In Support of the First Amendment to the Constitution of the United States of America...
[NOW UPDATED: To Include 'The Pitch' Version of the Story in full, along with the Kansas City Star's]
By Brad Friedman on 3/5/2007, 12:40am PT  

UPDATE 3/6/06: Appellate judge overturns ruling! Story now un-censored! Glad we were right on this one from the get-go! Details...

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Ed Note: Since running this story originally, the Google cache has also now been purged of the censored documents. Fortunately, we screen-captured and ran the text in full for each story below, as we believe them to be in the public interest. We have retained all of the original links to the locations of the story, despite their having been scrubbed.

A judge in Kansas City, Kansas, on Friday issued a temporary restraining order requiring that two area newspapers remove articles from their website which reported on alleged malfeasance by the Board of Public Utilities (BPU).

Jackson County Circuit Court Judge Kelly Moorhouse found in a 3-page order [PDF] that the stories were based on privileged attorney-client information, which was leaked to the newspapers, and that publication of any portion of it would cause "irreparable harm" to the BPU.

The Kansas City Star and The Pitch, a local news weekly, both reported about the forced removal of the material and their intention to appeal the rare judicial decision to censor their reporting. A story was also run about the matter by AP.

At the end of this article The BRAD BLOG will run the Kansas City Star's short article in full since it has been ordered removed --- foolishly in our opinion, particularly in the Internet age when such stories are instantly archived, as was this one, by Google's cache engine --- and appears clearly to be in the best interest of the public and their right to know about how their public utilities are being run...

The Star's dangerous version of the story alleges that, according to a confidential "liability analysis" prepared by an attorney for the BPU and then leaked to the papers, "At least 15 projects and upgrades at power plants operated by the Board of Public Utilities of Kansas City, Kan., may have violated federal clean air laws."

According to The Star, the document (which we haven't seen, so we cannot corroborate their reporting) "layed out the odds for the BPU of the risks of penalties by the Environmental Protection Agency. It examined 73 projects that may not have followed regulations."

"Of those," reported the now-censored paper, "15 were 'probably not defensible' and another 15 were 'questionable.'"

The lede in the Pitch's version of the censored story (also now posted in full below) reports that the BPU "may be liable for thousands of dollars in fines for failing to comply with anti-pollution regulations, according to a confidential document."

An EPA spokesperson contacted by the Pitch said that "The BPU has not contacted the agency to disclose its failure to seek repair permits and follow regulations when making upgrades" to their coal-powered plants.

"Any one of those projects 'puts BPU at risk' for an audit by the EPA," the confidential document reportedly warned.

The BRAD BLOG still strongly believes in the First Amendment, despite the continuing assault upon it over the last several years. We've seen a similar case to the BPU matter, in that of Stephen Heller, the courageous whistleblower who we covered here extensively, after he leaked attorney-client privileged documents which revealed wrongdoing by the voting machine company Diebold, Inc. Heller's act was performed for the greater good and in the public interest. Diebold similarly tried to stop the Oakland Tribune from running those documents, but failed in their attempts to stop publication. Hopefully BPU will eventually fail as well.

According to The Star's coverage of the censorship, the newspaper's editor and vice president Mark Zieman said, "To have a published story pulled from our Web site is unprecedented and unbelievable." We concur.

Further, the paper reports:

Cases of prior restraint — in which the government tries to prevent the publication of information — are extremely rare.

In Near v. Minnesota, the U.S. Supreme Court ruled that government attempts to censor the media are presumed unconstitutional.

Over the years, the court has repeatedly ruled that courts can try to prevent the dissemination of information only if it presents a "clear and present danger" or a serious and imminent threat to the administration of justice.

The Pitch reported in their coverage:

“This judge made a serious error. The injunction so clearly violates the First Amendment that we have no choice but to fight for these fundamental principles in the appellate courts,” said Steve Suskin, legal counsel for Village Voice Media, the Pitch’s parent company.

“The ruling doesn’t just threaten the freedom of the press, it hurts the people of Kansas City,” added Pitch editor C.J. Janovy. “They deserve some answers. Moorhouse’s ruling clearly goes against the public interest.”

With all of that in mind, the Google cache version of the original Star story is here.

But should that be taken down as well for some reason, we've posted the story in full below, feel free to copy it, paste it, and share it with your friends --- those still in favor of the Constitution and the freedom of the press, in any case...

UPDATE: The Pitch's version of the story is also found via Google cache. It's still available here. That story is now also posted in full, in solidarity, below. We'd welcome all pro-Constitution blogs to carry either or both versions of the story as seen below...

Originally published by The Kansas City Star on Friday, March 2, 2007 at this URL. The following version was copied from Google's cache at this URL.

BPU document details possible clean-air violations

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

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

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

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

It is unclear which course the BPU took.

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

| Karen Dillon, kdillon@kcstar.com

And now, The Pitch's version of the story...

Originally published by The Pitch on Thursday, March 1, 2007 at this URL. The following version was copied from Google's cache at this URL.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Article Categories: Kansas, Accountability, Censorship, Kansas City Star