1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 112,008

S IERRA C LUB , Appel l ant ,

v

.
S USAN M OSIER , M.D., in h er Official Capacity as Secretary of the K ANSAS D EPARTMENT OF H EALTH AND E NVIRONMENT , and the K ANSAS D EPARTMENT OF H EALTH AND E NVIRONMENT ,

an Ag ency of the S TATE OF K ANSAS ,

Appell ees ,

a nd

T RI

- S TATE G ENERATION AND T RANSMISSION A SSOCIATION , I NC ., and

S UNFLOWER E LECTRIC P OWER C ORPORATION ,

Intervenors

.

SYLLABUS BY THE COUR T

1. The Kansas Judicial Review Act, K.S.A. 77

- 601 et seq. , governs the s cope 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, t he party appealing from an agency's decision bears the burden of establishing error.

2.
Under the federal Clean Air Act, 42 U.S.C. § 7401 et seq . (20 12 ) , 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 obt ain a prevention of significant deterioration construction permit "anyway"2

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 pe rmit is issued on or after January 2, 2011.

3. A party abandons an argument by not briefing it.

4. An appellate court exercise s de novo review over questions of law regarding whether its mandate has been followed and properly interpreted.

5.
The Ka nsas 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, enjoi n or stay the effectiven ess of agency action, remand a matter for further proceedings, render a declaratory judgment
, or take any other action that is authorized and appropriate.

6.
K.S.A. 77

- 616 and K.S.A. 77

- 622(b) of the Kansas Judicial Review Act au thorize an administrative agency to enjoin or stay the effectiveness of an agency action on appropriate terms unless otherwise precluded by law.

7. In this 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 to3

only those issues subject to the remand order in Sierra Club v. Moser , 298 Kan. 22, 310 P.3d 360 (2013).

8. Under the separation of power s doctrine, determination of appropriate policy must
b e 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.

9. When statutes and regulations are silent about a particular policy matter , courts ar e ill

- equipped to fill such a gap. Often the wisest course is for courts to defer t o the legislature to fill the gap.

10. Courts do not afford significant deference to an administrative agency's statutory interpretation, but where an agency possesses dis cretion
, 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.

11.
B efore the Secretary of the Kansa s Department of He alth and Environment may

approve a permit for an air containment emission source , K.S.A. 2015 Supp. 65

- 3008 a requires the Secretary to provide a public comment period. All relevant comments must
be considered i n making a final decision on a proposed permit action.4

12. As a 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 earlier.

13. K.S.A. 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.

14. The 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 cas e

- by

- case basis. The Environmental Protection Agency permits appropriate reviewing authorities

— which includes s tate agencies like the Kansas Department of Health and Environment

— to act as its representatives in approving
models

.

15. Under K.S.A. 2015 Supp . 77

- 621(e), courts conducting judicial review of
administrative action must c onsider the harmless error rule

.

16.
An electric utility steam generating unit permit application must include technical information about proposed emissions, emission controls , and estimated control5

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 con trols and demonstrate initial compliance.

17. In reviewing the evidence in light of the record as a whole, the court shall not reweigh the evidence or engage in de novo review.

1 8

. The impact of a written instrument is determined by giving words in th e instrument their plain and ordinary meaning.

19

. An appellant may not raise new issues in a reply brief.

Appeal from Kansas Department of Health and Environment

. Opinion filed March 17 , 20 17

. Affirmed.

Amanda W. Goodin , of E arth justice , of Seattle, W ashington , argued the cause
, a nd 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, ass istant 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 H oward Kenison , of Lindquist & Vennum, of Denver, Colorado, w ere on the brief for intervenor Tri

- State Generation and Transmission6

Association, Inc.
, and William L. Wehru m and Henry V. Nickel , of Hunton & Wil liams
, LLP, of Washington, D.C., and Derek T. Tee ter , of Husch Blackwell LLP, of Kansas City, Missouri, and Mark D.
Calcara and Mark A. Rondeau , of Watkins Calcara, Chtd., of Great Bend, were o n the brief for intervenor Sunflower Electric Power Corporation.

The opinion of the court was delivered by

L UC KERT , 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 Su nfl ower Electric Power Corporation (Sunflower)

. The permit , issued December 16, 2010, authorized Sunflower to build a n 895

- megawatt coal

- fired electric generating unit, referred to as Holcomb 2, at a site near Holcomb where Sunflower already operate s a coa l

- 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 appl ied federal Environmental Protection Agency (EPA) regulations set ting 1

- hour e mission limits for nitrogen di oxide 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 effecti ve 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, w e determined that "the scope of the proceedings on remand must be determined by KDHE." 298 Kan. at 62.7

O n remand, KDHE issued an A ddendum to the 2010 permit. Sierra Club now seeks judici al 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 A ddendum fails to incorporate newly promulgated r egulations for greenhouse gases; fails to properly address the 1

- hour
emission limits for nitrogen di oxide and sulfur dioxide ; fails to properly compl y with the hazardous air pollutant limits and the M ercury and Air T oxic s S tandards ; and fails to

meet ne w source performance standards.

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

F ACTS AND P ROCEDURAL H ISTORY

Our decision in Sierra Club I , 298 Kan. at 26

- 2 8 , discusses the events leading to
KDHE issu ing the 2010 permit. Highly summ arized, a s a part of that process
, KDH E
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 S ierra 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 t o be generated, intervened.

The Sierra Club I decision also discussed the legal fra mework for the parties' dispute and explained the interrelationship between the federal C lean A ir A ct and the Kansas Air Quality Act, K .S.A. 65

- 3001 et seq ., a s well as a pplicable Kansas

a dministrative r egulations

. See 298 Kan. at 43

- 47. In essence, the federal C lean A ir A ct 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. States8

must adopt a state implementation plan aimed at assuring the s tate meets national ambient air quality standards set by Congress and the federal EPA. In Kansas, K DHE
administers and enforces Kansas' state implementation plan . S ee 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. I n the [ C lean A ir
A ct] , Congress charged the EPA with promulgat ing 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 m aximum allowable increases, or ' i ncrements,' for some pollutants based on a mathematical relationship to each pollutant's [national ambient air quality standard s ] . 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 pollutan t's [national ambient air quality standard s ] , below which the pollutant is not considered to cause o r contribute to a
violation of the [national ambient air quality standard s ] or to an established increment.
These increments and de minimis thresholds are t hen used by the states to calibrate their9

[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 ow ner 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 p ermitting 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. C al. 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 attain ment 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 K an. at 45

- 46

.
Based on the plain language in 42 U.S.C. § 7475(a)(3) (2006) , 40 C.F.R.10

§ 52.21(k) (2012) , and K.A.R. 28

- 19

- 350(a), (b) (2012 Supp. ), in Sierra Club I we h e ld
that Sunflower had to demonstrate that the Holcomb 2 project w ould not cause " ai r 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 n ew 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.

That holding, we determined, meant we either did not need to resolve or could not
resolve t he parties' arguments (1) regarding the methodology used in modeling nitrogen
di oxide 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 t o this latter point, t he 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 Standard s , adopted after the is suance 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.

We next 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 d uring Sierra Club I proceedings , KDHE issued a stay of the construction deadline

. 298 Kan. at 61

- 62.11

T he 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 techno logy 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.

Shortly after th e 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

perm it and the term s of that permit." Sierra Club challenge d the lawfulness of the stay ; nevertheless, KDHE continued the stay " until completion of the remand pro ceedings."

During the remand, Sunflower did not modify its appli cation or propose the use of new technology, and KDHE therefore determined it need only address th is court's remand
directions in Sierra Club I

. KDHE issued a draft "Addendum to Air Emissi on Source
Construction Permit" in January 2014

. KDHE did not issue new or updated monitoring
data or other documentation with the A ddendum. KDHE opened a 30

- day public comment period and held a public hearing in Garden City near the Holcomb site.

Sierra 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, arg uing "the truncated permit 'addendum' process proposed by KDHE" was an inadequate "substitute for a full new permitting decision."12

As to specifics of the d raft Addendum, Sierra Club argued that, although the draft
noted the new M ercury and A ir T oxics S t andard s 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 out dated modeling conducted f or the 2010 permit ting process and the 1

- hour nitrogen
di oxide and sulfur dioxide limits were not sufficiently stringent. Finally, Sierra Club objected that the best available control technology d etermination for Holcomb 2 was
dated and
, during th e interve ning time since remand, similar facilities had consistently
achieved emission limits lower than those set in the Holcomb 2 PSD.

Sierra Club reiterated its position that Sunflower would have to "substantially change the design" of Holcomb 2 and th at "KDH E's alleged 'stay' is unlawful and without
effect." S ierra 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 incorporate s 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 contentions.

Sunflower also provided pub lic comments. Relevant to the issues on appeal, Sunflower provided updated modeling data

— dated February 2014

— regarding emissions
at the Holcomb site.

O n May 30, 2014, KDHE responded to the comments it had received. R espond ing
to Sierra Club's comment ab out the best available control technology determination
, KDHE wrote:13

"[T] he December 16, 2010 permit is stil l under the initial 18 months fr om issuance of the permit to commence construction. Because of the ongoing litigation after issuance of the permi t, the facility requested and was granted a ' stay ' by the Secretar y of KDHE's July 11, 2011 Stay Order effective June 1, 2011. The facility further requested con firmation on November 7, 2013 that the Stay was still in effect until completion of the remand
decision. On November 12, 2013 the Secretar y 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. "

On the same day, KDHE issued an "Addendum to the Decemb er 16, 2010
Construction P ermit

. " In its Responsiveness Summary, KDHE indicated the Addendum "supplement [ ed ] " the already issued permit. The Ad dendum , u nchanged from the draft
, provided that "[e]xcept as specified in this Addendum, all provisions of the permit issued December 16, 2 010 remain in effect." The Addendum provided :

"2a. (last paragraph) The owner or operator shall not emit or cause to be emitted [nitrogen oxide s ] emissions exceeding 1740 lbs/hour on a one hour block average basis, including during startup and shutdown.

"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, including during startup and shutdown.

"2j. The owner or operator shall comply with al l applicable provisions of 40 CFR Part 63 Subpart UUUUU for an [electric utility steam generating unit] as defined per 40 CFR 63.9985. Applicable portions of Emissions and Operating Limits, Work Practice Standards, Performance Testing, Continuous Complianc e, and14 Reporting sections from the 40 CFR Part 63 Subpart UUUUU in effect upon startup of [Holcomb 2] shall apply."

The first two paragraphs related to the 1

- hour limits on nitrogen di oxide and sulfur dioxide and the third paragraph to the Mercury and Air Toxics S tandard s

.

I n June 2014, Sierra Club asked KDHE to reconsider its decision. For the first time, Sierra Club objected to KDHE's reliance on significant impact levels in reaching its
conclusion that Holcomb 2 did not cause or contribute to violati ons of the national ambient air quality standards. KDHE denied Sierra Club's request , which ended the remand proceedings and prompt ed Sierra Club to file a petition for judicial review in the Court of Appeals. We granted KDHE's subsequent motion to transfe r the case to this
court. See K.S.A. 2015 Supp. 20

- 3017. In October 2014, Sunflower requested an extension of the 18

- month deadline for beginning co nstruction, and KDHE granted Sunflower's request

. KDHE served Sierra Club with the order, and Sierra Club di d not object.

