65-34,148.Same; uses of moneys in fund;powers of department owner's liability, when; expenditure limit;deductible.(a) Whenever a release poses a threat to human health or the environment, thedepartment, consistent with rules and regulations adopted by the secretarypursuant to subsections (d) and (e) of K.S.A. 65-34,143, andamendments thereto, shall expend moneys available in the fund to provide for:
(1) Investigation and assessment of a release from a drycleaning facility,including costs of investigations and assessments of contamination which mayhave moved off the drycleaning facility;
(2) necessary or appropriate emergency action, including but not limited totreatment, restoration or replacement of drinking water supplies, to assurethat the human health or safety is not threatened by a release or potentialrelease;
(3) remediation of releases from drycleaning facilities, includingcontamination which may have moved off of the drycleaning facility, whichremediation shall consist of clean up of affected soil, groundwater and surfacewaters, using the most cost effective alternative that is technologicallyfeasible and reliable, provides adequate protection of human health andenvironment and to the extent practical minimizes environmental damage;
(4) operation and maintenance of corrective action;
(5) monitoring of releases from drycleaning facilities includingcontamination which may have moved off of the drycleaning facility;
(6) payment of reasonable costs incurred by the secretary in providing fieldand laboratory services;
(7) reasonable costs of restoring property, as nearly as practicable to theconditions that existed prior to activities associated with the investigationof a release or clean up or remediation activities;
(8) removal and proper disposal of wastes generated by a release of adrycleaning solvent; and
(9) payment of costs of corrective action conducted by the department or byentities other than the department but approved by the department, whether ornot such corrective action is set out in a corrective action plan, provided,however, that reimbursement for corrective action costs incurred before theeffective date of this act shall be limited to $100,000 per site.
(b) Nothing in subsection (a) shall be construed to authorize the departmentto obligate moneys in the fund for payment of costs which are not integral tocorrective action for a release of drycleaning solvents from a drycleaningfacility. Moneys from the fund shall not be used: (1) For corrective action atsites that are contaminated by solvents normally used in drycleaning operationswhere the contamination did not result from the operation of a drycleaningfacility; (2) for corrective action at sites, other than drycleaningfacilities, that are contaminated by drycleaning solvents which were releasedwhile being transported to or from a drycleaning facility by a party other thanthe owner of such drycleaning facility or the owner's agents or employees; (3)to pay any costs associated with any fine or penalty brought against adrycleaning facility owner under state or federal law; or (4) to pay any costsrelated to corrective action at a drycleaning facility that has been includedby the United States environmental protection agency on the national prioritieslist or at any facility which is a hazardous waste disposal facility, asdefined in K.S.A. 65-3430 and amendments thereto.
(c) Nothing in this act shall be construed to restrict the department from:
(1) Modifying, in the discretion of the secretary, the priority status of asite where warranted under the system of priorities established pursuant tosubsection (d) of K.S.A. 65-34,143 and amendments thereto; or
(2) temporarily postponing completion of corrective action for which moneysfrom the fund are being expended whenever such postponement is deemed necessaryin order to make moneys available for corrective action at a site with a higherpriority.
(d) At any multisource site, the secretary shall utilize the moneys in thefund to pay for the proportionate share of the liability for corrective actioncosts which is attributable to a release from one or more drycleaningfacilities and for that proportionate share of the liability only.
(e) At any multisource site, the secretary is authorized to make adetermination of the relative liability of the fund for costs of correctiveaction, expressed as a percentage of the total cost of corrective action at asite, whether known or unknown. The secretary shall issue an order establishingsuch percentage of liability. Such order shall be binding and shall control theobligation of the fund until or unless amended by the secretary. In the eventof an appeal from such order, such percentage of liability shall be controllingfor costs incurred during the pendency of the appeal.
(f) Any authorized officer, employee or agent of the department, or anyperson under order or contract with the department, may enter onto any propertyor premises, at reasonable times and upon written notice to the owner oroccupant, to take corrective action where the secretary determines that suchaction is necessary to protect the public health or environment. If consent isnot granted by the person in control of a site or suspected site regarding anyrequest made by any officer, employee or agent of the department, or any personunder order or contract with the department, under the provisions ofthis section, the secretary may issue an order directing compliance with therequest. The order may be issued after such notice and opportunity forconsultation as is reasonably appropriate under the circumstances.
