Session of 1997
HOUSE BILL No. 2254
By Committee on Judiciary
9 AN ACT concerning the administrative procedure act; creating an office
10 of administrative hearings within the department of administration;
11 amending K.S.A. 65-163a, 65-164, 65-165, 65-3483, 65-3488, 65-3490,
12 75-3306, 77-518 and 79-3313 and K.S.A. 1996 Supp. 44-1005, 65-163,
13 65-526, 77-514 and 77-527 and repealing the existing sections.
15 Be it enacted by the Legislature of the State of Kansas:
16 New Section 1. (a) There is created the office of administrative hear-
17 ings within the department of administration, to be headed by a director
18 appointed by the secretary of administration.
19 (b) The office shall employ administrative law judges, court reporters
20 and other support personnel as necessary to conduct proceedings re-
21 quired by the Kansas administrative procedure act. The office shall con-
22 duct adjudicative proceedings of the department of social and rehabili-
23 tation services and the department of health and environment which are
24 not under the Kansas administrative procedure act when requested by
25 such agencies. Only a person admitted to practice law in this state may
26 be employed as an administrative law judge. The office may employ reg-
27 ular part-time personnel. Persons employed by the office shall be under
28 the classified civil service.
29 (c) If the office cannot furnish one of its administrative law judges in
30 response to an agency request in a proceeding listed in section 3, and
31 amendments thereto, the director shall designate in writing a full-time
32 employee of an agency other than the requesting agency to serve as ad-
33 ministrative law judge for the proceeding, but only with the consent of
34 the employing agency. The designee must possess the same qualifications
35 required of administrative law judges employed by the office.
36 (d) The director may furnish administrative law judges on a contract
37 basis to any governmental entity to conduct any proceeding not subject
38 to the Kansas administrative procedure act or not listed in section 3 and
39 amendments thereto.
40 (e) On or before July 1, 1998, the department of administration shall
41 adopt rules and regulations:
42 (1) To establish further qualifications for administrative law judges,
43 procedures by which candidates will be considered for employment, and
1 the manner in which public notice of vacancies in the staff of the office
2 will be given;
3 (2) to establish procedures for agencies to request and for the director
4 to assign administrative law judges. An agency may neither select nor
5 reject any individual administrative law judge for any proceeding except
6 in accordance with the Kansas administrative procedure act;
7 (3) to establish procedures and adopt forms, consistent with the Kan-
8 sas administrative procedure act, the model rules of procedure, and other
9 provisions of law, to govern administrative law judges;
10 (4) to establish standards and procedures for the evaluation, training,
11 promotion and discipline of administrative law judges; and
12 (5) to facilitate the performance of the responsibilities conferred
13 upon the office by the Kansas administrative procedure act.
14 (f) The director may:
15 (1) Maintain a staff of reporters and other personnel; and
16 (2) implement the provisions of this section and rules and regulations
17 adopted under its authority.
18 (g) The department of administration may adopt rules and regula-
19 tions to establish fees to charge a state agency for the cost of using an
20 administrative law judge.
21 (h) Effective January 1, 1998, personnel in the administrative hear-
22 ings section of the department of social and rehabilitation services, per-
23 sonnel in the administrative appeals section of the department of health
24 and environment and the administrative law judges for the human rights
25 commission and the division of taxation, and support personnel for such
26 administrative law judges, shall be transferred to the office of adminis-
27 trative hearings. Such personnel shall retain all rights under the state
28 personnel system and retirement benefits under the laws of this state,
29 and such person's services shall be deemed to have been continuous. This
30 act shall not affect any matter pending before an administrative hearing
31 officer at the time of the effective date of the transfer, and such matter
32 shall proceed as though no transfer of employment had occurred.
33 New Sec. 2. (a) There is hereby created a state advisory council for
34 administrative hearings. The advisory council shall consist of seven mem-
35 bers appointed by the governor. All members of the council shall serve
36 at the pleasure of the governor. Members of the council shall not receive
37 compensation or expense allowances for serving on the council.
38 (b) The council shall meet on call of the secretary of administration.
39 (c) The advisory council shall advise the secretary of administration
40 and the director of the office of administrative hearings on policy matters
41 affecting the office of administrative hearings and on rules and regulations
42 adopted by the director.
43 New Sec. 3. (a) In the following proceedings, the presiding officer
1 shall be the agency head, one or more members of the agency head or
2 an administrative law judge assigned by the office of administrative hear-
4 (1) Hearings of the department of social and rehabilitation services
5 under K.S.A. 39-1807, 65-4015, 65-4606, 65-4927, 75-3306 and 75-3340,
6 and amendments thereto;
7 (2) hearings of the human rights commission under K.S.A. 44-1005,
8 and amendments thereto;
9 (3) hearings of the department of health and environment under
10 K.S.A. 36-502, 36-503, 36-504, 36-505, 36-508, 36-510, 36-513, 36-515b,
11 39-931, 39-947, 39-964, 39-965, 39-1807, 48-1608, 65-163, 65-163a, 65-
12 164, 65-165, 65-170d, 65-171d, 65-171p, 65-171s, 65-187, 65-1,109a, 65-
13 421, 65-430, 65-464, 65-504, 65-514, 65-521, 65-526, 65-5a09, 65-666,
14 65-669a, 65-673, 65-3008b, 65-3011, 65-3012, 65-3013, 65-3018, 65-
15 3412, 65-3419, 65-3424l, 65-3440, 65-3446, 65-3456a, 65-3458, 65-3483,
16 65-3488, 65-3490, 65-34,106, 65-34,111, 65-34,113, 65-34,122, 65-
17 34,148, 65-4507, 65-4508, 65-4927, 65-4958, 65-5107, 65-5108, 65-5310,
18 65-5314, 65-5911, 65-6509, 80-2027, 82a-1209, 82a-1210, and 82a-1216,
19 and amendments thereto; and
20 (4) hearings of the division of taxation of the department of revenue
21 under K.S.A. 55-508, 79-911, 79-911a, 79-1575, 79-3226, 79-3229, 79-
22 3309, 79-3313, 79-3383, 79-3407, 79-3420, 79-3495, 79-3496, 79-34,113,
23 79-34,121, 79-3610, and 79-5205, and amendments thereto.
24 (b) This section shall be part of and supplemental to the Kansas ad-
25 ministrative procedure act.
