Kansas Permit for Embattled Coal Plant Faces EPA Review, Legal Scrutiny

The permit for the Sunflower plant is issued to beat the start date of new federal greenhouse rules in January, and critics claim foul play

WASHINGTON—Environmental organizations will join the EPA in carefully reviewing—and perhaps challenging—a controversial building permit that Kansas authorities granted Thursday to build a 895 megawatt coal-fired power plant in the southwestern part of the state.

Approval of the permit to Sunflower Electric Power Corp. comes just a few weeks before the Environmental Protection Agency's "tailoring rule" takes effect Jan. 2. That rule is designed to employ the Clean Air Act to control heat-trapping gases from large emitters that are new or undergo significant modifications.

Issuing the permit before that deadline means the new plant can avoid that EPA rule designed to rein in greenhouse gases.

The Kansas coal plant has been the subject of dispute for more than four years. Sunflower, a rural cooperative that generates and transmits electricity, was first denied a permit to build three 700-megawatt units in the community of Holcomb in the fall of 2007.

Roderick Bremby, the former head of the Kansas Department of Health and Environment, rejected Sunflower's permit request in 2007. Also, former Gov. Kathleen Sebelius four times vetoed legislation that gave the project a green light. But her replacement, who became governor when Sebelius joined the Obama administration, reversed Bremby's decision in 2009.

When the new governor, Mark Parkinson, removed Bremby from his job as the state's top environment-protection official in early November, critics alleged he was forced to resign because he didn't approve the permit.

"The permit meets state and federal requirements," John W. Mitchell, acting secretary of the Kansas Department of Health and Environment, told reporters in a teleconference from Topeka Thursday afternoon. "(The department) understands the sensitive political debate surrounding this permit, but (we have) a responsibility to issue the permit if it meets state and federal regulations."

Though he said the new plant would have to meet greenhouse gas regulations when the operating permit is eventually issued, he wasn't able to outline what regulations those might be.

"Yes, we consider this permit protective of human health and the environment," Mitchell said. He added that the emissions controls are state-of-the-art and that his agency was under no obligation to consider alternative fuel sources when reviewing the permit application.

EPA Review to Begin

After the announcement, Karl Brooks, EPA administrator for Region 7, said his agency will begin reviewing the final permit and the responses to comments. Region 7 covers Kansas and three other Midwestern states.

"EPA's review will assess whether all requirements of the Clean Air Act and State Implementation Plan have been met and that the environment and public health will be protected," Brooks said via an e-mail.

In late November, Brooks wrote an opinion piece for a Kansas newspaper assuring readers that "EPA's Sunflower decisions in the coming months will reflect enduring legal principles, not shifting political winds."

In Hays, Kansas, where Sunflower is based, spokeswoman Cindy Hertel described the utility's reaction to the announcement as "ecstatic."

"This has been almost 10 years in the making," she told SolveClimate News in an interview. "We're a not-for-profit utility. We know this will bring savings to our customers. Not only will our members benefit astronomically but the whole region will see an economic boost because it will generate jobs to be felt statewide."

Currently, she explained, Sunflower has a 362-megawatt plant in Holcomb. When the new plant is completed, 200 of those 895 megawatts will serve Kansas customers.

The remaining 695 megawatts will likely go to two partner co-ops based in Colorado and Texas that serve customers throughout a broad region around those two states.

Environmental Organizations Have Questions

The Sierra Club, Earthjustice and other organizations have tracked the proposed coal plant for years. They maintain that Kansas rushed the permitting process to beat the "tailoring rule" deadline and that the state should be investing in renewables instead of a coal plant.

Records show that previously, Kansas authorities reviewed 800 comments about the proposed Sunflower plant over 16 months. This time around, green groups say authorities had six months to review 6,000 comments.

"We have taken the necessary time to do the permit review in the best possible way we can," Mitchell said. Public comment on the January permit submission began in July, he said, giving his staff at least four months to respond to comments.

"Given how quickly this permit was issued and that it seems there was a rush to issue it before federal regulation of greenhouse gas emissions, the Sierra Club and Earthjustice will be looking at this very carefully," Earthjustice attorney Amanda Goodin told SolveClimate News in an interview. "We will closely scrutinize it to make sure it complies with the Clean Air Act. If it does not, we will intervene. If it is unlawful, we would appeal the decision through the courts."

Earthjustice is a California-based nonprofit environmental law firm.

While Hertel, the Sunflower spokeswoman, maintains that the plant is necessary to meet baseload power needs for customers, Goodin said her research shows that is not the case. For instance, 21 of 22 long-term modeling scenarios conducted by a Colorado utility in line to potentially buy power from Sunflower—Tri-State Generation and Transmission Association—indicate that the new plant's capacity is not necessary to meet their energy needs.

Goodin pointed out that giving permission to Sunflower to build a second Holcomb plant could be financially risky because her research shows Sunflower still owes the Rural Utilities Service, part of the federal government, millions of dollars for the first plant it built in the 1980s.

Though state authorities say that pollution controls on the new plant will deploy the most up-to-date technologies, Goodin said her group will be checking that claim carefully.

"They are proposing to build a massive plant for which there is no need," Goodin said. "We think this is completely unjustified, especially at a time when we are moving away from coal. This is a huge step backward and a lack of foresight on Sunflower's part."

(Photo of EPA Administrator Lisa Jackson courtesy of the White House)

See Also

In Kansas Coal Plant Battle, Greens See Foul Play

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

Report: New Kansas Coal Plants Will Lock In Decades of Rising Electricity Prices

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