APPLICATION FOR CONDONATION AND SUBMISSION TO THE NATIONAL ENERGY REGULATOR OF SOUTH AFRICA (NERSA) in the matter of the

Transcription

1 APPLICATION FOR CONDONATION AND SUBMISSION TO THE NATIONAL ENERGY REGULATOR OF SOUTH AFRICA (NERSA) in the matter of the LICENCE APPLICATIONS FOR THE PEAKING POWER PROJECTS AT AVON and DEDISA TO: Mr Thembani Bukula Member for Electricity National Energy Regulator of South Africa ATTENTION: Mr Mondli Shozi 12 JULY 2011 Submitted by: Gary Pienaar Senior researcher Economic Governance Programme Please direct any further comments or queries to: 1

2 Background 1. Idasa is an independent public interest organisation committed to promoting sustainable democracy based on active citizens, democratic institutions and social justice. Request for condonation 2. Idasa was unaware that NERSA was planning to consider licence applications in respect of which we may wish to comment, and we missed the posting of the notice on NERSA s website. Unfortunately, these applications came to our attention on the day before the scheduled deadline for submission of comments and we were unable to prepare a meaningful submission by that deadline. We were under the impression that we had missed the opportunity to participate in the process. 3. However, it has since come to our attention in the past few days that Rule 6 of NERSA s Rules for Public Hearings 1 provide that the Regulator may condone a failure to comply with advertised timeframes on good cause shown and if the condonation would not cause delays or prejudice the public interest. 4. In view the limited time available, we have not been able to fully consider all relevant issues. Should the Regulator so require, we are willing to provide a more detailed submission within one week, and on terms acceptable to the Regulator. 5. We believe that these submissions will not cause undue delays and they are intended to assist the Regulator in the public interest, rather than to cause inconvenience or result in any improper prejudice. We do not request an opportunity to make an oral submission, or to request a postponement of the hearings scheduled for 13 July 2011 in order to allow us to do so. Rather, we request the Regulator simply to take account of the contents of this submission in the ordinary course of its deliberations, of which the public hearings form a part. Introduction 6. It is submitted that NERSA should not approve the Peaker projects licence applications, on the following grounds: 6.1 The Regulator has the authority to decline to approve a licence application. 1 Date unknown 2

3 6.2 The original reason for these plants apparently no longer applies after Eskom s construction of a separate and additional 1,000 MW of OCGT peaking plant. 6.3 The national electricity system does not appear to be facing a shortage of peaking capacity within the foreseeable future. Proceeding with the construction of the Peaker projects will therefore entail unnecessary costs for Eskom and will further increase electricity tariffs. 6.4 To the extent that there is a need for peaking capacity in the short to medium term, it appears that this need can be met through cheaper and quicker options than the Peaker projects. 6.5 There are concerns about compliance with certain governance requirements, as well as about the lawfulness of important aspects of the relevant legal framework. 6.6 The amount of information supporting this application available in the public domain is limited, which places constraints on an adequately-informed public participation. Preliminary Note 7. Idasa has had sight of the submission to the Regulator by Premium Power and this submission is informed by the factual details set out therein, and is supplemented by independent research by Idasa and legal advice received. NERSA s authority to decline to approve a licence application 8. In our view, the applicable legal framework allows NERSA to refuse to grant a licence. This view is based inter alia on the provisions of s.2, s.4, s.13 and s.34 of the Electricity Regulation Act, Section 2 of the Electricity Regulation Act provides NERSA with a clear mandate to consider whether, on balance, the Peaker projects are in the best interests of various stakeholders, including the general public, consumers and industry. This section provides that: 2. Objects of Act The objects of this Act are to (a) achieve the efficient, effective, sustainable and orderly development and operation of electricity supply infrastructure in South Africa; (b) ensure that the interests and needs of present and future electricity customers are safeguarded and met, having regard to the governance, efficiency, effectiveness and long sustainability of the electricity supply industry within the broader context of economic energy regulation in the Republic; (c) facilitate investment in the electricity supply industry; (d) facilitate universal access to electricity; 3

