Judge Reverses Ruling, 2 Papers Publish Banned Story

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Fifteen upgrades at power plants operated by a Kansas utility may have violated federal clean air rules, according to an internal document published by two Kansas City newspapers on Tuesday after a judge’s ban was lifted.

The document is a legal analysis prepared by a lawyer in 2004 for the Board of Public Utilities of Kansas City, Kan. The attorney examined 73 improvement projects at BPU plants for possible violations of Environmental Protection Agency regulations.

Jackson County, Mo., Circuit Judge Kelly Moorhouse on Friday ordered The Kansas City Star and a weekly newspaper, The Pitch, to remove stories about the document from their Web sites. Both publications had obtained the document independently from an anonymous source.

But the Missouri Court of Appeals on Tuesday prohibited Moorhouse from enforcing her ban on publication. The higher court’s brief order agreed with the newspapers that the ban caused them “irreparable harm” with no adequate legal remedy.

In motions filed Monday with the Court of Appeals, the newspapers said Moorhouse’s order violated the constitutional prohibition on prior restraint of publications except in the most extraordinary situations.

Lawyers for the BPU responded Tuesday that the document should be protected by rules usually protecting attorney-client communications against being made public.

The document analyzed 73 projects for the risks of penalties by the EPA and concluded that 15 were “probably not defensible” and 15 were “questionable.”

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

Leon Daggett, who was the utility’s general manager in 2004, said BPU wanted to be prepared in case the EPA asked for the information in the analysis. At the time, EPA was cracking down on utilities that were violating anti-pollution laws. But EPA never sent a request and BPU did not turn over the analysis during his tenure, Daggett said.

Daggett left BPU in 2005 and now is director of Power and Light in Independence, Mo.

Robert Milan, a BPU board member for 16 years, said he had never seen the document.

“BPU hasn’t done anything wrong,” Milan said. “Someone is trying to discredit BPU for some reason.”

EPA officials said they did not know anything about possible violations but they planned to look into the matter.

“It is the EPA’s full intention to investigate any noncompliance,” said Becky Dolph with the office of regional counsel for the agency.

The Kansas Department of Health and Environment said it too wanted to review the matter.

Stanley A. Reigel, the lawyer who wrote the analysis, declined Friday to discuss the contents of the report.

“It was unfortunate it was leaked,” said Reigel, a partner with the firm of Stinson, Morrison, Hecker.

Moorhouse said in her order that allowing the newspapers to publish their stories on their Web sites would cause the utility to be “irreparably harmed.” She said “monetary damages which might result from a publication of such information would be difficult or impossible to measure in money.”

The Star’s attorney, Sam Colville, said First Amendment rights must be preserved.

“Confidentiality is an important consideration, but it is up to a party to keep things confidential, and it is certainly not paramount to the U.S. Constitution,” Colville said.

The utility countered that it didn’t waive its right to attorney-client privilege and the newspapers should not be able to publish stories based on the document just because they received it through anonymous sources.

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