26 Sec. 4. K.S.A. 1996 Supp. 44-1005 is hereby amended to read as
27 follows: 44-1005. (a) Any person claiming to be aggrieved by an alleged
28 unlawful employment practice or by an alleged unlawful discriminatory
29 practice, and who can articulate a prima facie case pursuant to a recog-
30 nized legal theory of discrimination, may, personally or by an attorney-
31 at-law, make, sign and file with the commission a verified complaint in
32 writing, articulating the prima facie case, which shall also state the name
33 and address of the person, employer, labor organization or employment
34 agency alleged to have committed the unlawful employment practice
35 complained of or the name and address of the person alleged to have
36 committed the unlawful discriminatory practice complained of, and which
37 shall set forth the particulars thereof and contain such other information
38 as may be required by the commission.
39 (b) The commission upon its own initiative or the attorney general
40 may, in like manner, make, sign and file such complaint. Whenever the
41 attorney general has sufficient reason to believe that any person as herein
42 defined is engaged in a practice of discrimination, segregation or sepa-
43 ration in violation of this act, the attorney general may make, sign and
1 file a complaint. Any employer whose employees or some of whom, refuse
2 or threaten to refuse to cooperate with the provisions of this act, may file
3 with the commission a verified complaint asking for assistance by concil-
4 iation or other remedial action.
5 (c) Whenever any problem of discrimination because of race, relig-
6 ion, color, sex, disability, national origin or ancestry arises, or whenever
7 the commission has, in its own judgment, reason to believe that any per-
8 son has engaged in an unlawful employment practice or an unlawful dis-
9 criminatory practice in violation of this act, or has engaged in a pattern
10 or practice of discrimination, the commission may conduct an investiga-
11 tion without filing a complaint and shall have the same powers during
12 such investigation as provided for the investigation of complaints. The
13 person to be investigated shall be advised of the nature and scope of such
14 investigation prior to its commencement. The purpose of the investigation
15 shall be to resolve any such problems promptly. In the event such prob-
16 lems cannot be resolved within a reasonable time, the commission may
17 issue a complaint whenever the investigation has revealed a violation of
18 the Kansas act against discrimination has occurred. The information gath-
19 ered in the course of the first investigation may be used in processing the
21 (d) After the filing of any complaint by an aggrieved individual, by
22 the commission, or by the attorney general, the commission shall, within
23 seven days after the filing of the complaint, serve a copy on each of the
24 parties alleged to have violated this act, and shall designate one of the
25 commissioners to make, with the assistance of the commission's staff,
26 prompt investigation of the alleged act of discrimination. If the commis-
27 sioner shall determine after such investigation that no probable cause
28 exists for crediting the allegations of the complaint, such commissioner,
29 within 10 business days from such determination, shall cause to be issued
30 and served upon the complainant and respondent written notice of such
32 (e) If such commissioner after such investigation, shall determine that
33 probable cause exists for crediting the allegations for the complaint, the
34 commissioner or such other commissioner as the commission may des-
35 ignate, shall immediately endeavor to eliminate the unlawful employment
36 practice or the unlawful discriminatory practice complained of by con-
37 ference and conciliation. The complainant, respondent and commission
38 shall have 45 days from the date respondent is notified in writing of a
39 finding of probable cause to enter into a conciliation agreement signed
40 by all parties in interest. The parties may amend a conciliation agreement
41 at any time prior to the date of entering into such agreement. Upon
42 agreement by the parties the time for entering into such agreement may
43 be extended. The members of the commission and its staff shall not dis-
1 close what has transpired in the course of such endeavors.
2 (f) In case of failure to eliminate such practices by conference and
3 conciliation, or in advance thereof, if in the judgment of the commissioner
4 or the commission circumstances so warrant, the commissioner or the
5 commission shall commence a hearing in accordance with the provisions
6 of the Kansas administrative procedure act naming as parties the com-
7 plainant and the person, employer, labor organization, employment
8 agency, realtor or financial institution named in such complaint, herein-
9 after referred to as respondent. A copy of the complaint shall be served
10 on the respondent. At least four commissioners
, a staff hearing examiner
11 or a contract hearing examiner or an administrative law judge from the
12 office of administrative hearings shall be designated as the presiding of-
13 ficer. The place of such hearing shall be in the county where respondent
14 is doing business and the acts complained of occurred.
15 (g) The complainant or respondent may apply to the presiding officer
16 for the issuance of a subpoena for the attendance of any person or the
17 production or examination of any books, records or documents pertinent
18 to the proceeding at the hearing. Upon such application the presiding
19 officer shall issue such subpoena.
20 (h) The case in support of the complaint shall be presented before
21 the presiding officer by one of the commission's attorneys or agents, or
22 by private counsel, if any, of the complainant, and the commissioner who
23 shall have previously made the investigation shall not participate in the
24 hearing except as a witness. Any endeavors at conciliation shall not be
25 received in evidence.
26 (i) Any complaint filed pursuant to this act must be so filed within six
27 months after the alleged act of discrimination, unless the act complained
28 of constitutes a continuing pattern or practice of discrimination in which
29 event it will be from the last act of discrimination. Complaints filed with
30 the commission on or after July 1, 1996, may be dismissed by the com-
31 mission on its own initiative, and shall be dismissed by the commission
32 upon the written request of the complainant, if the commission has not
33 issued a finding of probable cause or no probable cause or taken other
34 administrative action dismissing the complaint within 300 days of the
35 filing of the complaint. The commission shall mail written notice to all
36 parties of dismissal of a complaint within five days of dismissal. Com-
37 plaints filed with the commission before July 1, 1996, shall be dismissed
38 by the commission upon the written request of the complainant, if the
39 commission has not issued a finding of probable cause or no probable
40 cause or taken other administrative action dismissing the complaint within
41 300 days of the filing of the complaint. Any such dismissal of a complaint
42 in accordance with this section shall constitute final action by the com-
43 mission which shall be deemed to exhaust all administrative remedies
1 under the Kansas act against discrimination for the purpose of allowing
2 subsequent filing of the matter in court by the complainant, without the
3 requirement of filing a petition for reconsideration pursuant to K.S.A. 44-
4 1010 and amendments thereto. Dismissal of a complaint in accordance
5 with this section shall not be subject to appeal or judicial review by any
6 court under the provisions of K.S.A. 44-1011 and amendments thereto.
