Environmental activists working against a proposed $2.8 billion coal-fired power plant in southwest Kansas filed a brief with the Kansas Supreme Court outlining objections to issuance of a state permit needed to proceed with construction of the controversial project.

Lawyers with Earthjustice and Sierra Club seek to overturn the air permit granted in December by the Kansas Department of Health and Environment for an expansion project sought by Sunflower Electric Power Corp., of Hays.

Stephanie Cole, spokeswoman for the Sierra Club in Kansas, said Monday the court document outlines the plaintiff’s contention the KDHE permit process fell short of complying with the Clean Air Act.

She said KDHE regulators neglected to include in the permit enforceable limits on nitrogen oxides and sulfur dioxide pollution, failed to consider use of best available control technology as required and denied the public a fair opportunity to participate in the agency’s evaluation.

“The Sunflower permit process was so completely hijacked by coal plant supporters that a citizen lawsuit became necessary,” Cole said.

Officials with KDHE and Sunflower have consistently said the permit process was valid.

“The Holcomb expansion project meets all state and federal requirements,” Earl Watkins, Sunflower’s president and chief executive officer, said in a statement last week before retiring.

He also expressed disappointment with environmental organizations leading the legal fight against the project.

“Environmental extremist groups — like the Sierra Club and their legal arm, Earthjustice — view rising electric bills as a way to curtail your energy use regardless of the direct correlation demonstrated in economic studies between the cost of energy, economic growth and health and, thus, in the overall quality of life,” he said.

On Monday, former Kansas Electric Cooperatives attorney Stuart Lowry took over as president and CEO of Sunflower.

KDHE granted a request from Sunflower to halt the 18-month clock on start of construction until litigation was concluded.

The project has been embroiled in a political and legal disputes for more than four years. The coal-plant expansion was rejected in 2007 by a KDHE secretary appointed by then-Gov. Kathleen Sebelius.

Her replacement as governor, Mark Parkinson, negotiated a deal with Sunflower one week after taking office in 2009 to inject life into a streamlined coal plant proposal. Parkinson subsequently replaced the KDHE secretary to speed approval of the alternative plan.

The permit was approved by KDHE less than one month before more rigorous federal environmental regulations took effect.

In addition, emails made public recently revealed KDHE regulators allowed Sunflower executives to prepare written responses to citizen comments about the project earmarked for Holcomb.

Watkins offered a critique of activists who portrayed Sunflower’s collaboration with KDHE as improper.

“People uninformed of Kansas law or those who wish to misconstrue what it says have labeled this as a ‘cozy relationship”’between Sunflower and KDHE,” he said. “We owe it our members and those they serve to go on record to publicly defend this project against some of the outrageous and misleading ‘facts’ said in public comment.”

Todd True, an attorney with Earthjustice, said he was confident work of “coal boosters” to advance the project would fall short.

“We believe the permit will not withstand the scrutiny of judicial review,” True said.

Questions have been raised about necessity of the Sunflower expansion because a key partner in the coal project, Tri-State Electric Generation and Transmission Association, based in Colorado, may not need more baseload power capacity for a decade or more. Currently, Sunflower doesn’t appear to have a market in Kansas for the full 895-megawatts of power the proposed unit would produce annually.

Eartjustice and Sierra Club filed the lawsuit in January with the Kansas Court of Appeals, but the case was moved to the Supreme Court to expedite consideration of the legal issues.

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Robert Moser is secretary of the Kansas Department of Health and Environment, paid with tax dollars to protect public health.

And he’s been making some pretty important decisions lately about the Sunflower Electric power plant, including another one Thursday.

Alas, Moser refuses to return phone calls to The Kansas City Star’s reporters after he makes those decisions.

In my book, that’s a spineless decision, showing that a public official doesn’t have the courage to stand up and explain his or her actions to the public.

And make no mistake: The public is the loser when an official such as Moser refuses to talk about what he’s done. That makes him look like he’s part of an imperious state government.

