An Act amending the Kansas storage tank act; abolishing the petroleum storage tank release compensation advisory board; concerning reports of receipts and disbursements from certain funds; amending K.S.A. 65-34,102, 65-34,120 and 65-34,121 and K.S.A. 1995 Supp. 65-34,123 and repealing the existing sections; and also repealing K.S.A. 65-34,116.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 65-34,102 is hereby amended to read as follows: 65-34,102. As used in the Kansas storage tank act:

(a) ``Aboveground storage tank'' means:

(1) Any storage tank in which greater than 90% of the tank volume, including volume of the piping, is not below the surface of the ground; or

(2) any storage tank situated in an underground area, such as a base- ment, cellar, mine working, drift, shaft or tunnel, if the storage tank is situated upon or above the surface of the floor.

(b) ``Aboveground fund'' means the aboveground petroleum storage tank release trust fund.

(c) ``Board'' means the petroleum storage tank release compensation advisory board.

(d) ``Department'' means the Kansas department of health and en- vironment.

(e)(d) ``Facility'' means all contiguous land, structures and other ap- purtenances and improvements on the land used in connection with one or more storage tanks.

(f)(e) ``Federal act'' means the solid waste disposal act, 42 U.S.C. sections 3152 et seq., as amended, particularly by the hazardous and solid waste amendments of 1984, P.L. 98-616, 42 U.S.C. sections 6991 et seq., as amended by P.L. 99-499, 1986, and rules and regulations adopted pursuant to such federal laws and in effect on the effective date of this act.

(g)(f) ``Financial responsibility'' means insurance, guarantee, surety bond, letter of credit, qualification as a self-insurer or any other method satisfactory to the secretary to provide for taking corrective action, in- cluding cleanup and restoration of any damage to the land, air or waters of the state, and compensating third parties for cleanup, bodily injury or property damage resulting from a sudden or nonsudden release of a reg- ulated substance arising from the construction, relining, ownership or operation of an underground storage tank and in the amount specified in the federal act.

(h)(g) ``Guarantor'' means any person, other than an owner or oper- ator, who provides evidence of financial responsibility for an owner or operator.

(i)(h) ``Operator'' means any person in control of or having respon- sibility for the daily operation of a storage tank, but such term shall not include a person whose only responsibility regarding such storage tank is filling such tank with a regulated substance and who does not dispense or have control of the dispensing of regulated substances from the storage tank.

(j)(i) ``Own'' means to hold title to or possess an interest in a storage tank or the regulated substance in a storage tank.

(k)(j) (1) ``Owner'' means any person who: (A) Is or was the owner of any underground storage tank which was in use on November 8, 1984, or brought into use subsequent to that date; (B) in the case of an under- ground storage tank in use prior to November 8, 1984, owned such tank immediately prior to the discontinuation of its use; (C) is or was the owner of any aboveground storage tank which was in use on July 1, 1992, or brought into use subsequent to that date; or (D) in the case of an above- ground storage tank in use prior to July 1, 1992, owned such tank im- mediately prior to the discontinuation of its use.

(2) Owner does not include: (A) A person who holds an interest in a petroleum storage tank solely for financial security, unless through fore- closure or other related actions the holder of a security interest has taken possession of the storage tank; and (B) any city or county which obtains a storage tank or regulated substance as a result of tax foreclosure pro- ceedings.

(l)(k) ``Person'' means an individual, trust, firm, joint venture, con- sortium, joint-stock company, corporation, partnership, association, state, interstate body, municipality, commission, political subdivision or any agency, board, department or bureau of this state or of any other state or of the United States government.

(m)(l) ``Petroleum'' means petroleum, including crude oil or any frac- tion thereof, which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pound per square inch abso- lute), including but not limited to, gasoline, gasohol, diesel fuel, fuel oils and kerosene.

(n)(m) ``Petroleum product'' means petroleum other than crude oil.

(o)(n) ``Petroleum storage tank'' means any storage tank used to con- tain an accumulation of petroleum.

(p)(o) ``Regulated substance'' means petroleum or any element, com- pound, mixture, solution or substance defined in section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 of the United States as in effect on January 1, 1989, but not if regulated as a hazardous waste under the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Secs. 6921 through 6939b), as in effect on January 1, 1989.

(q)(p) ``Release'' means any spilling, leaking, emitting, discharging, escaping, leaching or disposing from a storage tank into groundwater, surface water or soils.

(r)(q) ``Removal'' means the process of removing or disposing of a storage tank, no longer in service, and also shall mean the process of abandoning such tank, in place.

(s)(r) ``Repair'' means modification or correction of a storage tank through such means as relining, replacement of piping, valves, fillpipes, vents and liquid level monitoring systems, and the maintenance and in- spection of the efficacy of cathodic protection devices, but the term does not include the process of conducting a tightness test to establish the integrity of a tank.

(t)(s) ``Secretary'' means the secretary of health and environment.

