New Clean Air Act Rules Likely to Apply to Embattled Kansas Coal Plant

The long-awaited draft air permit for a proposed coal-fired power plant in Kansas was released last Wednesday, starting a race against the clock that will determine whether the plant – if approved – will then also be subject to the EPA's new rules regulating the emission of greenhouse gases that go into effect January 2nd.

The draft permit was released in response to a new application, submitted to the Kansas Department of Health and Environment (KDHE) last January by Sunflower Electric, which is hoping to build an 895 megawatt extension to their current plant in Holcomb, Kans.

Originally, they had sought permission for a 2,100 MW facility, but their air permit for that plant was denied in 2007 by KDHE. It was the first instance of a regulatory agency denying a permit for coal plant construction on the basis of the dangers of greenhouse gas pollution.

Now that the EPA has declared greenhouse gases a danger to human health and welfare and tailored rules for phasing in regulations starting in 2011, Sunflower Electric will likely face yet another hurdle in obtaining approval to break ground on the troubled, controversial coal plant that has been a focus of repeated national attention.

Four Vetos by Sibelius

The Republican-controlled Kansas legislature tried four times to circumvent the KDHE's authority to obtain a permit for the plant, but ran into a veto from Democratic Governor Kathleen Sebelius each time. A break for Sunflower came last year when Sebelius was confirmed as the new U.S. Secretary of Health and Human Services and then-Lieutenant Governor Mark Parkinson took over. Parkinson brokered a back-room deal with Sunflower – albeit for the much smaller 895 MW plant – a week after taking office.

That was last May. Since then, the EPA has moved the ball on federal regulations, so that starting in 2011 projects with the potential to emit more than 75,000 tons of greenhouse gases a year, such as the proposed Holcomb plant, would need to include an analysis of how they would use the best available control technology, or BACT, to limit those emissions, among other requirements.

Is Sunflower taking the possibility of those rules into account?

Company spokesperson Cindy Hertle said that would be "pure speculation" because those rules are not yet in place and still the subject of some controversy.

But, she says, "We've always followed the rules and will continue to follow the regulations, so we will undergo whatever process they deem necessary."

A congressional effort led by Sen. Lisa Murkowski (R-AK) had tried to strip the EPA of its authority to regulate greenhouse gases. But that effort failed last month. While other congressional measures to block EPA action might be possible, it seems increasingly likely the new rules will go into effect on schedule on Jan. 2.

A Matter of Timing

Whether the Holcomb plant will be subject to those rules, though, is a matter of timing, but time appears to be on the side of "yes".

"It really depends on when the final permit is issued," Mark Smith, head of the EPA's Air Permitting and Compliance Branch for Kansas and neighboring states, told SolveClimate.

"If this permit is issued before [Jan. 2], then these particular rules would not apply. If their final permit is issued after, then they would… and we would view greenhouse gas requirements as applying to the facility, so the state would need to address those in that permit that is issued."

It seems likely that the final permit would not be issued until after the Jan 2nd deadline. Rod Bremby, head of the KDHE recounted how the last Sunflower permit took 17 months to approve. The state sets an 18-month deadline for issuing decisions on air quality permits.

"We have no idea how long this will take but we'll try to be as efficient as we can," he told SolveClimate, but cautioned that "the interest appears to be higher with this permit as opposed to the last."

This is why his agency created multiple opportunities for public comment. Those opportunities were announced with the draft air permit: a series of public hearings in Overland Park, Salina and Garden City as well as comments received by email and in writing.