A NALYSIS

In Sierra Club 's initial brief before this court, it asks us t o vacate the permit because of three alleged errors
, which we have reordered as follows for pur poses of our analysis : Whether KDHE erred in issuing the A ddendum becaus e the permit (1) does not contain greenhouse gas emissions limitations based on a best available control technology determination; (2) fails to ensure compliance with 1

- hour standards for nitrogen di oxide and sulfur dioxide; and (3) does not contain adequa te emission limits under the Mercury and Air Toxics S tandard s for hazardous air pollutants. Within these three issues, Sierra Club asserts recurring argument s suggesting K DHE should have
conducted a new permitting process on remand
, should have required up dated modeling15

and assessments , and should have applied regulations that became effective after December 16, 2010, when KDHE initially issued the Holcomb 2 PSD permit

. In Sierra Club's reply br ief it added a fourth issue, ar guing Holcomb 2 cannot meet new source performance standards.

T he Kansas Judicial Review Act
, K.S.A. 77

- 601 et seq. , governs the scope of our review of KDHE's action as to each of Sierra Club's issues and arguments . K.S.A. 201 5 Supp. 77

- 621(c) list s eight circumstances under which a cou rt may grant relief from an agency action. Of those eight circumstances, Sierra Club relies on three . S pecifically, it argues KHDE (1) erroneously interpreted or applied the law ; (2) made a fact determination not supported by substantial evidence ; and (3) acted unreasonably,
arbitrari ly, or capriciously. K.S.A. 2015 Supp. 77

- 621(c)(4), (7), (8). A s the party appealing f

rom KDHE's decision , Sierra Club bears the burden of establishing error

. K.S.A. 2015 Supp. 77

- 621(a)(1).

In response to Sierra Club's init ial brief before this court
, KDHE and the
Intervenors argue Sierra Club failed to adequately argue how those three standards apply
to each of Sierra Club's issues and failed to provide a pinpoint reference in the record
where the issue was raised and ruled upon in the KDHE proceedings
, as required by Supreme Court Rule 6.02(a)(5) (201 5 Kan. Ct. R. Annot. 41). Indeed, Sierra Club's opening brief made only general references to K.S.A. 2015 Sup p. 77

- 621 and did not always cite to points in the record where an issue had been raised below. Nevertheless, Sierra Club cured these problems in its reply brief. While not a model of appellate practice, the reply fulfilled the purpose of Rule 6.02(a)(5) and resulted in no prejudice;
KDHE , the Intervenors , and this court had the information before the parties argued to this court, at which time KDHE and the Intervenors had the opportunity to dispute and counter Sierra Club's positions.16

KDHE and the Intervenors also generally argue Sierra Club may not seek relief on appeal because it failed to timely raise an argument before KDHE or because it wa i ved, abandoned, or otherwise failed to preserve an argument for review

. We will address these
concerns within our discussion of the four issues rais ed by Sierra Club.

I SSUE 1: G R EENHOUSE G AS E MISSION L IMITATIONS D ID N OT A PPLY

.

The parties present several arguments relating to the validity of Sunflower's PSD permit in light of regulations imposing greenhouse gas emission limits. We first consider the regulatory context in which th ose arguments arise.

Un der federal and Kansas law, a PSD permit for an "anyway source"

— that is, a source required to obtain a PSD 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 . 40 C.F.R. § 51.166(b)(48) (iv) (2016) ( beginning January 2, 2011, greenhouse gas regulations appl y to "new major stationary source[s]" and sp ecified "existing major stationary source[s]"); 40 C.F.R. § 52.21(b)(49) (2016) ; Utility Air Regulatory Group v.
EPA , 573 U.S. ___, 134 S. Ct. 2427, 2448, 189 L. Ed. 2d 372 (2014) ("EPA's decision to require [best available control technology] for greenhou se gases emitted by sources otherwise subject to PSD review is, as a general matter, a permissible interpretation of the statute"); K.A.R. 28

- 19

- 200a (2015 Supp. ) (adopting definitions to implement federal greenhouse gas tailoring rule) ; see , e.g. , 75 Fed. Reg. 17004, p p . 17020 , 17021 (April 2, 2010) ("EPA has concluded that [greenhouse gases] will not become subject to regulation [and hence the PSD best available control technology requirement will not apply to them] earlier than January 2, 2011"; "each PS D permit issued on or after January 2, 2011 would17

need to contain provisions that satisfy the PSD requirements that will apply to [greenhouse gases] as of that date"); see also 81 F ed. Reg. 68110 (Oct. 3, 2016) (public notice of proposed revisions to regul ations) ; 75 Fed. Reg. 31514, p. 31527 (June 3, 2010) ( U nder tailoring rule, "[a]ny PSD permits issued to . . . Step 1 sources on or after January 2, 2011 will need to address [greenhouse gases] .").

Because Sunflower's 2010 permit was issued weeks before the January 2, 2011,
effective date of the se regulations, KDHE did not include greenhouse gas emission limits in the 2010 permit. Nor did KDHE add limits when it issued the 2014 Addendum. Sierra Club argues we should set aside the permit under K.S.A. 2015 Supp. 77

- 621(c)(4), (7), and (8) because the omission of greenhouse gas emission limits constitutes an error of law, was based on facts not supported in the record, and was otherwise unreasonable
, arbitrary, and capricious.

As a preliminary matter, KDHE argues Sierra Club failed to preserve this issue

— more specifically, that it waived the argument

— when it did not object to the 2010 P SD permit on the basis of deficient greenhouse gas emission limits. Further, KDHE argues the doctrine of res judicata bars consideration of this issue in light of Sierra Club v.
Moser , 298 Kan. 22, 310 P.3d 360 (2013) ( Sierra Club I )

. We reject KDHE's waiver argument s because t he greenhouse gas emission limits did not apply to the December 16, 2010, PSD permit at issue in Sier ra Club I

. Hence, the greenhouse gas regulations were not ripe for decision and Sierra Club had no obligation to raise the issue in order to argue, as it does now, that the regulations applied

. See State v. Kingsley , 299 Kan. 896, 901, 326 P.3d 1083 (2014) (for res judicata to apply , four elements must be met , including that a second action must raise the same claim as had been raised in a previous action and the previous action must have resulted in a final judgment on the merits of the duplicate claim) ; S hipe v. Public Wholesale Water Supply Dist. No. 25 , 289 Kan. 160, 165

- 66, 21018

P.3d 105 (2009) (Kansas court s do not consider issues unless the issues are ripe, meaning they have "taken fixed and final shape rather than remaining nebulous and contingent") ; State v. Morton , 283 Kan. 464, 47 2

- 73 , 153 P.3d 532 (2007) ( holding that in remand proceedings before the district court
, the law of the case doctrine did not bar
reconsideration and reversal of a motion in limine at the new trial because the issue was

not addressed in the first appeal)

.

Sierra Club's arguments in this current action became ripe only when KDHE
issued the Addendum on remand , which was after the effective date of the regulations
, without incorporating the greenhouse gas emission lim itations

. Sierra Club could not have waived or abandoned this argument before it became ripe , and the argument is properly before us. Consequently, we turn to the merits.

KDHE justified omitting the greenhouse gas emission limitations on the grounds
that it had s tay ed the effect of K.A.R. 28

- 19

- 301(c) and had not issued a new permit

. The regulation which KDHE effectively stayed, K.A.R. 28

- 19

- 301(c) , incorporates
40 C.F.R. § 52.21(r)(2), which provides an "[a]pproval to construct shall become invalid
if constructio n is not commenced within 18 months after receipt of such approval."
See Sierra Club v. Franklin County Power of Illinois , 546 F .3d 918, 934 (7th Cir. 2008) (18

- month limitation " ensure [ s ] that major emitting facilities comply with up

- to

- date [pollution co ntrol]

. . . technology" ). According to KDHE, b y staying the effectiveness of the issued permit it had kept the 2010 permit in effect for approx imately 4 years (now longer), but the 18

- month limitation has been tolled and has not yet expired. In fact, as

p reviously quoted, KDHE explained that "[t]he 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." Because of the stay and because KDHE did not and does not view the Addendum as a19

new permit that triggered the greenhouse gas regulations , it determined n othing occurred
on remand that changed the status from Sierra Club I

— the permit had been issued in
201 0 several weeks before the greenhouse gas rules became effective. Basically, in KDHE's view, the Addendum escaped the effective date of the greenhouse gas regulations.

Considering these circumstances, KDHE point s out

— validly, in our view

— that
Sierra Club has failed to properly raise any objection to the stay during the judicial review proceedings despite having argued to KDHE that the stay was illegal

. A similar
situation occurred in Sierra Club I , where Sierra Club raise d objections to the stay
before KD HE but did not continue these arguments during judicial review. S ee 298 Kan.
at 61

- 62.

D uring the 2014 remand proceedings w hen Sierra Club renewed its objection to the stay
, KDHE responded by presenting a memorandum issued by Stephen Page,
director of the EPA's Office of Air Quality Planning and Standards, titled "Guidance on Extension of Prevention of Significant Deterioration (PSD) Permits under 40 CFR
52.2 1 (r)(2)" and dated January 31, 2014 (Page M emorandum). The EPA intended through the Page M emorandum to clarify the agency's position on what constitute s an adequate justification for an extension of the 18

- month period for beginning construction before the PSD permit expires

. Although not specifically addressing a stay, as we are confronted with in this case, the Page M emorandum provides guidance regarding a state's discretion in handling construction deadlines. After quoting portions of the Page
M emorandum, KDHE concluded the stay had remained in place and, as a result, "there is no requirement for a ne w permit application or updated [best available control technology] determination."20

Before us, Sierra Club now argues about the legal effect of the stay but it does not
assert KDHE coul d not grant the stay. By not briefing those arguments, Sierra Club ha s abandoned them. See Superior Boiler Works, Inc. v. Kimball , 292 Kan. 885, 889, 259 P.3d 676 (2011) (an issue not briefed is abandoned). We, therefore, assume without deciding that KDHE had authority to issue the stay.

Nevertheless, Sierra Club has prese rved and raised several other arguments about the legal effect of the stay

. It primarily argues this court vacated the 2010 permit in Sierra
Club I , which means the "2010 permit ceased to exist on the date of the Court's order, and the greenhouse gas requi rement clock was accordingly reset." Sierra Club secondarily argues the greenhou se gas emission limits apply because: A s a matter of law a remand

acts as a vacat ur ; KDHE's modification of the PSD constituted a "final permit decision" that trigger ed applic ation of the greenhouse gas emission limits; and KDHE needed to apply th os e limitations when modifying the permit
, and the permit therefore fail ed to comply with new EPA rules announced August 3, 2015.

We turn to these arguments.

1 .1. Sierra Club I did not mandate a new permitting process.

First, we examine Sierra Club's primary argument that this court vacated the 2010 permit, which means the 2014 permit was a "new permit" that had to comply with the greenhouse gas emission limitations. This argumen t places into issue the scope of our
mandate in Sierra Club I . As such, it present s a question of law over which we exercise
unlimited review. See In re Estate of Einsel , 304 Kan. 567, 584, 374 P.3d 612 (2016) (compliance with mandate and the proper interp retation of a mandate are questions of law over which appellate courts exercise de novo review).21

Sierra Club finds some support for its argument that Sierra Club I mandated a new permitting process on remand, including a new best available control techno logy determination relating to greenhouse gas emissions, from this court's isolated use of the
word "vacate " at one point in the decision . The decision indicates we were " vacating the permit and ordering that the KDHE must apply new [hazardous air pollutan t ] regulations before issuing a new permit." (Emphasis added.) Sierra Club I , 298 Kan. at 82

. This one

time use of the word "vacate" and the accompanying reference to a "new" permit certainly created ambiguity, which we regret.

