Session of 1999
SENATE BILL No. 332
By Committee on Federal and State Affairs
2-22
9 AN ACT concerning hazardous materials; relating to the certification of
10 certain consultants and contractors.
11
12 Be it enacted by the Legislature of the State of Kansas:
13 Section 1. As used in this act: (a) "Consultant" means a person who
14 provides information, opinion or advice for a fee or in conjunction with
15 other services for which a fee is charged.
16 (b) "Division" means the division of environment of the Kansas de-
17 partment of health and environment.
18 (c) "Employee" includes:
19 (1) Any officer of a corporation;
20 (2) any person whose activities are subject to a right of control by the
21 person paying for such person's services; and
22 (3) any other person who would be considered an employee under
23 any common law definition of employee.
24 (d) "Environmental manager" means a person who is certified by the
25 division pursuant to section 7 or 11, and amendments thereto, as a con-
26 sultant for the:
27 (1) Management of hazardous waste;
28 (2) investigation of a site to determine the release or potential release
29 of a hazardous substance;
30 (3) sampling of air, soil, surface water or groundwater to determine
31 the release of a hazardous substance;
32 (4) response to a release of a hazardous substance;
33 (5) cleanup of a release of a hazardous substance; or
34 (6) remediation of water or soil contaminated by a hazardous
35 substance.
36 (e) "Handler of underground storage tanks" means a natural person
37 who is certified by the division pursuant to section 9 or 11, and amend-
38 ments thereto, to install, repair, upgrade or close underground storage
39 tanks pursuant to 40 C.F.R. Part 280, as that part existed on June 12,
40 1990.
41 (f) "Hazardous material" has the meaning ascribed to it in K.S.A. 65-
42 3471, and amendments thereto.
43 (g) "Hazardous substance" means any:
44 (1) hazardous material;
45 (2) acutely hazardous material; or
46 (3) hazardous waste.
47 (h) "Hazardous waste" has the meaning ascribed to it in K.S.A. 65-
48 3430, and amendments thereto.
49 (i) "Management of hazardous waste" means services relating to the
50 identification, sampling, handling, packaging, storage, labeling, treatment,
51 reduction, recycling, permitting, recordkeeping, manifesting, transpor-
52 tation or disposal of hazardous waste.
53 (j) "Person" has the meaning ascribed to it in K.S.A. 65-3430, and
54 amendments thereto.
55 (k) "Release of a hazardous substance" means the discharge, deposit,
56 injection, dumping, spilling, emitting, leaking, escaping, leaching, pump-
57 ing, pouring, emptying, disposing or placing of a hazardous substance into
58 the air or on land or the waters of the state. Such term shall not include
59 a release of a hazardous substance:
60 (1) Specifically allowed by a permit issued pursuant to state or federal
61 law; or
62 (2) for which a permit is not required by state or federal law.
63 (m) "Response" means the provision of remedial services to protect
64 the public health, safety, welfare or environment from a release of a haz-
65 ardous substance, including, but not limited to, the digging, cleanup, re-
66 moval, abatement, containment, control, absorbance, treatment or re-
67 mediation of soil or water contaminated with a hazardous substance.
68 (n) "Specialist in the management of hazardous waste" means a nat-
69 ural person who is certified by the division pursuant to section 8 or 11,
70 and amendments thereto, to act as a consultant relating to the manage-
71 ment of hazardous waste.
72 (o) "Tester of underground storage tanks" means a natural person
73 who is certified by the division pursuant to section 9 or 11, and amend-
74 ments thereto, to test the tightness of underground storage tanks pursuant
75 to 40 C.F.R. Section 280.43(c), as that section existed on June 12, 1990.
76 (p) "Underground storage tank" has the meaning ascribed to it in 40
77 C.F.R. Section 280.12, as that section existed on June 12, 1990.
78 Sec. 2. The provisions of this act shall not apply to:
79 (a) Services provided by an employee of a business or public agency
80 relating to the hazardous waste management, release investigation or re-
81 sponse or underground storage tank management responsibilities of such
82 employee's employer, exclusively, while acting in the course of that
83 employment;
84 (b) services provided by an employee of a public agency with the
85 responsibility of regulatory enforcement, emergency response or protec-
86 tion of public health, welfare or the environment, while acting in the
87 course of that employment;
88 (c) services provided by a person who is a transporter of hazardous
89 waste that are:
90 (1) Designated as the specific responsibility of the transporter of haz-
91 ardous waste under the applicable state or federal regulations;
92 (2) necessary to perform the service of transportation of hazardous
93 waste in accordance with the applicable state or federal regulations;
94 (d) services provided by a person under contract at a federal facility,
95 while acting within the scope of that contract;
96 (e) services provided by a person that are requested by a state agency
97 or political subdivision of the state if fees are not charged for those
98 services;
99 (f) services provided by a public utility to its customers if incidental
100 to the services ordinarily provided by the utility.