7 The provisions of this section shall not apply to complaints alleging dis-
8 criminatory housing practices filed with the commission pursuant to
9 K.S.A. 44-1015 et seq. and amendments thereto.
10 (j) The respondent may file a written verified answer to the complaint
11 and appear at such hearing in person or otherwise, with or without coun-
12 sel, and submit testimony. The complainant shall appear at such hearing
13 in person, with or without counsel, and submit testimony. The presiding
14 officer or the complainant shall have the power reasonably and fairly to
15 amend any complaint, and the respondent shall have like power to amend
16 such respondent's answer. The presiding officer shall be bound by the
17 rules of evidence prevailing in courts of law or equity, and only relevant
18 evidence of reasonable probative value shall be received.
19 (k) If the presiding officer finds a respondent has engaged in or is
20 engaging in any unlawful employment practice or unlawful discriminatory
21 practice as defined in this act, the presiding officer shall render an order
22 requiring such respondent to cease and desist from such unlawful em-
23 ployment practice or such unlawful discriminatory practice and to take
24 such affirmative action, including but not limited to the hiring, reinstate-
25 ment, or upgrading of employees, with or without back pay, and the ad-
26 mission or restoration to membership in any respondent labor organiza-
27 tions; the admission to and full and equal enjoyment of the goods,
28 services, facilities, and accommodations offered by any respondent place
29 of public accommodation denied in violation of this act, as, in the judg-
30 ment of the presiding officer, will effectuate the purposes of this act, and
31 including a requirement for report of the manner of compliance. Such
32 order may also include an award of damages for pain, suffering and hu-
33 miliation which are incidental to the act of discrimination, except that an
34 award for such pain, suffering and humiliation shall in no event exceed
35 the sum of $2,000.
36 (l) Any state, county or municipal agency may pay a complainant back
37 pay if it has entered into a conciliation agreement for such purposes with
38 the commission, and may pay such back pay if it is ordered to do so by
39 the commission.
40 (m) If the presiding officer finds that a respondent has not engaged
41 in any such unlawful employment practice, or any such unlawful discrim-
42 inatory practice, the presiding officer shall render an order dismissing the
43 complaint as to such respondent.
1 (n) The commission shall review an initial order rendered under sub-
2 section (k) or (m). In addition to the parties, a copy of any final order
3 shall be served on the attorney general and such other public officers as
4 the commission may deem proper.
5 (o) The commission shall, except as otherwise provided, establish
6 rules of practice to govern, expedite and effectuate the foregoing proce-
7 dure and its own actions thereunder. The rules of practice shall be avail-
8 able, upon written request, within 30 days after the date of adoption.
9 Sec. 5. K.S.A. 1996 Supp. 65-163 is hereby amended to read as fol-
10 lows: 65-163. (a) (1) No person shall operate a public water supply system
11 within the state without a public water supply system permit from the
12 secretary. An application for a public water supply system permit shall be
13 submitted for review and approval prior to construction and shall include:
14 (A) A copy of the plans and specifications for the construction of the
15 public water supply system or the extension thereof; (B) a description of
16 the source from which the water supply is to be derived; (C) the proposed
17 manner of storage, purification or treatment for the supply; and (D) such
18 other data and information as required by the secretary of health and
19 environment. No source of water supply in substitution for or in addition
20 to the source described in the application or in any subsequent application
21 for which a public water supply system permit is issued shall be used by
22 a public water supply system, nor shall any change be made in the manner
23 of storage, purification or treatment of the water supply without an ad-
24 ditional public water supply system permit obtained in a manner similar
25 to that prescribed by this section from the secretary.
26 (2) Whenever application is made to the secretary for a public water
27 supply system permit under the provisions of this section, it shall be the
28 duty of the secretary to examine the application without delay and, as
29 soon as possible thereafter, to grant or deny the public water supply sys-
30 tem permit subject to any conditions which may be imposed by the sec-
31 retary to protect the public health and welfare.
32 (3) The secretary may adopt rules and regulations establishing a pro-
33 gram of annual certification by public water supply systems that have staff
34 qualified to approve the extension of distribution systems without the
35 necessity of securing an additional permit for the extension provided the
36 plans for the extension are prepared by a professional engineer as defined
37 by K.S.A. 74-7003, and amendments thereto.
38 (b) (1) Whenever a complaint is made to the secretary by any city of
39 the state, by a local health officer, or by a county or joint board of health
40 concerning the sanitary quality of any water supplied to the public within
41 the county in which the city, local health officer or county or joint board
42 of health is located, the secretary shall investigate the public water supply
43 system about which the complaint is made. Whenever the secretary has
1 reason to believe that a public water supply system within the state is
2 being operated in violation of an applicable state law or an applicable rule
3 and regulation of the secretary, the secretary may investigate the public
4 water supply system.
5 (2) Whenever an investigation of any public water supply system is
6 undertaken by the secretary, it shall be the duty of the supplier of water
7 under investigation to furnish to the secretary information to determine
8 the sanitary quality of the water supplied to the public and to determine
9 compliance with applicable state laws and rules and regulations. The sec-
10 retary may issue an order requiring changes in the source or sources of
11 the public water supply system or in the manner of storage, purification
12 or treatment utilized by the public water supply system before delivery
13 to consumers, or distribution facilities, collectively or individually, as may
14 in the secretary's judgment be necessary to safeguard the sanitary quality
15 of the water and bring about compliance with applicable state law and
16 rules and regulations. The supplier of water shall comply with the order
17 of the secretary.
18 (c) (1) As used in this subsection (c), ``municipal water treatment
19 residues'' means any solid, semisolid or liquid residue generated during
20 the treatment of water in a public water supply system treatment works.
21 (2) A public water supply system may place or store municipal water
22 treatment residues resulting from sedimentation, coagulation or softening
23 treatment processes in basins on land under the ownership and control
24 of the public water supply system operator provided that such storage or
25 placement is approved and permitted by the secretary under this section
26 as part of the public water supply system.
