Sunflower, Kansas regulators consulted on permit

Hundreds of e-mails document that officials of a Kansas coal plant enjoyed a cozy relationship with the Kansas regulators who issued them a building permit in December.

The Sunflower coal plant already has been controversial, with critics claiming it is not needed and would pollute the air. So the Kansas Department of Health and Environment had promised an impartial review of the permit.

But during the months KDHE was writing the 275-page permit — which will determine emissions releases for years to come — staffers were in almost daily contact with Sunflower Electric Co. officials, The Kansas City Star has found.

In fact, the relationship was so close that KDHE allowed Sunflower to respond to questions from the public, and then passed some of the answers off as their own. Those questions and answers were supposed to help shape the requirements in the permit.

In essence, the Kansas agency handed over the permit process to Sunflower, said Maxine Lippelles, co-director of the environmental program at Washington University's law school.

"I don't see how an agency can credibly argue that it can delegate its decision-making authority to an applicant," Lippelles said.

Scott Allegrucci, an opponent of the plant who submitted questions that were answered by Sunflower employees, was even more blunt:

"This is a horrific transgression in terms of public trust," Allegrucci said.

KDHE officials said they were not able to discuss their relationship with Sunflower, citing an appeal of the permit filed by the Sierra Club in January.

But last December, when acting-KDHE Director John Mitchell announced he had approved the permit, he added that a thorough review had been important in the permitting process.

KDHE "has a duty to examine a company's permit application objectively and fairly," Mitchell said.

In a statement, Sunflower said it could not comment at length because of the ongoing litigation, but that it had done nothing wrong: "Within the air permit process, all three entities — KDHE, the applicant, and the public — have specific roles and responsibilities. Sunflower fulfilled its role and responsibilities accordingly."

Construction of the plant has not yet begun because of the litigation, Sunflower told the state this month.

The public comments in the permit matter, industry and legal experts said.

The comments from the public, experts and nonprofit organizations not only ask important questions about how much pollution will be allowed but also raise issues that the regulating agency might not have known. Sometimes an entire permit can be rewritten because of comments, experts said.

Kansas law implicitly requires that the state respond, Lippelles said.

"It doesn't mean you can't have input from the company just like you have input from other members of the public," she said. "But the question is who is making the tough calls and who was responding to the comments and the questions?"

Some state legislators who voted for Sunflower said they were not necessarily alarmed by the close relationship.

"Being cozy with business is not necessarily bad," said Rep. Scott Schwab, R-Olathe. "Kansas needs to be open for business. We don't have mountains, we don't have oceans. If we don't allow for people to make it easy to make a profit in Kansas, there really is no reason to come here."

Schwab said, however, he would not want public health to be compromised by the Sunflower permit. If he learned that it would be, "I would really get concerned," he said.

Contentious process

Construction was blocked in 2007 when Kansas denied the building permit because of health concerns from greenhouse gases.

But a change in governors led to a 2009 settlement agreement between Gov. Mark Parkinson and Sunflower that allowed the permitting process to begin again.

In December 2010, KDHE approved the building permit.

Soon after, The Star asked KDHE in an open-records request for e-mail exchanges between KDHE staff and Sunflower employees over 18 months. The newspaper received more than 1,400 e-mails.

The e-mails show KDHE selected 238 comments that were substantive enough to merit a reply and include in the permit. Sometimes many people had asked similar questions, and those were then grouped under one comment.

KDHE gave Sunflower access to the 238 comments, and the company appears to have written responses to almost all of them.

A spot check of 22 Sunflower responses shows that KDHE took 18 of them, at times almost verbatim, and published them as part of the final permit without acknowledging Sunflower was the author.

After each question, the permit reads: "KDHE response..."

In addition to the Sunflower comments, the e-mails showed:

* KDHE sometimes let Sunflower take the lead in other ways. State staffers asked company officials in some cases to decide whether KDHE should respond to some of the public comments.

* KDHE staff expressed concern to a Sunflower official about something their director, Roderick Bremby, did that could make it difficult to meet their deadlines. Bremby was pushing for an extension of the public comment process.

* Although Parkinson had said he was not involved in the permitting process, several e-mails discussed meetings with his staff and Sunflower and KDHE officials. At least one meeting was in the governor's office.

* The company sent a staffer to Topeka from Hays to help set up a computer program to organize the public's comments for KDHE and Sunflower.

Bremby, no longer KDHE director, said he was "very disappointed" about the relationship with Sunflower after reviewing the e-mails The Star obtained.

"It is disgusting," Bremby said. "We are supposed to be working with the applicant but not for the applicant. We also work for the citizens of the state.

"There was a total abdication of responsibility."

Bremby denied the first permit. He was fired Nov. 2 by Parkinson after Sunflower officials and legislators who support the coal plant complained to the governor that Bremby was delaying the permitting process.

Bremby said he was especially disheartened that KDHE gave the public comments to Sunflower to answer.

"The public believes it is the government's objective response to an inquiry, when, in fact, it is not," said Bremby, who now oversees the Connecticut Department of Social Services. "That is not right."

If KDHE staffers had technical questions, Bremby said, they might sometimes contact the applicant for information, but normally the staff would hire a consultant to do research that it couldn't do.

Through his assistant, Parkinson declined to comment for this story.

But in November, after receiving criticism, Parkinson posted on his blog that he had not unduly interfered in the permit process, and that KDHE would conduct a fair and independent review.

KDHE would decide on the permit "only if it can conduct a thorough review of all the comments that it has received."

Legislators supportive

Some legislators said there may be legitimate explanations for Sunflower's role in the permit process.

KDHE received an overwhelming number of comments — so many that they might have been a delaying tactic by the plant's opposition, said Senate president Steve Morris, R-Hugoton.

"I still think the health and environment did the best they could to respond to those," said Morris, a leader in supporting the plant.

Rep. Pat Colloton, R-Leawood, said the pattern of responses uncovered by The Star "certainly raises a serious question of whether (KDHE) fulfilled their responsibility to exercise an independent judgment."

But she also said it's possible that KDHE had somehow researched the Sunflower responses once they were submitted.

"I don't want to impugn them without really hearing from them," Colloton said.

Karl Brooks, EPA Region 7 administrator, said it wasn't up to EPA to decide whether KDHE had acted improperly. Nothing in federal law dictates how a state agency is supposed to reply to comments, he said.

"It may be a review in court, in this case Kansas, would say that KDHE didn't act independently enough," Brooks said. "But that would be a question for the court to decide."

Stephanie Cole, Kansas Chapter of the Sierra Club spokeswoman, said KDHE allowed Sunflower to inappropriately control aspects of the permit process.

"It's not only a disservice to the thousands of Kansans who participated in the process but it calls into question KDHE's ability to adequately protect the health and environment of Kansans," she said.