to these negotiations that the CEC will soon be able to access this data on mutually satisfactory terms. However, until the CEC is able to access this data, it is unable to fully evaluate the safety review prepared by the Portís consultant and determine the scope, and final contents of its comments, on this aspect of the DEIS/EIR."

    The CA Energy Commission filing continues:

    Similarly, there are other safety-related matters addressed in the DEIS/EIR which, to varying degrees, rely on material deemed CEII. This material is held in the Commission's non-public files, precluding the CECís access to this material. Nevertheless, the CEC staff considers this material necessary in order for the CEC to fully evaluate the safety aspects of the proposed LNG terminal, offer comments and effectively fulfill its role under the EPA-05 as a consulting State agency.

    For a number of weeks the CEC has been in discussions with the Commissionís staff regarding the CECís access to this CEII material. The CEC deems these discussions necessary because the Commissionís traditional State agency form of non-disclosure agreement, which predates the EPA-05, fails to take into account the newly-created consultation role of designated State agencies, such as the CEC. This traditional agreement would severely inhibit the ability of the CEC to share CEII data both internally and with the Office of Californiaís Governor. The CEC is hopeful that it will soon reach a resolution of this issue with the Commissionís staff that will not only allow the Commission to maintain the confidentiality of this information, but will also allow the CEC to act in furtherance of its obligations as a designated "appropriate State agency," on behalf of the Governor and People of the State of California.

    The CA Energy Commission cites its "present and temporary lack of access to CEII material, the ongoing negotiations to obtain access to this material, and the CECís unique standing and participation in this proceeding conferred under the EPA-05" as good cause for granting an additional 30 days [from CEC's last receipt of requested CEII material] to let CEC "file supplemental comments on the DEIS/EIR addressing State and local safety matters."

    It's unclear to what extent, if at all, members of LB's Board of Harbor Commissioners or City Council have been allowed to see such information and if they were allowed to see it, what restrictions, if any, were placed on their ability to discuss it after seeing it.

    In September (as previously reported by CA Energy Commission staff transmitted a safety advisory report to FERC that recommended using a standard of 1.5 Kw/m2 to calculate the distance at which people could be affected by radiant heat from a catastrophic LNG fire. Instead, the FERC/PoLB draft EIR/EIS went on to use 5.0 Kw/m2 which produces a significantly smaller risk area, basically limited to the LNG site itself or slightly beyond.

    In an October FERC motion (separate from the EIR process), the CA Public Utilities Commission (CPUC) opposed siting the LNG facility in the Port of LB, citing testimony by its retained expert, Dr. Jerry Havens, who indicated he considers the minimum credible distance at which a terrorist related LNG event might affect people is roughly three miles. Downtown LB is roughly two miles from the proposed LNG site at the eastern end of the Port on Pier T.

    The LNG project applicant has indicated it is attempting to validate the figures used in CPUC's motion (which is pending as we post).

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