101 Sec. 3. (a) A person shall not provide services as an environmental
102 manager for a fee or in conjunction with other services for which a fee is
103 charged, unless those services are performed under the direction and
104 control of a person who is a certified environmental manager.
105 (b) The provisions of this section shall not prohibit the engagement
106 of an apprentice or assistant if such person is under the direct supervision
107 of a certified environmental manager. The supervising environmental
108 manger shall be responsible for the work of any apprentice or assistant.
109 Sec. 4. (a) A person shall not provide services as a specialist in the
110 management of hazardous waste for a fee or in conjunction with other
111 services for which a fee is charged, unless those services are performed
112 under the direction and control of a person who is a certified specialist
113 in the management of hazardous waste.
114 (b) The provisions of this section shall not prohibit the engagement
115 of an apprentice or assistant if such person is under the direct supervision
116 of a certified specialist in the management of hazardous waste. The su-
117 pervising specialist in the management of hazardous waste shall be re-
118 sponsible for the work of any apprentice or assistant.
119 Sec. 5. (a) A person shall not provide services as a handler of under-
120 ground storage tanks for a fee or in conjunction with other services for
121 which a fee is charged, unless those services are performed under the
122 direction and control of a person who is a certified handler of under-
123 ground storage tanks.
124 (b) The provisions of this section shall not prohibit the engagement
125 of an apprentice or assistant if such person is under the direct supervision
126 of a certified handler of underground storage tanks. The supervising han-
127 dler of underground storage tanks shall be responsible for the work of
128 any apprentice or assistant.
129 Sec. 6. (a) A person shall not provide services as a tester of under-
130 ground storage tanks for a fee or in conjunction with other services for
131 which a fee is charged, unless those services are performed under the
132 direction and control of a person who is a certified tester of underground
133 storage tanks.
134 (b) The provisions of this section shall not prohibit the engagement
135 of an apprentice or assistant if such person is under the direct supervision
136 of a certified tester of underground storage tanks. The supervising tester
137 of underground storage tanks shall be responsible for the work of any
138 apprentice or assistant.
139 Sec. 7. An applicant for certification as an environmental manager
140 shall:
141 (a) Be of good character and reputation as determined by the division
142 upon review of the applicant's references, record of violations of environ-
143 mental laws and rules and regulations and such other considerations as
144 the division deems necessary and proper as specified in rules and
145 regulations;
146 (b) submit to the division:
147 (1) An application on a form provided by the division;
148 (2) a nonrefundable fee of $100 for the review of the application;
149 (3) a color photograph of the applicant which is approximately 2
150 inches by 2 inches;
151 (4) a statement signed by the applicant under penalty of perjury de-
152 claring the details of all pleas of guilty or nolo contendere in any criminal
153 proceeding and all convictions of any crimes; and
154 (5) three letters of reference from persons with experience in envi-
155 ronmental management attesting to the applicant's moral character and
156 competence in environmental management;
157 (c) demonstrate to the division that the applicant meets one of the
158 following qualifications:
159 (1) A bachelor's or advanced degree from an accredited college or
160 university in an area relating to the environment including, but not limited
161 to, environmental science, engineering, geology, hydrology, hydrogeol-
162 ogy, biology, toxicology, environmental health, physics, industrial hygiene
163 or chemistry and at least 3 years of relevant environmental experience
164 within the 5 years immediately preceding the date of the application;
165 (2) a relevant professional registration or certification recognized by
166 the division and at least 3 years of relevant environmental experience
167 within the 5 years immediately preceding the date of the application; or
168 (3) an equivalent combination of appropriate education or experi-
169 ence, or both, as determined by the division; and
170 (d) pass an examination as provided by section 13, and amendments
171 thereto.