Nevertheless, a lengthy di scussion of the scope of the remand proceedings
indic a ted our inte n t to leave the scope of the remand proceedings to KDHE's discretion

. I n particular, we discuss ed whether KDHE would need to perform a new best available control technology determination on remand . We stated:

"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 issue s 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 [best available control technology] determination. [Citation omi tted.]

"We also recognize there may be factual components to these arguments. For example, we are unable to determine whether additional modeling is necessary under the
new 1

- hour [nitrogen dioxide and sulfur dioxide standards] . In addition, we are unabl e to determine the potential effect of an order to stay that is referred to in the parties' arguments but is not in the record before us. Based on the arguments, it appears that the KDHE stayed the effect of K.A.R. 28

- 19

- 301(c), which provides that a PSD p ermit will expire if construction has not begun within 18 months of its issuance. [Citation s omitted.] We can only speculate as to the specifics of that order and its impact on remand proceedings, and the order is not before us for review.22 " 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 [best available control technology] issue is moot. It is
conceivable the KDHE w ill rely on some or all of its prior determinations ." (Emphase s added.) Sierra Club I , 298 Kan. at 61

- 62.

R ecognizing the possibility KDHE would not conduct another best available control technology determination , we considered the parties' arguments rega rding potential errors in KDHE's 2010 determination and held no error occurred. 298 Kan. at
65

- 78. In other words, the discussion of the issues in the Sierra Club I decision made clear that we were not mandating a new permitting process. Furthermore, i n or dering the final disposition of the petition for review, we reversed and remanded

— we did not state that we had vacated the permit . 298 Kan. at 88.

Following our direction that KDHE should determine the scope of proceedings on remand, KDHE concluded the 2 010 PSD permit remained in effect under its stay order , a

new best available control technology determination need not be conducted, a new permitting process was not required
, and an addendum to the 2010 permit could be
issued. Our decision in Sierra Club I granted KDHE the discretion to make such broad determinations regarding the scope of the remand proceedings, and our mandate did not vacate the 2010 Sunflower PSD permit

.

1.2. Vacatur was not an inescapable result of remand

.
Sierra Club also argues t his court 's remand decision in Sierra Club I essentially
amounts to an order to vacate the permit and that KDHE necessarily had to treat the
remand as a vacatur order. Sierra Club bolsters its argument by citing cases under the23

Federal Administrative Proce dure Act (APA) ; these cases support the proposition that a federal reviewing court normally vacates an erroneous agency action. Indeed, 5 U.S.C. § 706(2) (201 2 ) states a reviewing court "shall . . . set aside agency action" that is
unlawful. But two impor tant concessions accompany Sierra Club's general proposition: (1) Despite this clear statutory language, r emand without vacating occurs in federal court
, and (2) the strict language of the APA does not govern this issue in Kansas.

As Sierra Club recogni zes in the first concession , federal courts reviewing administrative actions do occasionally remand without vacating , although some debate whether that is even a legitimate option in the federal system . See, e.g. , Levin, "Vacation"
at Sea: Judicial Remedi es and Equitable Discretion in Administrative Law , 53 Duke L.J. 291 (2003). Even supporters of a judicial option to remand without vacating admit that the option is only available if section 706 of the APA is not read to literally mean what it says. Levin
, 53 Duke L.J. at 292, 309

- 12.

C ourts that remand without vacating often recognize pragmati c principles , noting that the rapidly evolving realm of administrative law sometimes calls for flexible remedies to avoid the disruptive effects of a complete redo

— generally, when there would be irreparable harm or when remand alone seemed reasonable after balancing the significance of the agency's deficiencies with the disruptive consequences of vacatur. See, e.g. , Cal. Communities Against Toxics v. U nited States E. P.A. , 688 F.3d 989, 992 (9th Cir. 2012); Heartland Regional Medical Center v. Sebelius , 566 F.3d 193, 197 (D.C. Cir. 2009); see also Com. of Mass. v. United States Nuclear Regulatory Com'n , 924 F.2d 311, 336 (D.C. Cir. 1991) (specifically stating the court "will remand without vacating an agency's order where the reason for the remand is lack of reasoned decisionmaking" and
to do otherwise would have "disruptive consequences"); Levin, 53 Duke L.J. at 34524

("[P]ragmatism and flexibility have been recurrent an d durable themes in the jurisprudence of administrative law remedies.").

These cases create an inference that cuts against Sierra Club's position ; even in the face of clear language requiring courts to set aside an agency's actions, courts have
tailored a remedy to permit a remand without vacatur when such a flexible remedy is required, such as when vacatur would cause irreparable harm or be unduly disruptive

. Recognizing these exceptions, Sierra Club urges a similar threshold requirement in
Kansas and ar gues neither this court nor KDHE made the appropriate pragmatic findings. But Sierra Club's argument does not fit Kansas law.

Unlike the plain and mandatory language of section 706 of the APA, the K ansas J udicial R eview A ct allows a wide range of remedies . A court may

"grant other appropriate relief, whether mandatory, injunctive or declaratory; preliminary or final; temporary or permanent; equitable or legal. In granting relief, the court may order agency action required by law, order agency exercise o f discretion required by law, set aside or modify agency action, enjoin or stay the effectiveness of agency action, remand the matter for further proceedings, render a declaratory judgment or take any other action that is authorized and appropriate." K.S.A . 77

- 622(b).

Only one of these many alternative remedies "set [ s ] aside" or vacates the
administrative order. T he K ansas J udicial R eview A ct provided this court with the authority to craft a remedy
, and it did not compel KDHE
, on receipt of the remand ord er , to treat the permit as having been vacated

.

In sum , d espite the one instance where we use d the word "vacate" in Sierra Club I
, this court left it to KDHE to determine how to comply with the EPA permitting process.25

Sierra Club makes no argument and ci tes to no Kansas authority that would prohibit a remand without vacating the 2010 permit. Consequently, we reject Sierra Club's claim that KDHE was required as a matter of law to consider the 2010 permit as having been
vacated

.

1.3. Sierra Club does not establish that the A ddendum c onstitute s a new permit.

Sierra Club also argues that even if the remand proceedings were limited and the Addendum was a modification of an existing permit
, it must be treated as a new final permit for purposes of the greenhou se gas regulations. As a result, according to Sierra
Club , KDHE had to make a best available control technology determination for greenhouse gases. Again, i t is S ierra Club's burden to show that a specific action taken by
KDHE amounted to error. K.S.A. 201 5 Supp. 77

- 621(a).

To meet that burden, Sierra Club first points to EPA's refusal to adopt grandfathering rules when it adopted the greenhouse gas emission limitations. While that is true, the EPA also stated:

"Final PSD permits issued before January 2 , 2011 need not be reopened or amended to incorporate requirements for [greenhouse gases] that take effect after the permit is issued. A source that is authorized to construct under a PSD permit but has not yet begun actual construction on January 2, 2011 may begin actual construction after that date without having to amend the previously

- issued PSD permit to incorporate [greenhouse gas] r equirements, provided the permit has not expired." Prevention of Significant Deterioration and Title V Greenhouse Gas Ta iloring Rule, 75 F ed. Reg. 31514, p. 31527 (June 3, 2010).26

Here, as we have discussed, KDHE and the Intervenors take the position the stay toll ed the expiration period and the permit had not expired. Consequently, according to KDHE, the EPA guidance does not apply.

Sierra Club also c it es 40 C.F.R. § 124.15 (201 6 ) to argue that a "final permit
decision" include s a decision to modify a permit and to suggest that the date of a modification should be a permit's date of issuance. But 40 C.F.R. § 124.15 is par t of the water program

— not the air program

— and the section discusses when a decision is final for appeal purposes

. The provision simply does not apply to Sunflower's PSD permit, and Sierra Club does not cite any other federal regulation containing similar language that addresses the type of permit at issue

.

Indeed, Sierra Club failed to brief an argument that KDHE's A ddendum amounted to an unlawful amendment, revision
, or modification of the 2010 permit. Moreover, Sierra Club's reply brief expressly rejec ted that position: The A ddendum "was not a mere modification of an old permit which remained in effect." While Sierra Club shifted this position at oral argument and suggested the Addendum was a modification, simply presenting a new theory at oral argumen t is insufficient to present and preserve an argument never briefed before this court , especially where the written argument takes an opposite position

. See State v. Tague , 296 Kan. 993, 1010, 298 P.3d 273 (2013) (refusing
to consider new issue raised afte r brief filed).

In addition, Sierra Club cites to decisions of the EPA's Environmental Appeals Board in which intervening changes in the law have been applied during a remand, even if the new provisions were not the subject of the remand order. E.g. , In re : Shell Gulf of
Mex ico , Inc. , Shell Offshore, Inc.
, 15 E.A.D. 103, 2010 WL 5478647, at *35 (EAB Dec. 30, 2010) ; see also Ziffrin , Inc. v. United States , 318 U.S. 73, 78 , 63 S. Ct. 465 , 87 L. Ed.27

621 (1943) ( asserting that permitting and licensing decisio ns of regulatory agencies generally must reflect the law in effect at the time the agency makes a final determination on a pending application); State of Ala . ex rel. Baxley v. E nviron. Pro. Agcy. , 557 F.2d 1101, 1110 (5th Cir. 1977) (same). Yet Sierra Clu b fails to link that caselaw to any requirement that a state must do the same

. And, significantly, federal procedure differs
from Kansas'. Under the EPA

- administered program, a PSD permit does not become effective if properly appealed to the Environmental Appeals Board. See 40 C.F.R. § 124.15(b) . Sierra Club does not cite to any similar provision in Kansas law.

Significantly, under the Kansas Judicial Review Act , "[u] nless precluded by law, the agency may grant a stay on appropriate terms or other tempora ry remedies during the pendency of judicial review. " K.S.A. 77

- 616 (a) ; see K.S.A. 77

- 607 (requiring final agency action before seeking judicial review)

. And, as we have noted, Sierra Club has waived or abandoned any argument that the stay was precluded by law.

Finally, a t oral argument, Sierra Club emphasized the effect of K.S.A. 2015 Supp.
65

- 3008a and K.A.R. 28

- 19

- 204 (2009) and argued thes e provisions treat post

- permit proceedings like new permits. K.S.A. 2015 Supp. 65

- 3008a requires the opportunity for public comment and a public hearing before issuing, modifying, renewing, or reopening a permit. See K.S.A. 65

- 3008b (d) (allowing the Secretary of KDHE to " modify or reopen

an approval or a permit for cause"). Likewise, K.A.R. 28

- 19

- 204 imposes public

c omment and hearing requirements. While thes e provisions clearly impose a hearing and public comment process
, KDHE complied with that requirement with regard to those issues subject to the remand order or which KDHE deemed reopened

. In general, t hese
Kansas statutes and regulations grant KDHE w ide discretion in handling proceedings that are modifications or reopenings , including the public comment period. Of course, this28

discretion might be limited if prov isions of the f ederal Clean Air Act or its regulation s apply

.

