The opinion of the court was delivered by LUCKERT, J.:
In this appeal, environmental organization Sierra Club seeks judicial review of the decision of the Secretary of the Kansas Department of Health and Environment (KDHE) to issue an air emission source construction permit to Sunflower Electric Power Corporation (Sunflower) for the construction of an 895-megawatt coal-fired power plant, referred to as Holcomb 2, at the site of Sunflower's existing plant in Holcomb, Holcomb 1. Sierra Club raises four issues and contends the permit fails to comply with the requirements of the federal Clean Air Act (CAA), 42 U.S.C. § 7401 et seq. (2006); implementing federal regulations; the Kansas Air Quality Act (KAQA), K.S.A. 65-3001 et seq.; and applicable Kansas Administrative Regulations, K.A.R. 28-19-1 et seq. As a preliminary matter, the KDHE questions whether Sierra Club has standing to challenge the permit.
We hold that Sierra Club has standing to bring this action and has established that the KDHE erroneously interpreted and applied the CAA and the KAQA when it failed to apply the regulations of the federal Environmental Protection Agency (EPA) regarding 1-hour emission limits for nitrogen dioxide and sulfur dioxide during the Holcomb 2 permitting process. These EPA regulations became effective before the Holcomb 2 permit was issued, and we hold that the CAA, KAQA, and implementing regulations required the KDHE to apply the regulations during the permitting process. We therefore reverse the KDHE's action of issuing the permit and remand this matter to the KDHE.
Sierra Club's petition for judicial review presents three other issues. One of those issues — whether the KDHE erred in its application
In 2006, Sunflower filed with the KDHE an application for a prevention of significant deterioration (PSD) permit for the construction of three new coal-fired electric generators at the site of its existing facility in Holcomb. Soon after, Tri-State Generation and Transmission Association, Inc., obtained an option from Sunflower for rights to a portion of the new power and facilities. Later that year, public hearings were conducted on the draft permit.
In October 2007, although the KDHE staff recommended the PSD permit be issued, the Secretary of the KDHE denied the permit based on the level of greenhouse gas (carbon dioxide) emissions from the proposed generators. At that time, neither the EPA nor the KDHE had placed specific limitations on carbon dioxide emissions. Nevertheless, the Secretary declared carbon dioxide emissions an imminent and substantial hazard to public health and the environment and invoked the Secretary's then-existing power under K.S.A. 65-3012 to "take such action as may be necessary to protect the health of persons or the environment."
Sunflower challenged the KDHE's decision in state and federal courts. While those cases were pending, then-Governor Mark Parkinson and Sunflower entered into a settlement agreement. The agreement established terms and conditions for resuming the KDHE's consideration of Sunflower's permit application and called for Sunflower to reduce the size of its planned expansion, develop wind resources and energy efficiency programs, dismiss the federal lawsuit, and file a motion to stay any pending state court proceedings until the issuance of a permit, at which time Sunflower would request the dismissal of the state court proceedings.
Subsequent to the settlement agreement, the 2009 Kansas Legislature enacted what is now K.S.A. 2012 Supp. 65-3029 (L.2009, ch. 141, sec. 42; effective May 28, 2009), which provides:
The legislature also amended the powers of the Secretary in several ways, one of which was to limit the emergency power that the Secretary had relied upon in denying Sunflower's 2006 PSD permit application. See K.S.A. 2012 Supp. 65-3012; L.2009, ch. 141, sec. 25 (adopting H.B. 2369).
Consistent with the settlement agreement and the 2009 legislation, Sunflower submitted supplemental materials to the KDHE in late 2009 and early 2010 to update its PSD permit application for the construction of the Holcomb 2 coal-fired power plant. These updates were necessary, at least partially, because of changes in federal requirements that became effective after the first permit had been denied.
The KDHE issued a draft PSD permit for Holcomb 2 and published a notice of scheduled public hearings and a public comment period. During the comment period, the EPA discovered errors in Sunflower's air quality impact modeling. As a result, Sunflower submitted a new modeling analysis, and, in September 2010, the KDHE issued a new draft PSD permit and another public notice of hearings and a comment period. During the subsequent proceedings, the KDHE received numerous communications from various individuals and organizations,
At the conclusion of this process, the KDHE staff recommended the permit be issued, and on December 16, 2010, the Secretary of the KDHE issued the final PSD permit — the air emission source construction permit at issue in this appeal — for construction of Holcomb 2. In an extensive "Responsiveness Summary," the KDHE addressed hundreds of public comments, including those submitted by Sierra Club. In large part, the KDHE's responses were identical to those proposed by Sunflower.
Sierra Club filed a petition for judicial review of the permit in the Kansas Court of Appeals. See K.S.A. 2012 Supp. 65-3008a(b) (under the KAQA, the Court of Appeals has "original jurisdiction to review any such final agency action"). Sunflower and Tri-State (collectively the Intervenors) filed a motion for intervention, which the Court of Appeals granted. Subsequently, Sierra Club's petition was transferred to this court pursuant to K.S.A. 20-3018(c).
The KDHE and Intervenors answered the petition for judicial review, with the KDHE raising the jurisdictional question of whether Sierra Club has standing to challenge the Holcomb 2 PSD permit.
We first address the standing question because it implicates this court's jurisdiction to consider the issues raised by Sierra Club. Then, because we ultimately determine Sierra Club has standing and there is no other objection to jurisdiction, we will address the issues raised by Sierra Club and expand on the facts relating to each issue.
In raising the issue of standing, the KDHE alleges that Sierra Club failed to provide facts sufficient to support the claim of standing. As the KDHE argues, parties in a judicial action must have standing as part of the Kansas case-or-controversy requirement imposed by the judicial power clause of Article 3, § 1 of the Kansas Constitution. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 895-96, 179 P.3d 366 (2008). The effect of this requirement is that standing is a component of subject matter jurisdiction, which any party, or the court on its own motion, may raise at any time. See Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 903, 249 P.3d 434 (2011); Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165-66, 210 P.3d 105 (2009). The issue of whether a party has standing in a judicial action, like other jurisdictional issues, presents a question of law. Bartlett Grain Co. v. Kansas Corporation Comm'n, 292 Kan. 723, 726, 256 P.3d 867 (2011); Cochran, 291 Kan. at 903, 249 P.3d 434; Shipe, 289 Kan. at 165, 210 P.3d 105.
The parties agree that a multilevel analysis — (1) statutory standing and (2) common-law or traditional standing — applies to the determination of whether Sierra Club has standing to challenge the Holcomb 2 PSD permit. To establish statutory standing under the first prong, Sierra Club must satisfy the standing requirements of both the KAQA and the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See K.S.A. 2012 Supp. 65-3008a(b) (standing requirements of KAQA); K.S.A. 77-611 (standing requirements of the KJRA); Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 750-64, 189 P.3d 494 (2008); Families Against Corporate Takeover v. Mitchell, 268 Kan. 803, 806-07, 810-11, 1 P.3d 884 (2000) (FACT); NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000). If Sierra Club meets the statutory requirements, it must also meet the second prong, satisfying the requirements under the common-law standard that is often referred to in our caselaw as the traditional standing test. See Cochran, 291 Kan. at 908-09, 249 P.3d 434; Bremby, 286 Kan. at 750, 761-64, 189 P.3d 494.
The KAQA addresses standing by stating: "Any person who participated in the public comment process or the public hearing who otherwise would have standing under
The first component does not present an obstacle to Sierra Club's action. Even though Sierra Club is an association, it qualifies as a person because the KAQA defines "person" to include "any ... association, ... public or private corporation, ... or any other legal entity." K.S.A. 2012 Supp. 65-3002(j).
Sierra Club also satisfies the second component of the KAQA's standing requirements. The record establishes that Sierra Club submitted written comments and its representatives and environmental experts presented oral comments at public hearings. In addition, several individuals attending the public hearings identified themselves as Sierra Club members and some of them presented either oral or written comments.
Nor is the final requirement — standing under the KJRA — an obstacle to Sierra Club's standing. The KJRA's standing statute, K.S.A. 77-611, recognizes four categories of persons who have standing to seek judicial review of an agency action. See K.S.A. 77-602(h) (defining "person"). Sierra Club relies upon one of those four provisions, contending it has statutory standing under K.S.A. 77-611(b) as a "party to the agency proceedings that led to the agency action."
Sierra Club bases its assertion of party status on its participation in the comment period and the public hearings. K.S.A. 77-602(f)(2) defines "`[p]arty to agency proceedings'" to include a person who is "allowed... to participate as a party in the proceeding." Further, the holdings in FACT, 268 Kan. 803, 1 P.3d 884, and Bremby, 286 Kan. 745, 189 P.3d 494, support Sierra Club's position that participation in a public hearing or providing public comment is sufficient to accord party status in a PSD permitting process.
In FACT, the KDHE issued a permit to Murphy Farms, Inc., for the operation of a large-scale hog farm. The permit was issued under the National Pollution Discharge Elimination System, which was a delegated federal permitting program under the Clean Water Act, 33 U.S.C. § 1251 et seq. (1994). FACT, a nonprofit corporation, opposed the KDHE's issuance of the permit. This court determined that FACT met the KJRA's standing requirement under the party status provision in K.S.A. 77-611(b) because applicable regulations mandated public hearings and a comment period as part of the permitting process and members of FACT participated in these procedures. FACT, 268 Kan. at 810, 1 P.3d 884.
Bremby arose from a petition for judicial review filed by Tri-County Concerned Citizens, Inc. (Tri-County), an association formed to oppose the issuance of a landfill permit by the KDHE. Addressing the standing of Tri-County to file the petition, this court, cited FACT and held the association's "submission of written comments during a public notice and comment period and all persons' comments made during a public hearing held by an agency both qualify as participation within the meaning of the KJRA's standing requirements." Bremby, 286 Kan. at 758, 189 P.3d 494.
Applying K.S.A. 77-611(b) and the holdings in FACT and Bremby to the circumstances of this case, we conclude that Sierra Club meets the definition of "party" under the KJRA. As we have noted, Sierra Club actively participated in the public comment and hearing process. And the KAQA and its implementing regulations make both public comments and public hearings required parts of a PSD permitting process. See K.S.A. 2012 Supp. 65-3008a(a) ("No permit shall be issued ... without first providing the public an opportunity to comment and request a public hearing on the proposed permit action."); K.A.R. 28-19-204(b), (c) (requiring public notice and comment period during the PSD permitting process). In addition, the statutes and regulations broadly allow any member of the public, without qualification or
Other provisions further formalize and incorporate the public hearing and comment process into the KDHE's decision-making function. K.A.R. 28-19-204(f) provides that "[w]ritten comments timely received ... during the public comment period and written comments and oral testimony received during a public hearing shall become part of the permit record." More significantly, K.A.R. 28-19-204(f) mandates that "[a]ll such written and oral comments which are relevant to the permit decision and which are within the jurisdiction established by the permit action shall be considered in making a final decision on the proposed permit action." Further, the KDHE's response to the comments "shall be issued at the time any final permit decision is issued." K.A.R. 28-19-204(g). In issuing the Holcomb 2 PSD permit, the KDHE responded to comments identified as coming from Sierra Club and its representatives.
