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Archive for Thursday, October 18, 2007

Text of KDHE announcement on coal plant permits for Western Kansas

October 18, 2007

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Editor's Note: The following is the text of KDHE's announcement it will deny permits for two coal plants near Holcomb.

Roderick L. Bremby, Secretary of the Kansas Department of Health and Environment (KDHE), announced today that he has denied the air quality permit for the two proposed 700-megawatt generators at the Sunflower Electric Power Corporation plant near Holcomb.

"After careful consideration of my responsibility to protect the public health and environment from actual, threatened or potential harm from air pollution, I have decided to deny the Sunflower Electric Power Corporation application for an air quality permit," said Bremby.

In making his decision, Bremby cited the authority provided to the Secretary of KDHE in K.S.A. 65-3008 and K.S.A. 65-3008a, which grant him the authority to affirm, modify or reverse a decision on an air quality permit after the public comment period or hearing, and K.S.A. 65-3012, which authorizes him to deny or modify an air quality permit to protect the health of persons or the environment.

"I believe it would be irresponsible 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," said Bremby.

The U.S. Supreme Court found in Massachusetts v. EPA that carbon dioxide meets the broad definition of an air pollutant under the Clean Air Act. The Kansas Air Quality Act similarly has a broad definition of what constitutes air pollution.

The Centers for Disease Control and Prevention has recognized the need for public health agencies to take the lead on educating the public about the health impacts of climate change and has adopted priority health actions to prepare for, respond to and manage the associated health risks of climate change.

The decision constitutes a first step in emerging policy to address existing and future carbon dioxide emissions in Kansas. "KDHE will work to engage various industries and stakeholders to establish goals for reducing carbon dioxide emissions and strategies to achieve them. This is consistent with initiatives underway in states leading the effort to address climate change," said Bremby.

One such initiative currently being undertaken by eight northeastern states is the Regional Greenhouse Gas Initiative (RGGI), a mandatory regional cap-and-trade program aimed at reducing carbon dioxide emissions from power plants by 10 percent, or approximately 12 million tons annually, by 2020. The expanded Sunflower plant was projected to release an estimated 11 million tons of carbon dioxide annually.

"Denying the Sunflower air quality permit, combined with creating sound policy to reduce carbon dioxide emissions can facilitate the development of clean and renewable energy to protect the health and environment of Kansans," said Bremby.

Comments

hornethawk 7 years, 2 months ago

Wow, drag it out for 18 months and then shoot us.

ASBESTOS 7 years, 2 months ago

The Statutes:

65-3008 Chapter 65.--PUBLIC HEALTH Article 30.--AIR QUALITY CONTROL 65-3008. Approvals and permits for emission stationary sources. (a) No person shall construct, own, operate, install, alter or use any air contaminant emission stationary source which, in accordance with rules and regulations, the secretary finds may cause or contribute to air pollution, unless an appropriate approval or permit has been issued for the source by the secretary under this act. Approvals or permits issued by the secretary may be subject to conditions consistent with the purposes of this act and rules and regulations promulgated under this act.

  (b)   The secretary shall require that applications for approvals and permits, and renewals thereof, under this act shall be accompanied by application fees and such plans, specifications, compliance plans or other information as the secretary deems necessary. Applications shall be submitted on forms provided by the secretary and shall be signed by a responsible official of the source, who shall certify the accuracy of the information submitted.

  (c)   The issuance or holding of an approval or permit shall not convey any property right or exclusive privilege to the holder thereof.

ASBESTOS 7 years, 2 months ago

(d) Without any further action on the part of the secretary, an approval or a permit shall become void and without effect on its expiration date unless a completed application form and any required fee are filed with the secretary on or before the expiration date of the approval or the permit. For purposes of this subsection, the secretary may specify by rule and regulation an amount of time prior to the expiration date of an operating permit by which a complete application form and any required fee must be filed with the secretary in order to be considered timely filed. The secretary may provide for a grace period by rule and regulation.

  (e)   The secretary may issue by rule and regulation a general approval or permit covering numerous similar sources. Any general approval or permit shall comply with all requirements applicable to approvals or permits under this act. Any source covered by a general approval or permit must apply to the secretary and receive authority to operate under the general approval or permit.

