By Mike Shields
KHI News Service
TOPEKA, Oct. 17
The head of the state environmental protection agency is scheduled to announce in the next few hours his decision on a permit to build two coal burning electric generators in western Kansas.
If Kansas Department of Health and Environment Secretary Roderick Bremby denies the permit, which the agency”s technical staff recommended he approve, it likely will be because of the plant”s projected carbon dioxide pollution
11 million tons per year.
But the technicians who write the permits for the agency did not factor in the consequences of CO2 emissions when they recommended approval, an omission that is the subject of a pending lawsuit.
“C02 has not been on our radar screen,” said Tom Gross, chief of the monitoring and planning section of KDHE”s Bureau of Air and Radiation. “We don”t have any existing C02 requirement. CO2 is less of a technical issue and more of a political issue.”
But the greenhouse gas and its role in global climate change has been on the radar screen of other environmental scientists for some time and was made a popular concern by former Vice President Al Gore”s film “An Inconvenient Truth.”
Gore and the
Intergovernmental Panel on Climate Change
last week were given a Nobel Peace Prize for their efforts to spread the knowledge of man-made climate change and its likely consequences.
The scientific consensus is now fairly solid that greenhouse gases are harmful to the environment. Though CO2 is not considered harmful to health except in extraordinary concentrations, its role in climate change has far reaching consequences for human well being.
“The uncertainty with respect to greenhouse gases is very small,” said David Braaten, a professor of atmospheric science at the University of Kansas who specializes in study of the Greenland and Antarctic ice caps. “There”s really no controversy in the scientific community with respect to CO2” and its role in man-made climate change.
The KDHE technicians were inundated with public comments as they considered the permit application, many of which urged them to consider the CO2 emissions.
On May 18,
Earthjustice
, an environmental group that uses the courts to fight global warming, sent a certified letter to the agency saying that KDHE was legally obliged to consider CO2 in its decision making given the April 2
U.S. Supreme Court decision
in the case of Massachusetts v. EPA, the U.S. Environmental Protection Agency.
The court found that greenhouse gases are pollutants under the Clean Air Act. The ruling reversed a 2003 decision by the EPA that greenhouse gases weren”t pollutants governable by the Clean Air Act.
Focus on the process
The fact that Kansas regulators were willing to consider licensing a coal burning plant that its would-be operators say will produce 11 million tons a year of C02, has helped bring national attention to the Kansas permitting process.
The state”s other electric generators combined currently produce 35 million tons of greenhouse gases a year.
“It”s very unusual for us to have national interest,” Gross said. “This is the first one I”ve worked on that has had it.”
The KDHE technicians worked through a checklist of standards and regulations that covered about everything else the plants would emit and found them within the bounds of federal and Kansas law. That”s the way the process usually goes: the permit writers work with the applicants until the application is acceptable.
The wild card in this instance is that even though CO2 isn”t covered by federal or state regulations, the
Kansas attorney general
has concluded that the law allows the government to take action when it finds an unregulated pollutant could be harmful to health or the environment.
The KDHE technicians in their recommendation that the plants be approved also disregarded the suggestion of eight state attorneys general who sent a joint letter asking that Kansas either deny the permit request by Sunflower Electric Corp. or require that the company employ technology such as coal gasification that would mitigate the C02 emissions.
Gross and KDHE Air Permits Unit Supervisor Mindy Bowman said they didn”t consider requiring Integrated Gasification Combined Cycle (IGCC) technology for the plant because “the big issue with it is that it is considerably more expensive to build.”
Instead, the permit writers met the law”s requirement that the new plants have the best available technology by comparing it to a similar “supercritical” plant, Desert Rock, planned on Navajo land in New Mexico.
That plant, like the ones proposed in Holcomb, also would pulverize coal to powder before burning it.
“The way the regulatory process works is to compare like to like,” Gross said. “But what you”ve hit upon is an issue of much interest and debate.”
Gross said the agency”s technicians comparison was in keeping with an EPA “guidance document” on the issue and “that”s the way most states do it.”
Gross, commenting on the attorneys general”s letter, said it was less of a problem for officials in northeastern states to come out against CO2 emissions.
“It”s easy to take a more aggressive stance when you have hydropower,” he said. “But Kansas is heavy on coal. If we didn”t have Wolf Creek (a nuclear generator) we”d be way heavier on coal.”
The Desert Rock plant has met public opposition in New Mexico, which also relies heavily on coal-generated electricity.
Legislators there voted down a proposed $85 million state tax credit for the plant”s builders, which has raised questions whether that facility will be built. Because it would be on Native American land, the permit process is governed by EPA, not the state of New Mexico.
“We were able to send a very strong signal that the state of New Mexico is not interested in subsidizing old-fashioned coal technology,” New Mexico State Rep. Peter Wirth told the Christian Science Monitor after the vote.
Forcing regulation
But many Kansas legislators, including the president of the Senate and the speaker of the House, both from districts served by Sunflower Electric Corp., have come out strongly in favor of the plants.
They made their sentiments clear in a hearing last week in which they grilled KDHE Secretary Rod Bremby and pushed him to make a decision favorable to Sunflower, the sooner the better.
Bremby is expected to announce his decision at 3 p.m. in a prepared statement.
Most observers of the controversy are assuming that if he denies the permit it will be on the basis of the CO2 concerns. But if he does, the facts supporting that decision will not have come from the technical staff that reviewed the permit application.
Because it has not been considered a “regulated pollutant,” KDHE has not maintained an inventory of the state”s C02 emissions.
The agency recently announced Kansas would join the
Climate Registry
to assist in tracking and verifying greenhouse gas emissions. But that project, a joint effort that involves most U.S. states and some Canadian provinces, is just getting off the ground, Gross said.
He said he expected the question of greenhouse gas regulation to ultimately be addressed by Congress.
“I”ve got to think we”re going to see federal action down the road,” he said.
But a lawsuit pending in Shawnee County District Court could force KDHE to regulate C02 whether Congress acts or not.
Attorney Bob Eye, formerly general counsel at KDHE, is representing a Lawrence couple that petitioned KDHE to begin regulating CO2 even before the U.S. Supreme Court ruling.
Eye said they got a letter back from the agency saying it believed the issue was best left to the federal government. Eye sent another letter after the court decision and got the same reply. So the couple filed their lawsuit, one of two stemming from the Sunflower application.
“We believe the secretary is required under the Kansas Air Quality Act to establish C02 regulations now that it is determined to be a pollutant,” Eye said.
Eye said the case is the only one in the nation he is aware of that seeks to force a state to regulate C02 and that it is likely to continue regardless of Bremby”s decision.
-Mike Shields is a staff writer for KHI News Service, which specializes in coverage of health issues facing Kansans. He can be reached at
mshields@khi.org
or at 785-233-5443, ext. 123.