4 (e) promote the use of diverse energy sources and energy efficiency; (f) promote competitiveness and customer and end user choice; and (g) facilitate a fair balance between the interests of customers and end users, licensees, investors in the electricity supply industry and the public. 10. The view is held that s.2(b) requires NERSA to consider whether the Peaker projects are in the best interests of inter alia the general public and consumers, who are reliant on the Regulator to give due consideration to their needs. It is also believed that clause 2(e) requires NERSA to consider whether alternative solutions might achieve the same or a better outcome in the circumstances. 11. Section 4 provides that: 4 Powers and duties of Regulator The Regulator - (a) must - (i) consider applications for licenses and may issue licences for- (aa) the operation of generation, transmission or distribution facilities. (Emphasis added) 12. Section 13 provides that: 13 Finalisation of application (4) The Regulator is not obliged to issue a licence. (Emphasis added) 13. Section 34 provides that: 34 New generation capacity (1) The Minister may, in consultation with the Regulator- (a) determine that new generation capacity is needed to ensure the continued uninterrupted supply of electricity; (b) determine the types of energy sources from which electricity must be generated, and the percentages of electricity that must be generated from such sources; (c) determine that electricity thus produced may only be sold to the persons or in the manner set out in such notice; (d) determine that electricity thus produced must be purchased by the persons set out in such notice; (e) require that new generation capacity must- (i) be established through a tendering procedure which is fair, equitable, transparent, competitive and cost-effective; (ii) provide for private sector participation. (Emphasis added) 4

5 14. Subsection 34(3)(a) however, provides that: (3) The Regulator, in issuing a generation licence- (a) is bound by any determination made by the Minister in terms of subsection (1). (Emphasis added) 15. The question therefore arises whether the Regulator is compelled to merely implement any determination made by the Minister envisaged by subsection (1). 16. We are advised that this cannot be the case. To place such an interpretation on this section would be to place NERSA in a position in which it cannot freely apply its mind in an objective and independent manner that is unconstrained by the wide discretion conferred upon the Minister. 17. It is, moreover, our view that the term in consultation with differs substantially from the term after consultation with, the former clearly implying that the Minister is compelled to act in concert with the Regulator and may not unduly impinge upon the Regulator s necessary independence and authority to perform its responsibilities under law. 18. To hold a contrary view would, we submit, be to reduce the Regulator to a mere rubber stamp for the executive, effectively unable to perform the vital and unique functions identified in s.2 of the Electricity Regulation Act. It seems clear to us from these provisions, read together, that the Regulator is hereby afforded appropriate independence and authority to execute its functions and responsibilities. 19. Section 10 of the National Energy Regulator Act, 2004, states that all decisions of the Energy Regulator must be consistent with the Constitution and all applicable laws, and must be in the public interest. It further states that decisions must be taken within a procedurally fair process and must be based on reasons, facts and evidence. The Regulator is not bound to grant licences to the Applicants merely because the Integrated Resources Plan mentions Peaker Projects. If this were required to occur then NERSA s decision making ability and power would be fettered by the IRP which is a policy and therefore subordinate to the empowering pieces of legislation. A firm adherence to a policy is unacceptable in law where this has the effect that the decision maker exercising the discretion will be precluded from bringing his mind to bear in a real sense on the particular circumstances of each and every individual case coming up for decision Further to this, it submitted that section 34(3)(a) of the Electricity Regulation Act is unlawful and ultra vires to the extent that it is interpreted 2 Richardson v Administrator, Transvaal 1957 (1) SA 521 (T) at