  (f)   The secretary may fix, charge and collect fees for approvals and permits, and the renewal thereof, to cover all or any part of the cost of administering the provisions of Kansas air quality act, other than K.S.A. 65-3027. The secretary shall adopt rules and regulations fixing such fees. The fees shall be deposited in the state treasury and credited to the state general fund, except that if all or any portion of the regulatory services for which a fee is collected under this section is performed by a county, city-county or multicounty health department, that portion of such fee which pertains to such services, as determined by the secretary, shall be credited to the local air quality control authority regulation services fund, which is hereby created in the state treasury, and shall be paid from such fund to such local air quality control authority.

ASBESTOS 7 years, 2 months ago

65-3008a Chapter 65.--PUBLIC HEALTH Article 30.--AIR QUALITY CONTROL 65-3008a. Same; public comment and hearing; review. (a) No permit shall be issued, modified, renewed or reopened without first providing the public an opportunity to comment and request a public hearing on the proposed permit action. The request for a public hearing on the issuance of a permit shall set forth the basis for the request and a public hearing shall be held if, in the judgment of the secretary, there is sufficient reason.

  (b)   The secretary shall affirm, modify or reverse the decision on such permit after the public comment period or public hearing. Any person who participated in the public comment process or the public hearing who otherwise would have standing under K.S.A. 77-611, and amendments thereto, shall have standing to obtain judicial review of the secretary's final action on the permit pursuant to the act for judicial review and civil enforcement of agency actions in the court of appeals. Any such person other than the applicant for or holder of the permit shall not be required to have exhausted administrative remedies in order to be entitled to review. The court of appeals shall have original jurisdiction to review any such final agency action. The record before the court of appeals shall be confined to the agency record for judicial review and consist of the documentation submitted to or developed by the secretary in making the final permit decision, including the permit application and any addenda or amendments thereto, the permit summary, the draft permit, all written comments properly submitted to the secretary, all testimony presented at any public hearing held on the permit application, all responses by the applicant or permit holder to any written comments or testimony, the secretary's response to the public comments and testimony and the final permit.

  (c)   When determined appropriate by the secretary, the procedures set out in subsection (a) may be required prior to the issuance, modification, renewal or reopening of an approval.

  History:   L. 1993, ch. 13, § 6; L. 2006, ch. 79, § 1; April 13.

ASBESTOS 7 years, 2 months ago

65-3012 Chapter 65.--PUBLIC HEALTH Article 30.--AIR QUALITY CONTROL 65-3012. Action to protect health or environment. (a) Notwithstanding any other provision of this act, the secretary may take such action as may be necessary to protect the health of persons or the environment: (1) Upon receipt of information that the emission of air pollution presents a substantial endangerment to the health of persons or to the environment; or (2) for an imminent or actual violation of this act, any rules and regulations adopted under this act, any orders issued under this act or any permit conditions required by this act.

  (b)   The action the secretary may take under subsection (a) includes but is not limited to:

  (1)   Issuing an order directing the owner or operator, or both, to take such steps as necessary to prevent the act or eliminate the practice. Such order may include, with respect to a facility or site, temporary cessation of operation.

  (2)   Commencing an action to enjoin acts or practices specified in subsection (a) or requesting the attorney general or appropriate county or district attorney to commence an action to enjoin those acts or practices. Upon a showing by the secretary that a person has engaged in those acts or practices, a permanent or temporary injunction, restraining order or other order may be granted by any court of competent jurisdiction. An action for injunction under this subsection shall have precedence over other cases in respect to order of trial.

  (3)   Applying to the district court in the county in which an order of the secretary under subsection (b)(1) will take effect, in whole or in part, for an order of that court directing compliance with the order of the secretary. Failure to obey the court order shall be punishable as contempt of the court issuing the order. The application under this subsection for a court order shall have precedence over other cases in respect to order of trial.

  (c)   In any civil action brought pursuant to this section in which a temporary restraining order or preliminary injunction is sought, it shall not be necessary to allege or prove at any stage of the proceeding that irreparable damage will occur should the temporary restraining order or preliminary injunction not be issued or that the remedy at law is inadequate, and the temporary restraining order or preliminary injunction shall issue without such allegations and without such proof.

  (d)   Any order of the secretary pursuant to subsection (b)(1) is subject to hearing and review in accordance with the Kansas administrative procedure act.

ASBESTOS 7 years, 2 months ago

So, Secretary Bremby broke the law by stating that he refused the permit based on his comment ""After careful consideration of my responsibility to protect the public health and environment from actual, threatened or potential harm from air pollution, I have decided to deny the Sunflower Electric Power Corporation application for an air quality permit," said Bremby."

He has to base in on actual health impacts, not imaginary or "threatened or potential". The statutes also give remedy to the Power Plant Permit applicants under the Civil Srevice Board Act, and the Judicial review and these cost the applicant (complaintant) is just their legal fees, these is no court costs, and the Civil Service Review Board must follow Kanasa Administrative Procedure Act.