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The controversial Sunflower coal plant in western Kansas may have caught a break Thursday when the state gave it an unusual extension on its construction permit.

The state order means the proposed power plant apparently will not have to face new and stricter pollution laws when the utility finally breaks ground.

Environmental groups immediately criticized the order by Robert Moser, secretary of the Kansas Department of Health and Environment, saying it was improper and perhaps unprecedented.

KDHE and Sunflower officials did not respond to questions, but in his order Moser said state law allowed him to issue the “stay.”

And when the permit was granted in December, the acting KDHE secretary described it as “the best permit possible for Kansas” and said the health of Kansans would be protected.

Sunflower Electric Co. had faced a timetable problem. Its permit required construction to begin within 18 months. But the utility has delayed construction while the Kansas Supreme Court decides a legal challenge to pollution limits for the plant.

And a court decision could still be a year or more away, some legal experts estimate.

Normally in such circumstances, a company will wait until the permit is about to expire and then request more time. Under that type of extension, the company’s project could be subject to new laws implemented since its permit was first issued.

But Sunflower’s stay allows it to remain under the pollution laws that were in place when it was issued in December. Since December, stricter air pollution standards have gone into effect, which would have added tens of millions of dollars to the price of the plant.

Under Thursday’s order, Sunflower will have one year to begin construction after the Supreme Court case is final.

“KDHE is giving Sunflower another free pass to pollute and doing so without even allowing the public an opportunity to comment on this unprecedented move,” the Kansas Chapter of the Sierra Club said in a prepared statement. Sierra Club officials, who have been leading the fight against the coal plant, said the decision was not a surprise — they expected KDHE would side with Sunflower.

“One has to question what else Sunflower will be excused from in the future,” Stephanie Cole, a Sierra Club spokeswoman, said in the statement.

Last month, The Kansas City Star published a story that reviewed hundreds of emails showing a cozy relationship between KDHE and Sunflower staff. The Star found the relationship was so close that the department allowed Sunflower to respond to questions from the public and then pass some of the answers off as its own. Those questions and answers were supposed to help shape the permit’s requirements.

A spokesman for the Environmental Protection Agency previously had said the request for a stay was very unusual. On Thursday, spokesman Rich Hood said he would withhold comment until a review of the order could be completed.

EPA has oversight of KDHE’s enforcement of federal clean air laws and has raised concerns that the permit limits on certain emissions are too lax.

The battle over Sunflower’s coal plant began in 2006. The state denied the first permit in 2007. But in 2009 when Mark Parkinson became governor, he reached a legal agreement with Sunflower to allow one 850-megawatt coal plant to be built in Holcomb in western Kansas. The estimated cost could be as high as $3 billon or more.

The plant will be owned by Tri-State Generation, a Colorado utility, and operated by Sunflower. Electricity will be used by Tri-State’s customers.

But Tri-State has said its customers will not need any new generation through at least 2019 and possibly longer.

After KDHE issued the permit seven months ago, construction was held up in January when the Sierra Club challenged the permit’s pollution limits in the Kansas Supreme Court.

Moser wrote that if anyone disagrees with his order, they may file a motion with the Kansas Supreme Court.

Cole with the Sierra Club said its attorneys were still reviewing the order and had not made that determination.

Scott Allegrucci, with Great Plains Alliance for Clean Energy, an environmental group, said Kansas government was failing the people. “We should not pretend that there is any commitment to public service or the rule of law, or that the best interest of Kansans are being considered … with regard to this proposed coal plant project,” he said.

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So much for the Kansas Department of Health and Environment’s “fair and objective” review of Sunflower Electric’s permit application (7/5, A1, “Kansas power plant held up in legal fight”). Thanks to The Star and Karen Dillon, we now know the extent of the long-suspected corruption of the permitting process, initiated by then-Gov. Mark Parkinson and carried forward by the department in collusion with Sunflower.