These statutory and regulatory provisions allowed Sierra Club and its members to participate in public hearings and submit testimony and, as in Bremby and FACT, to make public participation a part of the permitting process, thus according Sierra Club the status of a party within the meaning of K.S.A. 77-611(b). Consequently, Sierra Club's participation in the agency proceedings entitled it to assert statutory standing under K.S.A. 77-611(b) of the KJRA and under K.S.A. 2012 Supp. 65-3008a(b) because the other components of the KAQA's standing requirements were also met.
The standing inquiry does not end here, however. In order to have standing to file an action in a Kansas court, Sierra Club must demonstrate that it also meets common-law or traditional standing requirements for associations. See Cochran, 291 Kan. at 908, 249 P.3d 434; Bremby, 286 Kan. at 761, 189 P.3d 494; FACT, 268 Kan. at 810-11, 1 P.3d 884. We conclude those requirements were also met.
Generally, to demonstrate common-law or traditional standing, a person suing individually must show a cognizable injury and establish a causal connection between the injury and the challenged conduct. Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 324, 255 P.3d 1186 (2011); Bremby, 286 Kan. at 761, 189 P.3d 494. To establish a cognizable injury, a party must establish a personal interest in a court's decision and that he or she personally suffers some actual or threatened injury as a result of the challenged conduct. Lower v. Board of Dir. of Haskell County Cemetery Dist., 274 Kan. 735, 747, 56 P.3d 235 (2002).
For an association to have standing, additional requirements are imposed and a three-prong test must be satisfied: "An association has standing to sue on behalf of its members when (1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires participation of individual members." NEA-Coffeyville, 268 Kan. 384, Syl. ¶ 2, 996 P.2d 821; see Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (recognizing the three-prong associational standing test). To meet the first prong, the association must show that it or one of its members has suffered actual or threatened injury — i.e., the association or one of its members must have suffered cognizable injury or have been threatened with an impending, probable injury and the injury or threatened injury must be caused by the complained-of act or omission. See 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 885, 47 P.3d 383 (2002) (citing Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 [1972]); see also Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (allegations of possible future injury do not satisfy requirements of standing; a "threatened injury must be "`certainly impending'" to constitute injury in fact"); Chamber of Commerce of United
Applying this test in Bremby, this court held that Tri-County met the three-prong test and had standing to challenge the lawfulness of the landfill permit. First, the court noted the petition alleged that Tri-County's members "`will suffer damage to their real property and water supply if the ... landfill site is unsuitable under applicable legal requirements and if it leaks, causing contamination to the soil, groundwater and surface water.'" 286 Kan. at 763, 189 P.3d 494. Second, Tri-County was "`organized for the purpose of preserving and enhancing the quality of life in Harper, Kingman and Sumner counties,'" and "ensuring that any landfill that is located in Harper County meet[s] environmental standards to protect the groundwater supply and river water ... [is] germane to this purpose." 286 Kan. at 763, 189 P.3d 494. Finally, since Tri-County challenged the permit as arbitrary and capricious because it was issued on faulty environmental studies, that claim did not require the participation of its individual members. 286 Kan. at 763, 189 P.3d 494.
Likewise, in FACT we held the three-prong association standing test was met. First, the record contained three affidavits from members of the organization in which members alleged "an imminent decrease in the value of their property, some of which was adjacent to the proposed hog farm." 268 Kan. at 804, 1 P.3d 884. The alleged decrease in value would be caused by "odor, flies, vermin, pestilence, and possible contamination of surface and ground water." 268 Kan. at 804, 1 P.3d 884. One affiant also claimed harmful health consequences to his asthmatic wife and son because of the KDHE's decision to allow the hog farm. This court found the individual members showed sufficient imminent injury to sue individually. Second, there was no doubt that the interests FACT sought to protect were germane to its purpose. FACT was organized for the express purpose of protecting its members from the adverse effects of a large-scale hog farm. Finally, neither the claim asserted nor the relief requested required the participation of individual members. FACT sought judicial review of an agency action, and the relief sought was revocation of the hog-farm permit. The analysis of whether the KDHE complied with the various rules and regulations involved in granting the permit did not require the participation of individual FACT members. 268 Kan. at 811, 1 P.3d 884.
In this case, the KDHE and the Intervenors recognize the similarities between this case, Bremby, and FACT. Nevertheless, they contend Sierra Club fails to meet the first prong of the association standing test.
More specifically, the KDHE and the Intervenors argue the record before the KDHE did not include either written or oral comments establishing that a Sierra Club member faced an imminent injury in fact and, therefore, we must conclude that Sierra Club lacks standing. Sierra Club counters by arguing that there is evidence in the permit record that establishes its standing and, if not, declarations it filed with this court do.
During the permitting process, Sierra Club presented general concerns for the environment and for the health of especially vulnerable segments of the general public and provided expert support for its assertions. Nevertheless, these general environmental and health concerns are not sufficient to establish Sierra Club's standing. As the United States Supreme Court has recognized: "[A] mere `interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization `adversely affected' or `aggrieved' [by an agency action] within the meaning of the APA [see Administrative Procedure Act, 5 U.S.C. § 702 (2006)]." Sierra Club, 405 U.S. at 739, 92 S.Ct. 1361;
No Sierra Club member provided evidence during the permitting process of an imminent and particularized injury to either the member or Sierra Club. Consequently, if our decision were to be solely based on the record before the KDHE, we would conclude Sierra Club fails to meet the first prong of the associational standing test.
This brings us to Sierra Club's alternative argument that our analysis should include the five declarations filed by Sierra Club members with this court after the KDHE questioned Sierra Club's standing and this court issued an order for Sierra Club to show cause why this court has jurisdiction. The KDHE and the Intervenors make several arguments in response: (a) This court is limited to considering the evidence in the agency record and cannot consider the additional evidence in the declarations; (b) the declarations cannot be considered because these members did not make public comments; and (3) even considering the declarations, Sierra Club has failed to establish imminent harm to individual members. For the reasons we discuss, we reject these arguments.
Regarding the contention that our decision must be based solely on the record before the KDHE, we have found no Kansas cases addressing whether a party seeking review of an agency determination can establish standing by submitting affidavits or declarations in court rather than through evidence submitted to the administrative agency. Other courts have considered the issue, and those courts have routinely accepted affidavits or declarations for the purpose of establishing the traditional requirements of standing. The rationale for doing so is that a petitioner does not have a need to establish an injury in fact to participate in the proceedings before the agency. Rather, the injury-in-fact requirement is imposed as a check on a court's power to review and revise legislative and executive action. E.g., Sierra Club v. E.P.A., 292 F.3d 895, 899 (D.C.Cir. 2002) ("`An administrative agency ... is not subject to Article III of the Constitution of the United States'.... When the petitioner later seeks judicial review, the constitutional requirement that it have standing kicks in."); see Summers, 555 U.S. at 492-93, 129 S.Ct. 1142 (doctrine of standing reflects fundamental restriction on courts, which "have no charter to review and revise legislative and executive action" except when necessary "to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law").
Under the holdings of the federal courts, once the burden is on the petitioner to establish standing in order to invoke the jurisdiction of the court, the petitioner must either identify in the record evidence sufficient to support its standing or, if there is none because standing was not an issue before the agency, submit additional evidence to the court. Sierra Club, 292 F.3d at 899; see Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (because the elements of standing — one of which is "injury in fact" — are "not mere pleading requirements but rather an indispensable part of the ... case, each element must be supported ... with the manner and degree of evidence required at the successive stages of the litigation").
The KDHE suggests that Summers, 555 U.S. 488, 129 S.Ct. 1142, undermines these federal cases. But the KDHE's reliance on Summers is misplaced because in that case it was the insufficiency of some declarations and the untimeliness of others that prevented the Court's consideration of the declarations, not the fact that the declarations supplemented the agency record.
Highly summarized, in Summers, conservation organizations filed suit in federal district court to enjoin the United States Forest Service from applying regulations that eliminated certain notice and appeal rights with respect to projects in national forests
Hence, in Summers, the Supreme Court refused to consider the affidavits because the issue of standing had already been adjudicated in federal district court before the affidavits were filed. The Court did not indicate that affidavits or declarations were an inappropriate mechanism for meeting a party's burden to establish that it has standing. Nor did the Court hold that the federal district court erred in considering the initial, timely declarations. This is significant because, in the present case, this court is making the first determination of standing. Hence, our court essentially takes on the same role as the federal district court in Summers, and nothing in Summers suggests it was error for the district court to have considered the affidavits before ruling on the issue.
Thus, contrary to the KDHE's argument, Summers does not abrogate the view of federal courts that affidavits or declarations can be used to establish standing of a party in cases involving judicial review of an agency action. Nevertheless, the federal decisions do not control our interpretation of the judicial power clause of Article 3, § 1 of the Kansas Constitution. Yet, Kansas courts have looked to federal caselaw as persuasive authority and have generally interpreted our judicial power clause in a manner similar to the federal case-and-controversy requirement. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 896-97, 179 P.3d 366 (2008). We could not do so, however, if the Kansas Constitution or any state law prohibited us from applying the same principles.
The only prohibitions suggested by the KDHE and the Intervenors are the provisions of the KAQA and the KJRA that generally limit judicial review of an agency action to the agency record. K.S.A. 2012 Supp. 65-3008a(b) provides, in part, that "[t]he 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." Likewise, K.S.A. 77-618 of the KJRA provides that review is "confined to the agency record for judicial review," although K.S.A. 77-619(a) does permit the supplementation of the record with additional evidence in some limited circumstances. Those circumstances, however, do not include establishing standing.
Despite the limited nature of the exceptions stated in K.S.A. 77-619(a) and the general prohibition against additional evidence found in both the KAQA and the KJRA, we conclude these provisions do not prohibit our consideration of the members' declarations for purposes of determining the existence of Sierra Club's standing to challenge the permit in this court. Neither K.S.A. 2012 Supp. 65-3008a nor K.S.A. 77-618 addresses the judicial power clause of the Kansas Constitution. Rather, both statutory provisions are limited to the scope of a court's review of an agency's actions. The KDHE made no findings on the issue of standing, nor was it asked to take such action. Therefore, we are not addressing standing in the context of a review of the agency's determination on the issue. And, although an organization such as Sierra Club could establish the prerequisites for associational standing at the administrative level, it is not required to do so. Moreover, K.S.A. 2012 Supp. 65-3008a and K.S.A. 77-618 do not address the mechanism for a court's determination of the limitations on the court's own power and jurisdiction. See
We conclude that a petitioner may rely on the administrative record or may file affidavits or declarations with a court to establish standing of a party seeking judicial review of an agency action. A court, when determining if it has jurisdiction to review an agency action, can consider the affidavits and declarations as evidence of a petitioner's standing.