In determining what federal limitations needed to be considered, KD HE relied heavily on t he January 31, 2014, Page M emorandum

. Although the Page M emorandum
addresses extensions of the construction deadline and not stays , it bolsters KDHE's
decisi on to grant a stay and the resulting scope of the remand proceedings.

For example, D irector Page noted that "[t]he text of 40 CFR 52.21(r)(2) does not provide any specific criteria or required process that must be satisfied before the EPA

can exercise it s discretion to determine that a permit extension is justified." Page
M emorandum, p. 2. As a result, the EPA determined it would consider requests for
extension on a case

- by

- case basis. It noted a number of factors that might justify an extension, i ncludin g judicial review. Page M emorandum, p. 3. When explaining its position during the administrative proceedings
, KD H E referred to the Page Memorandum for guidance and specifically noted the delay caused by judicial review.

Moreover, Director Page observed t hat even if a state incorporated 40 C.F.R. 52.21(r)(2) and the 18

- month construction timeline into its regulations and plan, which Kansas has done, noth ing requires a state to follow the EPA's memorandum regarding justifications and timeframes for extensio ns. Page M emorandum, p. 5. In other words, KDHE had broad discretion in how it complied with the construction deadline.

Significant to our analysis regarding the scope of post

- permit proceedings, Director Page note d some specific requirements are in plac e for modifications. But he
also noted that "the precise scope and meaning of the term 'modify' as applied to a PSD permit is not clear from t he Part 124 regulations." Page M emorandum, p. 8. Sunflower29

has not proposed changes or a modification to the permi t , however , and Sierra Club has conceded we are not dealing with a modification. So these requirements do not come into play

.

Rather, the remand proceedings are by direction of this court and KDHE. And
Sierra Club I did not address the greenhouse gas reg ulations. For its part, KDHE may "reopen" a permit for cause in certain situations under K.S.A. 65

- 3008b(d) and "shall" reopen a permit if new air quality requirements become applicable within certain
timeframes. These reopening provisions arguably would a pply under the timeline of this case, but only as to new air quality limitations that would apply even after a permit ha s been issu ed . Here, the greenhouse gas regulations do not apply to permit s issued before January 2, 2011, and KDHE was not compelled to reopen the permitting process.

Finally , t he Page M emorandum concludes by stating : " [T] he EPA believes that a permitting authority has the discretion to evaluate on a case

- by

- case basis whether and under what circumstances it would be justified to issue a PSD permit extension without requiring the source to meet a new requirement that took effect during the term of the initial permit." Page M emorandum, p. 6. This conclusion supports KDHE's position that
it could address the limited issues on remand withou t being compelled to require Sunflower to meet the greenhouse gas regulations.

In summary , Sierra Club has failed to cite any authority establish ing that KDHE
violated the law and has failed to meet its burden of establishing that KDHE erroneously interp reted or applied the law. See K.S.A. 2015 Supp. 77

- 621(c)(4).30

1.4. Sierra Club fails to establish other grounds for relief.

Further, on this issue, Sierra Club has not pointed to a ny KDHE finding of fact that is not supported by substantial evidence. It has thus failed to establish a right to relief under K.S.A. 2015 Supp. 77

- 621( c )(7).

Finally, Sierra Club has failed to establish that KDHE's action was unreasonable, arbitrary, or capricious

— the grounds for relief from agency action provided for in K.S. A. 2015 Supp. 77

- 621( c )(8). Rather, the statutes and regulations give KDHE discretion as the state plan administrator. Sierra Club 's arguments rel y in large part o n policy considerations: Construction permits typically last 18 months because new technolog ies constantly emerge, and the EPA wants new facilities to adopt the latest technology. At this point, the stay and the permit extension in this case have result ed in a more than quadrupling of this 18

- month period. One could thus conclude from the EPA's p olicy guidance that there is good reason for KDHE to engage in new s ubstantive analyses on remand . But Sierra Club must d o more than raise policy arguments

.

Under the separation of powers doctrine, determination of the appropriate policy
must be left to the legislative and executive branches of Kansas government. See State

ex rel. Tomasic v. Unified Gov

. of Wyandotte Co./Kansas City , 264 Kan. 293, 337

- 38, 955 P.2d 1136 (1998) ("Courts are limited to the exercise of judicial power in interpreting and apply ing the law and may not usurp the legislative power of determining policy matters or the executive power of implementing such policy."). Therefore, in order for us to grant Sie rra Club's request for relief, Sierra Club must link its policy arguments to an erroneous KDHE action

— that is, it must show that the greenhouse gas emission
limitations and the accompanying best available control technology requirements apply31

when a permit issued before January 2, 2011, has been remanded for further
consideration. And it fails to do so.

Clearly, there exists a gap where the statutes and regulations are silent about the
situation before us

— the intersection of various provision of the federal Clea n Air Act and Kansas provisions regarding the stay of administrative orde rs . But "courts are ill

equipped to fill such a gap. Often the wisest course is for courts to defer to the legislature

to act to fill such a gap." State v. Keel , 302 Kan. 560, 573, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016); see Ft. Hays St. U niv. v. Univ ersity Ch., Am. Ass'n of Univ. Profs. , 290 Kan. 446, 464

- 65, 228 P.3d 403 (2010). And while courts do not afford significant deference to an administrative agency's statutory interpretation, Ft. Hays St.
Univ. , 290 Kan. at 457, 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 action is unlawful, unreasonable, arbitrary, or capricious. Pork Motel, Corp. v. Kansas Dep t . o f Health & Environment , 234 Kan. 374, 382, 673 P.2d 1126 (1983). Sierra Club fails to meet its burden to show KDHE's action fits that description

.

In conclusion, w e find no merit in Sierra Club's argument that KDHE erred in failing to determine greenhous e gas emission limitations based on the best available control technology.

I SSUE 2: KDHE D ID N OT E RR IN S ETTING 1

- H OUR N ITROGEN D IO XIDE AND S ULFUR D IOXIDE E MISSION L IMITS

.

We next consider an issue that was discussed in Sierra Club v. Moser , 298 Kan.
2 2, 310 P.3d 360 (2013) ( Sierra Club I ) , specifically the application of EPA

- promulgated regulations that became effective several months before the Holcomb 2 PSD permit was32

issued. These regulations established 1

- hour emission limits for nitrogen di oxide a nd sulfur dioxide. KDHE initially determined these new regulations did not apply to Sunflower's pending PSD permit because Kansas had not yet amended its state implementation plan to incorporate the regulations.

To provide the factual context for this ar gument, we first look back to the 2010 administrative proceeding. At that point, a lthough KDHE did not impose limits consist ent with the new federal regulations , it request ed and receive d computer modeling from
Sunflower

. The information includes data repo rting the emissions generate d by Holcomb 1 and other air emissions sources in the region. The modeling projected instances in
which pollutants in the ambient air in the region would exceed allowable limits.

Nevertheless, focusing on Holcomb 2's modeled em issions, KDHE concluded "[t]he results of the analyses indicated that for all modeled exceedances, the proposed project [Holcomb 2] contributes less than the [significant impact level] and therefore does
not cause or contribute t o any modeled exceedance." KDHE did, however, impose
conditions on the 2010 permit that required Sunflower to notify KDHE if the total nitrogen oxide s and sulfur dioxide emissions ever exceed ed the pounds per hour amounts modeled in the permit application.

In the Sierra Club I act ion seeking judi cial review, Sierra Club argued the permit needed to explicitly state emission limits rather than merely impose a requirement that required Sunflower to notify KDHE if emissions exceeded stated amounts. In the Sierra
Club I decision , we agr eed and held KDHE erred in its determination the hourly emission regulations did not apply. On that basis, we remanded the permit for application of the new regulations. 298 Kan. at 59.33

On remand, KDHE did not request any new modeling. Instead, in the pro posed Addendum, it incorporated specific 1

- hour emission limitations identical to the amounts that triggered the 2010 notification re quirements and that had been used in the 2010 modeling. Sierra Club requested more stringent 1

- hour emission limits
, but KD HE did
not amend the 1

- hour emission limitations, even after receiving u pdated modeling from
Sunflower in the last days of the public comment period.

Then, in issuing the Summary Sheet that accompanied the Addendum, KDHE
made c lear that the nitrogen oxid e s and sulfur dioxide limits "contained in the P ermit
Addendum are . . . based on the 2010 modeling." And in the Re sponsiveness Summary,
KDHE reiterated , in response to Sierra Club's comments, that the new 1

- hour emissions
limits were based on the 2010 mod eling . According to KDHE, applying the permit limits to the 2010 dispersion modeling shows that Holcomb 2 "is not expected to cause or
contribute to an exceedance" of the 1

- hour emission limits.

In petitioning for review of the remand proceedings, Sierra Club claims Sunflower
fail ed to demonstrate factually that emissions from Holcomb 2 will not cause or contribute to violations of any nation al ambient air quality standard s

. A ccording to Sierra
Club
, modeling in the record shows just the opposite

— i.e. , Ho lcomb 2 will cause or
contribute to thousands of violations of the 1

- hour nitrogen di oxide and sulfur dioxide national ambient air quality standards . KDHE does not contest there we re modeled
1

- hour emission violations , but it and the I ntervenors respond wi th a legal argument:
Holcomb 2 will not " cause or contribute to " those modeled violations.

The question of whether Holcomb 2 will "cause or contribute to " a national ambient air quality standard s violation arises from statutory language that prohibits t he construction of any "major emitting facility
, " such as Holcomb 2, unless the owner or34

operator, in this case Sunflower , demonstrates " that emissions from construction or operation of such facility will not cause, or contribute to
, air pollution in exces s of

any

. . . national ambient air quality standard in any air qua lity control region ." (Emphasis added.) 42 U.S.C. § 7475(a)(3) (2012); see 40 C.F.R. § 52.21(k) (201 6 ) ; K.A.R. 28

- 19

- 301 (d) (2009)

.

I n applying this standard , KDHE , along with the EPA, has historically set significant impact levels ( SILs )

. I n essence , SILs set numerical value s for impact on
ambient air quality below which the regulatory agency will consider a source to have a legally insignifican t effect . I n short , if the source ' s emissions are below the governing SIL, the source does not cause or contribute to the exceedance

. Sierra Club I , 298 Kan. at
45

- 46 ; see Alabama Power Co v. Costle , 636 F.2d 323 (D.C. Cir. 1979) (seminal case discussing SILs).

KDHE has established SILs for 1

- h our n itrogen di oxide and sulfur dioxide
emissions and adopted a regulation providing that " [a] major source . . . shall be considered to cause or contribute to a violation of a national ambient air quality standard if the air quality impact of the source

. . . would exceed the follow ing levels at any locality

. . . ." (Emphasis added.) K.A.R. 28

- 19

- 350(f)(1) (20 15 Supp. )

. In a 2010 memorandum, KDHE explained:

"The EPA and KDHE consider a source whose individual impact falls below a SIL to
have a de minimis im

pact on air quality concentrations.

. . . .35 ". . . If the [national ambient air quality standard] is exceeded, a new project has a significant contribution to a modeled [national ambient air quality standard] exceedance
if its contribution exceeds th e SIL at that receptor, day, and time

. . . ."

In this case, a pplying the applicable SILs, KDHE recognized in the 2010 and 2014 Responsiveness Summaries that modeling reflected times when the nitrogen di oxide and
sulfur dioxide in the air affected by the Holcomb station would excee d the national ambient air quality standards
, but KDHE did not view Holcomb 2 as causing or contributing to those exceedances because the Holcomb 2 emissions would be below the
SILs

.