(g) Notwithstanding the other provisions of this act,in the discretion of the secretary, an owner may be responsible forup to 100% of the costs of corrective action attributable to such ownerif the secretary finds, after notice and an opportunity for a hearingin accordance with the Kansas administrative procedure act,that:
(1) Requiring the owner to bear such responsibility will not prejudiceanother owner or person who is eligible, under the provisions of this act, tohave corrective action costs paid by the fund; and
(2) the owner:
(A) Caused a release by willful or wanton actions and such release wascaused by operating practices contrary to those generally in use at the time ofthe release;
(B) is in arrears for moneys owed pursuant to this act, after notice and anopportunity to correct the arrearage;
(C) substantially obstructs the efforts of the department to carry out itsobligations under this act, provided, however, that the exercise of legalrights shall not constitute a substantial obstruction;
(D) caused or allowed the release because of a material violation of theperformance standards established in this act or the rules and regulationsadopted by the secretary under this act; or
(E) has more than once failed to report or failed to take an immediateresponse to a release, knowing or having reason to know of such release.
For purposes of this subsection (g), unless a transfer is made solely to takeadvantage of this provision, purchasers of stock or other indicia of ownershipand other successors in interest shall not be considered to be the same owneror operator as the seller or transferor of such stock or indicia of ownershipeven though there may be no change in the legal identity of the owner oroperator. To the extent that an owner is responsible for corrective actioncosts under this subsection, such owner shall not be entitled to the exemptionset out in subsection (c) of K.S.A. 65-34,149 and amendmentsthereto.
(h) The fund shall not be liable for the payment of costs in excess of$5,000,000 for corrective action at any contaminated drycleaning site. Forpurposes of this subsection, "contaminated drycleaning site" means the arealextent of soil or groundwater contamination with drycleaning solvents.
(i) There shall be a deductible of $5,000 of corrective action costs incurredbecause of a release from a drycleaning facility. Nothing herein shall prohibitthe department from taking corrective action because the department cannotobtain the deductible.
History: L. 1995, ch. 162, § 9;L. 1999, ch. 102, § 4; July 1.
65-34,148.Same; uses of moneys in fund;powers of department owner's liability, when; expenditure limit;deductible.(a) Whenever a release poses a threat to human health or the environment, thedepartment, consistent with rules and regulations adopted by the secretarypursuant to subsections (d) and (e) of K.S.A. 65-34,143, andamendments thereto, shall expend moneys available in the fund to provide for:
(1) Investigation and assessment of a release from a drycleaning facility,including costs of investigations and assessments of contamination which mayhave moved off the drycleaning facility;
(2) necessary or appropriate emergency action, including but not limited totreatment, restoration or replacement of drinking water supplies, to assurethat the human health or safety is not threatened by a release or potentialrelease;
(3) remediation of releases from drycleaning facilities, includingcontamination which may have moved off of the drycleaning facility, whichremediation shall consist of clean up of affected soil, groundwater and surfacewaters, using the most cost effective alternative that is technologicallyfeasible and reliable, provides adequate protection of human health andenvironment and to the extent practical minimizes environmental damage;
(4) operation and maintenance of corrective action;
(5) monitoring of releases from drycleaning facilities includingcontamination which may have moved off of the drycleaning facility;
(6) payment of reasonable costs incurred by the secretary in providing fieldand laboratory services;
(7) reasonable costs of restoring property, as nearly as practicable to theconditions that existed prior to activities associated with the investigationof a release or clean up or remediation activities;
(8) removal and proper disposal of wastes generated by a release of adrycleaning solvent; and
(9) payment of costs of corrective action conducted by the department or byentities other than the department but approved by the department, whether ornot such corrective action is set out in a corrective action plan, provided,however, that reimbursement for corrective action costs incurred before theeffective date of this act shall be limited to $100,000 per site.
(b) Nothing in subsection (a) shall be construed to authorize the departmentto obligate moneys in the fund for payment of costs which are not integral tocorrective action for a release of drycleaning solvents from a drycleaningfacility. Moneys from the fund shall not be used: (1) For corrective action atsites that are contaminated by solvents normally used in drycleaning operationswhere the contamination did not result from the operation of a drycleaningfacility; (2) for corrective action at sites, other than drycleaningfacilities, that are contaminated by drycleaning solvents which were releasedwhile being transported to or from a drycleaning facility by a party other thanthe owner of such drycleaning facility or the owner's agents or employees; (3)to pay any costs associated with any fine or penalty brought against adrycleaning facility owner under state or federal law; or (4) to pay any costsrelated to corrective action at a drycleaning facility that has been includedby the United States environmental protection agency on the national prioritieslist or at any facility which is a hazardous waste disposal facility, asdefined in K.S.A. 65-3430 and amendments thereto.
(c) Nothing in this act shall be construed to restrict the department from:
(1) Modifying, in the discretion of the secretary, the priority status of asite where warranted under the system of priorities established pursuant tosubsection (d) of K.S.A. 65-34,143 and amendments thereto; or
(2) temporarily postponing completion of corrective action for which moneysfrom the fund are being expended whenever such postponement is deemed necessaryin order to make moneys available for corrective action at a site with a higherpriority.
