Ch. 137             1997 Session Laws of Kansas             773

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

774             1997 Session Laws of Kansas             Ch. 137

Section 1. This act shall be known and may be cited as the voluntary
cleanup and property redevelopment act and shall apply to real property
where environmental cleanup may be needed.

Sec. 2. As used in this act:

(a) ``Contaminant'' means such alteration of the physical, chemical or
biological properties of any soils and waters of the state as will or is likely
to create a nuisance or render such soils or waters potentially harmful, or
injurious to public health, safety or welfare, or to the plant, animal or
aquatic life of the state.

(b) ``Department'' means the department of health and environment.

(c) ``Secretary'' means the secretary of health and environment.

Sec. 3. The secretary may adopt rules and regulations necessary to
define, administer and enforce the provisions of this act.

Sec. 4. (a) The program established in this act shall be voluntary and
may be initiated by submission of an application to the department for
properties where investigation and remediation may be necessary to pro-
tect human health or the environment based upon the current or pro-
posed future use or redevelopment of the property.

(b) Property which may be eligible for reimbursement from trust
funds established in the Kansas storage tank act, K.S.A. 65-34,100 et seq.,
and amendments thereto, or the Kansas drycleaner environmental re-
sponse act, K.S.A. 1996 Supp. 65-34,141 et seq., and amendments
thereto, shall meet all of the requirements of the respective act.

(c) The provisions of this act shall not apply to:

(1) Property that is listed or proposed for listing on the national pri-
orities list of superfund sites established under the comprehensive envi-
ronmental response, compensation, and liability act (CERCLA), 42
U.S.C.A. 9601 et seq.;

(2) property the contaminated portion of which is the subject of:

(A) Enforcement action issued pursuant to city, county, state or fed-
eral environmental laws; or

(B) environmental orders or agreements with city, county, state or
federal governmental agencies;

(3) a facility which has or should have a permit pursuant to the re-
source, conservation and recovery act (RCRA), 42 U.S.C.A. 6901 et seq.,
which contains a corrective action component;

(4) oil and gas activities regulated by the state corporation commis-
sion;

(5) property that presents an immediate and significant risk of harm
to human health or the environment; or

(6) property that the department determines to be a substantial threat
to public or private drinking water wells.

Sec. 5. (a) Each application or reapplication for participation in the

Ch. 137             1997 Session Laws of Kansas             775

voluntary program shall be accompanied by a nonrefundable application
fee of $200 to cover processing costs.

(b) The department shall review and approve or deny all applications.

(c) The department shall notify the applicant in writing, whether the
application is approved or denied. If the application is denied, the noti-
fication shall state the reason for the denial.

(d) Following departmental approval of an application, a voluntary
agreement in accordance with this act must be executed between the
participant and the department. The department shall not commence
oversight and review activities until the voluntary agreement is executed.

(e) As part of the voluntary agreement, the department shall require
the applicant to post a deposit not to exceed $5,000. The deposit shall be
used to cover all direct and indirect costs of the department in adminis-
tration of the program, including but is not limited to providing technical
review, oversight and guidance in relation to the property covered in the
application. If the costs of the department exceed the initial deposit, an
additional amount agreed upon by the department and the applicant will
be required prior to proceeding with any voluntary work under the pro-
gram. Timely remittance of reimbursements to the department is a con-
dition of continuing participation. After the mutual termination of the
voluntary agreement, the department shall refund any remaining balance
within 60 days.

(f) During the time allocated for review of applications, assessments,
other investigative activities and remedial activities under this act, the
department, upon reasonable notice to the applicant, shall have access at
all reasonable times to the subject real property.

(g) The applicant may unilaterally terminate the voluntary agreement
prior to completion of investigative and remedial activities if the applicant
leaves the site in no worse condition, from a human health and environ-
mental perspective, than when the applicant initiated voluntary activities.
The applicant must notify the department in writing of the intention to
terminate the voluntary agreement. The department will cease billing for
review of any submittal under the voluntary agreement upon receipt of
notification. Within 90 days after receipt of notification for termination,
the department shall provide a final bill for services provided. If the ap-
plicant requests termination of the voluntary agreement under this sub-
section, initial deposits are not refundable. In the event the department
has costs in excess of the initial deposit, the applicant must remit full
payment of those costs. Upon payment of all costs, the department shall
notify the applicant in writing that the voluntary agreement has been
terminated.

(h) The department may terminate the voluntary agreement if the
applicant:

(1) Violates any terms or conditions of the voluntary agreement or
fails to fulfill any obligations of the voluntary agreement; or

776             1997 Session Laws of Kansas             Ch. 137

(2) fails to address an immediate and significant risk of harm to public
health and the environment in an effective and timely manner.