The Intervenors also argue the declarations should not be considered because no declarant participated in the agency proceedings. The Intervenors' assertion is factually incorrect. The agency record includes the written testimony of one of the declarants, Barbara Campbell, who appeared at the public hearing in Garden City on August 5, 2010. Furthermore, we are not aware of any authority for the Intervenors' assertion that the statutory standing requirement of participation in the process carries over into the traditional association standing test.
We need not resolve the issue here, however, because we hold that Campbell's declaration, when considered in light of other evidence in the record, is sufficient to establish standing.
In arguing otherwise, the Intervenors, speaking broadly of all the declarations, contend the declarants "fail to identify any present, concrete injury ... but rather identify only their worries and general concerns about pollution...." The Intervenors further argue that "[w]hat Sierra Club says would pass for standing is no more rigorous than the call-in requirements for radio talk shows."
In many respects, the Intervenors are correct. In large part, like the written testimony Campbell presented at the public hearing, her declaration expresses general concerns shared by many citizens near and far from the Holcomb 2 site regarding the negative effects of pollution on the environment. But Campbell adds some details that relate to the adverse health effects of emissions that one of Sierra Club's experts opined would be caused by emissions from Holcomb 2. Specifically, Campbell states that she lives about 4 miles from the Holcomb 2 site, she describes herself as "elderly," and she provides her age. She then declares: "As an elderly person, I am very worried about breathing the pollutants that will come from the new coal plant, and the negative effects that those pollutants may have on my health."
While the declaration thus provides evidence of Campbell's proximity to the Holcomb 2 site and her age, her expression of "concern" does not establish a causal relationship between these characteristics and an imminent and probable injury related to adverse effects of anticipated pollutants from Holcomb 2. But we are aware of no authority that requires a declarant to both state a threatened injury and establish a causation theory without the assistance of an expert. In fact, where, as here, causation is based on scientific evidence and is not within common understanding, we generally require the opinion of an expert. See, e.g., Schlaikjer v. Kaplan, 296 Kan. 456, 464, 293 P.3d 155 (2013). Given that, it is appropriate to examine whether there is other evidence that establishes the missing causal link.
Two items in the record are particularly significant. First, the KDHE's own air quality impact analysis indicates that proximity to the plant, including the 4-mile distance of Campbell's home, increases the exposure to potentially harmful pollutants. Second, in the permit proceedings, Sierra Club presented a written declaration of Jonathan Levy, Ph.D., Associate Professor of Environmental Health and Risk Assessment at the Harvard
While we have focused on Campbell's declaration, we note other declarations establish that several Sierra Club members are similarly situated — that is, they live near the Holcomb 2 site and are elderly or otherwise vulnerable to the increased health risks substantiated in the record. The combination of these declarations, including Campbell's, the KDHE's studies, and Dr. Levy's opinions establish that these Sierra Club members fall within a demographically identifiable segment of the general population that will see an increased risk of adverse health effects if the Holcomb 2 PSD permit does not comply with statutory and regulatory requirements. Hence, Sierra Club members are threatened with an imminent injury, and we conclude that Sierra Club meets the first prong of the common-law association standing test.
Regarding the second prong of the common-law association standing test, Sierra Club has shown that the interests it seeks to protect are germane to its purposes; it alleges in its petition for judicial review that it is an organization whose "members live, work, recreate, farm, and engage in other economic activities that will be adversely impacted by [Holcomb 2]. They include senior citizens, children, people with asthma, and other individuals who are especially vulnerable to harm from exposure to ... pollutants...." And Sierra Club alleges the "aesthetic, conservation, recreational, economic, informational, and procedural interests" of the organization and its members have been adversely affected.
Further, as for the third prong, none of the parties has contended that the relief sought by Sierra Club requires the participation of its individual members in the lawsuit.
In summary, based on the allegations of the petition in this case and in light of Kansas precedent and persuasive federal caselaw, we conclude that Sierra Club has standing to challenge the KDHE's issuance of the Holcomb 2 PSD permit under the KJRA, the KAQA, and common-law or traditional standing requirements.
Our conclusion that Sierra Club has standing means the four issues raised by Sierra Club can be considered. Before addressing those issues, it is helpful to discuss the interrelationship of the federal CAA and the KAQA.
The federal CAA governs air quality and emissions standards throughout the United States. It provides for a regulatory scheme to protect and enhance the nation's air quality through joint federal and state participation with some responsibilities falling to the federal EPA and others to state agencies. See Sierra Club v. Georgia Power Co., 443 F.3d 1346, 1348 (11th Cir.2006) (citing 42 U.S.C. §§ 7401[b][1], 7410); accord Environmental
To achieve the CAA's goals, Congress established the maximum allowable increases and concentrations for some pollutants. E.g., 42 U.S.C. § 7473 (2006) (establishing sulfur oxide and particulate matter standards). In addition, Congress directed the EPA to establish primary and secondary national ambient air quality standards (NAAQS) for any pollutant "reasonably ... anticipated to endanger public health or welfare" and to periodically review and revise those standards. 42 U.S.C. § 7408(a)(1)(A) (2006); see 42 U.S.C. §§ 7409(a)(1), (d) (2006) (directing promulgation and review of primary and secondary NAAQS). The CAA also requires the EPA to divide the country into areas designated as "nonattainment," "attainment," or "unclassified" based on whether these areas meet the NAAQS. 42 U.S.C. § 7407(d) (2006).
The states, on the other hand, have the primary responsibility for assuring that air quality within their borders meets the NAAQS. Each state must create a state implementation plan (SIP), which is then submitted to the EPA for approval. See 42 U.S.C. § 7410 (2006). To be approved by the EPA, each SIP must "include enforceable emission limitations and other control measures, means, or techniques ... as may be necessary or appropriate to meet the applicable requirements of [the CAA]." 42 U.S.C. § 7410(a)(2)(A); see 40 C.F.R. § 52.02(a) (2012); see also Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 470, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004). Each state has the right to adopt and enforce its own standards regarding emissions of air pollutants "provided such state standard is no less stringent than any applicable federally mandated SIP provision." Natural Resources Defense Council, Inc. v. Thomas, 845 F.2d 1088, 1090 (D.C.Cir.1988).
Upon approval by the EPA, a SIP becomes binding and is subject to federal enforcement. See 42 U.S.C. § 7413 (2006); see also Union Electric Co. v. Environmental Pro. Agcy., 515 F.2d 206, 211 (8th Cir.1975) ("Upon approval or promulgation of a state implementation plan [SIP], the requirements thereof have the force and effect of federal law and may be enforced by the Administrator in federal courts."). A state may not unilaterally modify its SIP once it has been approved by the EPA. 42 U.S.C. §§ 7410(i) (modification prohibited), (l) (revisions to plan submitted by a state shall be adopted by such state after reasonable notice and public hearing and cannot interfere with federal requirements); see Duquesne Light Co. v. E.P.A., 698 F.2d 456, 471 (D.C.Cir.1983) (current SIPs remain in force until EPA formally approves revision); Kentucky Resources Council, Inc. v. United States E.P.A., 304 F.Supp.2d 920, 927-28 (W.D.Ky.2004) (approved SIP remains applicable even after state has submitted a proposed revision to EPA).
In Kansas, the KDHE administers and enforces the SIP. See K.S.A. 2012 Supp. 65-3005(b)(1); K.A.R. 28-19-200(hhh). To carry out the responsibility for air quality and pollution control in Kansas, the Secretary of the KDHE has, inter alia, the power to adopt, amend, and repeal rules and regulations implementing and consistent with the KAQA; issue such orders as may be necessary to effectuate the purpose of the KAQA; enforce such orders by appropriate administrative and judicial proceedings; and establish ambient air quality standards. K.S.A. 2012 Supp. 65-3005. As such, Kansas' EPA-approved SIP is administered by the Secretary of the KDHE pursuant to provisions in the KAQA and Kansas Administrative Regulations entitled "Ambient Air Quality Standards and Air Pollution Control," K.A.R. 28-19-1 et seq., adopted under the authority of the KAQA. See 40 C.F.R. §§ 52.870, 52.872 (2012); K.S.A. 2012 Supp. 65-3005; K.S.A. 65-3008; K.A.R. 28-19-800; see also K.A.R. 28-19-200(hhh) (defining "State implementation plan").
Kansas has adopted the national standards, and Kansas' SIP provides for the implementation, maintenance, and enforcement of NAAQS. See 42 U.S.C. § 7410(a), (b); K.A.R. 28-19-200(nn) ("[n]ational ambient air quality standard[s]" means "those standards
In addition, Kansas' SIP follows the CAA by requiring a facility to obtain a permit under the PSD construction permit program, the purpose of which is well-described by its title — the prevention of significant deterioration; it is this type of permit that is at issue in this case. The program applies to the modification or construction of a "major emitting facility" that is or will be located in an attainment or unclassified area. See 42 U.S.C. § 7475(a) (2006); 40 C.F.R. § 52.21 (2012); K.S.A. 2012 Supp. 65-3029; K.A.R. 28-19-300; K.A.R. 28-19-350 (2012 Supp.); see also 42 U.S.C. § 7479(1) (2006) (defining "major emitting facility"); 42 U.S.C. § 7479(2)(C) ("construction" includes "modification"); K.A.R. 28-19-200(p) (defining "construction").
Under the PSD regulations, the owner of a proposed source must prove that the construction will not cause violations of certain air quality standards. In the CAA, Congress charged the EPA with promulgating PSD regulations that would "provide specific numerical measures against which permit applications may be evaluated, a framework for stimulating improved control technology, protection of air quality values, and fulfill the goals and purposes set forth" in the PSD program. 42 U.S.C. § 7476(a), (c) (2006). In PSD regulations promulgated under this authority, the EPA sets maximum allowable increases, or "increments," for some pollutants based on a mathematical relationship to each pollutant's NAAQS. See, e.g., 75 Fed. Reg. 64,864, 64,885 (October 20, 2010). The EPA has also established de minimis thresholds which set specific values, in relation to each pollutant's NAAQS, below which the pollutant is not considered to cause or contribute to a violation of the NAAQS or to an established increment. These increments and de minimis thresholds are then used by the states to calibrate their SIP requirements. See Environmental Defense Fund v. Adm'r of United States E.P.A., 898 F.2d 183, 185 (D.C.Cir.1990).
