SB 276--Am. by H
As Amended by House Committee
As Amended by Senate Committee
Session of 1997
By Committee on Energy and Natural Resources

12 AN ACT enacting the voluntary cleanup and property redevelopment act; 13 concerning remediation of contaminated property. 14 15 Be it enacted by the Legislature of the State of Kansas: 16 Section 1. This act shall be known and may be cited as the voluntary 17 cleanup and property redevelopment act and shall apply to real property 18 where environmental cleanup may be needed. 19 Sec. 2. As used in this act: 20 (a) ``Contaminant'' means such alteration of the physical, chem- 21 ical or biological properties of any soils and waters of the state as 22 will or is likely to create a nuisance or render such soils or waters 23 potentially harmful, or injurious to public health, safety or welfare, 24 or to the plant, animal or aquatic life of the state. 25 (b) ``Department'' means the department of health and environment. 26 (b) (c) ``Secretary'' means the secretary of health and environment. 27 Sec. 3. The secretary may adopt rules and regulations necessary to 28 define, administer and enforce the provisions of this act. 29 Sec. 4. (a) The program established in this act shall be voluntary and 30 may be initiated by submission of an application to the department for 31 properties where investigation and remediation may be necessary to pro- 32 tect human health or the environment based upon the current or pro- 33 posed future use or redevelopment of the property. 34 (b) Property which may be eligible for reimbursement from trust 35 funds established in the Kansas storage tank act, K.S.A. 65-34,100 et seq., 36 and amendments thereto, or the Kansas drycleaner environmental re- 37 sponse act, K.S.A. 1996 Supp. 65-34,141 et seq., and amendments 38 thereto, shall meet all of the requirements of the respective act. 39 (c) The provisions of this act shall not apply to: 40 (1) Property that is listed or proposed for listing on the national pri- 41 orities list of superfund sites established under the comprehensive envi- 42 ronmental response, compensation, and liability act (CERCLA), 42 43 U.S.C.A. 9601 et seq.; SB 276--Am. by H

 1    (2)  property the contaminated portion of which is the subject of:
 2    (A)  Enforcement action issued pursuant to city, county, state or fed-
 3  eral environmental laws; or
 4    (B)  environmental orders or agreements with city, county, state or
 5  federal governmental agencies;
 6    (3)  a facility which has or should have a permit pursuant to the re-
 7  source, conservation and recovery act (RCRA), 42 U.S.C.A. 6901 et seq.,
 8  which contains a corrective action component;
 9    (4)  oil and gas activities regulated by the state corporation commis-
10  sion;
11    (5)  property that presents an immediate and significant risk of harm
12  to human health or the environment; or
13    (6)  property that the department determines to be a substantial threat
14  to public or private drinking water wells.
15    Sec. 5.  (a) Each application or reapplication for participation in the
16  voluntary program shall be accompanied by a nonrefundable application
17  fee of $200 to cover processing costs.
18    (b)  The department shall review and approve or deny all applications.
19    (c)  The department shall notify the applicant in writing, whether the
20  application is approved or denied. If the application is denied, the noti-
21  fication shall state the reason for the denial.
22    (d)  Following departmental approval of an application, a voluntary
23  agreement in accordance with this act must be executed between the
24  participant and the department. The department shall not commence
25  oversight and review activities until the voluntary agreement is executed.
26    (e)  As part of the voluntary agreement, the department shall require
27  the applicant to post a deposit not to exceed $5,000. The deposit shall be
28  used to cover all direct and indirect costs of the department in adminis-
29  tration of the program, including but is not limited to providing technical
30  review, oversight and guidance in relation to the specific property cov-
31  ered in the application. If the costs of the department exceed the initial
32  deposit, an additional amount agreed upon by the department and the
33  applicant will be required prior to proceeding with any voluntary work
34  under the program. Timely remittance of reimbursements to the depart-
35  ment is a condition of continuing participation. After the mutual termi-
36  nation of the voluntary agreement, the department shall refund any re-
37  maining balance within 60 days.
38    (f)  During the time allocated for review of applications, assessments,
39  other investigative activities and remedial activities under this act, the
40  department, upon reasonable notice to the applicant, shall have access at
41  all reasonable times to the subject real property.
42    (g)  The participant applicant may unilaterally terminate the volun-
43  tary agreement prior to completion of investigative and remedial activities
SB 276--Am. by H