(d) At any multisource site, the secretary shall utilize the moneys in thefund to pay for the proportionate share of the liability for corrective actioncosts which is attributable to a release from one or more drycleaningfacilities and for that proportionate share of the liability only.
(e) At any multisource site, the secretary is authorized to make adetermination of the relative liability of the fund for costs of correctiveaction, expressed as a percentage of the total cost of corrective action at asite, whether known or unknown. The secretary shall issue an order establishingsuch percentage of liability. Such order shall be binding and shall control theobligation of the fund until or unless amended by the secretary. In the eventof an appeal from such order, such percentage of liability shall be controllingfor costs incurred during the pendency of the appeal.
(f) Any authorized officer, employee or agent of the department, or anyperson under order or contract with the department, may enter onto any propertyor premises, at reasonable times and upon written notice to the owner oroccupant, to take corrective action where the secretary determines that suchaction is necessary to protect the public health or environment. If consent isnot granted by the person in control of a site or suspected site regarding anyrequest made by any officer, employee or agent of the department, or any personunder order or contract with the department, under the provisions ofthis section, the secretary may issue an order directing compliance with therequest. The order may be issued after such notice and opportunity forconsultation as is reasonably appropriate under the circumstances.
(g) Notwithstanding the other provisions of this act,in the discretion of the secretary, an owner may be responsible forup to 100% of the costs of corrective action attributable to such ownerif the secretary finds, after notice and an opportunity for a hearingin accordance with the Kansas administrative procedure act,that:
(1) Requiring the owner to bear such responsibility will not prejudiceanother owner or person who is eligible, under the provisions of this act, tohave corrective action costs paid by the fund; and
(2) the owner:
(A) Caused a release by willful or wanton actions and such release wascaused by operating practices contrary to those generally in use at the time ofthe release;
(B) is in arrears for moneys owed pursuant to this act, after notice and anopportunity to correct the arrearage;
(C) substantially obstructs the efforts of the department to carry out itsobligations under this act, provided, however, that the exercise of legalrights shall not constitute a substantial obstruction;
(D) caused or allowed the release because of a material violation of theperformance standards established in this act or the rules and regulationsadopted by the secretary under this act; or
(E) has more than once failed to report or failed to take an immediateresponse to a release, knowing or having reason to know of such release.
For purposes of this subsection (g), unless a transfer is made solely to takeadvantage of this provision, purchasers of stock or other indicia of ownershipand other successors in interest shall not be considered to be the same owneror operator as the seller or transferor of such stock or indicia of ownershipeven though there may be no change in the legal identity of the owner oroperator. To the extent that an owner is responsible for corrective actioncosts under this subsection, such owner shall not be entitled to the exemptionset out in subsection (c) of K.S.A. 65-34,149 and amendmentsthereto.
(h) The fund shall not be liable for the payment of costs in excess of$5,000,000 for corrective action at any contaminated drycleaning site. Forpurposes of this subsection, "contaminated drycleaning site" means the arealextent of soil or groundwater contamination with drycleaning solvents.
(i) There shall be a deductible of $5,000 of corrective action costs incurredbecause of a release from a drycleaning facility. Nothing herein shall prohibitthe department from taking corrective action because the department cannotobtain the deductible.
History: L. 1995, ch. 162, § 9;L. 1999, ch. 102, § 4; July 1.
65-34,148.Same; uses of moneys in fund;powers of department owner's liability, when; expenditure limit;deductible.(a) Whenever a release poses a threat to human health or the environment, thedepartment, consistent with rules and regulations adopted by the secretarypursuant to subsections (d) and (e) of K.S.A. 65-34,143, andamendments thereto, shall expend moneys available in the fund to provide for:
(1) Investigation and assessment of a release from a drycleaning facility,including costs of investigations and assessments of contamination which mayhave moved off the drycleaning facility;
(2) necessary or appropriate emergency action, including but not limited totreatment, restoration or replacement of drinking water supplies, to assurethat the human health or safety is not threatened by a release or potentialrelease;
(3) remediation of releases from drycleaning facilities, includingcontamination which may have moved off of the drycleaning facility, whichremediation shall consist of clean up of affected soil, groundwater and surfacewaters, using the most cost effective alternative that is technologicallyfeasible and reliable, provides adequate protection of human health andenvironment and to the extent practical minimizes environmental damage;
(4) operation and maintenance of corrective action;
(5) monitoring of releases from drycleaning facilities includingcontamination which may have moved off of the drycleaning facility;
(6) payment of reasonable costs incurred by the secretary in providing fieldand laboratory services;
(7) reasonable costs of restoring property, as nearly as practicable to theconditions that existed prior to activities associated with the investigationof a release or clean up or remediation activities;
(8) removal and proper disposal of wastes generated by a release of adrycleaning solvent; and
(9) payment of costs of corrective action conducted by the department or byentities other than the department but approved by the department, whether ornot such corrective action is set out in a corrective action plan, provided,however, that reimbursement for corrective action costs incurred before theeffective date of this act shall be limited to $100,000 per site.