In addition, if the facility is located in an attainment area, the owner must prove the proposed operations are in compliance with the best available control technology (BACT) requirements or, if the facility is located in a nonattainment area, the lowest achievable emissions rate technology (LAER). See 42 U.S.C. §§ 7475(a)(4), 7479(3), 7503 (2006); 40 C.F.R. §§ 52.21(b)(12), (j)(2) (2012); K.A.R. 28-19-350(b) (2012 Supp.) (incorporating by reference 40 C.F.R. § 52.21); US Magnesium, LLC v. United States E.P.A., 690 F.3d 1157 (10th Cir.2012). The LAER requirement is applied in nonattainment areas because the CAA seeks to offset emissions increases in those areas with emissions reductions from other sources in the area. New York v. E.P.A., 443 F.3d 880, 883 n. 1 (D.C.Cir.2006) (citing 42 U.S.C. § 7503).
If a permitting authority determines an owner has met these burdens and issues a PSD permit, the permitting authority must include limitations or conditions to ensure that emissions from the permitted facility: (1) will not cause or contribute to violations of the NAAQS established by the CAA and (2) will be controlled sufficiently to maintain existing air quality in the surrounding region. See United States v. Pacific Gas & Elec., 776 F.Supp.2d 1007, 1013 (N.D.Cal.2011).
It is undisputed that the proposed Holcomb 2 power plant is a facility subject to the PSD program. The proposed capacity makes Holcomb 2 a major emitting facility, and Holcomb is located in Finney County, which has been designated as an attainment area for numerous pollutants. See 40 C.F.R. § 81.317 (2012).
Hence, the KDHE's permitting process included a BACT analysis, and the Holcomb 2 PSD permit established emission limits for Holcomb 2. Sierra Club, in two of its issues, argues certain emission limits in the permit do not comply with the CAA and Kansas' SIP. In a third issue, Sierra Club disputes the adequacy of the KDHE's BACT analysis. The final issue disputes whether Sunflower's settlement agreement with then-Governor Parkinson and the 2009 legislation unilaterally amended Kansas' SIP and violated the procedural requirements of the CAA and the KAQA.
In reviewing Sierra Club's arguments, our scope of review is governed by the KJRA, K.S.A. 77-601 et seq., and specifically by K.S.A. 2012 Supp. 77-621(c), which enumerates eight circumstances under which a court may grant relief from an agency action. Of those eight circumstances, Sierra Club relies on those stated in K.S.A. 2012 Supp. 77-621(c)(4) to (c)(8) at certain points in its arguments. Those provisions allow relief from a final agency action if:
Sierra Club, as the party asserting that the KDHE erred, has the burden of proving one or more of these circumstances apply. See K.S.A. 2012 Supp. 77-621(a)(1). If Sierra Club establishes that errors occurred, "due account shall be taken by the court of the rule of harmless error" under K.S.A. 2012 Supp. 77-621(e).
We first address Sierra Club's contention that the KDHE erred because it did not apply two EPA-promulgated regulations that became effective several months before the Holcomb 2 PSD permit was issued. These regulations established 1-hour emission limits for nitrogen dioxide (NO
Sierra Club argues the KDHE's failure to require 1-hour emission limits in the PSD permit is "contrary to law [and] arbitrary, capricious and otherwise unreasonable." In the context of judicial review of an agency action, this falls under two of the eight circumstances under which a court may grant relief as provided in the KJRA. Specifically, a court may grant relief where "the agency has erroneously interpreted or applied the law" or where "the agency action is otherwise unreasonable, arbitrary or capricious." K.S.A. 2012 Supp. 77-621(c)(4), (c)(8).
This issue turns on whether the new emission limits are applicable as a matter of law. This requires us to consider federal law regarding application of new emission limits issued by the EPA under the CAA. "`Where possible in construing federal statutes, state courts should seek direction from the decision of federal courts interpreting similar language.'" Purvis v. Williams, 276 Kan. 182, 188, 73 P.3d 740 (2003). However, "it is within the power of the court to interpret it, absent any otherwise binding court ruling." 276 Kan. at 187, 73 P.3d 740.
The EPA's standards for NO
In 2010, the EPA promulgated two new final rules in which it adopted 1-hour primary NAAQS for both NO
In the present case, the KDHE issued the Holcomb 2 PSD permit on December 16, 2010, several months after the April 2010 and August 2010 effective dates of the new 1-hour NO
Before us, the KDHE argues that under § 110 of the CAA, Kansas will be required to "adopt and submit to EPA a revised SIP to implement, maintain, and enforce" the 1-hour NO
Each of these cases addresses amendments to the NAAQS made in 1990 and corresponding SIP compliance. And the outcome of each case relies on the "savings clause" in the 1990 amendments, which preserves "[a]ny provision of any applicable implementation plan ... in effect before November 15, 1990," until revision of the provision is "approved or promulgated" by the EPA. 42 U.S.C. § 7410(n)(1). None of the parties in the present case point to any similar savings provision that would apply to the 2010 amendments to the NAAQS. Hence, these cases provide little guidance.
As further support for its interpretation of the law, the KDHE notes that § 110 of the CAA generally grants a state "three years from the date of the NAAQS publication in which to complete its SIP submission, unless the EPA Administrator prescribes a shorter period." 42 U.S.C. § 7410(a)(1). Yet, § 165(c) of the CAA, 42 U.S.C. § 7475(c) (2006), requires PSD permits to be issued within 1 year of the applicant's filing a completed application. The KDHE suggests the requirement for timely consideration of an application means a state need not apply new NAAQS regulations if the 3-year SIP allowance has not expired.
Sierra Club disagrees, asserting that the KDHE's interpretation is contrary to the unambiguous statutory and regulatory language. It recognizes that Kansas' SIP must be amended to reflect the new 1-hour primary NAAQS, but it contends this does not change the fact that the permit-related provisions of federal and Kansas statutes and regulations require any new source to comply with all NAAQS in effect at the time a permit is issued. In Sierra Club's view, the process of amending the SIP, which could take the full 3 years allowed by the EPA, should not and does not delay the application of any new standards to the PSD permitting process or prevent a new source from incorporating and complying with NAAQS at the time the PSD permit is issued. To allow the
As we consider these arguments, the KDHE asks us to give deference to its interpretation of the CAA and KAQA. This suggestion is contrary to our caselaw, however. As stated in Denning v. KPERS, 285 Kan. 1045, 1048, 180 P.3d 564 (2008): "An agency's interpretation of a statute is not conclusive; final construction of a statute always rests within the courts." And, because we exercise de novo review over the issue of statutory construction, we need not give deference to an agency's interpretation of a statute. See Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 323, 291 P.3d 1056 (2013); Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011); Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, Syl. ¶ 2, 228 P.3d 403 (2010). Consequently, we will examine the parties' arguments regarding how to properly construe the various statutes and regulations.
Several statutory provisions and regulations support Sierra Club's position that a permit must conform to any NAAQS. Federal law provides that no major emitting facility may be constructed unless the owner or operator demonstrates that "emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any ... [NAAQS] in any air quality control region." (Emphasis added.) 42 U.S.C. § 7475(a)(3) (2006). Similarly, 40 C.F.R. § 52.21(k) (2012) provides, in part, that a permit applicant "shall demonstrate that allowable emission increases from the proposed source ... would not cause or contribute to air pollution in violation of: (i) Any [NAAQS] in any air quality control region." (Emphasis added.) This regulation applies only to EPA-issued permits, however.
Nevertheless, 40 C.F.R. § 52.21(k) has become applicable in Kansas by incorporation into our state regulations. K.A.R. 28-19-350 (2012 Supp.) states:
Notably, subsection (k) is not one of the subsections excepted from the general incorporation by reference. Thus, by incorporating 40 C.F.R. § 52.21(k), Kansas requires a PSD permit applicant to demonstrate that a new stationary source will not cause or contribute to air pollution in excess of any NAAQS.
Sierra Club argues the word "any" should be given its ordinary meaning with the effect being that Sunflower needed to demonstrate to the KDHE that Holcomb 2 will not violate any NAAQS, including the NO
In addition, one case — WildEarth Guardians v. Jackson, 870 F.Supp.2d 847 (N.D.Cal. 2012) — holds that newly adopted NAAQS are to be applied during the federal permitting process even if the EPA has not incorporated the NAAQS into its PSD regulations. In WildEarth Guardians, Sierra Club and others sought an injunction compelling the EPA to update or revise the PSD regulations after it had revised the NAAQS for ozone. The EPA argued it did not have a mandatory duty to revise the PSD regulations. The federal court agreed, noting the EPA had discretion to modify them. The court also noted:
From this statement, we can reason that if federal PSD regulations do not have to be amended in order for the new NAAQS to apply to a PSD permitting process, it follows that a state SIP does not have to be amended, at least in those states where 40 C.F.R. § 52.21(k) has been adopted.
Nevertheless, while these cases are instructive, they do not address the precise issue at hand: Whether new NAAQS apply to a permit issued after the effective date of the NAAQS even if the NAAQS have not been incorporated into a state's SIP. In fact, we have found no case directly addressing this issue. Consequently, we must construe the relevant provisions ourselves. See Purvis, 276 Kan. at 187-88, 73 P.3d 740 (in lieu of binding federal court interpretation of federal law, this court may interpret federal statutes). As we frequently state, when construing a statute, "[w]e first attempt to ascertain legislative intent by reading the plain language of the statutes and giving common words their ordinary meanings." Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, Syl. ¶ 3, 296 P.3d 1106 (2013).
The court also reasoned that the word should not be applied in a way that "would allow sources operating below applicable emission limits to increase significantly the pollution they emit" because this would be contrary to the CAA, "a law intended to limit
Nevertheless, as the KDHE suggests, there is an ambiguity that arises from the interplay and seeming conflict between the PSD requirements and the SIP provisions. In this regard we agree with Sierra Club that the PSD requirements — including the mandate that a PSD applicant must meet any NAAQS — is more specific to the question before us and controls. See Ft. Hays St. Univ., 290 Kan. at 463, 228 P.3d 403 (specific statutes control over general statutes). While we reach this conclusion based on our de novo review of the statutory and regulatory language, our conclusion that this is the correct way to resolve the ambiguity is strengthened by the EPA's position that the 1-hour standards apply.