27 (3) The secretary shall adopt uniform and comprehensive rules and
28 regulations for the location, design and operation of such basins. Such
29 rules and regulations shall require permit applications by the public water
30 suppliers for such basins to include a copy of the plans and specifications
31 for the location and construction of each basin, the means of conveyance
32 of the treatment residues to such basins, the content of treatment resi-
33 dues, the proposed method of basin operation and closure, the method
34 of any anticipated expansion and any other data and information required
35 by the secretary.
36 (4) Whenever complaint is made to the secretary by the mayor of any
37 city of the state, by a local health officer or by a county or joint board of
38 health, or whenever an investigation is undertaken at the initiative of the
39 secretary, relating to any alleged violation of the provisions of the permit
40 for placement or storage of municipal water treatment residues in such
41 basins, the public water supply system operator shall furnish all infor-
42 mation the secretary requires. If the secretary finds that there is any
43 violation of the terms of the permit, that the means of placement and
1 storage exceed the terms of the permit or that any other condition exists
2 by reason of the means of placement and storage that may be detrimental
3 to the health of any inhabitants of the state or to the environment, the
4 secretary shall have the authority to issue an order amending the permit
5 or otherwise requiring the operator to perform remedial measures to
6 curtail or prevent such detrimental conditions.
7 (d) Orders of the secretary under this section, and hearings thereon,
8 shall be subject to the provisions of the Kansas administrative procedure
9 act. Any action of the secretary pursuant to this section is subject to review
10 in accordance with the act for judicial review and civil enforcement of
11 agency actions. The court on review shall hear the case without delay.
12 (e) The secretary shall establish by rule and regulation a system of
13 fees for the inspection and regulation of public water supplies. No such
14 fee shall exceed $.002 per 1,000 gallons of water sold at retail by a public
15 water supply system. All such fees shall be paid quarterly in the manner
16 provided for fees imposed on retail sales by public water supply systems
17 pursuant to K.S.A. 82a-954 and amendments thereto. The secretary shall
18 remit to the state treasurer all moneys collected for such fees. Upon
19 receipt thereof, the state treasurer shall deposit the entire amount in the
20 state treasury and credit it to the public water supply fee fund created by
21 K.S.A. 65-163c and amendments thereto.
22 (f) There is hereby created an advisory committee to make recom-
23 mendations regarding: (1) Fees to be adopted by the secretary under
24 subsection (e); (2) means of strengthening on-site technical assistance to
25 public water supply systems; (3) standards for on-site and classroom water
26 treatment operator certification programs; (4) other matters concerning
27 public water supplies; and (5) to advise the secretary regarding expendi-
28 ture of moneys in the public water supply fee fund created by K.S.A. 65-
29 163c and amendments thereto. Such advisory committee shall consist of
30 one member appointed by the secretary to represent the department of
31 health and environment, one member appointed by the director of the
32 Kansas water office to represent such office and two members appointed
33 by the secretary as follows: One from three nominations submitted by the
34 Kansas section of the American waterworks association, and one from
35 three nominations submitted by the Kansas rural water association. Mem-
36 bers of the advisory committee shall serve without compensation or re-
37 imbursement of expenses. The advisory committee shall meet at least four
38 times each year on call of the secretary or a majority of the members of
39 the committee.
40 Sec. 6. K.S.A. 65-163a is hereby amended to read as follows: 65-
41 163a. (a) Any supplier of water may refuse to deliver water through pipes
42 and mains to any premises where a condition exists which might lead to
43 the contamination of the public water supply system and may continue
1 to refuse the delivery of water to the premises until the condition is rem-
3 (b) The secretary may order a supplier of water: (1) To cease the
4 delivery of water through pipes and mains to a premise or premises where
5 a condition exists which might lead to the contamination of the public
6 water supply system; or (2) to cease an activity which would result in a
7 violation of the state primary drinking water standards; or (3) to cease an
8 activity which results in a continuing violation of the state primary drink-
9 ing water standards; or (4) to comply with any combination of these or-
10 ders. The supplier of water shall immediately comply with an order issued
11 by the secretary under this section.
12 (c) Orders of the secretary under this section, and hearings thereon,
13 shall be subject to the provisions of the Kansas administrative procedure
14 act. Any action of the secretary pursuant to this section is subject to review
15 in accordance with the act for judicial review and civil enforcement of
16 agency actions. The court on review shall hear the appeal without delay.
17 Sec. 7. K.S.A. 65-164 is hereby amended to read as follows: 65-164.
18 (a) No person, company, corporation, institution or municipality shall
19 place or permit to be placed or discharge or permit to flow into any of
20 the waters of the state any sewage, except as hereinafter provided. This
21 act shall not prevent the discharge of sewage from any public sewer sys-
22 tem owned and maintained by a municipality or sewerage company, if
23 such sewer system was in operation and was discharging sewage into the
24 waters of the state on March 20, 1907, but this exception shall not permit
25 the discharge of sewage from any sewer system that has been extended
26 subsequent to such date, nor shall it permit the discharge of any sewage
27 which, upon investigation by the secretary of health and environment as
28 hereinafter provided, is found to be polluting the waters of the state in a
29 manner prejudicial to the health of the inhabitants thereof.
30 (b) For the purposes of this act, ``sewage'' means any substance that
31 contains any of the waste products or excrementitious or other discharges
32 from the bodies of human beings or animals, or chemical or other wastes
33 from domestic, manufacturing or other forms of industry.
34 (c) Whenever a complaint is made to the secretary of health and
35 environment by the mayor of any city of the state, by a local health officer
36 or by a county or joint board of health, complaining of the pollution or
37 of the polluted condition of any of the waters of the state situated within
38 the county within which the city, local health officer or county or joint
39 board of health is located, it shall be the duty of the secretary of health
40 and environment to cause an investigation of the pollution or the polluted
41 condition complained of. Also, whenever the secretary of health and en-
42 vironment otherwise has reason to believe that any of the waters of the
43 state are being polluted in a manner prejudicial to the health of any of
1 the inhabitants of the state, the secretary may initiate an investigation of
2 such pollution.
