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Notes on changes in new energy legislation



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One section of current Kansas law is “Statute 65-3012: Action to protect health or environment“.

The new Senate Substitute for HB2369 makes very substantial changes to that statute. Underlined portions are my emphasis:

Current K.S.A. 65-3012:

Statute 65-3012: Action to protect health or environment. (a) Notwithstanding any other provision of this act, the secretary may take such action as may be necessary to protect the health of persons or the environment: (1) Upon receipt of information that the emission of air pollution presents a substantial endangerment to the health of persons or to the environment; or (2) for an imminent or actual violation of this act, any rules and regulations adopted under this act, any orders issued under this act or any permit conditions required by this act.

      (b)   The action the secretary may take under subsection (a) includes but is not limited to:

      (1)   Issuing an order directing the owner or operator, or both, to take such steps as necessary to prevent the act or eliminate the practice. Such order may include, with respect to a facility or site, temporary cessation of operation.

      (2)   Commencing an action to enjoin acts or practices specified in subsection (a) or requesting the attorney general or appropriate county or district attorney to commence an action to enjoin those acts or practices. Upon a showing by the secretary that a person has engaged in those acts or practices, a permanent or temporary injunction, restraining order or other order may be granted by any court of competent jurisdiction. An action for injunction under this subsection shall have precedence over other cases in respect to order of trial.

      (3)   Applying to the district court in the county in which an order of the secretary under subsection (b)(1) will take effect, in whole or in part, for an order of that court directing compliance with the order of the secretary. Failure to obey the court order shall be punishable as contempt of the court issuing the order. The application under this subsection for a court order shall have precedence over other cases in respect to order of trial.

      (c)   In any civil action brought pursuant to this section in which a temporary restraining order or preliminary injunction is sought, it shall not be necessary to allege or prove at any stage of the proceeding that irreparable damage will occur should the temporary restraining order or preliminary injunction not be issued or that the remedy at law is inadequate, and the temporary restraining order or preliminary injunction shall issue without such allegations and without such proof.

      (d)   Any order of the secretary pursuant to subsection (b)(1) is subject to hearing and review in accordance with the Kansas administrative procedure act.

New replacement for K.S.A. 65-3012, from Senate Substitute for HB2369-changes to statute 65-3012, editing all substitutions and changes in the Senate Substitute as passed. Underlines are my emphasis, not marking all changes just some I thought were particularly important:

65-3012. (a) Upon receipt of evidence that emissions from an air pollution source or combination of air pollution sources presents (1) An imminent and substantial endangerment to public health or welfare or to the environment; or (2) for an imminent or actual violation of this act, any rules and regulations adopted under this act, any orders issued under this act or any permit conditions required by this act, the secretary may issue a temporary order not to exceed seven days in duration, directing the owner or operator, or both, to take such steps as necessary to prevent the act or eliminate the practice.

 (b) Upon issuance of the temporary order, the secretary may commence an action in the district court to enjoin acts or practices specified in subsection (a) or request the attorney general or appropriate county or district attorney to commence an action to enjoin those acts or practices.

 (c) The secretary may bring suit in any court of competent jurisdiction to immediately restrain the acts or practices specified in subsection (a). An action for injunction under this subsection shall have precedence over other cases in respect to order of trial.

 (d) The owner or operator, or both, aggrieved by an order of the secretary issued pursuant to this section shall be immediately entitled to judicial review of such agency action by filing a petition for judicial review in district court. The aggrieved party shall not be required to exhaust administrative remedies. A petition for review under this subsection shall have precedence over other cases in respect to order of trial.

Changes go so far as even removing the title as “Action to protect health or environment,” leaving just the statute number (if I read correctly)!

 The removal of the ability of the Secretary to order “cessation of operation” was changed in the Sentate Substitute, and was not in the original HB. Largely this set of changes eliminates the ability of the Secretary to order stoppages, requires a new “evidence” provision, and takes the teeth out of the Secretary’s actions leaving enforcement largely as a court battle.

I’ll add more notes to this section as I come to understand them.

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