 1  if the participant applicant leaves the site in no worse condition, from a
 2  human health and environmental perspective, than when the participant
 3  applicant initiated voluntary activities. The participant applicant must
 4  notify the department in writing of the intention to terminate the vol-
 5  untary agreement. The department will cease billing for review of any
 6  submittal under the voluntary agreement upon receipt of notification.
 7  Within 90 days after receipt of notification for termination, the depart-
 8  ment shall provide a final invoice bill for services provided. If the partic-
 9  ipant applicant requests termination of the voluntary agreement under
10  this subsection, initial deposits are not refundable. In the event the de-
11  partment has costs in excess of the initial deposit, the participant appli-
12  cant must remit full payment of those costs. Upon payment of all costs,
13  the department shall notify the participant applicant in writing that the
14  voluntary agreement has been terminated.
15    (h)  The department may terminate the voluntary agreement if the
16  participant applicant:
17    (1)  Violates any terms or conditions of the voluntary agreement or
18  fails to fulfill any obligations of the voluntary agreement; or
19    (2)  fails to address an immediate and significant risk of harm to public
20  health and the environment in an effective and timely manner.
21    The department shall notify the participant applicant in writing of the
22  intention to terminate the voluntary agreement and include a summary
23  of the costs of the department. The notification shall state the reason or
24  reasons for the termination.
25    (i)  There is established a fund in the state treasury the voluntary
26  cleanup fund. Revenue from the following sources shall be deposited in
27  the state treasury and credited to the fund:
28    (1)  Moneys collected for application fees;
29    (2)  moneys collected as deposits for costs associated with administra-
30  tion of the act, including technical review, oversight and guidance;
31    (3)  moneys received by the secretary in the form of gifts, grants, re-
32  imbursements or appropriations from any source intended to be used for
33  purposes of the fund; and
34    (4)  interest attributable to the investment of moneys in the fund.
35    (j)  Moneys in the voluntary cleanup fund shall only be expended for
36  costs of:
37    (1)  Review of applications;
38    (2)  technical review, oversight, guidance and other activities neces-
39  sary to carry out the provisions of this act;
40    (3)  activities performed by the department to address immediate or
41  emergency threats to human health and the environment related to a
42  property under this act; and
43    (4)  administration and enforcement of the provisions of this act.
SB 276--Am. by H

 1    (k)  On or before the 10th of each month following the month in
 2  which moneys are first credited to the voluntary cleanup fund, and
 3  monthly thereafter on or before the 10th of each month, the director of
 4  accounts and reports shall transfer from the state general fund to the
 5  voluntary cleanup fund interest earnings based on:
 6    (1)  The average daily balance of moneys in the voluntary cleanup
 7  fund for the preceding month; and
 8    (2)  the net earnings rate of the pooled money investment portfolio
 9  for the preceding month.
10    (1)  All expenditures from the fund shall be made in accordance with
11  appropriation acts upon warrants of the director of accounts and reports
12  issued pursuant to vouchers approved by the secretary for the purposes
13  set forth in this section.
14    Sec. 6.  (a) The department shall review reports, including any envi-
15  ronmental assessments and investigations submitted by the applicant,
16  and make a determination as to any required actions. Based upon sub-
17  mitted documentation, if If the department determines that no remedial
18  action is necessary, the department may issue a no further action deter-
19  mination pursuant to section 9.
20    (b)  If the department determines that further investigation or re-
21  mediation is required, the applicant shall submit to the department a
22  voluntary cleanup plan that follows the scope of work prepared by the
23  department for voluntary investigation or remediation and includes the
24  actions necessary to address the contamination.
25    Sec. 7.  Remedial alternatives shall be based on the actual risk as-
26  sumptions to human health and the environment currently posed by con-
27  taminants on the property, considering the following factors:
28    (a)  The present and proposed future uses of the property and sur-
29  rounding properties;
30    (b)  the ability of the contaminants to move in a form and manner
31  which would result in exposure to humans and the surrounding environ-
32  ment at levels which exceed applicable state standards and guidelines or
33  the results of a risk analysis if such standards and guidelines are
34  not available; and
35    (c)  the potential risks associated with proposed cleanup alternatives
36  and the reliability and economic and technical feasibility of such alter-
37  natives.
38    Sec. 8.  (a) The department shall provide formal written notification
39  to the applicant that a voluntary cleanup plan has been approved or
40  disapproved within 60 days of submittal of the voluntary cleanup plan by
41  the applicant unless the applicant and the department agree to an exten-
42  sion of department extends the time for review to a date certain. Review
43  shall be limited to a review of the materials submitted by the applicant
SB 276--Am. by H