Sierra Club now challenges the legality of t his approach, arguing the statutory language of the Clean Air Act bars any de minimis exemption and Sunflower must do
more than show its emissions are below the SIL s

. In addition, Sierra Club argues that KDHE violated the Clean Air Act by failing to allow public comment on the 2014 modeling conducted by Sunflower and that the modeling made unlawful assumptions
about emissions from Holcomb 1.

For purposes of our analysis, we begin with Sierra Club's argument about the illegality of KDHE's 2014 procedure

— i. e. , Sierra C lub's argument the process needed to allow public comments on the 2014 modeling. We conclude Sierra Club fai ls to establish that KDHE erred in the way i t handled the public comments. We then conclude Sierra
Club fail ed to preserve the remaining arguments.

2.1. Sierra Club fails to establish that KDHE erred in its handling of public comments during the remand proceedings

.36

During the 2014 proceeding s, KDHE provided notice of the d raft Addendum, held a public hearing, and allowed a 30

- day period for public comment. See K.S.A. 2015 Supp. 65

- 3008a(a) (mandating KDHE provide for public comment period before issuing, modifying, or reopening a permit); K.A.R. 28

- 19

- 350 (k) ; K.A.R. 28

- 19

- 204 ; s ee also
42 U.S.C. § 7475(a)(2)

. Sierra Club submitted commen ts, as did Sunflower.

As relevant to the 1

- hour nitrogen di oxide and sulfur dioxide emission limits, Sierra Club incorporated its 2010 comments , acknowledging that "[t]hese limits are based on modeling and analysis conducted in association with the 2010 permit." Sierra Club
also asserted that KDHE "can and should include more stringent one

- hour limits in the permit to protect against the many health risks posed by these pollutants." Finally, Sierra
Club argued the lapse of time between the 2010 and 2014 p roceedings meant a new analysis of best available control technology must be conducted.

In Sunflower's comment s , which were submitted jus t a day or so before the end
of the public comment period, Sunflower also referred to the 2010 modeling data. In
addi tion, it submitted an analysis prepared by Shaw Environmental, Inc.
, dated in February 2014 that contained new modeling data.

I n respon se to the public comments
, KDHE noted that the new data had been
received . It concluded : "The modeling results submitt ed indicate that there were modeled exceedances, however, for all modeled exceedances, the expansion project contributes less than the SIL and therefore does not cause or contribute to any [national ambient air quality standard] exceedance." On the same da y, KDHE issued the Air Emission Source
Construction Permit Addendum.37

Sierra Club then filed a petition f or reconsideration. It complained that KDHE had not made the February 2014 Shaw analysis public and did not offer the opportunity for public comment

. Sierra Club continued:

"[I]t appears there are issues of both law and fact raised by KDHE's reliance on this new analysis and underlying data, including KDHE's improper reliance on significant impact levels (SILs) to excuse modeled exceed ances of the one

- hour [ nitrogen dioxide] and [sulfur dioxide] standards and improper use of and conclusions drawn from emissions
data from Holcomb 1."

KDHE denied the petition for reconsideration. I n rejecting Sierra Club's assertion
that KD HE had relied on the 2014 data , KDHE stated:

"KDHE did not rely on new analysis in the Permit Addendum decision. KDHE relied on the 2010 modeling analysis, which included the Holcomb 1 data and SILs developed pursuant to KDHE authority as an approved State under Sec tion 110 of the Clean Air Act. KDHE responded to comments related to these issues in the December 16, 2010 Responsiveness Summary."

Sierra Club suggests KDHE needed to provide a period of public comment on the 2014 emission modeling. It further argues we should not accept KDHE's conclusion that it relied on the 2010 data in issuing the Addendum because KDHE n ote d the 2014 dat a in its Responsiveness Summary ; KDHE even noted that the 2014 data substantiated its
conclusion that Holcomb 2 would not cause or co ntribute to exceedances of the 1

- hour
emission limits

.

As recognized by Sierra Club , KDHE clearly considered the 2014 data. Indeed,
KDHE had to do so under K.A.R. 28

- 19

- 204 (2009), which requires the opportunity for public participation in the permitting process and mandates that all relevant comments38

"be considered in making a final decision on the proposed permit action." Nevertheless, consideration does not equal reliance. Certainly, to rely on information means it must
have been considered. See Webste r's II New College Dictionary 937 (1995) (defining "rely" to mean "[t]o depend"). But information can be considered without depending

— i.e. , relying

—

upon it when making a determination. See Webster's II New College Dictionary 240 (defining "consider" as "[t ]o think about seriously" ; "to take into account"; "bear in mind"). For example, information may be deemed to be irrelevant or not persuasive. Thus, a decision can be made without relying on all information
considered.

T he entire 2014 administrative reco rd verifies that KDHE considered the 2014 modeling but did not rely on the modeling in setting the nitrogen dioxide and sulfur
dioxide emission limits. Indeed, KDHE's 2014 limits mirrored the emission levels which
would have triggered the notice requiremen ts in the 2010 permit. Furthermore, KDHE
noted in the Addendum Summary Sheet that the nitrogen oxide s and sulfur dioxide
emission limits "contained in the P ermit Addendum are . . . based on the 2010 modeling

. " Simply put, KDHE's overall approach to the Add endum reflects its reliance on the 2010
data

— it did not vi ew the A ddendum as a new permit
, it did not require a new permit application , and it did not require new modeling data.

Once a gain, KDHE's position that the 2014 proceedings did not relate to a ne w permit is significant to our consideration of Sierra Club's arguments regarding the timeliness and availability of data before public hearings. Sierra Club cites 42 U.S.C. § 7475(a)(2) (2012) and 42 U.S.C. § 7475(e)(2) (2012). Section 7475(a)(2) provide s that a permit may not issue unless "the proposed pe rmit has been subject to review . . . and a public hearing has been held with opportunity for interested persons . . . to appear and submit written or oral presentations on the air quality impact of such source, alternatives39

thereto, control technology requirements, and other appropriate considera tions." (Emphasis added.) And 42 U.S.C. § 7475(e)(2) sets a time limit for the data: "Such data shall be gathered over a period of one calendar year preceding t he date of application for a permit under this part

. . . . The results of such analysis shall be available at the time of the public hearing on the application for such permit." See 42 U.S.C. § 7475(e)(3)(C) (regulations must require that air quality anal ysis be available at the time of public hearing). But these provisions relate to a proposed permit.

As we have noted, in contrast, under K.S.A. 2015 Supp. 65

- 3008a(c) and K.A.R.
28

- 19

- 204 (2009) , while the Secretary of KDHE must allow public comment, the Secretary otherwise has considerable discretion in handling the public comment period in post

- permit situations , such as when modifying or reopening a permit

. Sierra Club has not cited any authority imposing a timeframe for data collection for post

- permit proceedings . Contrary to Sierra Club's position, n othing suggests that KDHE needed to expand the public comment period once Sunflower provided public commen ts which
included the 2014 modeling data. And Sierra Club had ample opportunity to comment on
the 2 010 data up on which KDHE actually relied. In summary, Sierra Club fails to provide any authority indicating that KDHE erred in handling the public comment procedure in the context of post

- permit proceedings related to what KDHE deemed to be a very
limited remand.

In an alternative argument, Sierra Club argues KDHE acted arbitrarily when it
failed to r ely on the 2014 data, which Sierra Club suggests show a number of
exceedances

— m ean ing Holcomb 2 will cause or contribute to violations of the national
ambient air quality standards

. But , as we have described above, KDHE did not totally ignore the 2014 data. Instead, it no ted the data and concluded: "The modeling results submitted indicate that there were modeled exceedances, however, for all modeled40

exceedance s, the expansion project contributes less than the SIL and therefore does not cause or contribute to any [national ambient air quality standard] exceedance." We next discuss the question of whether that conclusion was erroneous. But for purposes of
conside ring error in the procedure utilized, we conclude Sierra Club fails to show that
KDHE arbi trarily disregarded relevant information.

In conclusion, Sierra Club fails to establish that KDHE committed error in the procedures it followed on remand

.

2.2. Si erra Club f

ailed to p reserve its a rgument r egarding the l egality of SILs.

Sierra Club presents a lengthy argument regarding the legality of KDHE's approach of u sing significant impact levels ( SIL s )

. For support, Sierra Club cites Sierra
Club v. E.P.A.
, 70 5 F.3d 458 (D.C. Cir. 2013) , which dealt with the SIL applicable to particulate matter ; Sierra Club argues the decision establishes that both the EPA and a court have rejected reliance on SILs in the manner applied by KDHE in this case

. KDHE

counters , citi ng Utility Air Regulatory Group v. EPA
, 573 U.S. ___, 134 S. Ct. 2427, 2449, 189 L. Ed

. 2d 372 (2014). But KDHE also argues Sierra Club failed to preserve this argument, and the Intervenors add support to this contention . We agree that on this point Sierra Club failed to preserve its argument ; Sierra Club failed to timely present the argument to KDHE

— either in the 2010 or the 2014 administrative proceedings

— and
cannot assert it for the first time in a petition for reconsi deration or a petition seeking
revie w of an agency action.

In the 2010 administrative proceeding, Sierra Club, like KDHE, seemed to operate under the assumption that
, even with modeled national ambient air quality standard s violations, SILs could be used along with additional modeling to s how that a source did41

not cause or contribute to the violation. For example, d uring the public comment period,
Sierra Club argued the numeric level of the SILs KDHE relied on had not been justified

.

At the next stage of the 2010 proceedings, in its petit ion for judicial review, Sierra Club included an argument that could be read as the same argument it makes now

. It argued in the 2010 petition that "the text of the Clean Air Act does not authorize a source to cause or contribute to any" exceedances of the national ambient air quality standards,
"no matter how small the contribution." But Sierra Club abandoned th is argument for purposes of th e 2010 action by not briefing it in the 2010 proceedings before this court. Consequently, this court did not address the issue in Sierra Club I

. See Superior Boiler Works, Inc. v. Kimball , 292 Kan. 885, 889, 259 P.3d 676 (2011) (an issue not briefed is abandoned) ; but see State v. Morton , 283 Kan. 464, 47 2

- 73 , 153 P.3d 532 (2007) ( in remand proceedings, law of the case d octrine did not bar reconsideration and reversal of the motion in limine at the new trial because issue was not addressed in first appeal)

.

In the remand proceedings, Sierra Club's public comments during the 2014 proceeding incorporated its 2010 comment s. But Sierra Club did not comment on the legality of relying on SILs or of KDHE's method of considering SILs. Instead, t he first mention of the arguments now raised came in Sierra Cl ub's motion for reconsideration before KDHE. There, for the first time in any administrative proceeding, Sierra Club referred to new issues of law and fact arising from the 2014 data, "including KDHE's improper reliance on significant impact levels (SILs) to excuse modeled exceedances of
the one

- hour [ nitrogen dioxide] and [sul fur dioxide] standards and improper use of and
conclusions drawn from emissions data from Holcomb 1." Sierra Club did not cite any authority or provide any explanation of the basis for its argument. Cf. McCain Foods USA, Inc. v. Cent ral Processors, Inc ., 2 75 Kan. 1, 15, 61 P.3d 68 (2002) ("Simply pressing a point without pertinent authority, or without showing why it is sound despite a42

lack of supporting authority, is akin to failing to brief an issue. 'Where the appellant fails to brief an issue, that issu e is waived or abandoned.'"). As a result, the vague references without any supporting authority provided no indication of the specific argument that is
now raised in this action

.

