BY THE COURT
Kansas Judicial Review Act, K.S.A. 77-601 et seq.,
governs the scope of judicial review of an agency's
action, and K.S.A. 2015 Supp. 77-621(c) lists the
circumstances under which a court may grant relief. Under the
Act, the party appealing from an agency's decision bears
the burden of establishing error.
the federal Clean Air Act, 42 U.S.C. § 7401 et
seq. (2012), and the Kansas Air Quality Act, K.S.A.
65-3001 et seq., a permit under the prevention of
significant deterioration construction permit program for an
"anyway source"-that is, a source required to
obtain a prevention of significant deterioration construction
permit "anyway" for pollutants other than
greenhouse gases-must contain limitations on greenhouse gas
emissions based on the application of the best available
control technology, but only if the permit is issued on or
after January 2, 2011.
abandons an argument by not briefing it.
appellate court exercises de novo review over questions of
law regarding whether its mandate has been followed and
Kansas Judicial Review Act, specifically K.S.A. 77-622(b),
allows for a wide range of remedies. In granting relief, a
court may order agency action required by law, order agency
exercise of discretion required by law, set aside or modify
agency action, enjoin or stay the effectiveness of agency
action, remand a matter for further proceedings, render a
declaratory judgment, or take any other action that is
authorized and appropriate.
77-616 and K.S.A. 77-622(b) of the Kansas Judicial Review Act
authorize an administrative agency to enjoin or stay the
effectiveness of an agency action on appropriate terms unless
otherwise precluded by law.
case, appellant fails to establish that the Kansas Department
of Health and Environment erred in granting a stay and
limiting the scope of remand proceedings to only those issues
subject to the remand order in Sierra Club v. Moser,
298 Kan. 22, 310 P.3d 360 (2013).
the separation of powers doctrine, determination of
appropriate policy must be left to the legislative and
executive branches of Kansas government, and courts are
limited to the exercise of judicial power in interpreting and
applying the law.
statutes and regulations are silent about a particular policy
matter, courts are ill-equipped to fill such a gap. Often the
wisest course is for courts to defer to the legislature to
fill the gap.
do not afford significant deference to an administrative
agency's statutory interpretation, but where an agency
possesses discretion, a court must presume the validity of
the agency action and cannot substitute its judgment for that
of the administrative agency unless the agency's action
is unlawful, unreasonable, arbitrary, or capricious.
the Secretary of the Kansas Department of Health and
Environment may approve a permit for an air containment
emission source, K.S.A. 2015 Supp. 65-3008a requires the
Secretary to provide a public comment period. All relevant
comments must be considered in making a final decision on a
proposed permit action.
general rule, a party may not raise a new argument in a
motion for reconsideration, although some courts recognize an
exception when the arguments could not have been presented
2015 Supp. 77-617 of the Kansas Judicial Review Act limits
when a person may obtain judicial review of an issue that was
not raised before an administrative agency.
Environmental Protection Agency has established recommended
guidelines for air quality modeling to establish a level of
consistency. However, it never intended for its guidelines to
be a compendium of all acceptable modeling techniques. Use of
an alternative model, or the modification of a preferred
model, means the model must then be justified on a
case-by-case basis. The Environmental Protection Agency
permits appropriate reviewing authorities-which includes
state agencies like the Kansas Department of Health and
Environment-to act as its representatives in approving
K.S.A. 2015 Supp. 77-621(e), courts conducting judicial
review of administrative action must consider the harmless
electric utility steam generating unit permit application
must include technical information about proposed emissions,
emission controls, and estimated control efficiency under 40
C.F.R. § 63.5(d)(2) (2016). But the Mercury and Air
Toxics Standards, 77 Fed. Reg. 9304 (February 16, 2012),
envision that even after construction a source will have some
period of time to refine its emission controls and
demonstrate initial compliance.
reviewing the evidence in light of the record as a whole, the
court shall not reweigh the evidence or engage in de novo
impact of a written instrument is determined by giving words
in the instrument their plain and ordinary meaning.
appellant may not raise new issues in a reply brief.
from Kansas Department of Health and Environment.
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
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.
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.
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. 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. As
to other issues, we determined that "the scope of the
proceedings on remand must be determined by KDHE." 298
Kan. at 62.
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.
reject Sierra Club's various arguments and affirm
and Procedural History
decision in Sierra Club I, 298 Kan. at 26-28,
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
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. 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).
"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.
"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.
