Freedom of the Press, lately

How many of you saw the "Make Them Accountable" headline about the Judge in Kansas City?

A judge has ordered two Kansas City newspapers to remove articles about an area utility from their Web sites and temporarily barred the papers from publishing the story. The judge also ordered the papers to remove articles about the Board of Public Utilities of Kansas City, Kan., from their Web sites.

This is supposedly intended to prevent the publication of confidential documents, but has the effect of absolutely silencing the press, AND removes the information from the public domain. The order also includes no reporting or publishing or discussion of the SUBJECTS of the memo, or the ACTIONS which resulted in the memo.

If this stands, it is a clear perversion of the first amendment, and a chilling idea; that the confidentiality of corporate actions, including illegal, duplicitous, and possibly felonious action, is protected against publication because the corporate entity might be financially harmed?

Well, it turns out that the people of the USA (Kansas, too), have specific rights about freedom of the press. And because we respect that right, and we abhor the judicial protection of corporate lawbreakers, we are publishing the pages themselves, and also the URL to the Google Cache of the removed pages.

Here is the article from Spiked, a Kansas Weekly, which can also be read here: BPU Could Face Thousands in Fines

Breaking News: BPU Could Face Thousands in Fines
A confidential report reveals the utility didn't follow federal pollution regulations when upgrading its plants.
Justin Kendall
Published: March 1, 2007

The Board of Public Utilities in Kansas City, Kansas, may be liable for thousands of dollars in fines for failing to comply with anti-pollution regulations, according to a confidential document obtained by the Pitch.

The document was prepared November 16, 2004, by lawyer Stanley A. Reigel. It weighs the pros and cons of admitting to the Environmental Protection Agency that upgrades at BPU power plants did not comply with the federal Clean Air Act.

The report was hand-delivered to Marc Conklin, BPU general counsel and human resources director. The report is stamped “CONFIDENTIAL” and warns against duplication without Conklin’s approval. Conklin did not return a call from the Pitch.

BPU spokeswoman Susan Allen also declined to comment and instead sent an e-mail that read: “BPU cannot comment on a BPU confidential report. The Pitch should be aware that it possesses a confidential, legally protected document. The document should be returned to BPU.”

Mary Gonzales, president of the board of directors that oversees the utility, said Thursday that she was unaware of the report. Reigel did not immediately return a phone call on Friday to his office at the law firm of Stinson Morrison Hecker in Kansas City, Missouri.

When Reigel’s report was written, the EPA was auditing utility companies to see whether upgrades and repairs made after 1980 at coal-powered power plants followed federal guidelines. The letter indicates that the BPU was preparing to respond if audited by the EPA. However, it’s unclear what action, if any, the BPU took after Reigel delivered his letter.

Kim Olson, an EPA spokeswoman in Kansas City, tells the Pitch that the BPU has not contacted the agency to disclose its failure to seek repair permits and follow regulations when making upgrades.

According to Reigel’s letter, his report was spurred by a November 14, 2003, analysis of BPU’s coal-fired power plants by Burns & McDonnell Engineers. The engineering firm estimated that upgrades to the plants to make them comply with federal regulations would cost the utility nearly $160 million.

Reigel’s 15-page document identifies 73 repairs or upgrades that may not have followed EPA rules. The work was done at the utility’s three power plants: Nearman Creek Power Station, Quindaro Power Station and the now-closed Kaw Power Station. The work was completed between January 1980 and November 2004. Reigel determined that 15 of those repairs and upgrades were “questionable” and another 15 projects would be “probably not defensible” if the EPA conducted an audit.

Any one of those projects “puts BPU at risk” for an audit by the EPA, Reigel warned. Fines for utility companies in similar cases amounted to $1,000 for each megawatt of energy produced by the plant. Together, the Nearman and Quindaro plants produce 631 megawatts.

The audits Reigel refers to in his letter fall under an EPA initiative called New Source Review. The program was established by Congress in 1977 as part of the Clean Air act. It requires permits before construction on new power plants. It also calls for modifications at plants to be “as clean as possible,” according to the EPA’s Web site.

Reigel’s report indicates that the BPU did not get the permits “for any of the projects.”

“Thus, failure to conduct pre-project NSR and failure to monitor post-project emission constitutes a violation itself, unless the project is exempt, even if the project does not increase actual emissions above the allowable increment,” the report says.

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The Kansas City Star Article is copied below, and is archived here: BPU Document details Possible clean Air Violations:

BPU document details possible clean-air violations

At least 15 projects and upgrades at power plants operated by the Board of Public Utilities of Kansas City, Kan., may have violated federal clean air laws, according to a confidential BPU document.

The document, obtained from an anonymous source by The Kansas City Star, was prepared in 2004 by an attorney to lay out the odds for the BPU of the risks of penalties by the Environmental Protection Agency. It examined 73 projects that may not have followed regulations.

Of those, 15 were “probably not defensible” and another 15 were “questionable,” it said.

The document, which calls itself a “liability analysis,” says that the utility could be subject to thousands of dollars in fines. It also says the BPU has the choice of approaching the EPA to reach a settlement or waiting for the EPA to initiate action.

It is unclear which course the BPU took.

EPA and Kansas Department of Health and Environment officials said they did not know anything about possible violations. BPU officials could not be reached for comment Friday afternoon.

Karen Dillon, kdillon@kcstar.com

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I wish to thank Carolyn Kay and makethemaccountable.com for archiving these articles and getting the word out about this judicial idiocy. Please head over there and get informed!