Which means, it cannot be based on BS, it has to be based on something in the law. It seems as if the comments that Bremby made and his waffling and political caving in (first approving it when the political wind blew that way, and NOW opposing it when the political wind shifted) illustrates his SUPREME LACK OF QUALIFICATIONS in order to be an Administrative Secretary and he holds a place on the Board of the Kansas Health authority.

Now which ever camp you are in (my dog in this race is alt energy which includea a BIG NUKE PLANT and solar and wind arrays) it MUST BE BASED ON SCIENCE and SCIENTIFIC principals, not political expedience. It is remained to be seen if this Golbal warming is manmade, or if it is a natural cycle. My opinion is that if it is manmade we are deep dodo as we see how Well CHINA and India obey importation laws and bans, hell lead is good in toys is it not? And CHINA is the largest polluter NOW, and will far outstrip the US in CO2 emissions and double the US CO2 output less than 2 decades. IF they cannot/willnot control lead in toys do you think they can/will abey emission laws?

So CHINA is going to continue polluting, and Sec. Bremby shows us all what a lack of character and backbone looks like KDHE continues to be a laughingstock.

Whatever you believe, the lawsuits will follow and the Coal Powerp[lants will be built and the Taxpayers of Kansas will pay a considerable sum to the Power Generators of Sunflower for losses caused by a lack of adherance to the law.

There is NO WAY, this Secretary will be tqaken seriously in court, when one week he is going to allow this plant to go through based on no science, and the next week he refuses it based on a lack of understanding the responsibility of his position and a complete lack of understanding and disregard of the laws.

This is ignorant.

ASBESTOS 7 years, 2 months ago

This is the line in the statute:

"the secretary may take such action as may be necessary to protect the health of persons or the environment: (1) Upon receipt of information that the emission of air pollution presents a substantial endangerment to the health of persons or to the environment; or (2) for an imminent or actual violation of this act, any rules and regulations adopted under this act, any orders issued under this act or any permit conditions required by this act."

IT has to be a "substantial endangerment" or "an imminent or actual violation of this act".

So Bremby cannot make the statment he did. He has to have a health study and prove "substancial endangerment". There is none.

AdamG09 7 years, 2 months ago

Here's what the Kansas Attorney General has to say:

"Based upon the plain language of K.S.A. 65-3012, it appears that the statute contemplates preventative as well as remedial actions on the part of the secretary in order to protect persons and the environment in situations where the secretary receives information that emissions of air pollution presents substantial danger to either."

. . .

"Thus, as K.S.A. 65-3012 does not condition the secretary's action upon pollutant levels, the secretary is not obligated to wait until there are federal or state regulations establishing limitations on a particular pollutant before taking action to prevent air pollution . . . ."

. . .

"This conclusion is supported by the legislative history of K.S.A. 65-3012 which, until 1993, allowed the [KDHE] to take only remedial action in situations where the appropriate agency official found that 'any person is causing or contributing to air pollution and that such pollution creates an emergency which requires immediate action to protect human health or safety.'"

. . .

"In 1993, this verbiage was replaced in its entirety by verbiage modeled after the hazardous waste statute . . . K.S.A. 65-3419(e), [which] allows the secretary, 'upon receipt of information that the . . . disposal of any waste may present a substantial hazard to the health of persons or to the environment . . . may take such action as . . . necessary to protect the health of such persons or the environment.' Those actions include preventing the act or eliminating the practice of constituting the hazard."

. . .

"In light of the plain language of K.S.A. 65-3012 and its legislative history, it is our opinion that if the secretary makes a factual determination that a particular emission constitutes air pollution and that such emission presents a substantial endangerment to the health of persons or to the environment, then even in the absence of federal or state regulations setting limitations for a particular pollutant, K.S.A. 65-3012(a)(1) authorizes the secretary to take actions as necessary to protect the health of persons or the environment. Such actions may include denying an air quality permit application on the basis of anticipated emissions of a particular pollutant or modifying a proposed permit to address such pollutant."

Kan. Atty. Gen. Op. No. 2007-31.

ASBESTOS 7 years, 2 months ago

"Such actions may include denying an air quality permit application on the basis of anticipated emissions of a particular pollutant or modifying a proposed permit to address such pollutant."

And CO2 is not a pollutant.

So he had no legal right to standing.