KDHE merely denied the motion after stating it had not relied on the 2014 data. KDHE did not attempt to divine the specifics of the issues of fact and law referenced by
Sierra Club.

The Intervenors suggest Sierra Club's arguments regarding the legality of KDHE's reliance on SILs came too late to preserve the argument for our r eview. We agree.

As a general rule, a party may not raise a new argument in a motion for reconsideration. But some courts recognize an exception when the arguments could not have been presented earlier. See 56 Am. Jur. 2d
, Motions, Rules, and Orders § 40.

Similar rules bar raising new issues before a court when the issue has not been raised before an administrative agency. K.S.A. 2015 Supp. 77

- 617 limits when "[a] person may obtain judicial review of an issue that was not raised before the agency ."
On e exception allows consideration of the issue if

" (d) the interests of justice would be served by judicial resolution of an issue arising from: (1) A change in controlling law occurring after the agency action; or

(2) agency action occurring or first reasonably knowable to the person after the person exhausted the last feasible opportunity for seeking relief from the

agency. " K.S.A. 2015 Supp. 77

- 617.43

Sierra Club invokes the exception and argues it raise d the issue as soon as
feasible

— that is, once it knew of the 2014 data. See Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) ("If the issue was not raised below, there must be an explanation why the issue is properly before the court.").

Yet, Sierra Club fails to explain why its legal arg u ments regarding KDHE's application of the SILs did not apply when it knew KDHE relied on the SILs to determine
Holcomb 2's modeled emissions would not cause or contribute to the exceedances , using 2010 modeling

. More simply, Sierra Club's alleged lack of a ccess to the 2014 data does not explain why its legal argument, which did not turn on that data, could not have been
raised sooner. For example, Sierra Club argues in its reply brief on this second round of judicial review that "both the 2010 modeling and 2014 modeling show the plant, as designed and proposed for operation, will cause unlawful exceedances of the [national ambient air quality standard s ] . These exceedances cannot properly be excused by the use of significant impact levels ('SILs')." Later, in the same brief, Sierra Club argued "[t ]he 2010 modeling also predicts . . . exceedances" of the 1

- hour national ambient air quality
standards and "[a] l lowing KDHE to rely on SILs to excuse these extensive violations of
the [national ambient air quality st andards] would undermine Congress' legislative design in the Act." And finally, Sierra Club asserted:

"KDHE incorrectly asserts that the many modeled [national ambient air quality
standard s ] violations the air modeling from 2014 and 2010 reveal may all b e categorically disregarded without any analysis just because the maximum contribution from Holcomb 2 to any [ one of] these violations individually was less than a SIL
threshold. KDHE Br. at 22

- 23. Such an automatic excusal of [national ambient air quality
standard s ] violations is precisely the use of SILs that EPA and the D.C. Circuit have rejected."44

Furthermore, the decision on which Sierra Club relies

— Sierra Club v. E.P.A.
, 705 F.3d 458 (D.C. Cir. 2013)

— was decided before Sierra Club made its comments
d uring the 2014 administrative proceeding. And Sierra Club had recognized the argument in its 2010 petition for judicial review. Consequently, even at the point during the remand proceedings where Sierra Club knew only that KDHE had applied the SILs to conc lude
Holcomb 2 did not cause or contribute to the 2010 exceedances , it could have and should have made the argument it vaguely raised in the motion for reconsideration. Raising the issue in the motion for reconsideration was simply too late.

Moreover, Sie rra Club's vague reference to the issue in the motion for
reconsideration did not give KDHE an adequate opportunity to consider the question

. The entire concept of judicial review contemplates that an agency must have had an adequate opportunity to conside r the merits of an issue. See, e.g. , United States v. L.A. Tucker Truck Lines, Inc ., 344 U.S. 33, 37, 73 S. Ct. 67, 69, 97 L. Ed. 54 (1952); Nuclear Energy
Inst itute , Inc. v. E .P.A. , 373 F.3d 1251, 1297

- 98 (D.C. Cir. 2004); N ational Wildlife
Fed eration v. E

. P

. A

. , 286 F.3d 554, 562 (D.C. Cir. 2002); Nat ional Ass'n of Mfrs. v

. U nited States Dept

. of Interior , 134 F.3d 1095, 1111 ( D.C. Cir. 1998)

.

In essence, Sierra Club made an insufficient effort to raise the issue before KDHE.
As a result
, K.S.A. 2015 Supp. 77

- 617 prohibits Sierra Club from rais ing the issue before
this court ; there has not been a change of controlling authority
, and Sierra Club could have raised the issue based on the 2010 data during the comment period. We thus
conclude Sierra Club failed to preserve the issue for our review.45

2. 3

. KDHE's assumptions about emissions from Holcomb 1 did not result in reversible error

.
Finally , Sierra Club argues the modeling on which KDHE based its decision is
flawed because it makes un lawful assumptions about emissions from Holcomb 1. Essentially, Sierra Club claims Sunflower erroneously modeled emissions from
Holcomb 1 based on a 30

- day average when it should have used the theoretical maximum
1

- hour emissions based on Holcomb 1's desig n capacity. Alternatively, Sierra Club argues that if KDHE did not use 1

- hour emission modeling data for Holcomb 1
, it needed to impose 1

- hour emission limits on Holcomb 1.

Sierra Club raise d this issue in both the 2010 and 2014 administrative proceeding s and in the Sierra Club I proceedings before this court, although we conclud ed we did not need to address the issue bas ed on our holding

. Sierra Club v. Moser , 298 Kan. 22, 58, 310 P.3d 360 (2013) ( Sierra Club I ). By repeatedly raising the issue, Sierra C lub adequately preserved its arguments . Ultimately, however, we conclude that, even if [KDHE] error is assumed, we must consider it harmless because of Sierra Club's failure to preserve its previously discussed SILs

- reliance argument

. See K.S.A. 2015 Supp. 77

- 621(e) (in conducting judicial review of administrative action, " due account shall be taken by the court of the rule of harmless error").

To explain this conclusion it helps to unravel the parties' arguments. In essence, Sierra Club's arguments on th is point relate to modeling and control of emissions of Holcomb 1, not Holcomb 2. KDHE merely res ponded during the administrative proceeding by saying it did not have authority to change limits relating to Holcomb 1. And Sierra Club does not dispute this. Instead , before us
, it focuses on the modeling of
Holcomb 1 emissi ons and points to the federal EPA's comments about the need to have
1

- hour emission modeling of Holcomb 1. In response, the Intervenors rely on a46

memorandum issued by the EPA after its comme nts in this case. See Memorandum from Tyler Fox, Leader, Air Quality Modeling Grp., C439

- 0l, EPA, to Reg'l Air Div. Dirs., "Additional Clarification Regarding Application of A ppendix W Modeling Guidance
for the 1

- hour N0 2 National Ambient Air Quality Stand ard" (Mar. 1, 2011) (Fox Memorandum). The Intervenors argue the guidance in the Fox M emorandum illustrates that KDHE had the discretion to allow the modeling as it was done here. But Sierra Club counters by disput ing the applicability of the guidance in th e memorandum.

We need not sort through the technical arguments about the Fox M emorandum,
however

. But we do note it does grant considerable discretion and makes allowances for application of SILs, stating, for example, that a cumulative analysis of ambie nt impacts will not be necessary if a facility can demonstrate its emission will not exceed the appropriate SILs. Nevertheless, we need not look beyond the authority cited by Sierra Club, 40 C.F.R. Part 51, App. W (201 6 ) (Appendix W ) , which is titled "Guideline on Air Quality Models."

Section 3 .0 of the Appendix is labeled "Recommended Air Quality Models

. " Sierra Club asserts these "guidelines" and "recommended" models amount to binding law
in Kansas because Kan sas incorporated them into its state i mplementation p lan. See
K.A.R. 28

- 19

- 350(d)(3) (2015 Supp.) . But Sierra Club does not explain how Kansas' incorporation of nonbinding "recommendations" transforms those "recommendations" into legal mandates. Even from the EPA's guidance in the record it is clear that its

rec ommended models are not mandatory. Moreover, the language in 40 C.F.R. Part 51, App. W is contrary to Sierra Club's absolutist position.

The language indicates the EPA never intended for the guidelines "to be a compendium of [all acceptable] modeling tech niques." 40 C.F.R. Part 51, App. W,47

(1.0)(a), (3.0)(d) ("It should not be construed that the preferred models identified here are to be permanently used to the exclusion of all others or that they are the only models available for relating emissions to air quality."). Indeed, "[t]he use of air quality measurements alone . . . could be preferable . . . when models are found to be unacceptable and monitoring data with sufficient spatial and temporal coverage are
available." 40 C.F.R. Part 51, App. W(1.0)(b); see Sierra Club v. Wyoming Dept. of Environmental Quality , 2011 WY 42, ¶ 54, 251 P.3d 310 (2011) (modeling is the primary analytical tool, but it is not exclusive and not mandated in every instance).

Further, t he EPA contemplates that it may be appropria te, depending on the case, to exercise discretion and rely on models it does not identify. See 40 C.F.R. Part 51, App. W(3.0)(b ); 40 C.F.R. Part 51, App. W(3.1.2)(c); 40 C.F.R. Part 51, App. W(3.2.2)(b)

. M any varia bles

— even unknown variables

— affect the acc uracy and certainty of modeling. See 40 C.F.R. Part 51, App. W(9.1.1). "[T]he process of conducting an air quality analysis is extremely complex. " Andracsek & Lambrechts
, Air Dispersion Modeling in the Major Source Construction Permitting Process , 28 Nat. Resources & Env't 29, 37 (2013). "Dispersion modeling is more of an art form than an actual science."
28 Nat. Resources & Env't at 30. It is up to the reviewing authority

—here KDHE

— to determine if a source has adequately demonstrated the appropriateness of its modeling.
See 40 C.F.R. Part 51, App. W(8.2.3)(d). KDHE made that determination in this case.

These passages indicate KDHE has clear authority to, in its discretion, deviate from a recommended model given the inherent variability and complexity of d ispersion modeling. Sierra Club fails to prove KDHE made a legal error by merely showing that KDHE did not rely on a "recommended" model . K.S.A. 2015 Supp. 77

- 621(c)(4).48

Furthermore, KDHE had years of data before it and the data indicated there was a 99. 99 9 5% likelihood that the actual emission rate from Holcomb 1 is less than or equal to
the modeled value. Given that and the other data in the record, we cannot conclude KDHE lacked a factual basis for reaching the conclusions it did about the modeling and for determining that the modeled emission rates for Holcomb 1 were representative and further modeling need not be performed. See P ork Motel, Corp. v. Kansas Dep t . of
Health & Environmen t , 234 Kan. 374, 382, 673 P.2d 1126 (1983) (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 action is unlawful, unreasonable, arbitrary, or capricious). Sierra Club has failed to meet its burden.