The EPA has frequently asserted this position. For example, in denying requests to reconsider the final regulations regarding the SO
The EPA had made similar statements when issuing notices as part of its rulemaking procedure regarding both the NO
These NO
But the EPA has also recognized that application of this policy to a state permitting program is not absolute, stating:
See also 75 Fed.Reg. 35520, p. 35580 (June 22, 2010) (addressing federal permitting process and requiring application of any new or revised standard).
The KDHE and Intervenors acknowledge the EPA's position but argue the KDHE has properly construed the PSD requirements of Kansas law as not being "sufficiently open-ended" as to allow the new 1-hour NAAQS to apply before redesignation and SIP revision. This conclusion is contrary to the EPA's explanation of what it means by "sufficiently open-ended."
The EPA has generally determined that a SIP is "sufficiently open-ended" if the SIP uses the language found in the EPA's PSD program regulations at 40 C.F.R. § 52.21 and 40 C.F.R. § 51.166(k) (2012). As we have discussed, Kansas has adopted the same language as 40 C.F.R. § 52.21 by incorporating it into K.A.R. 28-19-350. Similarly, K.A.R. 28-19-350(d) (2012 Supp.) adopts by reference 40 C.F.R. part 51, "Subpart I, as revised on July 1, 2007 and as amended by 75 Fed.Reg. 31606 (2010)." 40 C.F.R. § 51.166 is included in part 51, subpart I. Hence, the Kansas regulations, by incorporation of the two federal regulations, render Kansas' SIP sufficiently open-ended so as to require application of NAAQS upon the NAAQS' effective date.
Consistent with our conclusion, the EPA has also taken the position that Kansas' laws are sufficiently open-ended as to require application of the new federal regulations during the permitting process in this case. In a letter regarding Sunflower's PSD permit application dated April 2, 2010, the EPA expressed to the KDHE that the
Then, in an August 2010 comment to the KDHE, the EPA indicated that "to assure compliance with the 1-hour NO
The KDHE rejected this viewpoint and, before us, argues we should not follow the EPA's guidance because the immediate application of the new 1-hour standards is "nonsensical" when the KDHE has not had an opportunity to incorporate them into Kansas' SIP, determine the level of analysis an applicant must undergo, or determine enforcement mechanisms. The KDHE is not the first state agency or industry source to raise this argument. In fact, in issuing the final 1-hour NAAQS for SO
Nevertheless, as the KDHE points out, the EPA's guidance on this topic is not controlling. See American Petroleum Institute v. E.P.A., 684 F.3d 1342, 1354 (D.C.Cir.2012), cert. denied ___ U.S. ___, 133 S.Ct. 1724, 185 L.Ed.2d 785 (2013) (statement in preamble to 1-hour SO
We must, however, consider the Intervenors' argument that any error would be harmless because "any issues related to emission limitations addressing the new NAAQS could be resolved during the period that Holcomb 2 is under construction and prior to operation of the new unit." In support of this argument, the Intervenors ask us to consider a February 3, 2011, EPA letter to the KDHE, which states, in part: "KDHE should consider a permit amendment to include enforceable 1-hour emission limits prior to the construction and/or operation of the new [Holcomb 2] unit. KDHE may also want to consider the latest EPA guidance on NO
This letter, which was sent after the Holcomb 2 PSD permit had been issued, is not in the record of proceedings before the KDHE. The Intervenors request us to take "judicial notice pursuant to K.S.A. 60-412.... The authenticity and content of the addenda are specific facts immediately verifiable through EPA as provided in K.S.A. 60-409(b)(4)." The Intervenors do not attempt to reconcile the judicial notice provision with the KAQA and KJRA provisions that limit our consideration to matters in the agency record. See K.S.A. 2012 Supp. 65-3008a(b); K.S.A. 77-618. But we need not resolve that question because we reject the Intervenors' argument that an agency's error is harmless simply because the agency might cure the error through future action. Our jurisdiction is limited to the action taken by the KDHE.
Because the issuance of the Holcomb 2 PSD permit to Sunflower was based on errors of law under the CAA, we remand the permit to the KDHE for application of the new federal regulations setting out 1-hour NO
In another issue, Sierra Club argues the KDHE erred in issuing the Holcomb 2 PSD permit without adequate emission limits for a group of more than 150 pollutants listed in 42 U.S.C. § 7412(b)(1) (2006), which are collectively termed "hazardous air pollutants" (HAPs). At the time Sunflower was going through the permitting process in this case, the EPA had not issued HAPs emission limits for coal-fired plants. Under the CAA, if a category-wide emission limit has not been published, the KDHE, as the permitting authority, is required to calculate case-by-case emission limits for HAPs under the maximum achievable control technology (MACT) standard and include that emission limit in a permit for a new "major source" of HAPs. 42 U.S.C. § 7412(g)(2)(B); 40 C.F.R. §§ 63.42, 63.43 (2012); K.A.R. 28-19-752a(b), (d). Consequently, the KDHE had to determine whether Holcomb 2 would be a major source of HAPs emissions and, therefore, subject to the MACT requirement. See Southern Alliance
But now, as undisputed by the parties, it is irrelevant whether Holcomb 2 will be a major source of HAPs because on February 16, 2012, after the PSD permit was issued, the EPA established national limits for mercury, acid gases, and other toxic emissions from all coal- and oil-fired electric utility steam generating units of more than 25 megawatts. See 40 C.F.R. § 63.10042 (2012); 77 Fed. Reg. 9304 (February 16, 2012) (EPA's rule known as the "Mercury and Air Toxics Standards"). All parties agree that Holcomb 2 is designed to exceed this threshold. Further, the parties agree the new HAPs emission limits apply to Holcomb 2 even though the EPA's final rule on the matter was not effective until after the PSD permit was issued because the rule clearly states that "any source that `commenced' construction after the May 3, 2011, proposal date is considered a new source under the statute and the source must comply with the new source standards even if the source received a final and legally effective CAA section 112[g] permit before proposal." 77 Fed.Reg. 9304, pp. 9399, 9366; 40 C.F.R. §§ 63.9982(b) (2013), 63.9985 (2012). The EPA subsequently stayed the rule (for new sources only) but has now announced that the rule "is and remains in effect for all sources." 78 Fed. Reg. 24073, p. 24075 (April 24, 2013); see 40 C.F.R. § 63.9982 (2013).
What the parties disagree on is how this court should deal with the change in the law. The Intervenors filed a motion seeking the dismissal of that portion of Sierra Club's petition in which Sierra Club sought review of the KDHE's major-source ruling; the Intervenors argued this request for relief was moot. Sierra Club responded and filed a motion for summary judgment, arguing the PSD permit did not comply with federal law.
We need not delve into which type of procedural relief is more appropriate.
Here, the EPA's retroactive regulation and our decision to remand renders both the original issue regarding whether Holcomb 2 would be a major source of HAPs and the parties' disagreement about the procedural effect of the new HAPs rule moot. Therefore, this issue will not be analyzed.
On remand, the KDHE must apply the new HAPs emission limits that are explicitly retroactive to this permit.
In another issue, Sierra Club argues the KDHE's determinations of emission limits in the Holcomb 2 PSD permit fail to adequately reflect the best available control technology (BACT) for each regulated pollutant which the facility has the potential to emit in significant amounts. 42 U.S.C. §§ 7475(a)(4), 7479(3) (2006); 40 C.F.R. §§ 52.21(b)(12), (j)(2) (2012); K.A.R. 28-19-350(b) (2012 Supp.) (incorporating by reference 40 C.F.R. § 52.21).
Before discussing the merits of this issue, we must first consider whether this issue is rendered moot by our decision to remand the Holcomb 2 PSD permit. In their briefs, the parties do not discuss the potential for some arguments becoming moot if we find error on another issue. Nor do the parties suggest the scope of proceedings if the permit is remanded. Instead, we raise these questions sua sponte. In doing so, we recognize that 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 BACT determination. See State v. Puckett, 230 Kan. 596, 601, 640 P.2d 1198 (1982).
We, therefore, determine that the scope of the proceedings on remand must be determined by the KDHE. Because we express no opinion on the appropriate scope, we cannot rule that Sierra Club's BACT issue is moot. It is conceivable the KDHE will rely on some or all of its prior determinations. We also note that the application of BACT regulations is an issue of first impression in Kansas. See State v. Scott, 286 Kan. 54, 107, 183 P.3d 801 (2008) (recognizing court may discuss issues to provide guidance on remand). Consequently, we will discuss the parties' arguments regarding the BACT analysis.
In presenting this issue, Sierra Club relies on K.S.A. 77-621(c)(4) and (c)(8) of the KJRA in citing the standard of review. Under these provisions, a court may grant relief where "the agency has erroneously interpreted or applied the law" or where "the agency action is otherwise unreasonable, arbitrary or capricious." K.S.A. 2012 Supp. 77-621(c)(4), (c)(8).
Sierra Club also suggests we find that the KDHE's failure to adequately include some technologies in the BACT analysis was "clear error." The "clear error" standard is a federal standard applied in proceedings before the Environmental Appeals Board, pursuant to 40 C.F.R. § 124.19(a)(1) (2012) (petition for review must show that a "finding of fact or conclusion of law ... is clearly erroneous"). This standard does not apply under the KJRA.
Instead, where a court reviews an agency's factual findings under the KJRA, the court reviews the record as a whole to determine whether those findings are supported by substantial evidence. Relief is granted if the court determines that "the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole." K.S.A. 2012 Supp. 77-621(c)(7). The KJRA defines "in light of the record as a whole" to include the evidence both supporting and detracting from an agency's finding. K.S.A. 2012 Supp. 77-621(d); Redd v. Kansas Truck Center, 291 Kan. 176, 182-83, 239 P.3d 66 (2010).
The two provisions cited by Sierra Club as a basis for relief with regard to an agency's factual findings — K.S.A. 2012 Supp. 77-621(c)(7) and (c)(8) — also provide a mechanism for review of issues of law. Under subsection (c)(8), an agency action is reviewed to determine if it is "unreasonable, arbitrary or capricious." An action that is not based on determined principles, which would include applicable law, is unreasonable, arbitrary, and capricious. See Dillon Stores v. Board of Sedgwick County Comm'rs, 259 Kan. 295, 299, 912 P.2d 170 (1996).
BACT is not a particular type of technology. It is an "`emission limitation based on the maximum degree of reduction of each pollutant subject to regulation ... which the [state] permitting authority [here, the KDHE], on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable' for the facility in question." Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1011 (8th Cir.2010) (quoting 42 U.S.C. § 7479[3]); see National Parks & Conservation v. Tennessee Valley, 502 F.3d 1316, 1325 (11th Cir.2007) (BACT is to be determined through the preconstruction permitting process);
During the permitting process, the KDHE and Sunflower indicated they were following the top-down method in conducting their BACT determinations. The Ninth Circuit Court of Appeals has described the top-down method as follows:
Basically, there are five steps in a top-down BACT analysis:
Although the top-down analysis is a common approach to the BACT determination, it is not mandated by the CAA. Alaska, Dept. Environ. Conserv., 298 F.3d at 822; Citizens for Clean Air v. United States E.P.A., 959 F.2d 839, 845 (9th Cir.1992) (top-down approach places the burden of proof on "`"the applicant to justify why the proposed source is unable to apply the best technology available"'").