BTW, the AG backs up the State Agencies in their actions. It does not mean that those opinions will be force of law in a Kansas Supreme Court case or a Federal Court Case.

remember there are opinions that the Phormer Phreaking Phil Kline had that were overturned.

So the AG Opinion is nowhere near absolute.

AdamG09 7 years, 1 month ago

The attorney general opinion cannot properly be characterized as the AG "backing up" KDHE. Attorney general opinions are advisory opinions on questions propounded to the attorney general by a party or parties seeking guidance on what the law is. Atty. Gen. Op. No. 2007-31 is an advisory opinion on a question propounded by Roderick Bremby, Secretary of KDHE--"whether, in the absence of federal or state regulations setting limitations for a specific pollutant, K.S.A. 65-3012 authorizes the secretary to deny or modify an air quality permit . . . until state or federal regulations are enacted that address the pollutant." The attorney general opinion, issued about a month before the KDHE decision, is not "back up" for KDHE's determination. Rather, the opinion is the attorney general's independent evaluation of Kansas law in response to the KDHE's query.

To be sure, the attorney general's opinion is not absolute--that's the nature of an advisory opinion. However, the decision does carry the authority of the official in charge of enforcing the law of the state of Kansas. The courts will likely consider the attorney general's opinion if given the opportunity to review KDHE's decision. The attorney general is in charge of enforcing whatever construction the court gives to K.S.A. 65-3012. Also, as an elected official, the attorney general presumably drafted an opinion calculated to effectuate state law and the will of a majority of Kansas voters.

AdamG09 7 years, 1 month ago

Kan. Atty. Gen. Op. No. 2007-31 does not touch upon whether carbon dioxide is a "pollutant" within the meaning of K.S.A. 65-3012. Rather, the opinion states "that if the secretary makes a factual determination that a particular emission constitutes air pollution, and that such emission presents a substantial endangerment to the health of persons or to the environment, then . . . K.S.A. 65-3012(a)(1) authorizes the secretary to take actions as necessary . . . [which] may include denying an air quality permit."

The secretary of KDHE determined in part that carbon dioxide is a "pollutant." This determination has support from the United States Supreme Court, which recently found that carbon dioxide meets the broad definition of an air pollutant under the Clean Air Act.

The KDHE determination, however, was not solely premised on carbon dioxide being a pollutant. The secretary's statement merely emphasizes that "carbon dioxide and other greenhouse gases" were a factor in the decision to reject the permits.

Even if "carbon dioxide and other greenhouse gases" are not pollutants under K.S.A. 65-3012, "coal-fired power plants spew[] 59% of total U.S. sulfur dioxide pollution and 18% of total nitrous oxides every year. Coal-fired power plants are also the largest polluter of toxic mercury pollution, largest contributor of hazardous air toxics, and release about 50% of particle pollution." http://www.sierraclub.org/cleanair/factsheets/power.asp. Thus, all KDHE has to do is say the determination to reject the permits was based on these "pollutants' effect on health, as well as the effect of carbon dioxide and other greenhouse gases on the environment."

For the Kansas courts to nullify the KDHE's determination, they would have to find K.S.A. 65-3012 conditions the secretary's action upon pollutant levels, and that the secretary is obligated to wait until there are federal or state regulations establishing limitations on a particular pollutant before taking action to prevent air pollution. This holding would fly in the face of the Kansas Legislature's intent, as embodied in the clear language of the statute, which imposes no such restrictions on the secretary's action.

abbynormal 7 years, 1 month ago

Wow. Be glad that your children will have clean air. Stop complaining about this and that procedure. No one cares. If you're so brilliant ASBESTOS then why wasn't this your job? Proving people wrong on a blog only makes you look even more pathetic. Take it to someone who cares. Take actions if you're so smart. But honestly, I'm sure not too many people care what you have to think. Otherwise, you would be in charge of writing actual articles, not blogs. I'm all for the no-coal plant. Would you rather they build the coal plant and THEN see what affects it has on us? Waste YOUR precious money all for a study because its procedure supposedly not his jurisdiction. You say they need a study to prove that coal plants have negative affects... what about the Clean Air Task Force? From a study, they state that fine particle pollution (like the gas and the smoke that would be emitted from the plant) have a hand in at least 300,000 deaths in the U.S. alone. Why would someone in charge of "health and environment" even want to approve something like that. Saying "yes" would make him look worse than you're trying to make him look now. I feel sorry for the guy. And what jurisdiction does that guy have over China? We all know China has miserable air and does not seem to concerned with pollution, but what does that have to do with the guy who works in Kansas?

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