(u)(t) ``Storage tank'' means any one or combination of tanks used to contain an accumulation of regulated substances, the associated piping and ancillary equipment and the containment system.

(v)(u) ``Tank'' means a stationary device designed to contain an ac- cumulation of substances and constructed of non-earthen materials such as concrete, steel or plastic, that provide structural support.

(w)(v) ``Terminal'' means a bulk storage facility for storing petroleum supplied by pipeline or marine vessel.

(x)(w) ``Trade secret'' means, but is not limited to, any customer lists, any formula, compound, production data or compilation of information which is not patented and which is known only to certain individuals within a commercial concern using it to fabricate, produce or compound an article of trade, or any service having commercial value, which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.

(y)(x) ``Underground storage tank'' means any storage tank in which 10% or more of the tank volume, including volume of the piping, is below the surface of the ground. Underground storage tank does not include any storage tank situated in an underground area, such as a basement, cellar, mine working, drift, shaft or tunnel, if the storage tank is situated upon or above the surface of the floor.

(z)(y) ``Underground storage tank contractor'' or ``contractor'' means a business which holds itself out as being qualified to install, repair or remove underground storage tanks.

(aa)(z) ``Underground fund'' means the underground petroleum stor- age tank release trust fund.

(bb)(aa) ``Underground storage tank installer'' or ``installer'' means an individual who has an ownership interest or exercises a management or supervisory position with an underground storage tank contractor. The term shall include the crew chief, expediter, engineer, supervisor, lead- man or foreman in charge of a tank installation project.

Sec. 2. K.S.A. 65-34,120 is hereby amended to read as follows: 65- 34,120. (a) Nothing in this act shall establish or create any liability or responsibility on the part of the board, the secretary, the department or its agents or employees, or the state of Kansas to pay any corrective action costs from any source other than the respective fund created by this act.

(b) In no event shall the underground fund be liable for the payment of corrective action costs in an amount in excess of the following, less any applicable deductible amounts of the owner or operator:

(1) For costs incurred in response to any one release from an under- ground petroleum storage tank, $1,000,000;

(2) subject to the provisions of subsection (a)(4), for an owner or operator of 100 or fewer underground petroleum storage tanks, an annual aggregate of $1,000,000; and

(3) subject to the provisions of subsection (a)(4), for an owner or operator of more than 100 underground petroleum storage tanks, an an- nual aggregate of $2,000,000.

(c) In no event shall the aboveground fund be liable for the payment of corrective action costs in an amount in excess of the following, less the deductible amounts of the owner or operator:

(1) For costs incurred in response to any one release from an above- ground petroleum storage tank, $1,000,000;

(2) for an owner or operator of 100 or fewer aboveground petroleum storage tanks, an annual aggregate of $1,000,000; and

(3) for an owner or operator of more than 100 aboveground petro- leum storage tanks, an annual aggregate of $2,000,000.

(d) This act is intended to assist an owner or operator only to the extent provided for in this act, and it is in no way intended to relieve the owner or operator of any liability that cannot be satisfied by the provisions of this act.

(e) Neither the secretary nor the state of Kansas shall have any lia- bility or responsibility to make any payments for corrective action if the respective fund created herein is insufficient to do so. In the event the respective fund is insufficient to make the payments at the time the claim is filed, such claims shall be paid in the order of filing at such time as moneys are paid into the respective fund.

(f) No common-law liability, and no statutory liability which is pro- vided in a statute other than in this act, for damages resulting from a release from a petroleum storage tank is affected by this act. The au- thority, power and remedies provided in this act are in addition to any authority, power or remedy provided in any statute other than a section of this act or provided at common law.

(g) If a person conducts a corrective action activity in response to a release from a petroleum storage tank, whether or not the person files a claim against the respective fund under this act, the claim and corrective action activity conducted are not evidence of liability or an admission of liability for any potential or actual environmental pollution or third-party claim.

Sec. 3. K.S.A. 65-34,121 is hereby amended to read as follows: 65- 34,121. On or before March 1 of the first day of the regular session of the legislature in each year, the secretary shall prepare and submit a report to the governor and each member of the legislature to the chair- person, vice-chairperson and ranking minority member of the standing committees on energy and natural resources of the house of representa- tives and the senate regarding the receipts and disbursements from the underground fund and the aboveground fund during the preceding cal- endar fiscal year, indicating the extent of the corrective action taken under this act.

Sec. 4. K.S.A. 1995 Supp. 65-34,123 is hereby amended to read as follows: 65-34,123. Except as provided in K.S.A. 74-7246, and amend- ments thereto, the board, the underground fund and the aboveground fund shall be and are hereby abolished on July 1, 2004.

Sec. 5. K.S.A. 65-34,102, 65-34,116, 65-34,120 and 65-34,121 and K.S.A. 1995 Supp. 65-34,123 are hereby repealed.

Sec. 6. This act shall take effect and be in force from and after its publication in the statute book.

Approved April 4, 1996.