The department shall notify the applicant in writing of the intention to
terminate the voluntary agreement and include a summary of the costs
of the department. The notification shall state the reason or reasons for
the termination.

(i) There is established a fund in the state treasury the voluntary
cleanup fund. Revenue from the following sources shall be deposited in
the state treasury and credited to the fund:

(1) Moneys collected for application fees;

(2) moneys collected as deposits for costs associated with administra-
tion of the act, including technical review, oversight and guidance;

(3) moneys received by the secretary in the form of gifts, grants, re-
imbursements or appropriations from any source intended to be used for
purposes of the fund; and

(4) interest attributable to the investment of moneys in the fund.

(j) Moneys in the voluntary cleanup fund shall only be expended for
costs of:

(1) Review of applications;

(2) technical review, oversight, guidance and other activities neces-
sary to carry out the provisions of this act;

(3) activities performed by the department to address immediate or
emergency threats to human health and the environment related to a
property under this act; and

(4) administration and enforcement of the provisions of this act.

(k) On or before the 10th of each month following the month in
which moneys are first credited to the voluntary cleanup fund, and
monthly thereafter on or before the 10th of each month, the director of
accounts and reports shall transfer from the state general fund to the
voluntary cleanup fund interest earnings based on:

(1) The average daily balance of moneys in the voluntary cleanup
fund for the preceding month; and

(2) the net earnings rate of the pooled money investment portfolio
for the preceding month.

(1) All expenditures from the fund shall be made in accordance with
appropriation acts upon warrants of the director of accounts and reports
issued pursuant to vouchers approved by the secretary for the purposes
set forth in this section.

Sec. 6. (a) The department shall review reports, including any envi-
ronmental assessments and investigations submitted by the applicant, and
make a determination as to any required actions. If the department de-
termines that no remedial action is necessary, the department may issue
a no further action determination pursuant to section 9.

(b) If the department determines that further investigation or re-

Ch. 137             1997 Session Laws of Kansas             777

mediation is required, the applicant shall submit to the department a
voluntary cleanup plan that follows the scope of work prepared by the
department for voluntary investigation or remediation and includes the
actions necessary to address the contamination.

Sec. 7. Remedial alternatives shall be based on the actual risk to hu-
man health and the environment currently posed by contaminants on the
property, considering the following factors:

(a) The present and proposed future uses of the property and sur-
rounding properties;

(b) the ability of the contaminants to move in a form and manner
which would result in exposure to humans and the surrounding environ-
ment at levels which exceed applicable state standards and guidelines or
the results of a risk analysis if such standards and guidelines are not avail-
able; and

(c) the potential risks associated with proposed cleanup alternatives
and the reliability and economic and technical feasibility of such alter-
natives.

Sec. 8. (a) The department shall provide formal written notification
to the applicant that a voluntary cleanup plan has been approved or dis-
approved within 60 days of submittal of the voluntary cleanup plan by
the applicant unless the department extends the time for review to a date
certain.

(b) The department shall approve a voluntary cleanup plan if the
department concludes that the plan will attain a degree of cleanup and
control of contaminants that complies with all applicable statutes and
rules and regulations.

(c) If a voluntary cleanup plan is not approved by the department,
the department shall promptly provide the applicant with a written state-
ment of the reasons for denial. If the department disapproves a voluntary
cleanup plan based upon the applicant's failure to submit the information
required, the department shall notify the applicant of the deficiencies in
the information submitted.

(d) The approval of a voluntary cleanup plan by the department ap-
plies only to those contaminants and conditions identified on the property
based upon the statutes and rules and regulations that exist when the
application is submitted.

(e) Upon determination by the department that a voluntary cleanup
plan is acceptable, the department shall publish a notice of the deter-
mination in a local newspaper of general circulation in the area affected
and make the voluntary cleanup plan available to the public. The public
shall have 15 days from the date of publication during which any person
may submit to the department written comments regarding the voluntary
cleanup plan. After 15 days have elapsed, the department may hold a
public information meeting if, in the department's judgment, the com-

778             1997 Session Laws of Kansas             Ch. 137

ments submitted warrant such a meeting or if the applicant requests such
a meeting. Upon completion of the public notification and participation
process, the department shall make a determination to approve the plan
in accordance with this section.

