Six days after succeeding Kathleen Sebelius as governor of Kansas, Mark Parkinson announced a deal with Sunflower Electric Corp. that would allow construction of an 895 MW coal-fired power plant.
The surprise deal seemed like the end of a long, drawn-out battle, with the coal industry outlasting the steady opposition and multiple vetoes from the former governor, who left the unresolved matter behind when she became the U.S. health secretary.
But it now looks like the battle might not be over after all and that Gov. Parkinson's back room deal might unravel.
A decision is imminent from the EPA on what Sunflower needs to do to secure a permit to finally build its power plant, and the expected verdict is stark: start over.
State and federal officials say that Sunflower executives met with the governor and EPA representatives from both the regional and national offices to discuss the permit application back on May 28. All parties were represented by legal counsel. Another meeting is planned for today.
At the private meeting in May, EPA told Sunflower that the company would have to submit a new permit application, provide refreshed technical analysis on whether its plans meet the best available technology, and hold new public hearings before EPA could give it the green light to break ground, the officials said.
Failure to go through this process, which could easily take 18 months, would likely be a direct violation of the Clean Air Act.
"We can give states implementation authority under the Clean Air Act, and Kansas has indeed opted into the process," said David Bryan, a spokesman for EPA Region 7, which includes Kansas. "But EPA still maintains review authority over permit decisions, and as a result, we've been in discussions on the issue with all parties."
Sunflower originally applied for a permit to build three 700 MW coal plants back in 2006. Soon afterward, the company amended that application, cutting out one of the three coal plants. Under the deal with the new governor, Sunflower now wants a permit to build one 895 MW coal plant, and the company's lawyers are arguing that they should be allowed to file another amended permit application, instead of starting over.
But the turbine for this latest single plant is structurally different from those in the previous plants Sunflower wanted to build, and it would require modification to the stack height of the plant. In addition, it has been three years since the company performed a required BACT (Best Available Control Technology) analysis, and on May 28, the EPA told Sunflower it would have to refresh that analysis.
"The Holcomb plant has really changed over that time," Bryan said. "We believe they need a new permit. It's procedural in nature more than anything else."
EPA confirmed that another meeting is scheduled for today with all parties to hash out the details. If the talks are conclusive, an official announcement could be forthcoming.
Sunflower had sent a revised permit application to the Kansas Department of Health and Environment, prompting consultation with the EPA regional office. A KDHE spokesperson said that the application was incomplete and that a full revised permit application was not expected until the end of the year. If EPA requires the company to start over, it could take even longer for Sunflower to submit its paperwork.
Earlier this week, Earthjustice and the Sierra Club sent a letter to KDHE calling for a new process for permitting the proposed coal plant. In a press release, the organizations wrote:
Earthjustice and Sierra Club remind the state that more than three years has passed since Sunflower Electric submitted an application for a different coal plant in 2006. The law requires Sunflower Electric to submit a new permit application with updated environmental analyses for the newly proposed power plant.
The permit application has been discussed at all levels of the EPA. Once a permit is issued, it provides a property right, which means that once a plant gets built, it is almost impossible to shut it down.
"Building a massive, new polluting coal facility will have serious long-term consequences for Kansas, and the public's voice should be heard on such an important matter," said Stephanie Cole of the Kansas Sierra Club.
The case is sure to attract national attention, especially with the progress of a climate and energy bill through the U.S. House last week. The bill would set performance standards for coal plants initially permitted after Jan. 1, 2009, and that would include the proposed Sunflower plant. If the federal bill passes through the Senate and gets signed into law, by 2025 the plant would have to reduce its emissions by 50 percent. It would add a further large expense that would have to be passed on to Kansas ratepayers.
Local advocates of clean energy solutions say the plant is not needed in Kansas. Most of the power from the plant is slated to flow out of state to customers in Colorado and Texas.
The Sunflower project first made national news in 2007 when KDHE Secretary Roderick L. Bremby, denied the permit application. He cited the Supreme Court's ruling in Massachusetts v. the Environmental Protection Agency, which gave EPA authority to regulate CO2 under the Clean Air Act.
"I believe it would be irresponsible," Bremby said at the time, "to ignore emerging information about the contribution of carbon dioxide and other greenhouse gases to climate change and the potential harm to our environment and health if we do nothing."