In presenting its BACT issue, Sierra Club does not take issue with the KDHE's use of the top-down analysis. Instead, it disagrees with the way in which the KDHE applied the top-down approach. While this court has never reviewed an agency's application of the top-down approach, other courts have. Those decisions, especially the federal decisions, provide persuasive authority because Kansas regulations adopt the federal statutory definition of BACT found at 40 C.F.R. § 52.21(b)(12). See K.A.R. 28-19-350(b) (2012 Supp.).
Sierra Club specifically contends the KDHE erroneously failed to adequately consider (1) innovative fuel combustion techniques such as integrated gasification combined cycle (IGCC) technology; (2) "clean fuels" such as natural gas; and (3) ultra-supercritical pulverized coal technology. According to Sierra Club, the KDHE's failure to adequately consider these types of production techniques in its BACT analysis renders the permit unlawful. In addition, Sierra Club makes a fourth argument that the KDHE erred in failing to include emission limits that are based on an adequate BACT analysis for many individual pollutants, including nitrogen oxides and particulate matter.
Sierra Club argues the KDHE erred by not including IGCC technology in the first step of its BACT analysis. The KDHE and Intervenors argue IGCC technology was properly omitted from step one because its use would require a redesign of the facility. Indeed, "`[h]istorically, EPA has not considered the BACT requirement as a means to redefine the design of the source when considering available control alternatives.'" Longleaf Energy v. Friends of the Chattahoochee, 298 Ga.App. 753, 760-61, 681 S.E.2d 203 (2009) (quoting EPA, New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment
Sierra Club does not disagree that a permitting authority need not consider a technology that would be a redesign of a proposal. It disputes the conclusion that the use of IGCC technology at Holcomb 2 would demand a redesign. Sierra Club cites In re Desert Rock Energy Company, LLC, PSD Appeal Nos. 08-03 through 08-06, ___ E.A.D. ___, 2009 WL 3126170 (EAB 2009) (EPA agency order), for support of its argument. See Utah Chapter of Sierra Club v. Air Quality, 226 P.3d 719, 733 (Utah 2009) (adoption of IGCC technology would not require power company to redefine the design of its proposed facility, an electric power generating plant fueled by coal; while IGCC technology need not necessarily be adopted, it should have been considered in top-down BACT analysis); see also Powder Riv. Bas. Res. v. Dep. of Env. Qual., 226 P.3d 809, 823 n. 6 (Wyo.2010) (coal is utilized in both pulverized coal-fired power plants and power plants employing IGCC technology; but IGCC power plants are fueled by synthetic gas converted from coal).
While these cases support Sierra Club's position, in several other cases courts have concluded that IGCC technology need not be included in the first step because its use would require redesigning the pulvarized coal-fired facility. See Blue Skies Alliance, 283 S.W.3d at 537 ("It is clear that an IGCC process ... is significantly different from the pulverized coal power plant"; appellants failed to offer any evidence that IGCC technology is a process that could be applied to the proposed power plant.); Longleaf Energy, 298 Ga.App. at 761-62, 681 S.E.2d 203 (rejecting lower court ruling that imposition of IGCC technology on a proposed pulverized coal facility would not redefine the source); Sierra Club v. Environmental & Public Protection Cabinet, No. DAQ-27602-042, 2007 WL 3025076 (Ky.Envir.Pub.Prot.Cab.2007) (agency order) (state agency decision not to require consideration of IGCC technology was not clearly erroneous or contrary to law or fact).
This split in authority is reflected in the EPA's own fluid policy. In 2005, the EPA "declared that the requirement of IGCC technology at a proposed pulverized coal facility `would fundamentally change the scope of the project and redefine the basic design of the proposed source.'" Stensvaag, Preventing Significant Deterioration Under the Clean Air Act: The BACT Determination-Part I, 41 Envtl. L. Rep. News & Analysis 11101, 11116 (December 2011) (quoting Memorandum from Stephen D. Page, Director of EPA's Office of Air Quality Planning and Standards, Best Available Control Technology Requirements for Proposed Coal-Fired Power Plants [December 13, 2005], at 2). Accordingly, the EPA announced it "`would not require an applicant to consider IGCC in a BACT analysis for a [pulverized coal] unit'" and "`would not include IGCC in the list of potentially applicable control options that is compiled in the first step of a top-down BACT analysis.'" 41 Envtl. L. Rep. News & Analysis, at 11116 (quoting Page, Memoranda, at 3). The EPA changed this position in 2011, announcing it "`no longer subscribes'" to its prior position and IGCC "`technology should not be excluded on redefining the source grounds at Step 1 of a BACT analysis in any particular case unless the record clearly demonstrates why the permit applicant's basic or fundamental business purpose would be frustrated by application of this process.'" 41 Envtl. L. Rep. News & Analysis, at 11116 (quoting EPA Office of Air and Radiation, PSD and Title V Permitting Guidance for Greenhouse Gases [March 2011], at 30 n. 83).
The EPA's focus on whether the use of a control technology would redesign or frustrate an applicant's basic or fundamental
Although a differently designed power block would be required, the Board did not automatically conclude IGCC technology required a different design than the applicant had proposed. Instead, the Board noted an ambiguity existed between the redesign policy and three CAA provisions that require a permitting authority to consider BACT, clean fuels, and alternatives suggested by interested persons. To reconcile the inherent conflict in these policies, the Board concluded that "`the crucial question [is] where control technology ends and a redesign of the "proposed facility" begins.'" Desert Rock Energy, 2009 WL 3126170, at *35 (quoting Sierra Club, 499 F.3d at 655). The Board noted that the following test had been previously applied:
Applying this test, the Board found that the permitting agency had not provided a rational explanation for why IGCC technology would redefine the source and failed to adequately explain its conclusion in light of the agency having previously issued permits at similar facilities in which IGCC technology had been considered in the first step of the BACT analysis. The agency's explanation was particularly weak because the applicant had initially indicated that IGCC was a technology that could be considered for its proposed facility. Desert Rock Energy, 2009 WL 3126170, at *41.
The analysis of another court also helps explain the dividing line between design elements that are inherent in the business purpose and those that may be changed without disrupting the business purpose. See Utah Chapter of Sierra Club, 226 P.3d 719. The court explained the appropriate analytical process to be applied when drawing this line, stating:
Hence, Desert Rock Energy and Utah Chapter of Sierra Club call into question the KDHE's and Intervenors' broad assertion that use of IGCC technology would require a redesign of the project, as the term "redesign" is used in a BACT analysis.
Nevertheless, although "`[c]onsistency in the approach to decision-making is a primary objective of the top-down BACT approach,' [citation omitted]," Desert Rock Energy, 2009 WL 3126170, at *38, the statutory definition of BACT specifically indicates it is defined on a case-by-case basis. 42 U.S.C. § 7479(3) (2006) (BACT is "an emission limitation based on the maximum degree of [pollutant] reduction ... which the [state] permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility"). Therefore, Desert Rock Energy and Utah Chapter of Sierra Club do not compel us to agree with Sierra Club.
There are two important distinctions between the KDHE's analysis and the analysis at issue in Desert Rock Energy and Utah Chapter of Sierra Club. First, the KDHE systematically discussed reasons the IGCC design differed from the design proposed by Sunflower using supercritical pulverized coal (SCPC) technology. In this way, the record before us differs from that considered in Desert Rock Energy. Second, the Holcomb 2 business purpose is not just limited to creating a coal-fired plant; the application and the KDHE's analysis indicate that another business purpose is the integration of Holcomb 2 with Holcomb 1. Some of the KDHE's reasons for not including IGCC technology in the first step of the BACT analysis are consistent with this business purpose. In the KDHE's responses to the public comments, it noted:
Because the integration of Holcomb 2 into Holcomb 1 is a business purpose that distinguishes our case from other situations, we conclude the KDHE's failure to include IGCC technology in the first step of the BACT analysis under 42 U.S.C. § 7475
Sierra Club also contends that the KDHE erred in failing to adequately consider the use of natural gas in the first step of the BACT analysis. More specifically, Sierra Club contends that the EPA and the federal Environmental Appeals Board have required the use of "clean fuels" in a BACT analysis. See In Re Northern Michigan University Ripley Heating Plant, PSD Appeal No. 08-02, ___ E.A.D. ___, 2009 WL 443976 (EAB 2009) (EPA agency order) (citing 42 U.S.C. § 7479[3]; in making BACT determinations, applicants and public officials are to consider clean fuels). Although Sierra Club broadly refers to clean fuels, the only fuel it discusses is natural gas. Consequently, we will likewise limit our analysis.
In arguing that the KDHE erred when it determined that "fuel choice is integral to a power plaint's basic design" and therefore need not be included in the first step of the BACT analysis, Sierra Club points to an order issued by the EPA in an unrelated case, In re Cash Creek Generation, Nos. IV-2008-1, IV-2008-2 (EPA agency order issued December 15, 2009, responding to a merged PSD construction permit and CAA Title V operating permit) where the EPA objected to a state-issued PSD permit for a proposed IGCC power plant that failed to consider natural gas as a primary fuel source, especially because the site had access to a natural gas supply and the applicant planned to use natural gas at startup and as a backup fuel. Commentators have suggested that the Cash Creek order suggests "`a progression in which EPA is requiring gasification to be considered as BACT for pulverized coal plants and natural gas to be considered as BACT for gasification plants.'" Stensvaag, 41 Envtl. L. Rep. News & Analysis, at 11117. As we have discussed, Holcomb 2 is not proposed as a IGCC — i.e., gasification — plant, and Sierra Club has not provided us a record citation that would suggest any plan to use natural gas at startup or as a backup fuel. Consequently, we presume that this case is factually distinguishable from Cash Creek. See Supreme Court Rule 6.02(a)(4) (2012 Kan. Ct. R. Annot. 39) ("The court may presume that a factual statement made without a reference to volume and page number has no support in the record on appeal.").
