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Kansas court reverses permit for new coal plant

John Milburn, Associated Press

TOPEKA, Kan. (AP) -- The Kansas Supreme Court on Friday reversed a state agency's decision to issue a permit to construct a new coal-fired power plant in southwest Kansas, delivering a victory to environmental groups that accused the state of cutting corners for political reasons.

The court's unanimous decision is a setback for Sunflower Electric Power Corp., which hopes to build a second plant near Holcomb.

Justices ruled that the Kansas Department of Health and Environment failed to apply one-hour emission standards for nitrogen dioxide and sulfur dioxide that had been issued by the EPA before the permit was granted. Those standards now must be considered when reviewing the permit, as do EPA standards issued after the permit was granted that regulates limits of mercury, acid gases and other toxins from coal- and oil-fired power plants that produced more than 25 megawatts of power.

The ruling sends Sunflower's permit request back to the KDHE to consider the stricter standards before granting the permit. KDHE spokeswoman Miranda Steele issued a statement saying the agency was reviewing the decision and the impact on the construction permit going forward.

Sunflower issued a statement Friday saying it would "respect the decision of the court in this very complex case" and work with the KDHE going forward, suggesting the project wasn't dead.

"Sunflower will continue to take the steps necessary to preserve and advance the project, which is one of many resources under consideration to meet the long-term power needs of our member co-ops," the utility said in its statement.

The case was brought by the Sierra Club and other environmental groups who claimed that the permitting process was flawed. They argued that the KDHE took shortcuts for political reasons, and that members of the environmental groups have been or would be harmed by the plant's emissions.

Amanda Goodin, an attorney for Earthjustice who argued the case before the court, said the ruling "takes the wind out of the sails" of Sunflower by forcing the permitting process to restart.

"They can't go forward with the project as it is proposed. They have to meet the new requirements," Goodin said. "It shows them that their repeated attempts to cut corners and cheat the process aren't going to work."

Sunflower supplies power for about 400,000 Kansas customers and plans to build a plant with a capacity of 895 megawatts, enough to meet the peak demands of 448,000 households, according to one state estimate. Three-quarters of the new capacity, or 695 megawatts, would be reserved for Tri-State Generation and Transmission Association Inc., which plans to buy the power for customers in Colorado, where the company is based.

Construction was blocked in 2007 when Kansas became the first state to deny a building permit because of health concerns about greenhouse gases. But a change in governors led to a 2009 settlement agreement between then-Gov. Mark Parkinson and Sunflower that allowed the permitting process to begin again. In December 2010, the KDHE approved the building permit for the plant, which was estimated to cost as much as $3 billion to construct.

The court didn't make a determination about the use of best available technology that Sunflower would install to reduce emissions. The Sierra Club argued that the plant's permit didn't reflect the best controls that could be used. The justices questioned whether the issue is relevant, based their ruling about applying stricter emission standards.

"The parties should be given an opportunity to present their positions regarding the scope of proceedings on remand and whether there must be a new determination on the best available control technology," Justice Marla Luckert wrote.

The court also is leaving it to the KDHE to determine the scope of the new permit review.

However, the justices did side with the KDHE in its decision to set emission limits over the life of the power plant, finding that they were not arbitrary but rather supported by substantial evidence.

Environmentalists said Friday's ruling sends a message that the attractiveness of coal as an energy source was fading and allayed residents' concerns about the future quality of air they breathe.


The case is No. 105,493.


Kansas Supreme Court: http://www.kscourts.org