Sierra Club v. Mosier

305 Kan. 1090

391 P.3d 667

SIERRA CLUB, Appellant,

v. Susan MOSIER, M.D., in her Official Capacity as Secretary of the Kansas Department of Health and Environment, and the Kansas Department of Health and Environment, an Agency of the State of Kansas, Appellees,andTri–State Generation and Transmission Association, Inc., and Sunflower Electric Power Corporation, Intervenors.

No. 112,008

Supreme Court of Kansas.

Opinion filed March 17, 2017

Amanda W. Goodin, of Earthjustice, of Seattle, Washington, argued the cause, and Todd D. True and Anna M. Sewell, of the same office, and Robert V. Eye, of Robert V. Eye Law Office, L.L.C., of Lawrence, were with her on the briefs for appellant.

Steve R. Fabert, assistant attorney general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, was with him on the brief for appellee.

William L. Wehrum, of Hunton & Williams, LLP, of Washington, D.C., argued the cause, and James D. Oliver, of Foulston Siefkin LLP, of Overland Park, and Howard Kenison, of Lindquist & Vennum, of Denver, Colorado, were on the brief for intervenor Tri–State Generation and Transmission Association, Inc., and William L. Wehrum and Henry V. Nickel, of Hunton & Williams, LLP, of Washington, D.C., and Derek T. Teeter, of Husch Blackwell LLP, of Kansas City, Missouri, and Mark D. Calcara and Mark A. Rondeau, of Watkins Calcara, Chtd., of Great Bend, were on the brief for intervenor Sunflower Electric Power Corporation.

The opinion of the court was delivered by Luckert, J.:

In Sierra Club v. Moser , 298 Kan. 22, 310 P.3d 360 (2013) (Sierra Club I ), this court reviewed the Kansas Department of Health and Environment's (KDHE's) decision to issue a prevention of significant deterioration (PSD) construction permit to Sunflower Electric Power Corporation (Sunflower). The permit, issued December 16, 2010, authorized Sunflower to build an 895–megawatt coal-fired electric generating unit, referred to as Holcomb 2, at a site near Holcomb where Sunflower already operates a coal-fired station, Holcomb 1.

In Sierra Club I , this court held KDHE had failed to comply with the federal Clean Air Act, 42 U.S.C. § 7401 et seq . (2006), because it had not applied federal Environmental Protection Agency (EPA) regulations setting 1–hour emission limits for nitrogen dioxide and sulfur dioxide. 298 Kan. at 26, 310 P.3d 360. We therefore remanded the permit to KDHE with directions to apply the 1–hour emission limits. We also noted that KDHE would have to apply some other regulations that had become effective during the period of judicial review in Sierra Club I ; those regulations—known as the Mercury and Air Toxics Standards, 81 Fed. Reg. 24420 (April 25, 2016) ; 77 Fed. Reg. 9304 (February 16, 2012) —relate to the control of pollutants collectively referred to as hazardous air pollutants. 298 Kan. at 61, 310 P.3d 360. As to other issues, we determined that "the scope of the proceedings on remand must be determined by KDHE." 298 Kan. at 62, 310 P.3d 360.

On remand, KDHE issued an Addendum to the 2010 permit. Sierra Club now seeks judicial review of that action. It argues KDHE could not simply craft an addendum to the 2010 permit but was required to conduct an entirely new permitting process. Sierra Club also argues, for various reasons, the Addendum fails to incorporate newly promulgated regulations for greenhouse gases; fails to properly address the 1–hour emission limits for nitrogen dioxide and sulfur dioxide; fails to properly comply with the hazardous air pollutant limits and the Mercury and Air Toxics Standards; and fails to meet new source performance standards.

We reject Sierra Club's various arguments and affirm KDHE's action.

FACTS AND PROCEDURAL HISTORY

Our decision in Sierra Club I , 298 Kan. at 26–28, 310 P.3d 360, discusses the events leading to KDHE issuing the 2010 permit. Highly summarized, as a part of that process, KDHE conducted public hearings and a public comment period during which Sierra Club officials, experts, and members participated. After the hearings and the final public comment period, KDHE responded to the comments of Sierra Club and others and eventually issued the final PSD permit. Sierra Club sought judicial review, and Sunflower and Tri–State Generation and Transmission Association, Inc., which holds an option from Sunflower for rights to a portion of the new power to be generated, intervened.

The Sierra Club I decision also discussed the legal framework for the parties' dispute and explained the interrelationship between the federal Clean Air Act and the Kansas Air Quality Act, K.S.A. 65–3001 et seq ., as well as applicable Kansas administrative regulations. See 298 Kan. at 43–47, 310 P.3d 360. In essence, the federal Clean Air Act sets up a regulatory system in which the federal EPA bears some responsibility, but the states hold primary responsibility for maintaining air quality within their borders. States must adopt a state implementation plan aimed at assuring the state meets national ambient air quality standards set by Congress and the federal EPA. In Kansas, KDHE administers and enforces Kansas' state implementation plan. See K.S.A. 2015 Supp. 65–3005(b)(1) ; K.A.R. 28–19–200(hhh) (2009).

We further explained:

"Kansas' [state implementation plan] follows the [Clean Air Act] 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 [Clean Air Act], 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 [national ambient air quality standards]. 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 [national ambient air quality standards], below which the pollutant is not considered to cause or contribute to a violation of the [national ambient air quality standards] or to an established increment. These increments and de minimis thresholds are then used by the states to calibrate their [state implementation plan] 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 [Clean Air Act] 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 [national ambient air quality standards] established by the [Clean Air Act] 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 [best available control technology] analysis, and the Holcomb 2 PSD permit established emission limits for Holcomb 2." Sierra Club I , 298 Kan. at 45–46, 310 P.3d 360.

Based on the plain language in 42 U.S.C. § 7475(a)(3) (2006), 40 C.F.R. § 52.21(k) (2012), and K.A.R. 28–19–350(a), (b) (2012 Supp.), in Sierra Club I we held that Sunflower had to demonstrate that the Holcomb 2 project would not cause "air pollution in excess of any [national ambient air quality standards] even if those standards have not been incorporated into Kansas' SIP, unless the federal regulatory requirements indicate otherwise." 298 Kan. at 58, 310 P.3d 360. That meant KDHE needed to apply the new 1–hour nitrogen dioxide and sulfur dioxide national ambient air quality standards and had erred in not doing so during the permitting process. 298 Kan. at 58, 310 P.3d 360.

That holding, we determined, meant we either...