 1  and documents or information readily available to the department.
 2    (b)  The department shall approve a voluntary cleanup plan if, based
 3  on the information submitted by the applicant, the department concludes
 4  that the plan will attain a degree of cleanup and control of contaminants
 5  that complies with all applicable statutes and rules and regulations.
 6    (c)  If a voluntary cleanup plan is not approved by the department,
 7  the department shall promptly provide the property owner applicant
 8  with a written statement of the reasons for denial. If the department
 9  disapproves a voluntary cleanup plan based upon the applicant's failure
10  to submit the information required, the department shall notify the ap-
11  plicant of the deficiencies in the information submitted.
12    (d)  The approval of a voluntary cleanup plan by the department ap-
13  plies only to those contaminants and conditions identified on the property
14  based upon the statutes and rules and regulations that exist when the
15  application is submitted.
16    (e)  Upon determination by the department that a voluntary cleanup
17  plan is approved, the department may shall publish a notice of the action
18  in a daily newspaper of general circulation in the area affected and make
19  the voluntary cleanup plan available to the public. If sufficient interest is
20  shown by the public, or a local governing body of a city, township or
21  county, the department may conduct a public meeting at or near the
22  property regarding the proposed voluntary cleanup plan. acceptable, the
23  department shall publish a notice of the determination in a local
24  newspaper of general circulation in the area affected and make
25  the voluntary cleanup plan available to the public. The public shall
26  have 15 days from the date of publication during which any person
27  may submit to the department written comments regarding the
28  voluntary cleanup plan. After 15 days have elapsed, the depart-
29  ment may hold a public information meeting if, in the depart-
30  ment's judgment, the comments submitted warrant such a meeting
31  or if the applicant requests such a meeting. Upon completion of
32  the public notification and participation process, the department
33  shall make a determination to approve the plan in accordance with
34  this section.
35    (f)  Departmental approval of a voluntary cleanup plan shall be void
36  upon:
37    (1)  Failure of a property owner an applicant to comply with the
38  approved voluntary cleanup plan;
39    (2)  submission of willful submission of false, inaccurate or mis-
40  leading information by the applicant in the context of the voluntary
41  cleanup plan; or
42    (3)  Failure failure to initiate the plan within 6 months after approval
43  by the department, or failure to complete the plan within 24 months after
SB 276--Am. by H

 1  approval by the department, unless the department grants an extension
 2  of time.
 3    (g)  An applicant desiring to implement a voluntary clean up plan after
 4  the time limits prescribed by subsection (f)(3) have expired shall submit
 5  a written petition for reapplication accompanied by written assurances of
 6  a qualified environmental professional from the applicant that the con-
 7  ditions on the subject property are substantially similar to those existing
 8  at the time of the original approval. Reapplications shall be reviewed by
 9  the department. Any reapplication that involves property upon which the
10  condition has substantially changed since approval of the original volun-
11  tary cleanup plan shall be treated as a new application and shall be subject
12  to all the requirements of this act.
13    (h)  Within 45 days after the completion of the voluntary cleanup de-
14  scribed in the approved voluntary cleanup plan, the applicant shall pro-
15  vide to the department assurance from a qualified environmental profes-
16  sional that the plan has been fully implemented. A verification sampling
17  program shall be required by the department to confirm that the property
18  has been cleaned up as described in the voluntary cleanup plan.
19    (i)  After receipt of the assurance or the verification of voluntary
20  cleanup, the department shall issue a no further action determination to
21  the participant.
22    Sec. 9.  (a) After an applicant completes the requirements of this act,
23  the department may determine that no further remedial action is re-
24  quired. Within 60 days after such completion, unless the applicant and
25  the department agree to an extension of the time for review, the depart-
26  ment shall provide written notification that a no further action determi-
27  nation has been made.
28    (b) (1)  The department may consider in issuing this determination
29  that contamination or a release of contamination originates from a source
30  on adjacent property upon which the necessary action which protects
31  human health and the environment is or will be taken by either a viable
32  and financially capable person or entity which is may or may not be
33  legally responsible for the source of contamination or a person who is not
34  legally responsible for such source.
35    (2)  The department shall provide written notification of a no further
36  action determination.
37    (3)  The issuance of a no further action determination by the depart-
38  ment applies only to identified conditions on the property and is based
39  upon applicable statutes and rules and regulations that exist as of the time
40  of completion of the requirements.
41    (c)  The department may determine that the no further action deter-
42  mination, under this section is void if:
43    (1)  There is any evidence or of fraudulent representation, false as-
SB 276--Am. by H