Over the course of the department’s public comment period, unprecedented numbers of Kansans registered their legitimate views on the environmental and health effects of the proposed plant. As the mother of two of the nearly 10 percent of Kansas children with asthma, I expressed to the department my concerns about the coal plant emissions on air quality and respiratory health. I expected my comments would receive a fair review by the state agency entrusted to protect the health and environment of our citizens.

Instead, in an unconscionable breach of public trust, the department ceded its duty to respond to public comments to the Sunflower Electric Corp., the permit applicant. In doing so, the department flouted both democratic principles and state law requiring open and transparent government and should be held accountable.

Jennifer Byer
Prairie Village

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Sen. Bob Marshall felt confident an amendment to a controversial coal-plant authorization bill offered southeast Kansas a reasonable shot at a slice of economic development.

The Fort Scott Republican inserted into legislation endorsed by plant-applicant Sunflower Electric Power Corp. and signed into law by Gov. Mark Parkinson a provision requiring 5 percent of coal burned in any new power unit to have been mined in Kansas. The coal clause was among several designed to convince reluctant legislators to open the door to Sunflower’s quest for a $2.2 billion expansion.

As ink was drying on that landmark document in 2009, Marshall rubbed his hands together in pleasure. He knew the biggest coal deposits in Kansas were underneath the ground in southeast Kansas, a corner of the state long suffering from economic malaise.

Turns out Sunflower’s application for an air-quality permit for the new Holcomb plant didn’t take into account use of a single chunk of Kansas coal to generate electricity.

Email traffic between Sunflower and the Kansas Department of Health and Environment indicated Kansas coal, which has a higher sulfur content, wasn’t factored into computer modeling on emissions critical to KDHE’s authorization in December to proceed with the project.

Correspondence produced as a result of a Kansas Open Records Act indicate Sunflower officials helped KDHE write an explanation why the 5 percent coal provision could be sidestepped.

“I never thought Sunflower would be the problem,” Marshall said. “I thought it would be KDHE.”

Cindy Hertel, spokeswoman for the Hays-based Sunflower, said she viewed as premature suggestions the Kansas company and a major business partner, Tri-State Electric Generation and Transmission Association in Denver, would never rely upon Kansas coal. Sunflower and Tri-State have business interests in Powder River Basin coal in Wyoming.

The law regarding coal consumption directed new plants to burn 5 percent Kansas fuel if it could be acquired at a competitive price and was of sufficient quality to avoid air violations.

The permit issued by KDHE declared the project proposal, void of a link to Kansas coal, in compliance with air quality laws. Sunflower might make coal from Kansas a piece of the fuel mixture at some point, Hertel said.

“We are still considering it,” she said. “It’s part of the legislation.”

Such assurances aren’t convincing for representatives of the Sierra Club and the Great Plains Alliance for Clean Energy, which have raised objections to the project for years. Lawyers for the Sierra Club filed a lawsuit in an attempt to force reconsideration of the permit.

Stephanie Cole, spokeswoman for the the Sierra Club’s chapter in Kansas, said layering the bill with a Kansas coal teaser demonstrated how the process was twisted by Sunflower and its political allies to gain House and Senate support for a project blocked by Democrat Gov. Kathleen Sebelius in 2007. Her successor, Parkinson, negotiated the deal approved by legislators in 2009.

“It appears there may have never been plans to use Kansas coal, but rather this was a political tactic used to gain legislative support for a coal plant that cannot be justified by a need for the electricity it will produce,” Cole said.

GPACE executive director Scott Allegrucci said the provision tied to 5 percent coal served as incentive for reluctant lawmakers to vote for a project.

“They then subverted the law, with help from KDHE, in order to preserve the Holcomb project with direct fuel sourcing relationships to Powder River Basin coal mines owned by Western Fuels Association, in which both Tri-State and Sunflower have a significant revenue stake,” he said.