6 and applied so as to fetter NERSA s decision-making ability in that the section may then permit a policy to take precedence over legislative requirements. 21. We will return to this theme later on in this submission. The policy rationale for the Peaker projects has changed 22. On the basis of the principle of rationality, government must provide adequate justification why these plants should be built and their power procured by the state. Available information indicates that an October 2004, Cabinet decision to the effect that DME will be responsible for procuring about 1000MW of new peaking generation capacity, through a competitive IPP tendering process, to be commissioned by the end of 2008, as a contribution to meeting the capacity requirements for 2009 and 2010 was cited in the course of the procurement process. However, the background to and rationale for Cabinet s decision has not, to our knowledge, been made public. 23. It reportedly transpired that the procurement process to implement this decision ran into serious delays and Eskom decided to double up the 1,000 MW of OCGTs that it was building to 2,000MW. During this period, Eskom also commenced construction of the 1,352MW Ingula pumped storage scheme, which should be fully commissioned by April 2013 shortly before the present Peaker projects target date of November It appears that the Department of Energy (DoE) factored the Peaker Project into the IRP1 and IRP2 (ie the 2009 version and the version, respectively) by dint of a policy preference and not on the basis of any rational review of whether this capacity is required. No explanation was offered at the time, and neither was there any opportunity for public consultation. Projects in the IRP1 were simply carried forward into the latest IRP for as a policy input, effectively excluding the Peaker Project from evaluation during the IRP planning process. 25. The fact that the IRP2 appears to envisage additional liquid fuel OCGT capacity being required only in 2022, suggests that this form of capacity will be in over-supply for some time to come. It appears highly unlikely that a reasonable analysis as is required in terms of, for example, the provisions of s.5 of the New Generation Capacity Regulations, , and is envisaged in paragraph 6 of the IRP2 4 - would conclude that this over-supply is required. 26. In order for NERSA to make a lawful decision in terms of s.6(2)(e)(iii) of the Promotion of Administrative Justice Act, 2000, relevant information must be considered, failing which its decision may be reviewable. We submit that, in the absence of a reasoned analysis (such as may be obtained from a 3 Department of Energy, R.339. Electricity Regulations on New Generation Capacity, in terms of the Electricity Regulation Act, 2006 (as amended), in Government Gazette 34262, 4 May Department of Energy, R.400. Integrated Resource Plan , in terms of the Electricity Regulation Act, 2006, Regulation Gazette 34263, 6 May

7 feasibility study) there is currently insufficient information in front of NERSA for it to make a rational and lawful decision insofar as the need for the Peaker projects is concerned. 27. As far as is known, the Applicants have not substantiated that new peaking capacity is required and necessary in terms of electricity peaking demands. In the result we further submit that in order for NERSA to have relevant information before it regarding the need for the Peaker Projects, independent scientific and economic studies need to be done to assess whether such need exists. 28. In considering an application for a licence, NERSA has the power to request such additional information as may be necessary to consider the application properly. 5 It is submitted that only once the need for such plants is established in the manner set out above, will NERSA be in a position to make a decision on the licensing thereof. In the result, it is suggested that NERSA postpone the decision-making process to allow for such information to be placed before it, and to allow an adequate public participation process. 6 Circumstances have changed 29. Furthermore, a quicker, cheaper and realistic alternative is apparently readily available. Even if it is determined that the system requires an additional 1GW of peaking capacity, there is no need to build this at great expense, as it already exists in the form of distributed standby / backup diesel generators (gensets). Following the load shedding of 2008 there has been substantial private (and probably also public) investment in this capacity. Estimates vary, but between 3 and 5GW of this capacity may be currently available. 30. We are informed that the use of distributed standby / backup diesel gensets to provide system peaking support is well established internationally. At least one company in the UK (Flexitricity) has 5GW under contract, which is available to the System Operator for dispatch. 31. In South Africa, standby gensets represent existing investment in additional peaker capacity and are sunk costs. These gensets reportedly need to be run on load on a regular basis to ensure reliable startup when needed. Owners would, we are led to believe, be willing to make this capacity available for a fraction of the cost of building new OCGT stations. Moreover, it is our understanding that the heat rate of diesel gensets is comparable to OCGTs, if not better. 32. We are further informed that Eskom has investigated this resource and has concluded that it would be viable and sensible to bring it to market. However, it has no incentive to do so if the DOE continues to force its Peaker 5 See, for example, s.10(1) of the National Energy Regulator Act, 2004, and s.12(b) of the Electricity regulation Act, See further below 7