(f) Departmental approval of a voluntary cleanup plan shall be void
upon:

(1) Failure of an applicant to comply with the approved voluntary
cleanup plan;

(2) willful submission of false, inaccurate or misleading information
by the applicant in the context of the voluntary cleanup plan; or

(3) failure to initiate the plan within 6 months after approval by the
department, or failure to complete the plan within 24 months after ap-
proval by the department, unless the department grants an extension of
time.

(g) An applicant desiring to implement a voluntary clean up plan after
the time limits prescribed by subsection (f)(3) have expired shall submit
a written petition for reapplication accompanied by written assurances
from the applicant that the conditions on the subject property are sub-
stantially similar to those existing at the time of the original approval.
Reapplications shall be reviewed by the department. Any reapplication
that involves property upon which the condition has substantially changed
since approval of the original voluntary cleanup plan shall be treated as a
new application and shall be subject to all the requirements of this act.

(h) Within 45 days after the completion of the voluntary cleanup de-
scribed in the approved voluntary cleanup plan, the applicant shall pro-
vide to the department assurance that the plan has been fully imple-
mented. A verification sampling program shall be required by the
department to confirm that the property has been cleaned up as described
in the voluntary cleanup plan.

Sec. 9. (a) After an applicant completes the requirements of this act,
the department may determine that no further remedial action is re-
quired. Within 60 days after such completion, unless the applicant and
the department agree to an extension of the time for review, the depart-
ment shall provide written notification that a no further action determi-
nation has been made.

(b) (1) The department may consider in issuing this determination
that contamination or a release of contamination originates from a source
on adjacent property upon which the necessary action which protects
human health and the environment is or will be taken by a viable and
financially capable person or entity which may or may not be legally re-
sponsible for the source of contamination.

(2) The department shall provide written notification of a no further
action determination.

(3) The issuance of a no further action determination by the depart-

Ch. 137             1997 Session Laws of Kansas             779

ment applies only to identified conditions on the property and is based
upon applicable statutes and rules and regulations that exist as of the time
of completion of the requirements.

(c) The department may determine that the no further action deter-
mination, under this section is void if:

(1) There is any evidence of fraudulent representation, false assur-
ances, concealment or misrepresentation of the data in any document to
be submitted to the department under this act;

(2) the applicant agrees to perform any action approved by the de-
partment and fails to perform such action;

(3) the applicant's willful and wanton conduct contributes to known
environmental contamination; or

(4) the applicant fails to complete the voluntary actions required in
the voluntary cleanup plan.

(d) If a no further action determination is not issued by the depart-
ment, the department shall promptly provide the applicant with a written
statement of the reasons for denial.

Sec. 10. The department may accept only environmental assess-
ments under this act prepared by a qualified environmental professional,
as defined by rules and regulations adopted by the secretary.

Sec. 11. (a) Nothing in this act shall absolve any person from obli-
gations under any other law or rule and regulation, including any require-
ment to obtain permits or approvals for work performed under a voluntary
cleanup plan.

(b) If the federal environmental protection agency (EPA) indicates
that it is investigating a property which is the subject of an approved
voluntary cleanup plan, the department shall attempt to obtain agreement
with the EPA that the property be addressed under the appropriate state
program or, in the case of property being addressed through a voluntary
cleanup plan, that no further federal action be taken with respect to the
property at least until the voluntary cleanup plan is completely imple-
mented.

Sec. 12. (a) Voluntary cleanup plans are not enforceable against an
applicant unless the department can demonstrate that an applicant who
initiated a voluntary cleanup under an approved plan has failed to fully
implement that plan. In that case, the department may require further
action if such action is authorized by other state statutes administered by
the department or rules and regulations of the department.

(b) Information provided by an applicant to support a voluntary
cleanup plan shall not provide the department with an independent basis
to seek penalties from the applicant pursuant to applicable statutes or
rules and regulations. If, pursuant to other applicable statutes or rules
and regulations, the department initiates an enforcement action against
the applicant subsequent to the submission of a voluntary cleanup plan

780             1997 Session Laws of Kansas             Ch. 137

regarding the contamination addressed in the plan, the voluntary disclo-
sure of the information in the plan shall be considered by the enforcing
authority to mitigate penalties which could be assessed to the applicant.

Sec. 13. The department shall publish annually in the Kansas register
a summary of the number of applicants, the general categories of those
applicants and the number of cleanups completed pursuant to this act.

Sec. 14. If any provision of this act or the application thereof to any
person or circumstances is held invalid, the invalidity does not affect other
provisions or applications of this act which can be given effect without
the invalid provisions or application. To this end the provisions of this act
are severable.

Sec. 15. This act shall take effect and be in force from and after its
publication in the statute book.

Approved April 24, 1997.