In addition, there is authority that supports the KDHE's position that natural gas did not have to be considered in the first step of the BACT analysis. Although a permitting authority may exercise broad discretion in considering clean fuels or innovative technologies, "changing a fuel source would drastically redesign a proposed facility and therefore production processes that involve a completely different fuel source need not be considered." Utah Chapter of Sierra Club, 226 P.3d at 732. See Powder Riv. Bas. Res., 226 P.3d at 822 ("`[A]pplicants proposing to construct a coal-fired electric generator ... have not been required by EPA as part of a BACT analysis to consider building a natural gas-fired electric turbine although the turbine may be inherently less polluting per unit product.'"); Comment, EPA's Proposed New Source Performance Standards to Control Greenhouse Gas Emissions from Electric Utility-Generating Units, 42 Envtl. L. Rep. News & Analysis 10606, 10613 (July 2012) ("require[ing] the use of natural gas for an applicant seeking to build a coal-fired power plant would, in most cases, be a fundamental redefinition of the project"). Likewise, changing a fuel source would change the business purpose of the facility. See Sierra Club, 499 F.3d at 657 (upholding Environmental Appeals Board's decision that requiring a proposed mine-mouth plant to consider a different fuel source would redefine the "`fundamental purpose or basic design of [the] proposed Facility'").
Based on this persuasive authority and the KDHE's analysis, we conclude the KDHE's decision to not include natural gas at step one of the BACT analysis was not unreasonable,
In a third technology argument, Sierra Club focuses on whether the BACT would be use of an ultra-supercritical pulverized coal (USPC) boiler. A pulverized coal boiler is the conventional technology for a new coal-burning electric power plant. There are three primary types of pulverized coal boilers. Listed from the least to the most efficient, these are subcritical, supercritical, and ultra-supercritical. See Reitze, Federal Control of Carbon Capture and Storage, 41 Envtl. L. Rep. News & Analysis 10796, 10797-98 (September 2011); Reitze, Electric Power in a Carbon Constrained World, 34 Wm. & Mary Envtl. L. & Pol'y Rev. 821, 828 (Spring 2010). Holcomb 2 is slated to use the second of these three, a supercritical pulverized coal (SCPC) boiler. Sierra Club argues it is the more efficient ultra-supercritical technology, or USPC, that was the BACT for Holcomb 2.
The EPA, in its comments regarding the KDHE's BACT analysis, faulted the KDHE for failing to include any evaluation of USPC technology. The KDHE responded by stating:
Sierra Club points to evidence in the record that contradicts these conclusions. For example, in disputing the argument that USPC is unreliable technology, Sierra Club cites the selection of USPC technology for the Arkansas power plant mentioned above and the use of USPC technology outside the United States. Sierra Club further notes that Sunflower's engineering contractor, Black & Veatch, reported favorably about USPC technology in an opinion submitted in separate proceedings involving a Florida power plant. But, as we have previously noted, our role is not to reweigh the evidence.
We conclude the KDHE's decision to not define the BACT as USPC technology was not unreasonable, arbitrary, or capricious because the technology lacks operating history in the United States, information regarding the technology's use and performance in other countries is not accessible or verifiable, and there are concerns about the reliability and maintainability of a facility using the technology. See K.S.A. 2012 Supp. 77-621(c)(8).
In the alternative, Sierra Club argues that the Holcomb 2 PSD permit contains erroneous BACT determinations because the emission limits listed in the permit are higher than the emission limits identified in a permit for Georgia's Plant Washington. Sierra Club focuses on the emission limits for nitrogen oxides (NO
While there is legal support for Sierra Club's argument that an applicant should consider technology used in similar facilities, our review of the record as a whole leads us to conclude that the KDHE did not act unreasonably, arbitrarily, or capriciously and did not err in its interpretation or application of the law.
We first note that Sierra Club's statement that the KDHE erred because it failed to "impose the lowest possible emissions limits" (emphasis added) misstates the KDHE's duty. As we have indicated, because the Holcomb 2 site is located in an "attainment" area, Sunflower did not have to establish the "lowest achievable limit," but the best available control technology — BACT, "unless the applicant can show that it is not technically feasible, or if energy, environmental, or economic impacts justify a conclusion that it is not achievable." Alaska, Dept. Environ. Conserv. v. United States E.P.A., 298 F.3d 814, 822 (9th Cir.2002), aff'd 540 U.S. 461, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004). The more stringent standards apply in nonattainment areas; "where air quality standards have not been met, new and modified sources are required to obtain preconstruction permits, to offset emissions increases with emissions reductions from other sources in the area, and to install `lowest achievable emissions rate' technology (`LAER')." New York v. E.P.A., 443 F.3d 880, 883 n. 1 (D.C.Cir. 2006) (citing 42 U.S.C. § 7503).
The considerations for determining the two standards — LAER and BACT — vary. Nevertheless, in conducting a BACT evaluation, "the proposed source is required to look to other recently permitted sources." In re Inter-Power of New York, Inc., PSD Appeal Nos. 92-8 and 92-9, 5 E.A.D. 130, 135, 1994 WL 114949 (EAB 1994) (EPA agency order); see In re Indeck-Elwood, PSD Appeal No. 03-04, 13 E.A.D. 126, 183, 2006 WL 3361087 (EAB 2006) (EPA agency order) ("[T]he existence of a similar facility with a lower emissions limit creates an obligation for [the permit applicant and the permitting agency] to consider and document whether that same emission level can be achieved at [the] proposed facility."). After such a comparison, the BACT is not necessarily the LAER. As stated by the Missouri Court of Appeals:
Against this legal backdrop, we consider the factual basis for Sierra Club's argument regarding Plant Washington, which was discussed during the PSD permitting proceedings in this case. Dr. Ranajit Sahu provided expert opinion and comments on behalf of Sierra Club and Earthjustice and opined that the Plant Washington limits were appropriate BACT emission limits for Holcomb 2.
In the KDHE's formal written response to Dr. Sahu's comments, it noted that "Sunflower considered actual emissions from similar projects and permit determinations. Such consideration is appropriate and consistent with long-standing EPA recommendations for performing a BACT analysis." The KDHE specifically noted the limits set in the Plant Washington permit, including 12-month and 30-day rolling averages of certain emissions, and compared those to the proposed Holcomb 2 PSD permit. It also examined the 30-day averages of eight other power plants. But the KDHE observed that "BACT does not require the selection of an emissions rate that has not been rigorously demonstrated to be achievable, particularly when actual data suggests that the rate would not be achievable over the life of the facility." Further, "[m]any of the permit emissions limitations that were considered in the BACT review have yet to be demonstrated, because the plants have not started operations." Plant Washington was one of those power plants not yet operational.
Focusing on the NO
These conclusions are supported by evidence in the record, and we find no basis for holding that the KDHE's conclusions regarding the NO
With regard to emission limits on PM, Sierra Club argues that the KDHE refused to "fully consider and impose" more stringent limits or to "fully and rationally explain its refusal to do so." But a review of the KDHE's formal written response to public comments shows that the KDHE addressed this concern and provided specific reasons
The Holcomb 2 PSD permit requires a short-term average of .018 lb/MMBtu for both PM
Finally, Sierra Club points out that the Holcomb 2 PSD permit contains a "contingency limitation of 0.025 lb/MMBtu" if Sunflower fails to meet initial performance tests. Sierra Club argues the contingency limit "cannot be justified" but articulates no reason why this provision invalidates the permit or any authority supporting its argument. A failure to support an argument with pertinent authority or to show why the argument is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. Therefore, an argument that is not supported with pertinent authority is deemed waived and abandoned. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010); see Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 39) (appellant's brief must include "the arguments and authorities relied on").
In summary, even though the NO
Sierra Club's final issue focuses on the inadequacy of the overall process used for the approval of the Holcomb 2 PSD permit. Sierra Club contends this court should reverse the Secretary's decision to grant the PSD permit because the Secretary and the KDHE (collectively, the KDHE) failed to follow the procedural requirements of the CAA, 42 U.S.C. § 7401 et seq.; the KAQA, K.S.A. 65-3001 et seq.; and the applicable federal and state regulations. Many of the arguments relating to the conduct of public hearings and the consideration of public comments are likely to be moot because K.S.A. 2012 Supp. 65-3008a provides that "[n]o permit shall be ... modified without first providing the public an opportunity to comment and request a public hearing on the proposed permit action." Other issues may be rendered moot if it is determined on remand that the settlement agreement and K.S.A. 2012 Supp. 65-3029 do not apply. Nevertheless, because we do not express an opinion regarding the scope of proceedings on remand or as to the impact of the settlement agreement on those proceedings, we cannot determine if the issues are moot or if they are likely to occur on remand. Consequently, we will discuss the arguments raised by Sierra Club.
In addressing the standard of review for this issue, Sierra Club indicates it relies on subsections (c)(4) through (c)(8) of K.S.A. 2012 Supp. 77-621. We will separately consider how Sierra Club's arguments relate to these provisions.
Both K.S.A. 2012 Supp. 77-621(c)(4) and (c)(5) relate to whether the KDHE followed a lawful procedure. Subsection (c)(4) focuses
In making this argument, Sierra Club reiterates the KDHE's duties. It emphasizes that Kansas' SIP provides the KDHE with the exclusive authority to issue PSD permits and requires the KDHE to provide the public an opportunity to participate in the permitting process. See 42 U.S.C. § 7475(a)(2) (2006) (public must have opportunity to comment on "air quality impact of [the new facility], alternatives thereto, control technology requirements, and other appropriate considerations" in order to assist the issuing authority's decision of whether to issue a permit); 40 C.F.R. § 52.21(a)(2)(iii) (2012) ("The Administrator has authority to issue any such permit."); K.A.R. 28-19-350(c) (2012 Supp.) ("When used in any provision adopted from 40 C.F.R. 52.21, each reference to `administrator' shall mean the `secretary of health and environment or an authorized representative of the secretary,'" with certain exceptions.); K.A.R. 28-19-204(a) (public "shall be provided the opportunity to participate in the permit development" prior to issuance of a construction permit for a new facility).
Sierra Club argues the KHDE was prevented from exercising these duties by language in the settlement agreement indicating that the KDHE "shall" issue a final permit to Sunflower "substantially in the form of" the prior 2007 draft permit and by a legislative amendment to the KAQA providing that "[t]he secretary shall timely approve a prevention of significant deterioration permit (PSD) to sunflower electric power corporation to be issued consistent with the settlement agreement executed May 4, 2009." K.S.A. 2012 Supp. 65-3029(a). The unlawful effect of these provisions, according to Sierra Club, is that the settlement agreement and subsequent legislation: (1) unilaterally modified Kansas' SIP; (2) preempted the KDHE's duty to fully examine the issues and determine whether the PSD permit should be granted by dictating the content and the issuance of the permit; (3) constrained the KDHE from considering fuel alternatives other than coal; and (4) thwarted meaningful participation of the public.