8 project onto the system. We note from NERSA s website that Eskom has not requested an opportunity to make oral representations at the hearings scheduled for 13 July We are not aware of whether or not Eskom may have opted to make a written submission in regard to these licence applications. If they have not done so, we urge the Regulator to ascertain what information is apparently available to Eskom and what its views are concerning these Peaker project licence applications. Questions about the procurement process 33. There are, moreover, reportedly serious questions concerning the procurement process followed for these Peaker projects. Originally, the erstwhile Department of Minerals and Energy (DME) qualified five consortia to bid. A combination of tight timelines and turbine supply shortages led to only two consortia submitting bids. The Suez bid was considered noncompliant and was disqualified. The AES consortium bid was therefore confirmed as the preferred bidder with no reserve bidder. For various reasons, negotiations with the AES consortium broke down. The procurement process therefore ended. DME then announced that it would open negotiations with Suez on an emergency basis. 34. Even if these subsequent negotiations were valid in law, as argued above they are not rational in practice. In any event, the delay between February 2008 when the negotiations apparently broke down and 2011 is more than long enough to have restarted and completed a fair, equitable, transparent, competitive and cost-effective bid process, as required by the provisions of s.217 of the Constitution read with the provisions of the Public Finance Management Act, as well as the legal provisions referred to above. Additional governance considerations 35. In May the Minister of Energy gazetted revised electricity regulations on new generation capacity which in s.12(1) purports to explicitly exempt the Peaker projects from the normal procurement requirements applicable to Independent Power Producers. In particular, the Peaker projects are exempted from having to comply with the eminently reasonable and precautionary approach anticipated in Regulation 5 and Regulation 9, which include several criteria and standards that must ordinarily be met before new generation capacity is procured by the state. 5. Feasibility studies (1) Having regard to the need for new generation capacity as provided for in the integrated resource plan, the Minister may undertake or commission the 7 Electricity Regulations on New Generation Capacity, 4 May

9 buyer or another party to undertake feasibility studies in respect of such new generation capacity requirement. (2) The following shall form part of the considerations and outcomes for a feasibility study undertaken pursuant to a decision in terms of sub-regulation (1)- (a) the anticipated cost of the proposed new generation capacity; (b) the proposed allocation of financial, technical and operational risk between the prospective buyer and the generator, and between the generator and the NTC or the distributor, as the case may be; (c) the demonstration of the anticipated value for money to be achieved through the new generation capacity project; (d) the material legal, financial and technical requirements including consents that will be required in order to procure the new generation capacity; and (e) whether the appropriate generator should be Eskom as part of its services as the national electricity producer, another organ of state or an IPP. (Emphasis added) 9. Concluding the power purchase agreement (1) A power purchase agreement between the buyer and an IPP must meet the following requirements- (a) value for money; (b) appropriate technical, operational and financial risk transfer to the generator; (c) effective mechanisms for implementation, management, enforcement and monitoring of the power purchase agreement; and (d) satisfactory due diligence in respect of the buyer's representative and the proposed generator in relation to matters of their respective competence and capacity to enter into the power purchase agreement. (Emphasis added) 36. Regrettably, the series of executive actions described above creates the impression that the DoE is determined to implement the Peaker projects, whether or not the capacity is required. Thus, the Minister of Energy is, by this means, purportedly given substantial discretionary executive authority to enter into power purchase agreements with Independent Power Producers and to then pass on to Eskom the responsibility for meeting the cost of these agreements. These costs will be, in turn, passed on to all electricity consumers. In effect, this procurement system transfers substantial risk to the consumer, most of whom have little or no opportunity to participate in the process. The short list of recorded oral submissions to the hearings seems to suggest as much although, as mentioned previously, it is unclear whether any other additional written submissions may have been lodged. 37. It is submitted that the regulatory and procurement frameworks are designed and intended to include real and substantial checks and balances to protect the interests of all stakeholders, including the least powerful in this 9