F inally, as we previously noted , even if KDHE erred, we must consider it harmless. See K.S.A. 2015 Supp. 77

- 621(e) (in conducting judicial review of administrative action, " due account shall be taken by the court of the rule of harmless error"). Even if d ifferent modeling showed instances where the cumulative emissions of Holcomb 1, other background sources, and Holcomb 2 exceeded national ambient air quality standards, KDHE's reliance on the SILs to conclude Holcomb 2 did not cause or
contribute to these exceedances would be unaffected. Therefore, Sierra Club's failure to preserve the SILs argument means we cannot find a basis for invalidating KDHE's action.

Consequently, we conclude that Sierra Club fails to establish a basis for invalidating KDHE's ac tion because of the Holcomb 1 modeling

.

I SSUE 3: T HE 2014 A DDENDUM A PPROPRIATELY A DDRESSES H AZARDOUS A IR P OLLUTANT S E MISSION L IMITS

.
Sierra Club's next issue relates to the Addendum's provisions regarding hazardous air pollutant s emission limits. The C lean A ir Act provides a list o f hazardous air49

pollutants . See 42 U.S.C. § 7412(b) (2012). And, with respect to hazardous air pollutants
, the C lean Air Act requires:

"Emission standards promulgated under this subsection and applicable to new or existing s ources of hazardous air pollutants shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section . . . that the Administrator, taking into consideration the cost of achieving such emission reduction,
and any non

- air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources

. . . . 42 U.S.C. § 7412(d)(2).

The C lean A ir A ct also provide s that "[t]he maximum degree of reduction in
emissions that i s deemed achievable for new sources in a category or subcategory shall not be less stringent than the emission control that is achieved in practice by the best controlled similar source, as determined by the Administrator." 42 U.S.C. § 7412(d)(3).

Under 40 C.F.R. § 63.9982(b) (201 6 ), Holcomb 2 is considered a new source because construction will commence after May 3, 2011. Likewise, this court recognized
in Sierra Club I that while these hazardous air pollutants emission limits were not in
effect at the t ime KDHE issued the 2010 permit, these new limits would apply to
Holcomb 2 on remand because the effective date keyed on the start of construction rather than the issuance of the permit . See Sierra Club I
, 298 Kan. at 59

- 61. So after the remand, it was up to KDHE to ensure that Holcomb 2 would comply with the new hazardous air pollutants emission regulations.

The C lean A ir A ct provides a table that establishes the hazardous air pollutant s emission limits depending on what type of electric utility steam ge nerating unit is being
constructed. See 40 C.F.R. Part 63, Subpart UUUUU, Table 1 (201 6 ). Here, the
A ddendum issued on remand stated:50

"The owner or operator shall comply with all applicable provisions of 40 CFR Part 63 Subpart UUUUU for an EGU as defined per 40 CFR 63.9985. Applicable portions of Emission and Operating Limits, Work Practice Standards, Performance Testing, Continuous Compliance, and Reporting sections from the 40 CFR Part 63 Subpart UUUUU in effect upon startup of H2 shall apply."

Now, i n this appeal, Sierra Club argues KDHE failed to ens ure compliance with the new hazardous air pollutants emission limits in 40 C.F.R. Part 63, Subpart UUUUU because KDHE merely stated that those new limits apply without requiring Sunflower

to prove exactly how Holcomb 2 would achieve those limits. Sierra Club at times

argues KDHE was required to conduct a pre

- permit review and at other times a "pre

construction review" and "provide an[] a nalysis" demonstrating how the M ercury and A ir
Toxic s S tandard s "will be met . .

. by Holcomb 2" because Holcomb 2 will be a "major source" of hazardous air pollutants. Sierra Club claims that an applicant must prove exactly how it will comply with those new limits. At the core of Sierra Club 's argument is a dispute over the degree of proof the owner of a proposed source must provide and a claim that Sunflower failed to provide enough. ("None of these vague, non

- specific statements [about proposed control technologies] provide any design details or
information of how either t he older, less stringent limit or the newer, more stringent limit is to be met.")

This argument is unpersuasi ve for two reasons: (1) T he hazardou s air pollutant s emission statutes anticipate it may take some time

— even after construction

— for a source

to d emonstrate compliance with limits, and (2) 42 U.S.C. § 7412(h)(1) indicates that setting enforceable limits is in most cases enough to determine compliance.51

As to the first reason, Sierra Club references 42 U.S.C. § 7412( i)(1), claiming it requires

—

pre

- p ermit

— an applicant to " demonstrate with specificity the control technology that will be used to ensure that 'maximum achievable control technology' emission limits will be met." The overarching statute on which Sierra Club relies, section 7412(i)(1), provi des:

"After the effective date of any emission standard, limitation, or regulation under subsection (d), (f) or (h) of this section, no person may construct any new major source or reconstruct any existing major source subject to such emission standard, regulation or limitation unless the Administrator (or a State with a permit program under subchapter V of this chapter) determines that such source, if properly constructed, reconstructed and operated, will comply with the standard, regulation or limitatio n."

See also 40 C.F.R. § 63.5(e)(1)(i) (201 6 ).

Regulations issued pursuant to this provision provide that for a unit like Holco mb 2 the hazardous air pollutants emission limits are defined at 40 C.F.R. Part 63 , Subpart UUUUU, Table 1. And importantly, subpart UUUUU deals with all coal

- fired electric utility steam generating units, whether they are existing, new, or reconstructed units . See 40 C.F.R. § 63.9982(a)

- (d). KDHE argues that nothing in the record establishes Holcomb 2 as a "major source
, " and t he Intervenors note that the 2014 Addendum expressly sets
the limits at the major source limits. See 40 C.F.R. § 63.2 (2016)

.

Significantly, in its reply brief, Sierra Club concedes that "whether Holcomb 2 is a 'major source' of hazardous air pollutants . . . woul d only become relevant if the [Mercury
and Air Toxic s S tandard s ] rule is struck down and vacated" in litigation separate from
this case. See Michigan v. EPA
, 576 U.S. ___, 135 S. Ct. 2699, 2712, 192 L. Ed. 2d 674 (2015) (reversing EPA's interpret ation of 42 U.S.C. § 7412[n][1][A] and requiring a consideration of cost when regulating power plants). Indeed, this court recognized in52

Sierra Club I that whether Holcomb 2 was a "major" source was irrelevant because, regardless, the new hazardous air pol lutants emission regulations would apply to
Holcomb 2. 298 Kan. at 60. Given that those new hazardous air pollutants emission rules are still in force, the question of whether Holcomb 2 is a "major" source under the old law is currently moot under existing law and not ripe pending speculation regarding the resolution of the other litigation. See White Stallion Energy Center, LLC v. Environmental Protection Agency , No. 12

- 1100, 2015 WL 11051103 (D.C

. Cir. 2015) (unpublished opinion) (order remand ing th e Merc ury and Air Toxics Standards final rule to EPA without vacatur), cert. denied sub nom

. Michigan v. E P A , 136 S. Ct. 2463 (2016);
see also Shipe v. Public Wholesale Water Supply Dist. No. 25 , 289 Kan. 160, 165

- 66, 210 P.3d 105 (2009) (Kansas court s do not consider issues unless the issues are ripe, meaning issues have "taken fixed and final shape rather than remaining nebulous and contingent

. ").

Instead, under the Mercury and Air Toxic s Standards final rule, the category of

source

— existing, reconstructe d, or new

— determines when compliance with the hazardous air pollutants emission limits must be demonstrated. Specifically as to Holcomb 2, "[i]f your new . . . affected source commences constructio n . . . after April 16, 2012, you must demonstrate initial compliance with the promulgated emission limits no later than 180 days after startup of the source." (Emphasis added.) 40 C.F.R. § 63.10005(g)(2) (201 6 ). While the permit application must include technical information about proposed emissions, emission co ntrols, and estima ted control efficiency under
40 C.F.R. § 63.5(d)(2), the Mercury and Air Toxic s Standards envision that even after construction a source will have a period of time to refine its emission controls and demonstrate compliance.53

As to the s econd reason Sierra Club's argument is unpersuasive, 42 U.S.C. § 7412(h)(1) seems contra ry to the notion that the 2014 A ddendum's enforceable emission limits are inadequate without specific design details.

" [ I ] f it is not feasible in the judgment of the Administrator to prescribe or enforce an
emission standard for control of a hazardous air pollutant or pollutants, the Administrator

may, in lieu thereof

, promulgate a design, equipment, work practice, or operational standard, or combination thereof, which in the Administrator's judgment is consistent with the provisions of subsection (d) [emission standards] or (f) of this section." (Emphase s added. ) 42 U .S.C. § 7412(h)(1)

.
With respect to electric utility steam generating units like Holcomb 2, the
Admini strator determined it was feasible "to prescribe or enforce an emission standard
for control of hazardous air

. . . pollutants." See 40 C.F.R. Part 63 , Subpart UUUUU, Table 1. And through its A ddendum, KDHE imposed those hazardous air pollutant s emission l imits on Holcomb 2. If the prescription of those limits and their enforcement was inadequate, then the applicable statutes and regulations would identify a specific design, equipment, work practice, or operational standard with which Holcomb 2 must comply. Sierra Club has pointed to no such standards.

Moving past Sierra Club's legal argument that KDHE had to require Sunflower to explain with specificity the intricacies of it s future pollution controls, Sierra Club also
claims that substantial evidence do es not support KDHE's finding tha t Holcomb 2 can meet the hazardous air pollutant s emission limits. We disagree

.

Sunflower submitted its proposed air pollution control technologies in 2010 in accordance with 40 C.F.R. § 63.5(d)(2), and
, in creating the Ad dendum
, KDHE accepted those same proposed air pollution control technologies a s sufficient to meet the hazardous54

air pollutant s emission limits. In the remand proceedings, Sierra Club challenged
Holc omb 2's ability to meet the emission limits . Basically, S ierra Club argues the original emission limits were higher in 2010 ; Holcomb 2 did not change any of its design plans to

m eet the new more stringent hazardous air pollutants emission limits in place under the
2014 A ddendum ; a nd
, because there were no design changes, Holcomb 2 cannot meet the newer, stricter limits.

G ranted, the 2014 hazardous air pollut ants emission limits ar e stricter. But contrary to Sierra Club's claim, that does not necessarily mean the original design of
Holcomb 2 could not also meet those lower limits (and this court in Sierra Club I did not conclude the original design could not possibly comply with new hazard ous air pollut ants emission limits; this court simply held those new limits would apply on remand). Sierra
Club I , 298 Kan. at 60

- 61. During remand, KDHE found that

"[t]he control technology in the December 10, 2010[,] permit was, and still is, the technology that is used in PSD pollutants and hazardous air pollutants (HAPs) control
alike.

. . .

"The most effective control for mercury is a combination of fuel blending, sel ective catalytic reduction (SCR) to oxidize the gaseous mercury
, carbon or sorbent injection to absorb the mercury and fabric filter (FF) or electrostatic precipitator to capture the absorbed mercury. The Dece mber 16, 2010 permit requires an SCR be used to control [nitrogen oxide s ] and an FF be used to control [particulate matter] , lead and [sulfuric acid] . The permit states that emission limits will be met by blending various coals, or by the injection of powd ered activated carbon (PAC) or other sorbent or both. PAC or sorbent injection equipment will be installed for the [Holcomb 2] steam generator."