(b) Nothing in subsection (a) shall be construed to authorize the departmentto obligate moneys in the fund for payment of costs which are not integral tocorrective action for a release of drycleaning solvents from a drycleaningfacility. Moneys from the fund shall not be used: (1) For corrective action atsites that are contaminated by solvents normally used in drycleaning operationswhere the contamination did not result from the operation of a drycleaningfacility; (2) for corrective action at sites, other than drycleaningfacilities, that are contaminated by drycleaning solvents which were releasedwhile being transported to or from a drycleaning facility by a party other thanthe owner of such drycleaning facility or the owner's agents or employees; (3)to pay any costs associated with any fine or penalty brought against adrycleaning facility owner under state or federal law; or (4) to pay any costsrelated to corrective action at a drycleaning facility that has been includedby the United States environmental protection agency on the national prioritieslist or at any facility which is a hazardous waste disposal facility, asdefined in K.S.A. 65-3430 and amendments thereto.
(c) Nothing in this act shall be construed to restrict the department from:
(1) Modifying, in the discretion of the secretary, the priority status of asite where warranted under the system of priorities established pursuant tosubsection (d) of K.S.A. 65-34,143 and amendments thereto; or
(2) temporarily postponing completion of corrective action for which moneysfrom the fund are being expended whenever such postponement is deemed necessaryin order to make moneys available for corrective action at a site with a higherpriority.
(d) At any multisource site, the secretary shall utilize the moneys in thefund to pay for the proportionate share of the liability for corrective actioncosts which is attributable to a release from one or more drycleaningfacilities and for that proportionate share of the liability only.
(e) At any multisource site, the secretary is authorized to make adetermination of the relative liability of the fund for costs of correctiveaction, expressed as a percentage of the total cost of corrective action at asite, whether known or unknown. The secretary shall issue an order establishingsuch percentage of liability. Such order shall be binding and shall control theobligation of the fund until or unless amended by the secretary. In the eventof an appeal from such order, such percentage of liability shall be controllingfor costs incurred during the pendency of the appeal.
(f) Any authorized officer, employee or agent of the department, or anyperson under order or contract with the department, may enter onto any propertyor premises, at reasonable times and upon written notice to the owner oroccupant, to take corrective action where the secretary determines that suchaction is necessary to protect the public health or environment. If consent isnot granted by the person in control of a site or suspected site regarding anyrequest made by any officer, employee or agent of the department, or any personunder order or contract with the department, under the provisions ofthis section, the secretary may issue an order directing compliance with therequest. The order may be issued after such notice and opportunity forconsultation as is reasonably appropriate under the circumstances.
(g) Notwithstanding the other provisions of this act,in the discretion of the secretary, an owner may be responsible forup to 100% of the costs of corrective action attributable to such ownerif the secretary finds, after notice and an opportunity for a hearingin accordance with the Kansas administrative procedure act,that:
(1) Requiring the owner to bear such responsibility will not prejudiceanother owner or person who is eligible, under the provisions of this act, tohave corrective action costs paid by the fund; and
(2) the owner:
(A) Caused a release by willful or wanton actions and such release wascaused by operating practices contrary to those generally in use at the time ofthe release;
(B) is in arrears for moneys owed pursuant to this act, after notice and anopportunity to correct the arrearage;
(C) substantially obstructs the efforts of the department to carry out itsobligations under this act, provided, however, that the exercise of legalrights shall not constitute a substantial obstruction;
(D) caused or allowed the release because of a material violation of theperformance standards established in this act or the rules and regulationsadopted by the secretary under this act; or
(E) has more than once failed to report or failed to take an immediateresponse to a release, knowing or having reason to know of such release.
For purposes of this subsection (g), unless a transfer is made solely to takeadvantage of this provision, purchasers of stock or other indicia of ownershipand other successors in interest shall not be considered to be the same owneror operator as the seller or transferor of such stock or indicia of ownershipeven though there may be no change in the legal identity of the owner oroperator. To the extent that an owner is responsible for corrective actioncosts under this subsection, such owner shall not be entitled to the exemptionset out in subsection (c) of K.S.A. 65-34,149 and amendmentsthereto.
(h) The fund shall not be liable for the payment of costs in excess of$5,000,000 for corrective action at any contaminated drycleaning site. Forpurposes of this subsection, "contaminated drycleaning site" means the arealextent of soil or groundwater contamination with drycleaning solvents.
(i) There shall be a deductible of $5,000 of corrective action costs incurredbecause of a release from a drycleaning facility. Nothing herein shall prohibitthe department from taking corrective action because the department cannotobtain the deductible.
History: L. 1995, ch. 162, § 9;L. 1999, ch. 102, § 4; July 1.