172 Sec. 8. An applicant for certification as a specialist in the manage-
173 ment of hazardous waste shall:
174 (a) Be of good character and reputation as determined by the division
175 upon review of the applicant's references, record of violations of environ-
176 mental laws and rules and regulations and such other considerations as
177 the division deems necessary and proper as specified in rules and
178 regulations;
179 (b) submit to the division:
180 (1) An application on a form provided by the division;
181 (2) a nonrefundable fee of $100 for the review of the application;
182 (3) a color photograph of the applicant which is approximately 2
183 inches by 2 inches;
184 (4) a statement signed by the applicant under penalty of perjury de-
185 claring the details of all pleas of guilty or nolo contendere in any criminal
186 proceeding and all convictions of any crimes; and
187 (5) three letters of reference from persons with experience in the
188 management of hazardous waste attesting to the applicant's moral char-
189 acter and competence in management of hazardous waste;
190 (c) demonstrate to the division that the applicant meets one of the
191 following qualifications:
192 (1) A bachelor's or advanced degree from an accredited college or
193 university in an area relating to the environment including, but not limited
194 to, environmental science, engineering, geology, hydrology, hydrogeol-
195 ogy, biology, toxicology, environmental health, physics, industrial hygiene
196 or chemistry and at least 2 years of relevant hazardous waste experience
197 within the 3 years immediately preceding the date of the application;
198 (2) a relevant professional registration or certification recognized by
199 the division and at least 2 years of relevant hazardous waste experience
200 within the 3 years immediately preceding the date of the application;
201 (3) a high school diploma or general equivalency diploma and at least
202 6 years of relevant hazardous waste experience within the 8 years im-
203 mediately preceding the date of the application; or
204 (4) an equivalent combination of appropriate education and experi-
205 ence as determined by the division; and
206 (d) pass an examination as provided by section 13, and amendments
207 thereto.
208 Sec. 9. An applicant for certification as a handler of underground
209 storage tanks shall:
210 (a) Be of good character and reputation as determined by the division
211 upon review of the applicant's references, record of violations of environ-
212 mental laws and rules and regulations and such other considerations as
213 the division deems necessary and proper as specified in rules and
214 regulations;
215 (b) submit to the division:
216 (1) An application on a form provided by the division;
217 (2) a nonrefundable fee of $100 for the review of the application;
218 (3) a color photograph of the applicant which is approximately 2
219 inches by 2 inches;
220 (4) a specific record of at least 2 years experience and the direct
221 participation in at least 10 projects relating to the handling of under-
222 ground storage tanks;
223 (5) a copy of an appropriate license issued by the state contractor's
224 board pursuant to chapter 624 of NRS;
225 (6) proof of completion of a course approved by the division con-
226 cerning the safe handling of underground storage tanks;
227 (7) a statement signed by the applicant under penalty of perjury de-
228 claring the details of all pleas of guilty or nolo contendere in any criminal
229 proceeding and all convictions of any crimes; and
230 (8) three letters of reference from persons with experience in the
231 handling of underground storage tanks attesting to the applicant's moral
232 character and competence in the handling of underground storage tanks;
233 and
234 (c) pass an examination as provided by section 13, and amendments
235 thereto.
236 Sec. 10. An applicant for certification as a tester of underground stor-
237 age tanks shall:
238 (a) Be of good character and reputation as determined by the division
239 upon review of the applicant's references, record of violations of environ-
240 mental laws and rules and regulations and such other considerations as
241 the division deems necessary and proper as specified in rules and
242 regulations;
243 (b) submit to the division:
244 (1) An application on a form provided by the division;
245 (2) a nonrefundable fee of $100 for the review of the application;
246 (3) a color photograph of the applicant which is approximately 2
247 inches by 2 inches;
248 (4) a specific record of direct participation in at least 50 tests of un-
249 derground storage tanks;
250 (5) a specific record of at least 1 year of experience in the testing of
251 underground storage tanks;
252 (6) proof of training provided by the manufacturer of the equipment
253 which is used for testing;
254 (7) proof of completion of a course approved by the division con-
255 cerning the safe handling of underground storage tanks;
256 (8) a statement signed by the applicant under penalty of perjury de-
257 claring the details of all pleas of guilty or nolo contendere in any criminal
258 proceeding and all convictions of any crimes; and
259 (9) three letters of reference from persons with experience in the
260 testing of underground storage tanks attesting to the applicant's moral
261 character and competence in the testing of underground storage tanks;
262 (c) pass an examination as provided by section 13, and amendments
263 thereto.
264 Sec. 11. (a) Except as otherwise provided in this section, a person
265 who is certified as an environmental manager, specialist in the manage-
266 ment of hazardous waste, handler of underground storage tanks, or tester
267 of underground storage tanks by another state or an organization recog-
268 nized by the division, may be certified by the division if such person
269 complies with the requirements set forth in subsection (b).
270 (b) A person who applies for certification pursuant to this section shall
271 submit to the division:
272 (1) An application on a form provided by the division;
273 (2) a nonrefundable fee of $100 for the review of the application;
274 (3) a color photograph of the applicant which is approximately 2
275 inches by 2 inches; and
276 (4) proof of certification by another state having requirements which
277 are the same as or exceed the requirements of the division or an organ-
278 ization recognized by the division in the classification for which the ap-
279 plicant is applying for certification in this state.