Allegrucci said there were public health, environmental, financial and legal problems with construction of the coal plant, but if Sunflower’s facility were to be built it should include Kansas coal as a fuel source.

Reps. Bob Grant and Doug Gatewood, both Democrats who represent southeast Kansas, said the Sunflower legislation should have emphatically called for consumption of a small percentage of coal mined within the state.

“I don’t know why we want to supply Wyoming with more jobs,” said Grant, of Cherokee. “Kansas coal was one of the reasons I voted for it.”

Gatewood, of Columbus, said the majority of electricity to be produced at the new Sunflower unit would be transferred to consumers in other states.

“Why would they consider using Kansas products,” he said. “The product they’re producing won’t be going to Kansas.”

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Gov. Sam Brownback has received praise for declaring Kansas’ Flint Hills totally off limits to wind energy development. There is no question that this pristine prairie environment must not be spoiled or endangered, but we have some concerns about what happens next.

We do not doubt Brownback’s sincerity in guarding those hills, but he now must demonstrate that he is equally committed to capitalizing on his state’s vast wind energy development potential. It is much easier to declare where wind turbines cannot go than it is to open opportunities for their development.

Kansas ranks second among all states in wind energy potential, but when you cut one huge swath of the state from possible production, that potential is greatly diminished. There still are plenty of breezy flatlands out there, but there are complications in tapping it.

The Flint Hills always were a temptation to wind energy developers because transmission lines already were in place. Now, we must wonder when, where and if enough costly new transmission lines can or will be available for future wind power farms.

Scott Allegrucci, director of the Great Plains Alliance for Clean Energy, said he and his organization do not disagree with the governor’s intentions. But he raises the key question.

“(Kansas is) saying no to wind energy in the Flint Hills, which we think is a good idea, but where is the yes to wind energy?” Allegrucci told The Sun.

Quite correctly, Allegrucci expresses dismay about the effects a new coal plant in western Kansas will have on wind power.

That coal facility near Garden City “will clog our (transmission) grid, which could retard wind development for the western part of the state,” Allegrucci said.

Ironically, much of the power generated by that controversial plant will flow into Colorado. Emissions from it, however, will float eastward on the untapped Kansas winds. So instead of getting a flow of clean energy from western Kansas, it appears there is a much greater chance that Johnson County will get the fallout of burning coal pollution.

Allegrucci also points out that incentives for placing new transmission lines through sparsely populated areas are few.

“And the reality is that in Kansas the real high wind density is in the southwest 25 percent of the state … where there aren’t lines” or many people, Allegrucci said.

So we wonder: Was it really necessary to bar wind energy development completely from the Flint Hills? Could we not have allowed it at least to some limited extent?

And please tell us, Gov. Brownback, that you have an aggressive strategy for wind development elsewhere. Please tell us that there is a plan that will provide clean energy to Johnson County.

Or, as Mr. Allegrucci asks, “Where is the yes to wind energy?”

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For more of Richard Crowson’s work, visit his website.

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By Lee Judge for the Kansas City Star

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If in the odd chance you’re looking for an opportunity to be disgusted by political malfeasance, look no farther than Kansas.

Last week the state’s Department of Health and Environment (KDHE) rammed through the permit approval for a new, polluting and un-needed massive coal-fired power plant.  The 895 Megawatt behemoth is not needed in Kansas: approximately 80 percent of its power is slated to be shipped out of state. But Governor Mark Parkinson wanted it and appears to have forced his Health and Environment department to approve the permit before January 2 when new Environmental Protection Agency regulations to limit carbon dioxide emissions take effect  that would require plants to install millions of dollars of greenhouse gas controls.

If you think no pressure was placed on the agency to issue the permit, you might wonder why employees were ‘voluntarily’ working weekends to sort through the approximately 6,000 public comments on the proposal. That’s odd since a previous review of 800 comments took sixteen months. You can find more about the permit here.

