(December 8, 2005) -- In a response that doesn't acknowledge -- but doesn't deny -- the contention by the California Energy Commission (CEC) contention that the Federal Energy Regulatory Commission (FERC) has denied the CA agency access to information related to state and local safety matters in connection with a proposed Liquefied Natural Gas (LNG) facility in the Port of LB unless the state agency agrees to a gag order not to disclose the information, FERC has denied CEC's motion for an extension of time to comment on the FERC/PoLB-prepared draft EIS/EIR.
The CA Energy Commission -- designated by CA Governor Arnold Schwarzenegegr to comment on the draft LNG EIR/EIS -- has refused to submit to the FERC gag order.
"Thank you for your letter filed December 5, 2005," writes FERC's Director of the Office of Energy Projects, J. Mark Robinson, replying to the CA Energy Commission motion. "Because we believe there has been adequate time to comment on the project's effects, we will not extend the comment period for the DEIS. However, please be assured that we will give consideration to all comments received within a time frame that allows for their review before the Commission acts."
The CA Energy Commission simultaneously filed a motion for an identical extension of time with the Port of Long Beach. "The Port of Long Beach is designated as the Lead State Agency, within the meaning of the California Environmental Quality Act, for the purpose of joint Federal/State preparation of the DEIS/EIR in this project," the CA Energy Commission noted in its filing. LBReport.com this morning asked the Port of LB (through a media spokesperson) what response the PoLB gave to the CA Energy Commission; an answer is pending as we post and will be posted here as received; revisit this page, click reload or refresh on your browser fo rupdated text.
In its motion, the CA Energy Commission [CEC] said PoLB's EIR hazards analysis (including "worst case" scenarios) produced by a Port-retained consultant "draws conclusions based upon studies designated by the Commission's [FERC] staff as CEII" -- "Critical Energy Infrastructure Information" to which FERC conditions access on a party's agreement not to disclose the documents' content.
The CA Energy Commission motion said, "[U]ntil 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...[O]ther safety-related matters addressed in the DEIS/EIR...to varying degrees...rely on material deemed CEII. This material is held in the Commission's [FERC's] non-public files, precluding the CECís access to this material...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."
FERC's reply stated, "To keep our review process moving...we must have deadlines that encourage interested parties to focus on the issues in as timely a fashion as possible. For this project we mailed the DEIS for delivery to stakeholders on, or soon after, October 7, 2005. The due date of December 8, 2005 provides more than 60 days for comment, more than the standard 45-day comment period. Let me reiterate that that we will make every effort to consider all comments received, including those filed outside of the comment period. The input from the CEC is very important to us as we conduct a thorough analysis of the project issues and will not be ignored."
Revelation that that FERC and LB Port staffs have 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 -- was first reported by LBReport.com on December 6 and advanced by the Los Angeles Times on December 7. (As of the December 8 filing deadline, the Long Beach Press-Telegram had not reported the story.)
It's unclear whether members of LB's Board of Harbor Commissioners and City Council were prevented from seeing the information, or submitted to a FERC gag order to see it...which some local officials in other communities facing FERC LNG proceedings have refused to do.
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 FERC/PoLB-prepared EIS/EIR spurned a key recommendation by CA Energy Commission staff in a September safety advisory report (submitted under the recently passed federal Energy bill) which urged FERC to apply a different standard than FERC/PoLB ultimately did to judge the distance at which people could suffer burns and other impacts from a catastrophic LNG fire. FERC/PoLB's EIR/EIS used a mathematical standard which produced a significantly smaller risk area, basically limited to the LNG site 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 indicated at the time it was attempting to validate the figures used in CPUC's motion (pending as we post).