3 (d) Whenever an investigation is undertaken by the secretary of
4 health and environment, under subsection (c), it shall be the duty of any
5 person, company, corporation, institution or municipality concerned in
6 such pollution to furnish, on demand, to the secretary of health and en-
7 vironment such information as required relative to the amount and char-
8 acter of the polluting material discharged into the waters by such person,
9 company, corporation, institution or municipality. If the secretary of
10 health and environment finds that any of the waters of the state have
11 been or are being polluted in a manner prejudicial to the health of any
12 of the inhabitants of the state, the secretary of health and environment
13 shall have the authority to make an order requiring: (1) Such pollution to
14 cease within a reasonable time; (2) requiring such manner of treatment
15 or of disposition of the sewage or other polluting material as, in the se-
16 cretary's judgment, is necessary to prevent the future pollution of such
17 waters; or (3) both. It shall be the duty of the person, company, corpo-
18 ration, institution or municipality to whom such order is directed to fully
19 comply with the order of the secretary of health and environment.
20 (e) Orders of the secretary under subsection (d), and hearings
21 thereon, are subject to the provisions of the Kansas administrative pro-
22 cedure act. Any action of the secretary pursuant to subsection (d) is sub-
23 ject to review in accordance with the act for judicial review and civil
24 enforcement of agency actions. The court on review shall hear the case
25 without delay.
26 Sec. 8. K.S.A. 65-165 is hereby amended to read as follows: 65-165.
27 (a) Upon application made to the secretary of health and environment by
28 the public authorities having by law the charge of the sewer system of
29 any municipality, township, county or legally constituted sewer district,
30 or any person, company, corporation, institution, municipality or federal
31 agency, the secretary of health and environment shall consider the case
32 of such a sewage discharge or sewer system, otherwise prohibited by this
33 act from discharging sewage into any of the waters of the state, or the
34 extension of a sewer system and whenever it is the secretary's opinion
35 that the general interests of the public health would be served thereby,
36 or that the discharge of such sewage would not detract from the quality
37 of the waters of the state for their beneficial uses for domestic or public
38 water supply, agricultural needs, industrial needs, recreational needs or
39 other beneficial use and that such discharge meets or will meet all appli-
40 cable state water quality standards and applicable federal water quality
41 and effluent standards under the provisions of the federal water pollution
42 control act and amendments thereto as in effect on January 1, 1989, the
43 secretary of health and environment shall issue a permit for the extension
1 of a sewer system or for the discharge of sewage, or both, and shall stip-
2 ulate in the permit the conditions on which such discharge will be per-
3 mitted and shall require such treatment of the sewage as determined
4 necessary to protect beneficial uses of the waters of the state in accor-
5 dance with the statutes and rules and regulations defining the quality of
6 the water affected by such discharge and may require treatment of the
7 sewage in accordance with rules and regulations predicated upon tech-
8 nologically based effluent limitations. Indirect dischargers shall comply
9 with all applicable pretreatment regulations and water quality standards.
10 (b) If, in the opinion of the secretary of health and environment,
11 issuance of general permits is more appropriate than issuance of individ-
12 ual permits, the secretary may establish, by rule and regulation, proce-
13 dures for issuance of general permits to the following sources and facilities
14 if such sources and facilities involve similar types of operations, discharge
15 the same types of wastes or engage in the same types of sludge use or
16 disposal practices, require similar monitoring requirements or require the
17 same effluent limitations, operating conditions, or standards for sewage
18 sludge use or disposal: (1) A category of point and nonpoint sources of
19 sewage such as storm water; (2) other categories of point and nonpoint
20 sources of sewage; or (3) categories of facilities treating domestic sewage.
21 Availability of general permits shall be limited to areas defined by geo-
22 graphical or political boundaries such as, but not limited to, city, county
23 or state boundaries, state or county roads and highways or natural bound-
24 aries such as drainage basins. The secretary may establish, by rule and
25 regulation, procedures for the issuance, revocation, modification and
26 change, reissuance or termination of general permits in the manner pro-
27 vided by law.
28 (c) Every permit for the discharge of sewage shall be revocable, or
29 subject to modification and change, by the secretary of health and envi-
30 ronment, upon notice having been served on the public authorities hav-
31 ing, by law, the charge of the sewer system any municipality, township,
32 county or legally constituted sewer district or on the person, company,
33 corporation, institution, municipality or federal agency owning, maintain-
34 ing or using the sewage system. The length of time after receipt of the
35 notice within which the discharge of sewage shall be discontinued may
36 be stated in the permit, but in no case shall it be less than 30 days or
37 exceed two years; if the length of time is not specified in the permit, it
38 shall be 30 days. On the expiration of the period of time prescribed, after
39 the service of notice of revocation, modification or change from the sec-
40 retary of health and environment, the right to discharge sewage into any
41 of the waters of the state shall cease and terminate, and the prohibition
42 of this act against such discharge shall be in full force, as though no permit
43 had been granted, but a new permit may thereafter again be granted, as
1 hereinbefore provided.
2 (d) Orders of the secretary under this section, and hearings thereon,
3 shall be subject to the provisions of the Kansas administrative procedure
4 act. Any action of the secretary under this section is subject to review in
5 accordance with the act for judicial review and civil enforcement of
6 agency actions. The court on review shall hear the case without delay.
7 Sec. 9. K.S.A. 1996 Supp. 65-526 is hereby amended to read as fol-
8 lows: 65-526. The secretary of health and environment, in addition to any
9 other penalty prescribed under article 5 of chapter 65 of the Kansas Stat-
10 utes Annotated, or acts amendatory of the provisions thereof or supple-
11 mental thereto, may assess a civil fine, after proper notice and an oppor-
12 tunity to be heard in accordance with the Kansas administrative
13 procedure act, against a licensee or registrant for a violation of such pro-
14 visions or rules and regulations adopted pursuant thereto which affect
15 significantly and adversely the health, safety or sanitation of children in a
16 child care facility or family day care home. A civil fine assessed under this
17 section shall not exceed $500. All fines assessed and collected under this
18 section shall be remitted promptly to the state treasurer. Upon receipt
19 thereof, the state treasurer shall deposit the entire amount in the state
20 treasury and credit it to the state general fund.
21 Sec. 10. K.S.A. 65-3483 is hereby amended to read as follows: 65-
22 3483. (a) If, within 150 days after receipt of an application, the secretary
23 has not denied the application, the secretary shall notify the board of
24 county commissioners and the governing bodies of all cities located within
25 a ten-mile radius of the proposed facility. The secretary also shall notify
26 the state corporation commission and the secretary of wildlife and parks
27 of the proposed facility.