As I’ve noted in a previous blog, Governor Parkinson was against this plant before he was for it. Any realistic political observer has no doubt that the Governor had the former KDHE fired because it was clear then Secretary Rod Bremby was not in favor of the plant. As I noted earlier on Bremby’s firing

The reason: Rod Bremby had shown the courage to stand up to Big Coal and the Koch Brothers (who appear to own the Kansas Legislature, judging by the number of lobbyists they employ). Bremby had been the first state official in the United States to deny the permit for a dirty new coal plant based on the health impacts of its global warming emissions. He was backed up by then Governor Kathleen Sebelius, who vetoed efforts to overturn Bremby’s decision, and her lieutenant, Mark Parkinson.

At the time, Parkinson was against plant, to be developed in the town of Holcomb by the Sunflower Rural Electric Cooperative. As Parkinson said at the time (March of 2008): “Why legislators are supporting Wyoming coal and Colorado energy while putting at risk the economy and health of Kansans is beyond me.”

It’s a good question. The plant is being developed  in Holcomb by KS-based Sunflower Electric Cooperative, but about 80% of the power would be purchased by Colorado-based Tri-State Generation and Transmission to power Colorado homes and businesses. Coal for the plant would have to be shipped (and dollars shipped out) from Wyoming.

Undoubtedly this decision will be challenged in the courts, and hopefully by the federal Environmental Protection Agency. Kansans and justice deserve at least as much.

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Even apart from climate change legislation, Central Appalachian coal production could be cut in half before the end of this decade. This is not news. The expected production decline is attributable to a range of factors I won’t go into here, except to flag up two estimates: on the supply side, “the amount of coal for electric generation displaced by natural gas, nuclear and renewable sources will come to 30 million tons in 2010 out of about a billion tons used nationwide” while demand for coal may change as power plant operators’ preferences tilt toward natural gas. Many operators are not ready to forclose on coal. #

In Kansas, Sunflower Electric’s long-suffering proposal to build a coal plant near Holcomb was approved earlier this week. As the Wichita Eagle’s editorial blog notes, this policy decision stands in sharp contrast to Colorado’s recent decision to check coal emissions in the Denver area. Replacing millions of tons of coal emissions with natural gas emissions is one way to prevent coal byproducts from tainting air and water, but it’s also the first time a state has moved to close coal plants for the sake of air quality. Meanwhile, the Holcomb approval is being described as allowing “40 percent fewer emissions” than a proposal killed in 2007 — an odd fact to emphasize, given what KDHE appears to have approved: #

• Nitrogen oxides: 1,910 tons per year
• Carbon monoxide: 4,579 tons per year
• Sulfur dioxide: 3,240 tons per year
• Volatile organic compounds: 119.4 tons per year
• Particulate matter (PM): 512 tons per year
• PM10: 748 tons per year
• PM2.5: 727 tons per year
• Elemental lead: 0.53 tons (1,060 pounds) per year
• Sulfuric acid mist: 141 tons per year
• Mercury: 0.078 tons (156 pounds) per year
• Any single HAP: < 10 tons per year
• Total HAPs: < 25 tons per year

The permit process may be more concerned with the amount emitted per energy unit than the aggregate quantities emitted, and there may be good reasons to frame regulations that way. It is not clear whether the 40 percent emissions reduction claimed by the acting secretary (and repeated by the Eagle’s editorial) reflects any improvement other than the approved plant’s reduced size. #

Time and investment have not yet delivered capture and storage technology for carbon, let alone the toxic mixture coal plants produce. Unless a technical solution is found, coal plants will continue to release much the same cocktail of hazardous byproducts for the foreseeable future—sometimes releasing it into the urban places most desperate to buy electricity, but more often into the rural communities quickest to offer friendly regulations in hopes of luring large employers away from cities. Denver’s move may protect human health, but if central Appalachia’s single-minded catering to coal companies is any guide, it appears unwise for either producers or consumers to pin all their hopes and dreams on the stability of any one commodity‘s price. #

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