KDHE accepted Sunflower's original design plan for Holcomb 2 a s sufficient to
meet the new hazardou s air poll utants emission limits, and evidence in the record55

supported that finding. Moreover, during the administrative proceedings, KDHE addressed the specific focus of Sierra Club's comments relating to hazardous air pollutants

— that is, the standards 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. Part 63.10042 (201 6 ); 77 Fed. Reg. 9304 (February 16, 2012) (EPA ' s rule
known as the " M ercury and Air Toxic s Standards" ). KDHE noted: "Sunflower has provided information that the mercury control vendors will guarantee their control technology to meet the [Mercury and Air Toxic s Standard s ] requirements for [Holcomb 2] before Sunflower will contractually obligat e to the equipment."

In assessing these findings , t his court does not reweigh the evidence or engage in
de novo review . See K.S.A. 201 5 Supp. 77

- 621(d). Thus, Sierra Club's attempt to point to conflicting evidence in the record, or to come up with hypoth etical unanswered questions about how exactly Holcomb 2 will meet emission limits, is unavailing.

Alternatively, Sierra Club makes several other arguments. First, it argues the 2014
A ddendum must specif

ically state the limits in the Mercury and Air Toxic s S tandard s verbatim rather than by incorporating them by reference. But Sierra Club does not cite any legal authority and we find nothing in the Kansas state implementation plan or Kansas regulations to support th at argument. See McCain Foods USA, Inc. v. Cent ral Processors, Inc ., 275 Kan. 1, 15, 61 P.3d 68 (2002) (" Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue. ' Where the appellant fails to brief an issue,
that issue is waived or abandoned.'").

Second, Sierra Club argues KDHE needed to replace the older hazardous air pollutants emission limits in the 2010 permit because the A ddendum does not specifically56

s ay the 2010 limits are void. Dur ing remand, KDHE concluded that the more stringent
limits of the 2014 A ddendum superseded any lesser limits from the original permit. The impact of a written instrument is determined by giving words in the instrument their plain and ordinary meaning. See A moco Production Co. v. Wilson, Inc. , 266 Kan. 1084, 10 88

- 89, 976 P.2d 941(1999). The A ddendum states: " Except as specified in this Addendum
, all provisions of the permit issued December 16, 2010[,] remain in effect." (Emphasis added.) While the A ddendum m ight phrase it in t he converse, the A ddendum clearly imparts that the new hazardous air pollutant s emission limits render void any conflicting provisions from the 2010 permit.

In summary, we conclude that Sierra Club has failed to establish that KDHE erre d in addressing hazardous air pollutants.

I SSUE 4: N EW S OURCE P ERFORMANCE S TANDARDS A RE N OT P ROPERLY B EFORE T HIS C OURT

.
Additionally

— for the first time in its reply brief

— Sierra Club argues Holcomb 2 cannot meet new source performance standards (NSPS). The EPA issued a final rule,
effective O ctober 23, 2015, regarding the NSPS for electric utility generating units like Holcomb 2. See 80 Fed. Reg. 64510 (October 23, 2015). Any source tha t commences construction after January 8, 2014, will be required to m eet the NSPS. 80 Fed. Reg. 64510, p. 64512. And the EPA specifically mentioned Holcomb 2, noting that "it appears [Holcomb 2 has] not commenced construction for purposes of section 111(b) and therefore would likely be [a] new source[] should [it] actually be constructed." 80 Fed. Reg. 64510, p. 64543.

"An appellant may not raise new issues in a reply brief." State v. McCullough , 293 Kan. 970, 984, 270 P.3d 1142 (2012); see Supreme Court Rule 6.05 (2015 Kan. Ct. R.57

Annot. 49). Thus, we will not consider th is argument. Nevertheless
, we note Sierra Club 's
concession that H olcomb 2 still needs federal approval before commencing construction. So whether Holcomb 2 can comply with the NSPS will be dealt with on another day.

C ONCLUSION

Sierra Club failed to est ablish KDHE erred in adding an addendum to Holcomb 2's 2010 permit. It also failed to establish KDHE erred by not including best available control technology requirements for greenhouse gas emissions , in setting the 1

- hour nitrogen di oxide and sulfur dioxi de emission limits, in applying the hazardous air pollut ants emission regulations and the Mercury and Air Toxics Standard s , or in addressing the NSPS. We, therefore, conclude Sierra Club has failed to establish a basis for invalidating Sunflower's PSD perm it.

Affirmed.

J OHNSON AND S TE GALL , J J ., not participating.
M ICHAEL J. M ALONE , Senior Judge, a ssigned. 1
S TEVEN L. H ORNBAKER , District Judge
, assigned. 2

1 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 112,008 vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20

- 2616.

2 REPORTER'S NOTE: District Judge Hornbaker was appointed to hear case No. 112,0 08 vice Justice Johnson under the authority vested in the Supreme Court by a rt. 3, § 6(f) of the Kansas Constitution

.58 * * *

H ORNBAKER , J., concurring: This case is not a quibble over a few stray particles. Sunflower Electric Power Corporation is seeking to construct the largest coal

- fired electric generating unit in the United States. The proposed Hol comb 2 plant will

— unquestionably

— spew, each year, billions of pounds of pollutants into the air of Kansas. That, according to Sunflower's modeling in the record, will leave Kansans thousands of times a year with air that is more hazardous to their health t han that allowed by the National Ambient Air Quality Standards (NAAQS)

.

In Sierra Club v. Moser , 298 Kan. 22, 57

- 61, 310 P.3d 360 (2013), after a thorough review, this court ordered the Kansas Department of Health and Environment (KDHE) to apply the Envir onmental Protection Agency's (EPA) newly adopted regulations providing limits for 1

- hour emissions and hazardous air pollutants (HAPs). KDHE purported to comply with that mandate by creating an "Addendum." Basically, the
addendum addressed this court's man date by stating the following: 1

- hour emission limits apply, and so do HAPs limits. I agree with the majority that Sierra Club failed in its burden to articulate how KDHE erred in issuing the Addendum. I also agree with the majority that Sierra Club faile d to preserve its argument that Significant Impact Levels (SILs) cannot be used to excuse violations of the NAAQS.

KDHE and Sunflower relied on SILs to excuse these exceedances. I, however, see no legal basis by which a SIL could excuse an NAAQS violation . Sierra Club first thought to mention the issue in a two

- page petition for reconsideration before KDHE, leaving our hands procedurally bound and unable to address the issue. See Kingsley v. Kansas Dept. of Revenue , 288 Kan. 390, 410, 204 P.3d 562 (2009) ( failure to raise an59

issue before an administrative agency bars reviewing court from deciding that issue).
Were the court able to reach the merits o f the SILs issue, I would hold that the plain language of the Clean Air Act (CAA) does not permit SILs to be used as they traditionally have been.

The owner or operator of a major emitting facility must demonstrate "that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any [NAAQS]." 42 U.S.C. § 7475(a)(3) (2012). That seems plain enough to me, and we must adhere to the plain meaning of a statute. See Cady v.
Schroll , 298 Kan. 731, 738

- 39, 317 P.3d 90 (2014). If the air quality in an area is compliant with the NAAQS, and a facility's constructio n would make the air quality violate any of the NAAQS
, then federal law prohibits construction because construction
would cause the exceedance. Or, if air quality already violates any of the NAAQS , then a new facility cannot be constructed because the new facility would contribute to the
exceedance. Even Alabama Power Co. v. Costle , 636 F.2d 323, 360

- 61 (D.C. Cir. 1979), which recognized de minimis authority, held that such authority was not available when "Congress has been extraordinarily rigid." Congress could not have been more rigid

— facilities cannot "cause, or contribute to, air pollution in excess of any [NAAQS]." 4 2 U.S.C. § 7475(a)(3). There is simply no provision suggesting that emissions could cause or contribute as long as the emissions are below a SIL.

In addition, Sierra Club argues on this appeal that a recent case makes reliance on SILs questionable. From my reading of 42 U.S.C. § 7475(a)(3), I agree. In Sierra Club v.
E.P.A ., 705 F.3d 458 (D.C. Cir. 2013), Sierra Club challenged the EPA's au thority to utilize SILs in any case. In response, the EPA acknowledged that certain codifications of its SIL provisions regarding particulate matter less than 2.5 micrometers (PM 2.5 ) were60

flawed. So the EPA asked the court to vacate those provisions and re mand for the EPA to promulgate new SIL regulations. 705 F.3d at 463

- 64.

I understand SILs have long been used as a method of establishing that a source does not cause or contribute to an NAAQS violation. Moreover, it is true that Sierra Club
v. E.P.A. did not ultimately reject this longstanding use. 705 F.3d at 464 (noting that the
court would address "the universal disallowance of all de minimis authority" only if the EPA promulgated new SILs on remand relying on that authority). But after Sierra Club v.
E.P.A. , the EPA eliminated the SIL for PM 2.5 and has yet to replace it. See 78 Fed. Reg. 73698, p. 73699 (December 9, 2013) (removing the PM 2.5 SILs from its regulations).

KDHE claims that the United States Supreme Court rejected Sierra Club's argument re garding the use of SILs in Utility Air Regulatory Group v. EPA , 573 U.S. ___, 134 S. Ct. 2427, 189 L. Ed. 2d 372 (2014). Certainly, the Court did recognize the EPA's authority to characterize certain emissions as de minimis under Alabama Power

. Utility Air Regulatory Group , 134 S. Ct. at 2435 n. 1 ("EPA . . . has established pollutant

specific numerical thresholds below which a facility's emissions of a pollutant, and increase therein, are considered de minimis for those purposes.") (citing Alabama Power
, 63 6 F.2d at 360

- 61, 400, 405). But the Court was simply not considering the issue here

— whether a SIL could be used to authorize a source to cause or contribute to an NAAQS violation. The Court was considering whether greenhouse gas emissions triggered

extens ive Prevention of Significant Deterioration (PSD) and Title V requirements, and whether a source already regulated under the PSD program had to employ the best available control technologies for greenhouse gas emissions. 134 S. Ct. at 2438.

The Court in U

tility Air Regulatory Group reaffirmed "the core administrative

- law principle that an agency may not rewrite clear statutory terms to suit its own sense of how61

the statute should operate." 134 S. Ct. at 2446. Again, the statute is not equivocal in its proh ibition of NAAQS violations: "[T]he owner or operator of such facility [must] demonstrate[], as required pursuant to section 7410(j) of this title, that emissions from construction or operation of such facility will not cause, or contribute to, air pollut ion in

exce ss of any [NAAQS.]" 42 U.S.C. § 7475(a)(3); see also Sierra Club v. E.P.A. 705 F.3d at 464 ("On remand the EPA may promulgate regulations that do not include SILs
or do include SILs that do not allow the construction or modification of a source to evade the requirements of the Act."); Alabama Power , 636 F.2d at 360

- 61 (reliance on de
minimis authority is improper if Congress has been "extraordinarily rigid"). The EPA
conceded in Sierra Club v. E.P.A. that it never intended for a SIL to permit a C AA violation. The traditional view of SILs (as they were used in issuing the permit in question) permits that very thing, which amounts to an impermissible rewriting of clear statutory terms by courts and administrative agencies.

Despite my opinion on the merits of the SILs issue, as the majority holds, Sierra
Club unfortunately neglected to raise this argument until this appeal. And because the argument's premise rests on statutory interpretation, Sierra Club had no reason to wait this long. Kingsley , 288 Kan. at 410 (failure to raise an issue before an administrative agency bars reviewing court from deciding that issue). Thus I reluctantly concur in the judgment affirming KDHE's decision to issue an Addendum to the 2010 Holcomb 2 permit.