28 (b) If the secretary determines that such application should be ap-
29 proved, the secretary shall immediately notify the county commissioners
30 and the governing bodies of all cities located within a ten-mile radius of
31 the proposed facility.
32 (c) Within 10 days after the secretary has determined that such ap-
33 plication should be approved, the secretary shall:
34 (1) Set a date and arrange for publication of notice of a public hearing
35 in a newspaper having major circulation in the vicinity of the proposed
36 facility. Such hearing shall be in the county in which the proposed facility
37 will be located. Additional hearings may be held at such other places as
38 the secretary deems suitable. At such hearing or hearings, the applicant
39 may present testimony in favor of the application. Any person may appear
40 or be represented by counsel to present testimony in support of or op-
41 position to the application. The public notice shall:
42 (A) Contain a map indicating the location of the proposed facility, a
43 description of the proposed action and the location where the application
1 may be reviewed and where copies may be obtained.
2 (B) Identify the time, place and location for the public hearing held
3 to receive public comment and input on the application.
4 (2) Publish the notice not less than 30 days before the date of the
5 public hearing.
6 (d) Comment and input on the proposed facility may be presented
7 orally or in writing at the public hearing, and shall continue to be accepted
8 in writing by the secretary for 15 days after the public hearing date.
9 (e) The secretary shall consider the impact of the proposed facility
10 on the surrounding area in which it is to be located and make a final
11 determination on the application.
12 (f) The secretary shall consider, at a minimum:
13 (1) The risk and impact of accident during the transportation of PCB;
14 (2) the risk and impact of contamination of ground and surface water
15 by leaching and runoff from the proposed facility;
16 (3) the risk of fires or explosions from improper storage and disposal
18 (4) the impact on the surrounding area where the proposed facility
19 is to be located in terms of the health, safety, cost and consistency with
20 local planning and existing development. The secretary also shall consider
21 local ordinances, permits or other requirements and their potential re-
22 lationship to the proposed facility;
23 (5) an evaluation of measures to mitigate adverse effects;
24 (6) the nature of the probable environmental impact including the
25 specification of the predictable adverse effects on the following:
26 (A) The natural environment and ecology;
27 (B) public health and safety;
28 (C) scenic, historic, cultural and recreational value; and
29 (D) water and air quality and wildlife.
30 (g) The secretary also shall consider the concerns and objections sub-
31 mitted by the public. The secretary shall facilitate efforts to provide that
32 the concerns and objections are mitigated by establishing additional stip-
33 ulations specifically applicable to the proposed site and operation at that
34 site. The secretary, to the fullest extent practicable, shall integrate by
35 stipulation the provisions of the local ordinances, permits or require-
37 (h) The secretary may seek the advice, which shall be given in writing
38 and entered into the public record of the public hearing, of any person
39 in order to render a decision to approve or deny the application.
40 (i) The public hearing required under subsection (c) shall be con-
41 ducted in accordance with the provisions of the Kansas administrative
42 procedure act.
43 Sec. 11. K.S.A. 65-3488 is hereby amended to read as follows: 65-
1 3488. (a) Permits for PCB disposal facilities shall be issued for fixed terms
2 not to exceed 10 years.
3 (b) Plans, designs and relevant data for the construction of PCB dis-
4 posal facilities shall be prepared by a professional engineer licensed to
5 practice in Kansas and shall be submitted to the department for approval
6 prior to the construction, modification or operation of such a facility.
7 (c) Permits granted by the secretary, as provided in this act, shall be
8 revocable or subject to suspension whenever the secretary determines
9 that the PCB disposal facility is, or has been constructed in violation of
10 this act or the rules and regulations or standards adopted pursuant to the
11 act, or is creating a hazard to the public health or safety or to the envi-
12 ronment, or for failure to make payment of any fee to any funds created
13 under this act.
14 (d) In case any permit is denied, suspended or revoked any person
15 aggrieved by such decision may request a hearing before the secretary in
16 the same manner provided by K.S.A. 65-3440, and amendments thereto.
17 Such hearings shall be conducted in accordance with the Kansas admin-
18 istrative procedure act.
19 Sec. 12. K.S.A. 65-3490 is hereby amended to read as follows: 65-
20 3490. (a) The secretary or the director of the division of environment, if
21 designated by the secretary, upon a finding that a person has violated any
22 provision of this act or any rule and regulation adopted by the secretary
23 pursuant to this act may impose a penalty not to exceed $10,000 which
24 shall constitute an actual and substantial economic deterrent to the vio-
25 lation for which it is assessed and, in the case of a continuing violation,
26 every day such violation continues shall be deemed a separate violation.
27 (b) No penalty shall be imposed pursuant to this section except after
28 notice of violation and opportunity for hearing upon the written order of
29 the secretary or the director of the division of environment, if designated
30 by the secretary, to the person who committed the violation. The order
31 shall state the violation, the penalty to be imposed and, in the case of an
32 order of the director of the division of environment, the right to appeal
33 to the secretary for a hearing thereon. Any person may appeal an order
34 of the director of the division of environment by making a written request
35 to the secretary for a hearing within 15 days of
receipt service of such
36 order. The secretary shall hear the person within 30 days after receipt of
37 such request, unless such time period is waived or extended by written
38 consent of all parties or by a showing of good cause , and shall give not
39 less than 10 days' written notice of the time and place of the hearing.
40 Within 30 days after such hearing and receipt of briefs or oral arguments,
41 unless such time period is waived or extended by written consent of all
42 parties or by a showing of good cause, the secretary shall affirm, reverse
43 or modify the order of the director and shall specify the reasons therefor.
Nothing in this act shall require the observance of formal rules of evi-
2 dence or pleading at any hearing before the secretary or director. Hear-
3 ings under this subsection shall be conducted in accordance with the Kan-
4 sas administrative procedure act.
5 (c) Any party aggrieved by an order under this section shall have the
6 right of appeal in the same manner provided by K.S.A. 65-3440, and
7 amendments thereto may obtain review of such order in accordance with
8 the act for judicial review and civil enforcement of agency actions.
9 Sec. 13. K.S.A. 75-3306 is hereby amended to read as follows: 75-
10 3306. (a) The secretary of social and rehabilitation services, except as set
11 forth in the Kansas administrative procedure act and subsections (f), (g),
12 (h) and (i), shall provide a fair hearing for any person who is an applicant,
13 client, inmate, other interested person or taxpayer who appeals from the
14 decision or final action of any agent or employee of the secretary. The
15 hearing shall be conducted in accordance with the provisions of the Kan-
16 sas administrative procedure act.