 1  surances, concealment or misrepresentation of the data in any document
 2  to be submitted to the department under this act;
 3    (2)  the participant applicant agrees to perform any action approved
 4  by the department and fails to perform such action;
 5    (3)  the participant's applicant's willful and wanton conduct contrib-
 6  utes to known environmental contamination; or
 7    (4)  the participant applicant fails to complete the voluntary actions
 8  required in the voluntary cleanup plan.
 9    (d)  If a no further action determination is not issued by the depart-
10  ment, the department shall promptly provide the applicant with a written
11  statement of the reasons for denial.
12    Sec. 10.  (a) The department may accept only environmental assess-
13  ments under this act prepared by a qualified environmental professional,
14  as defined by rules and regulations adopted by the secretary.
15    (b)  The environmental assessment described in section 6, shall con-
16  form to the standards set forth in the American society for testing and
17  materials designation: 1527-93, as in existence on the effective date of
18  this act.
19    Sec. 11.  (a) Nothing in this act shall absolve any person from obli-
20  gations under any other law or rule and regulation, including any require-
21  ment to obtain permits or approvals for work performed under a voluntary
22  cleanup plan.
23    (b)  If the federal environmental protection agency (EPA) indicates
24  that it is investigating a property which is the subject of an approved
25  voluntary cleanup plan, the department shall attempt to obtain agreement
26  with the EPA that the property be addressed under the appropriate state
27  program or, in the case of property being addressed through a voluntary
28  cleanup plan, that no further federal action be taken with respect to the
29  property at least until the voluntary cleanup plan is completely imple-
30  mented.
31    Sec. 12.  (a) Voluntary cleanup plans are not enforceable against a
32  participant an applicant unless the department can demonstrate that a
33  participant an applicant who initiated a voluntary cleanup under an ap-
34  proved plan has failed to fully implement that plan. In that case, the
35  department may require further action if such action is authorized by
36  other state statutes administered by the department or rules and reg-
37  ulations of the department.
38    (b)  Information provided by a participant an applicant to support a
39  voluntary cleanup plan shall not provide the department with an inde-
40  pendent basis to seek penalties from the participant applicant pursuant
41  to applicable statutes or rules and regulations. If, pursuant to other ap-
42  plicable statutes or rules and regulations, the department initiates an en-
43  forcement action against the participant applicant subsequent to the
SB 276--Am. by H

 1  submission of a voluntary cleanup plan regarding the contamination ad-
 2  dressed in the plan, the voluntary disclosure of the information in the
 3  plan shall be considered by the enforcing authority to mitigate penalties
 4  which could be assessed to the participant applicant.
 5    Sec. 13.  The department shall publish annually in the Kansas
 6  register a summary of the number of applicants, the general cate-
 7  gories of those applicants and the number of cleanups completed
 8  pursuant to this act.
 9    Sec. 13 14.  If any provision of this act or the application thereof to
10  any person or circumstances is held invalid, the invalidity does not affect
11  other provisions or applications of this act which can be given effect with-
12  out the invalid provisions or application. To this end the provisions of this
13  act are severable.
14    Sec. 14 15.  This act shall take effect and be in force from and after
15  its publication in the statute book.