Although Sierra Club has argued about the legality of the settlement agreement and the legislation, it has filed this action under the KJRA. Under the KJRA, a court does not have jurisdiction to review actions of the Kansas Legislature even if, as Sierra Club maintains, the action is an unlawful, unilateral amendment of the SIP. The KJRA only allows review of agency actions by a state agency and "`[s]tate agency'" does not include the "legislative branch of state government." K.S.A.77-602(k); see K.S.A. 77-602(b) (defining "[a]gency action" under the KJRA).
While there are mechanisms for judicial review of legislation, Sierra Club has not brought such an action. In addition, as aptly pointed out by the KDHE in its appellate brief, this lawsuit was not brought to enforce Kansas' SIP. See 42 U.S.C. § 7604 (2006) (citizen suit provisions); Her Majesty the Queen v. City of Detroit, 874 F.2d 332, 335 (6th Cir.1989) (EPA-approved state implementation plans are enforceable in federal court).
Instead, the only agency action before us is the issuance of the Holcomb 2 PSD permit. Therefore, the only issue before us is whether the KDHE's action in issuing the permit is lawful.
In focusing on the permit, the Intervenors and the KDHE argue that the Secretary fulfilled all of his duties and exercised his discretion to issue the permit. As they point
Likewise, while K.S.A. 2012 Supp. 65-3029(a), a provision adopted in the 2009 legislation, directed the KDHE to "timely approve" a PSD permit for Sunflower, it qualified the directive by adding that the permit was to be issued consistent with the settlement agreement. Because the settlement agreement expressly preserved the KDHE's discretion and its obligation to follow applicable state and federal requirements, the legislation did not abrogate the decision-making responsibilities of the KDHE.
Moreover, the record establishes that the KDHE recognized its discretion. In formal written responses to public comments submitted by Sierra Club, the KDHE stated: "KDHE is bound by both State and Federal law to carry out the permitting responsibilities for sources of air pollution within the State."
Sierra Club counters this by noting that the agreement accepted Sunflower's estimate of actual HAPs emissions instead of leaving the KDHE to conduct its own analysis. As we have discussed, we are vacating the permit and ordering that the KDHE must apply new HAPs regulations before issuing a new permit. These new regulations render moot any question about the KDHE's acceptance of Sunflower's HAPs estimates and, therefore, we will not further discuss this aspect of Sierra Club's argument. See Dickey Oil Co. v. Wakefield, 153 Kan. 489, Syl. ¶ 1, 111 P.2d 1113 (1941) (court ordinarily will not consider and decide mooted issues).
Sierra Club argues that other portions of the record also support its contention that the settlement agreement usurped the KDHE's authority; specifically, Sierra Club argues the KDHE felt it could not consider "alternatives" to coal as the power plant's fuel. During the permit process, the CAA requires a public hearing to be held "with opportunity for interested persons ... to appear and submit written or oral presentations on the air quality impact of such source, alternatives thereto, control technology requirements, and other appropriate considerations." (Emphasis added.) 42 U.S.C. § 7475(a)(2). According to Sierra Club, although its organization and others made public comments urging the KDHE to consider alternatives to coal, the KDHE declined "on the grounds that it lacked authority to do so under the terms of the Settlement Agreement and associated legislation." For support, Sierra Club cites to a specific page in the KDHE's formal written response, which states: "The comments [regarding energy efficiency, utilization of cleaner energy and renewable energy, and energy conservation] address Sunflower's basic technology selection. KDHE lacks statutory or regulatory authority to redefine the source that Sunflower seeks to permit." The KDHE then discussed the reasons Sunflower had rejected use of "a simple or combined cycle natural gas unit."
This formal response does not support Sierra Club's contention that the KDHE felt it "lacked authority" to consider alternatives to coal under the terms of the settlement agreement and corresponding legislation. Nothing in the above-quoted passage mentions the settlement agreement, the 2009 legislation, or any constraints imposed in the agreement
In other words, Sierra Club's argument simply lacks factual support and fails on that basis.
Sierra Club also argues that the public hearings and public comment periods were not "meaningful" because the settlement agreement and subsequent legislation essentially "took the decision whether to issue a permit away from KDHE ... thereby undermining the very purpose of public comment." See In re Prairie State Generation Station, PSD Appeal No. 05-02, 12 E.A.D. 176, 180, 2005 WL 735942 (EAB 2005) (EPA agency order) (stating the Secretary is required to "`consider comments with a truly open mind, rather than with a view to defending a decision he or she already has made'"). We will separately address the "meaningfulness" of the comment procedure in our review under K.S.A. 2012 Supp. 77-621(c)(6). Here, we focus on the mechanics of the procedure and conclude that the KDHE followed them.
As the KDHE pointed out in its formal written response to Sierra Club's comment regarding the lack of public participation, "[t]he KDHE followed the public participation requirements of K.A.R. 28-19-350 and K.A.R. 28-19-204." Further, in answering Sierra Club's public comment suggesting that the length of the comment period should have been extended, the KDHE stated:
In summary, we conclude the KDHE did not erroneously interpret the law or engage in an unlawful procedure or fail to follow the prescribed procedures. Consequently, we do not find a basis for invalidating the Holcomb 2 PSD permit under K.S.A. 2012 Supp. 77-621(c)(4) or (c)(5).
Sierra Club also argues the permit is invalid under K.S.A. 2012 Supp. 77-621(c)(6), which provides an agency action is invalid if "the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification." Sierra Club argues: (1) The settlement agreement and legislation allowed the governor and the legislature to assume authority that legally lies with the Secretary of the KDHE; (2) the Intervenors usurped authority by proposing responses to comments made by members of the public; and (3) due process was denied.
To support its position, Sierra Club cites cases standing for the proposition that when a particular governing authority is designated by law as the decision-making authority, another party cannot sidestep that decision maker. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-68, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (where regulations delegated a particular discretionary decision to the Board of Immigration Appeals, the United States Attorney General could not dictate the Board's decision, even though the Board was appointed by the Attorney General, its members served at his pleasure, and its decision was subject to his review); Portland Audubon Soc. v. Endangered Species, 984 F.2d 1534, 1545 (9th Cir.1993) ("[T]he
As we have discussed, however, in the settlement agreement Sunflower acknowledged the agreement did not "diminish or supplant the authority of the Secretary or KDHE under the statutes and lawful regulations which they administer." Furthermore, it was acknowledged that the project would have to meet BACT emission limits and PSD increment consumption constraints before a permit could be approved. Hence, neither the settlement agreement nor the legislation that incorporated the terms of the agreement dictated the Secretary of the KDHE's decision. Nor did the provisions in those documents supplant the Secretary as the ultimate decision maker regarding the PSD permit.
Further, Sierra Club suggests that instead of thoroughly reviewing and preparing responses to public comments the KDHE simply used responses prepared by the Intervenors, repeating them verbatim or nearly verbatim. They argue this allowed the Intervenors to usurp the Secretary's authority and rendered the public's comments meaningless. This argument is closely related to Sierra Club's suggestion that the KDHE possessed a bias toward issuing a permit and its failure to properly consider the public comments illustrates this bias.
Indeed, it would have been improper for the KDHE to have prejudged the outcome of the permitting process. See Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm'rs, 32 Kan.App.2d 1168, Syl. ¶ 6, 95 P.3d 1012 (permitting authority must "maintain[] an open mind and continue[] to listen to all the evidence presented before making the final decision"), rev. denied 278 Kan. 852 (2004). And regulations require that the response to public comments be prepared by "the Director", in this case the Secretary of KDHE, or his or her representative. 40 C.F.R. § 124.17(a) (2012); see In the Matter of Atochem N. America, Inc., RCRA Appeal No. 90-23, 3 E.A.D. 498, 499, 1991 WL 158260 (EAB 1991) (EPA agency order) (remanding permit for failure to comply with requirement that "the Director" or his legal designee personally respond to comments).
In this case the KDHE did respond, albeit with heavy reliance on Sunflower's comments. This reliance does not automatically invalidate the process. Although we have said the reliance on a party's proposed findings is "not a practice to be encouraged," we held that "[t]here is nothing inherently wrong with a trial court's adopting a party's findings and conclusions in their entirety as long as they had been individually considered." Stone v. City of Kiowa, 263 Kan. 502, 506, 950 P.2d 1305 (1997); see Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ("even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous").
Our thorough review of the record convinces us that the KDHE ultimately performed its role as the "decision-making body." K.S.A. 2012 Supp. 77-621(c)(6). The record reflects the KDHE recognized its duties and discretion and considered the public's comments. The PSD permit was issued only after the KDHE determined, based on the updated information submitted by Sunflower, that the Holcomb 2 proposal would meet all applicable standards, at least as those standards were interpreted by the KDHE.
Sierra Club also cites cases dealing with quasi-judicial proceedings and the due process implications of that process. See, e.g., McPherson Landfill, Inc. v. Board of Shawnee County Comm'rs, 274 Kan. 303, Syl. ¶ 2, 49 P.3d 522 (2002) (quasi-judicial agency proceedings "must be fair, open, and impartial" and a "denial of due process renders the resulting decision void"); Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, Syl. ¶¶ 4, 5, 597 P.2d 654 (1979) (discussing
K.S.A. 2012 Supp. 77-621(c)(7) (sufficiency of evidence) and (c)(8) (unreasonable, arbitrary, or capricious actions) were also cited by Sierra Club as grounds for relief. Although Sierra Club cited these provisions, it did not develop arguments based on those grounds. Consequently, although these review provisions are the focus of our analysis of other issues, we will not further discuss the provision with regard to the effect of the settlement agreement and the 2009 legislation on the permitting process. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707 (2010) (point raised only incidentally in appellate brief but not argued there is deemed abandoned).
In summary with regard to Sierra Club's complaints about the KDHE's procedure, we conclude Sierra Club has failed to meet its burden of establishing that the PSD permit was invalid under K.S.A. 2012 Supp. 77-621(c)(4), (c)(5), or (c)(6). The KDHE was not foreclosed from following the procedural requirements of the CAA by K.S.A. 2012 Supp. 65-3029(a) or the settlement agreement, and the record indicates it fully exercised its discretion and responsibilities. However, as previously discussed, the KDHE committed an error of law in doing so by failing to apply the 1-hour NO
Additional issues have been presented to us by Great Plains Alliance for Clean Energy in an amicus curiae brief. Kansas appellate procedure does not allow a nonparty, including an amicus curiae, to raise an issue for appellate review, however. See State ex rel. Six v. Kansas Lottery, 286 Kan. 557, 561, 186 P.3d 183 (2008). Consequently, we will not address these issues. See O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 352, 277 P.3d 1062 (2012) (citing Kansas Lottery and declining to address issues raised by amicus that had not been raised by the parties).
Reversed and remanded.