17 It shall be the duty of the secretary of social and rehabilitation services
18 to have available in all intake offices, during all office hours, forms for
19 filing complaints for hearings, and appeal forms with which to appeal from
20 the decision of the agent or employee of the secretary. The forms shall
21 be prescribed by the secretary of social and rehabilitation services and
22 shall have printed on or as a part of them the basic procedure for hearings
23 and appeals prescribed by state law and the secretary of social and re-
24 habilitation services.
25 (b) The secretary of social and rehabilitation services shall have au-
26 thority to investigate (1) any claims and vouchers and persons or busi-
27 nesses who provide services to the secretary of social and rehabilitation
28 services or to welfare recipients, (2) the eligibility of persons to receive
29 assistance and (3) the eligibility of providers of services.
30 (c) The secretary of social and rehabilitation services shall have au-
31 thority, when conducting investigations as provided for in this section, to
32 issue subpoenas; compel the attendance of witnesses at the place desig-
33 nated in this state; compel the production of any records, books, papers
34 or other documents considered necessary; administer oaths; take testi-
35 mony; and render decisions. If a person refuses to comply with any sub-
36 poena issued under this section or to testify to any matter regarding which
37 the person may lawfully be questioned, the district court of any county,
38 on application of the secretary, may issue an order requiring the person
39 to comply with the subpoena and to testify, and any failure to obey the
40 order of the court may be punished by the court as a contempt of court.
41 Unless incapacitated, the person placing a claim or defending a privilege
42 before the secretary shall appear in person or by authorized representa-
43 tive and may not be excused from answering questions and supplying
1 information, except in accordance with the person's constitutional rights
2 and lawful privileges.
3 (d) The presiding officer may close any portion of a hearing con-
4 ducted under the Kansas administrative procedure act when matters
5 made confidential, pursuant to federal or state law or regulation are under
7 (e) Except as provided in subsection (d) of K.S.A. 77-511 and amend-
8 ments thereto and notwithstanding the other provisions of the Kansas
9 administrative procedure act, the secretary may enforce any order prior
10 to the disposition of a person's application for an adjudicative proceeding
11 unless prohibited from such action by federal or state statute, regulation
12 or court order.
13 (f) Decisions relating to the administration of the support enforce-
14 ment program set forth in K.S.A. 39-753 et seq. and amendments thereto
15 except for federal debt set-off activities shall be exempt from the provi-
16 sions of the Kansas administrative procedure act and subsection (a).
17 (g) Decisions relating to administrative disqualification hearings shall
18 be exempt from the provisions of the Kansas administrative procedure
19 act and subsection (a).
20 (h) The department of social and rehabilitation services shall not have
21 jurisdiction to determine the facial validity of a state or federal statute.
The administrative hearings section of the department of social and re-
23 habilitation services An administrative law judge from the office of ad-
24 ministrative hearings shall not have jurisdiction to determine the facial
25 validity of an agency rule and regulation.
26 (i) The department of social and rehabilitation services shall not be
27 required to provide a hearing if: (1) The department of social and reha-
28 bilitation services lacks jurisdiction of the subject matter; (2) resolution
29 of the matter does not require the department of social and rehabilitation
30 services to issue an order that determines the applicant's legal rights,
31 duties, privileges, immunities or other legal interests; (3) the matter was
32 not timely submitted to the department of social and rehabilitation serv-
33 ices pursuant to regulation or other provision of law; or (4) the matter
34 was not submitted in a form substantially complying with any applicable
35 provision of law.
36 Sec. 14. K.S.A. 1996 Supp. 77-514 is hereby amended to read as
37 follows: 77-514. (a) The agency head or, one or more members of the
38 agency head, an administrative law judge assigned by the office of ad-
39 ministrative hearings, or, unless prohibited by section 3 and amendments
40 thereto, one or more other persons designated by the agency head may
41 be the presiding officer.
42 (b) Any person serving or designated to serve alone or with others as
43 presiding officer is subject to disqualification for administrative bias, prej-
1 udice or interest.
2 (c) Any party may petition for the disqualification of a person
3 promptly after receipt of notice indicating that the person will preside or
4 promptly upon discovering facts establishing grounds for disqualification,
5 whichever is later.
6 (d) A person whose disqualification is requested shall determine
7 whether to grant the petition, stating facts and reasons for the determi-
9 (e) If a substitute is required for a person who is disqualified or be-
10 comes unavailable for any other reason, any action taken by a duly ap-
11 pointed substitute for a disqualified or unavailable person is as effective
12 as if taken by the latter.
A If the office of administrative hearings cannot provide a presid-
14 ing officer, a state agency may enter into agreements with another state
15 agency to provide hearing presiding officers to conduct proceedings un-
16 der this act or for other agency proceedings.
17 (g) Notwithstanding any quorum requirements, if the agency head of
18 a professional or occupational licensing agency is a body of individuals,
19 the agency head, unless prohibited by law, may designate one or more
20 members of the agency head to serve as presiding officer and to render
21 a final order in the proceeding.
22 Sec. 15. K.S.A. 77-518 is hereby amended to read as follows: 77-518.
23 (a) The state agency presiding officer for the hearing shall set the time
24 and place of the hearing and give reasonable written notice at least 10
25 days prior to the hearing to all parties and to all persons who have filed
26 written petitions to intervene in the matter. Service of notices shall be
27 made in accordance with K.S.A. 77-531 and amendments thereto.
28 (b) The notice shall include a copy of any prehearing order rendered
29 in the matter.
30 (c) To the extent not included in a prehearing order accompanying
31 it, the notice shall include:
32 (1) The names and mailing addresses of all parties and other persons
33 to whom notice is being given by the presiding officer;
34 (2) the name, official title, mailing address and telephone number of
35 any counsel or employee who has been designated to appear for the state
37 (3) the official file or other reference number, the name of the pro-
38 ceeding and a general description of the subject matter;
39 (4) a statement of the time, place and nature of the hearing;
40 (5) a statement of the legal authority and jurisdiction under which
41 the hearing is to be held;
42 (6) the name, official title, mailing address and telephone number of
43 the presiding officer;
1 (7) a statement of the issues involved and, to the extent known to the
2 presiding officer, of the matters asserted by the parties; and
3 (8) a statement that a party who fails to attend or participate in a
4 prehearing conference, hearing or other stage of an adjudicative pro-
5 ceeding may be held in default under this act.