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. 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.
holding, we determined, meant we either did not need to
resolve or could not resolve the parties' arguments (1)
regarding the methodology used in modeling nitrogen dioxide
and sulfur dioxide emission or (2) regarding whether KDHE
erred in issuing the Holcomb 2 PSD permit without setting
adequate hazardous air pollution emission limits. As to this
latter point, the parties had disagreed as to whether the
hazardous air pollution regulations in place at the time the
PSD permit had been issued applied to Holcomb 2. But the
parties agreed the Mercury and Air Toxics Standards, adopted
after the issuance of the permit and while Sierra Club
I was pending before this court, would apply to Holcomb
2 and would have to be considered if the PSD permit was
remanded. 298 Kan. at 59-60.
considered whether these holdings rendered moot Sierra
Club's contention that the Holcomb 2 PSD permit did not
adequately reflect the best available control technology for
each regulated pollutant. We concluded we could not determine
whether the issue was moot on the record before us. We noted
that 40 C.F.R. § 52.21(r)(2) and K.A.R. 28-19-301(c)
(2009) provide that a PSD permit expires if construction does
not begin within 18 months of issuance. This time limitation
seeks to ensure a new emitting source uses up-to-date
technology. But during Sierra Club I proceedings,
KDHE issued a stay of the construction deadline. 298 Kan. at
stay order was not part of the record in Sierra Club
I, however, and the parties had not argued about the
impact remand proceedings would have on the best available
control technology assessment. We, therefore, concluded
"the scope of the proceedings on remand must be
determined by the KDHE." 298 Kan. at 62. Because the
remand proceedings might rely on KDHE's 2010 best
available control technology determinations, we considered
and rejected Sierra Club's various arguments regarding
those determinations. 298 Kan. at 64-78.
after the issuance of the Sierra Club I mandate,
Sunflower contacted KDHE and asked whether the stay was still
in place. KDHE responded: "The Stay Order continues in
effect since the reversal and remand did not result in final
disposition of the permit and the terms of that permit."
Sierra Club challenged the lawfulness of the stay;
nevertheless, KDHE continued the stay "until completion
of the remand proceedings."
the remand, Sunflower did not modify its application or
propose the use of new technology, and KDHE therefore
determined it need only address this court's remand
directions in Sierra Club I. KDHE issued a draft
"Addendum to Air Emission Source Construction
Permit" in January 2014. KDHE did not issue new or
updated monitoring data or other documentation with the
Addendum. KDHE opened a 30-day public comment period and held
a public hearing in Garden City near the Holcomb site.
Club and some of its members submitted written comments.
Sierra Club's comments incorporated its 2010 comments and
added other objections. Regarding the remand proceedings,
Sierra Club asked for a longer public comment period and more
public hearings, arguing "the truncated permit
'addendum' process proposed by KDHE" was an
inadequate "substitute for a full new permitting
specifics of the draft Addendum, Sierra Club argued that,
although the draft noted the new Mercury and Air Toxics
Standards and other hazardous air pollutants regulations
applied, it did not adjust limits from the 2010 permit and
those limits were not as stringent as required by the new
regulations. Sierra Club noted that KDHE had relied on
outdated modeling conducted for the 2010 permitting process
and the 1-hour nitrogen dioxide and sulfur dioxide limits
were not sufficiently stringent. Finally, Sierra Club
objected that the best available control technology
determination for Holcomb 2 was dated and, during the
intervening time since remand, similar facilities had
consistently achieved emission limits lower than those set in
the Holcomb 2 PSD.
Club reiterated its position that Sunflower would have to
"substantially change the design" of Holcomb 2 and
that "KDHE's alleged 'stay' is unlawful and
without effect." Sierra Club commented that
"Sunflower must apply for a new permit, or at the very
least must update its [best available control technology]
determination to ensure that the plant it constructs
incorporates the most current and most protective pollution
controls, " including those for greenhouse gases
governed by a regulation that became effective January 2,
2011. Sierra Club attached expert analysis to support its
also provided public comments. Relevant to the issues on
appeal, Sunflower provided updated modeling data-dated
February 2014-regarding emissions at the Holcomb site.
30, 2014, KDHE responded to the comments it had received.
Responding to Sierra Club's comment about the best
available control technology determination, KDHE wrote:
"[T]he December 16, 2010 permit is still under the
initial 18 months from issuance of the permit to commence
construction. Because of the ongoing litigation after
issuance of the permit, the facility requested and was
granted a 'stay' by the Secretary of KDHE's July
11, 2011 Stay Order effective June 1, 2011. The facility
further requested confirmation on November 7, 2013 that the
Stay was still in effect until completion of the remand
decision. On November 12, 2013 the Secretary of KDHE's
letter stated the Stay Order continues in effect since the
reversal and remand did not result in final disposition of
the permit and the terms of that permit. The facility will
still have 12 months and 2 weeks to construct once the Stay
is lifted before an application for an extension, and
possible re-evaluation of [best available control
technology], would be required."
same day, KDHE issued an "Addendum to the December 16,
2010 Construction Permit." In its Responsiveness
Summary, KDHE indicated the Addendum
"supplement[ed]" the already issued permit. The
Addendum, unchanged from the draft, provided that
"[e]xcept as specified in this Addendum, all provisions
of the permit issued December 16, 2010 remain in
effect." The Addendum provided:
"2a. (last paragraph)
The owner or operator shall not emit or cause to be emitted
[nitrogen oxides] emissions exceeding 1740 lbs/hour on a one
hour block average basis, including during startup and
"2b. (last paragraph)
The owner or operator shall not emit or cause to be emitted
[sulfur dioxide] emissions exceeding 4089 lbs/hour on a one
hour block average basis, ...