280 (c) The division shall not issue a certificate to a person who is certified
281 by another state or organization if the requirements for certification by
282 that state or organization are substantially not equivalent to the require-
283 ments for certification in this state.
284 Sec. 12. The division may waive any requirements for training for a
285 certificate if such training is not available.
286 Sec. 13. (a) The division shall review each application and send each
287 applicant written notice within six weeks of receipt of all required ma-
288 terials whether such application has been approved or denied.
289 (b) An applicant whose application is approved by the division and
290 who wishes to take the examination shall submit to the division a non-
291 refundable examination fee set by the division, not to exceed $150, at
292 least 30 days before the examination is given.
293 (c) The division shall determine the content of the examinations.
294 (d) A score of 70 shall be a passing score on an examination for
295 certification.
296 (e) An examination for each classification shall be given at least once
297 each year.
298 (f) The examinations are the property of the division and shall be
299 confidential.
300 (g) An applicant who fails the examination may apply for a reexami-
301 nation. The nonrefundable fee for reexamination shall be set by the di-
302 vision but shall not exceed $150.
303 (h) Each application for certification shall remain on file with the
304 division for two years after the date that all required materials are received
305 by the division. If the applicant does not pass an examination for certifi-
306 cation or request reexamination within the two-year period, the applicant
307 shall file with the division a new application for certification prior to taking
308 the examination again.
309 Sec. 14. (a) Each certificate issued by the division to an applicant
310 shall bear:
311 (1) The name of the applicant;
312 (2) the number of the certificate;
313 (3) the date of expiration of the certificate; and
314 (4) the specific classification of certification.
315 (b) Each certificate shall be valid for two years after the date the
316 division issues the certificate.
317 Sec. 15. A holder of a certificate who wishes to renew such certificate
318 shall:
319 (a) Demonstrate to the division that the applicant continues to meet
320 all qualifications and performance requirements of this act;
321 (b) submit an application for renewal of the certificate to the division
322 on a form provided by the division;
323 (c) submit a nonrefundable fee set by the division not to exceed $100;
324 and
325 (d) complete an examination for renewal if the division has deter-
326 mined that such a renewal examination is appropriate.
327 Sec. 16. (a) Each person certified by the division pursuant to this act:
328 (1) Shall provide services which are ethical, meet the current stan-
329 dards of the profession and comply with federal, state and local regula-
330 tions concerning hazardous substances or underground storage tanks;
331 (2) shall be responsible for the work of other persons employed or
332 supervised by such person;
333 (3) shall have a copy of the certificate at the location where such
334 person is supervising work. Upon request of the division, client or poten-
335 tial client, a holder of a certificate shall present such certificate for
336 inspection;
337 (4) shall make a written report to the facility owner or operator,
338 within 24 hours, upon the discovery of a release of a hazardous substance
339 or the existence of an unregistered underground storage tank and advise
340 that facility owner or operator of any applicable reporting requirements;
341 (5) shall report to the division and to the division of emergency man-
342 agement the discovery of a release of a hazardous substance which pres-
343 ents an imminent and substantial hazard to human health, public safety
344 or the environment as soon as possible after such person has knowledge
345 of a release;
346 (6) shall secure the services of a qualified person to perform any work
347 which requires a level of service or skill which such person is not qualified
348 to provide;
349 (7) shall make complete prior disclosures to such person's clients or
350 potential clients of potential conflicts of interest or other circumstances
351 which could influence the judgment or the quality of the services
352 provided;
353 (8) shall not falsify or misrepresent such person's education or ex-
354 perience, the degree of responsibility for prior assignments or the com-
355 plexity or prior employment or business, relevant factors concerning em-
356 ployers, employees, associates or joint ventures or past accomplishments;
357 (9) shall maintain a written record, as required by rules and regula-
358 tions, of each project requiring certification for three years after the pro-
359 ject is completed. The division may inspect such records during normal
360 business hours.
361 (b) Certification may be suspended, revoked or denied for renewal if
362 the division determines that the certificate holder has not performed in
363 accordance with these standards.
364 Sec. 17. The division shall recognize any professional registration or
365 certification if such registration or certification is based on requirements
366 or standards which are the same as or exceed the requirements for ac-
367 creditation by the council on engineering and scientific speciality boards.
368 Sec. 18. The director shall adopt any rules and regulations necessary
369 for the implementation of this act.
370 Sec. 19. This act shall take effect and be in force from and after its
371 publication in the statute book.