6 (d) The notice may include any other matters the presiding officer
7 considers desirable to expedite the proceedings.
8 (e) The state agency shall cause notice to be given to persons entitled
9 to notice under any provision of law who have not been given notice under
10 subsection (a) by the presiding officer. Notice under this subsection shall
11 be given in the manner specified by such provision of law or, if no such
12 manner is specified, in a manner to be determined by the agency. If a
13 person other than the agency is directed to give notice under this sub-
14 section, the agency shall require that the person furnish proof that the
15 notice has been given. Notice under this subsection may include all types
16 of information provided in subsections (a) through (d) or may consist of
17 a brief statement indicating the subject matter, parties, time, place and
18 nature of the hearing, manner in which copies of the notice to the parties
19 may be inspected and copied and name and telephone number of the
20 presiding officer.
21 Sec. 16. K.S.A. 1996 Supp. 77-527 is hereby amended to read as
22 follows: 77-527. (a) The agency head, upon its own motion may, and upon
23 petition by any party or when required by law shall, review an initial order,
24 except to the extent that:
25 (1) A provision of law precludes or limits state agency review of the
26 initial order; or
27 (2) the agency head (A) determines to review some but not all issues,
28 or not to exercise any review, (B) delegates its authority to review the
29 initial order to one or more persons, unless such delegation is expressly
30 prohibited by law, or (C) authorizes one or more persons to review the
31 initial order, subject to further review by the agency head.
32 (b) A petition for review of an initial order must be filed with the
33 agency head, or with any person designated for this purpose by rule and
34 regulation of the state agency, within 15 days after service of the initial
35 order. If the agency head on its own motion decides to review an initial
36 order, the agency head shall give written notice of its intention to review
37 the initial order within 15 days after its service. If the agency head de-
38 termines not to review an initial order in response to a petition for review,
39 the agency head shall, within 20 days after filing of the petition for review,
40 serve on each party an order stating that review will not be exercised.
41 (c) The petition for review shall state its basis. If the agency head on
42 its own motion gives notice of its intent to review an initial order, the
43 agency head shall identify the issues that it intends to review.
1 (d) In reviewing an initial order, the agency head or designee shall
2 exercise all the decision-making power that the agency head or designee
3 would have had to render a final order had the agency head or designee
4 presided over the hearing, except to the extent that the issues subject to
5 review are limited by a provision of law or by the agency head or designee
6 upon notice to all parties.
7 (e) The agency head or designee shall afford each party an opportu-
8 nity to present briefs and may afford each party an opportunity to present
9 oral argument.
10 (f) The agency head or designee shall render a final order disposing
11 of the proceeding or remand the matter for further proceedings with
12 instructions to the person who rendered the initial order. Upon remand-
13 ing a matter, the agency head or designee may order such temporary
14 relief as is authorized and appropriate.
15 (g) A final order or an order remanding the matter for further pro-
16 ceedings shall be rendered in writing and served within 30 days after
17 receipt of briefs and oral argument unless that period is waived or ex-
18 tended with the written consent of all parties or for good cause shown.
19 (h) A final order or an order remanding the matter for further pro-
20 ceedings under this section shall identify any difference between this
21 order and the initial order and shall state the facts of record which support
22 any difference in findings of fact, state the source of law which supports
23 any difference in legal conclusions, and state the policy reasons which
24 support any difference in the exercise of discretion. A final order under
25 this section shall include, or incorporate by express reference to the initial
26 order, all the matters required by subsection (c) of K.S.A. 77-526, and
27 amendments thereto.
28 (i) The agency head shall cause copies of the final order or order
29 remanding the matter for further proceedings to be served on each party
30 in the manner prescribed by K.S.A. 77-531, and amendments thereto.
31 (j) Unless a petition for reconsideration is a prerequisite for seeking
32 judicial review, a final order under this section shall state the agency
33 officer to receive service of a petition for judicial review on behalf of the
35 Sec. 17. K.S.A. 79-3313 is hereby amended to read as follows: 79-
36 3313. All cigarettes sold in this state shall be in packages, and each of the
37 packages shall bear evidence of payment of the tax thereon except that
38 any railroad or sleeping car company licensed as a retailer is hereby au-
39 thorized to sell cigarettes upon its cars without affixing stamps to the
40 packages of cigarettes provided that monthly reports and payment of the
41 tax due is made directly to the director in the manner and under the
42 terms provided for by the director. In addition, manufacturers are hereby
43 authorized to distribute in the state, through their authorized represen-
1 tatives or wholesale dealers, free sample packages of cigarettes containing
2 less than 20 cigarettes without affixing stamps to the packages provided
3 that monthly reports and payment of a tax at the rates prescribed by law
4 are made directly to the director. No wholesale dealer or manufacturers'
5 authorized representatives shall sell or distribute cigarettes, except free
6 sample packages, to any person in the state of Kansas not holding a de-
7 aler's license as provided in this act. Such packages of sample cigarettes
8 shall bear the word ``sample'' or ``not for sale'' and ``state tax paid'' in
9 letters easily read.
10 Whenever the director shall have reason to believe that any manufac-
11 turer has violated the provisions of this section or the conditions provided
12 by the director, the director shall conduct a hearing thereon in accordance
13 with the provisions of the Kansas administrative procedure act
14 office of the director at Topeka. If upon the basis of such hearing it
15 appears to the satisfaction of the director that such manufacturer has
16 violated any of the provisions of this section or the conditions provided
17 by the director, the director is hereby authorized to suspend or revoke
18 the authorization to the manufacturer for such period as the director
19 determines is necessary but in no case for more than one year.
20 Sec. 18. K.S.A. 65-163a, 65-164, 65-165, 65-3483, 65-3488, 65-3490,
21 75-3306, 77-518 and 79-3313 and K.S.A. 1996 Supp. 44-1005, 65-163,
22 65-526, 77-514 and 77-527 are hereby repealed.
23 Sec. 19. This act shall take effect and be in force from and after
24 January 1, 1998, and its publication in the statute book.