10 context consumers and potential consumers, and the general public. NERSA s generation licensing process is one such vital check on otherwise extremely wide executive authority. 38. The Applicants appear to not have substantiated the need for the Peaker projects or new peaking capacity (or this has not been made available to the affected parties, ie the public). It is submitted that the Peaker projects cannot be licensed where this need has not been established. It is further submitted that, given that existing and readily available peaking capacity appears adequate to meet South Africa s anticipated needs, it appears likely that the licencing of the Peaker projects would result in wasteful expenditure and unnecessary costs that will be passed on to all electricity consumers. 39. Apart from the legal requirement to place relevant information that substantiates the need for the Peaker Project in front of NERSA, decisions must also be consistent with the Constitution and other applicable laws. 8 Section 195 of the Constitution requires that the Public Administration be governed by the following principle: 195 (1) (b) efficient, economic and effective use of resources must be promoted. 40. The Public Finance Management Act, 1999, ( PFMA ) aims to secure transparency, accountability and sound management of the revenue, expenditure, assets and liabilities of the institutions to which the Act applies. 9 In particular, the PFMA states that accounting officers for a Department or constitutional institution must ensure the maintenance of an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective. 10 Similarly the accounting officer is responsible for the effective, efficient, economical and transparent use of the resources of the department, trading entity or constitutional institution 11 and must take appropriate and effective steps to prevent unauthorised, irregular and fruitless and wasteful expenditure. 12 This is reiterated throughout the PFMA and it is clear that the Act mandates the accountable, transparent and economically efficient use of the State s resources. 41. We are informed that the cost of the Peaker projects is approximately R8 billion, to be recovered over 15 years together with the costs of debt and equity finance, and the costs of the operation, leaving electricity consumers at risk of paying a high price for capacity that appears likely to not be required. Any decision that authorises the granting of licences for unnecessary projects is evidently not in keeping with these principles. 8 National Energy Regulator Act No 4 of 2006, section 10(1)(a). 9 The PFMA applies to NERSA in terms of Government Notice 1271 of 25 November 2005: Listing and Classification of Public Entities. 10 Section 38(1)(a)(iii) of the PFMA. 11 Section 38(1)(b) of the PFMA. 12 Section 38(1)(c)(ii) of the PFMA. 10

11 42. If it can be shown that there is a shortage of peaking capacity, NERSA is nonetheless obliged to consider whether the Peaker projects are in the best interests of consumers and whether alternative solutions may have a similar or better outcome. 13 It is submitted that, based on available information, additional peaking capacity can be more quickly and cheaply procured from standby generators already installed at industrial and commercial premises throughout South Africa. Eskom would then compensate generator owners for making their capacity available. This approach is used internationally and would benefit electricity consumers in the long run insofar as costs are concerned and will also give generator owners an opportunity to recoup their investment. 43. In addition, the provisions of s.2(4)(i) of the National Environment Management Act 14 state that the social, economic and environmental impacts of activities, including disadvantages and benefits, must be considered, assessed and evaluated, and decisions must be appropriate in the light of such consideration and assessment. Similarly, s.2(3) of the Act states that development must be socially, environmentally and economically sustainable. 15 Integrated Resource Plan 44. Also in May 2011, the Minister of Energy promulgated the Integrated Resource Plan (IRP2). This document provides for the standard or normal procedure for procurement of new generation capacity (other than that explicitly excluded by the New Generation Capacity Regulations published just two days previously). Paragraph 6 of the IRP2 provides as follows: 6 Implementing the Policy-Adjusted IRP Decision Points 6.1 The New Generation [Capacity] Regulations require a feasibility study on the potential capacity identified in the IRP to provide input to the the Ministerial determination between Eskom build 16 and procurement from Independent Power Producers (IPPs). This feasibility study needs to be undertaken as soon as the IRP is promulgated in order to give impetus to the decisions. 13 Objects of Electricity Regulation Act No. 4 of Act No. 107 of Note further s.2(4)4(b) which states: Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated, and it must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the best practicable environmental option. 16 ie Eskom s programme to construct additional electricity generation capacity 11

12 6.2 Table 5 indicates the new capacities of the Policy-Adjusted IRP that are recommended for firm commitment. (Emphasis added) 45. It is clear from this formulation that procurement of the new capacity identified is not predetermined. On the contrary, its is dependent on the findings of a feasibility study that the IRP requires to be undertaken as a matter of urgency in order to determine the rational basis for prudent procurement at the present time. 46. It is submitted that the same logic applies to the new capacity included without public consultation in the IRP1 and carried over into the IRP2 again, without public consultation. In other words, apart from the question of whether all the other licence application requirements have been met, a feasibility study is a necessary minimum requirement before the Regulator can lawfully grant either of the Peaker project licences for which application is being made. It is submitted that, if the legal principle requiring rational public policy is to be respected in this instance, both the general public interest and the interests of consumers requires the Regulator to decline approval. 47. Not insignificantly, approval of these licence applications will undermine the prospects for achieving the IRP2 s already modest EE and DSM targets. These categories of measures are acknowledged to be the quickest, cheapest and most effective way to manage demand and electricity usage in order to achieve significant progress towards energy security. A failure to take explicit notice of the potential impact of these licence applications on their promotion and attainment is likely to further weaken any assertion that their approval represents fulfillment of the Regulators objectives and responsibilities. Inadequate information has been placed before the Regulator 48. If, contrary to these arguments, it is held that the provisions of the Electricity Regulation Act give the Minister the discretionary power to trump the Regulator, then an alternative ground for challenging the lawfulness of this regulatory process is that neither the Regulator nor the Minister have the appropriate and necessary information before them to make a rational and lawful decision. 49. On this ground, too, however, it is our view that an interpretation of the legal framework cannot be sustained that does not permit the Regulator to recommend that the Minister commissions an independent feasibility study into the objective need for the new generation capacity envisaged in these Peaker projects. In the absence of the findings of such a study, and if the factual information upon which this submission is based is accurate, then 12

