65-3013. Variances; hearing.
65-3013
65-3013. Variances; hearing.(a) Any person who owns or is in control of any plant, building,structure, process or equipment may apply to the secretary for avariance from rules and regulations governing the quality, nature,duration or extent of emissions. The application shall be accompanied bysuch information and data as the secretary may reasonably require. Thesecretary may grant such variance if the secretary finds that:
(1) The emissions occurring or proposed to occur do not endanger ortend significantly to endanger human health or safety; and
(2) Compliance with the rules and regulations from which variance issought would produce serious hardships without equal or greater benefitsto the public.
(b) No variance shall be granted pursuant to this section exceptafter public hearing on due notice and until the secretary hasconsidered the relative interests of the applicant, other owners ofproperty likely to be affected by the discharges, and the generalpublic.
(c) Any variance or renewal thereof shall be granted within therequirements of subsection (a) and for time periods and under conditionsconsistent with the reasons therefor, and within the followinglimitations:
(1) If the variance is granted on the ground that there is nopracticable means known or available for the adequate prevention,abatement or control of the air pollution involved, it shall be onlyuntil the necessary means for prevention, abatement or control becomeknown and available and subject to the taking of any substitute oralternate measures that the secretary may prescribe.
(2) If the variance is granted on the ground that compliance withthe particular requirement or requirements from which variance is soughtwill necessitate the taking of measures which, because of their extentor cost, must be spread over a considerable period of time, it shall befor a period not to exceed such reasonable time as the secretary findsis requisite for the taking of the necessary measures. A variancegranted on the ground specified herein shall contain a timetable for thetaking of action in an expeditious manner and shall be conditioned onadherence to such timetable.
(3) If the variance is granted on the ground that it is justified torelieve or prevent hardship of a kind other than that provided for insubsections(c)(1) and (2), it shallbe for not more than one year.
(d) Any variance granted pursuant to this section may be renewed onterms and conditions and for periods which would be appropriate oninitial granting of a variance. If complaint is made to the secretary onaccount of the variance, no renewal thereof shall be granted, unlessfollowing public hearing on the complaint on due notice, the secretaryfinds that renewal is justified. No renewal shall be granted except onapplication therefor. Any such application shall be made at least 60days prior to the expiration of the variance. Immediately uponreceipt of an application for renewal the secretary shall give publicnotice of such application in accordance with rules and regulations ofthe secretary.
(e) A variance or renewal shall not be a right of the applicant orholder thereof but shall be in the discretion of the secretary. Within 15days after thesecretary's written decision to grant or deny a variance or renewal thereof,the applicant or holder of a variance or renewal may file a request for ahearing with the secretary. Such hearing shall be conducted in accordance withthe Kansas administrative procedure act. However, any person who participatedin the public commentprocess or the public hearing or who otherwise would have standing under K.S.A.77-611, and amendments thereto, and is adversely affected by any finalaction ofthe secretary pursuant to thissection shall have standing to obtain judicialreview of the secretary's final action on the variance or renewal in the courtof appeals. Any such person other than the applicant for or holder of thepermit shall not be required to have exhausted administrative remediesin order to be entitled to review. The court of appeals shall have originaljurisdiction to review any such final agency action. The record before thecourt of appeals shall be confined to the agency record for judicial review andconsist of the documentation submitted to or developed by the secretary inmaking the final variance or renewal decision, including the variance orrenewal application and any addenda or amendments thereto, the variance orrenewal summary, the draft variance or renewal, all written comments properlysubmitted to the secretary, all testimony presented at any public hearing heldon the variance or renewal application, all responses by the applicant orholder of a variance or renewal to any written comments or testimony, thesecretary's response to the public comments and testimony and the finalvariance or renewal.
(f) Nothing in this section and no variance or renewal grantedpursuant hereto shall be construed to prevent or limit the applicationof the emergency provisions and procedures of K.S.A. 65-3012, andamendments thereto, to any personor any person's property.
History: L. 1967, ch. 347, § 13;L. 1970, ch. 261, § 13;L. 1974, ch. 352, § 145;L. 1986, ch. 318, § 93;L. 1988, ch. 356, § 202;L. 2006, ch. 79, § 2; April 13.