13 there is no rational and lawful basis for the Regulator to lawfully approve these licence applications. Inadequate information has been placed in the public domain 50. NERSA s invitation to the public to participate in NERSA s licence application process must take place in accordance with the provisions of procedural fairness. 17 This does not only entail that interested and affected persons be given an opportunity to comment, but also that sufficient information must be made available so that interested and affected members of the public can make meaningful representations The notice of and invitation to participate in NERSA s licensing process does not meet these criteria or to address the concerns alluded to above. The published licence application discloses almost nothing about the projects. There is no information at all to assist the general public to evaluate the necessity for this capacity, its cost, its utility, the impact on system reliability, whether it makes the most appropriate contribution to the energy mix, or any other meaningful criterion. NERSA is obliged by law to consider the interests of the general South African public, including electricity consumer. Conclusions and recommendations 52. If the Peaker projects are approved, they will be the first significant new generation capacity produced by Independent Power Producers (IPPs) in South Africa. As such, they will set important precedents for the IPP industry in the energy sector. At this point, there is a prima facie risk that the consumer will have to pay a higher price than necessary for capacity in a form that is probably not required for the foreseeable future. It is submitted that it will be neither appropriate, beneficial nor lawful to exempt these projects from the fundamental tests necessary to ascertain whether or not they offer value for money to consumers and are in the general public interest. 17 Section 9(c) of the NERSA Act, and s 6(2)(e)(iv) of PAJA, which states that any decision would be reviewable if made pursuant to the unauthorised and unwarranted dictates of another... body. 18 A decision by NERSA is administrative action which affects the public, and as such is bound by the procedural requirements in s 4 of PAJA. In accordance with that provision, NERSA appears to have opted for a public participation process which is a hybrid of a notice-and-comment procedure; and an inquiry. In terms of the Regulations under PAJA (published under Government Notice R1022 in the Government Gazette of 31 July 2002) information must be detailed enough to enable people to make meaningful representations (regulations 3(4) and 18(3)(a)). In this regard our Courts have often referred to the approach adopted Lord Mustill in the English case of Doody v Secretary of State for the Home Department and Other Appeals [1993] 3 All ER 92 (HL) at 106, that in order to make worthwhile representations persons must be informed of the gist of the matter under consideration. In Tetra Mobile Radio (Pty) Ltd v MEC, Department of Works and others 2008 (1) SA 438 (SCA) at para 11, the principle is affirmed that it is a basic tenet of fairness that sufficient information must be made available to effectively take part in any process. See too Nisec (Pty) Ltd v Western Cape Prov Tender Board 1998 (3) SA 228 (C) at 235C, in which the Court found that a right to a hearing does include the provision of such information which would render the hearing meaningful in that the aggrieved party is given an opportunity to know all the ramifications of the case against him and thereby is provided with the opportunity to meet such a case. See too Earth Life Africa (Cape Town) v Director-General: Dept of Environmental Affairs & Tourism 2005 (3) SA 156 (C) at para 52; and Du Bois v Stompdrift-Kamanassie Besproeiingsraad 2002 (5) SA 186 (C) at

14 53. While s.5 of the New Generation Capacity Regulations provides for a feasibility study before a project proceeds, it may be undertaken only at the discretion of the Minister. It seems to be appropriate in this instance that the Regulator considers recommending that the Minister requires that such a study is undertaken. 54. It is submitted that a decision to grant a licence to the Applicants may be unlawful and open to judicial review for the reasons outlined above. In the result, it is requested that the Regulator postpone its final decision pending further analyses, and an improved public participation process, to allow for the defects to be cured. ENDS 14