786             1997 Session Laws of Kansas             Ch. 139

An Act concerning waste; relating to solid waste disposal areas exempt from certain require-
ments; concerning confined feeding facilities; amending K.S.A. 1996 Supp. 65-171d and
65-3406 and repealing the existing sections.

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

Section 1. K.S.A. 1996 Supp. 65-3406 is hereby amended to read as
follows: 65-3406. (a) The secretary is authorized and directed to:

(1) Adopt such rules and regulations, standards and procedures rel-
ative to solid waste management as necessary to protect the public health
and environment, prevent public nuisances and enable the secretary to
carry out the purposes and provisions of this act.

(2) Report to the legislature on further assistance needed to admin-
ister the solid waste management program.

(3) Administer the solid waste management program pursuant to pro-
visions of this act.

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(4) Cooperate with appropriate federal, state, interstate and local
units of government and with appropriate private organizations in carry-
ing out duties under this act.

(5) Develop a statewide solid waste management plan.

(6) Provide technical assistance, including the training of personnel
to cities, counties and other political subdivisions.

(7) Initiate, conduct and support research, demonstration projects
and investigations and coordinate all state agency research programs with
applicable federal programs pertaining to solid waste management sys-
tems.

(8) Establish policies for effective solid waste management systems.

(9) Assist counties and groups of counties to establish and implement
solid waste planning and management.

(10) Authorize issuance of such permits and orders and conduct such
inspections as may be necessary to implement the provisions of this act
and the rules and regulations and standards adopted pursuant to this act.

(11) Conduct and contract for research and investigations in the over-
all area of solid waste storage, collection, transportation, processing, treat-
ment, recovery and disposal including, but not limited to, new and novel
procedures.

(12) Adopt rules and regulations for permitting of all solid waste dis-
posal areas, including those that are privately owned.

(13) Adopt rules and regulations establishing criteria for the location
of processing facilities and disposal areas for solid wastes.

(14) Adopt rules and regulations establishing appropriate measures
for monitoring solid waste disposal areas and processing facilities, both
during operation and after closure.

(15) Adopt rules and regulations requiring that, for such period of
time as the secretary shall specify, any assignment, sale, conveyance or
transfer of all or any part of the property upon which a permitted disposal
area for solid waste is or has been located shall be subject to such terms
and conditions as to the use of such property as the secretary shall specify
to protect human health and the environment.

(16) Adopt suitable measures, including rules and regulations if ap-
propriate, to encourage recovery and recycling of solid waste for reuse
whenever feasible.

(17) Adopt rules and regulations establishing standards for trans-
porters of solid waste.

(18) Adopt rules and regulations establishing minimum standards for
closing, termination, and long-term care of sites for the land disposal of
solid waste. In this subsection, ``site'' refers to a site for the land disposal
of solid waste which has a permit issued under K.S.A. 65-3407 and
amendments thereto. The owner of a site shall be responsible for the
long-term care of the site for 30 years after the closing of the site, except
the secretary may extend the long-term care responsibility of a particular

788             1997 Session Laws of Kansas             Ch. 139

site or sites as the secretary deems necessary to protect the public health
and safety or the environment. Any person acquiring rights of ownership,
possession or operation in a permitted site or facility for the land disposal
of solid waste at any time after the site has begun to accept waste and
prior to closure shall be subject to all requirements of the permit for the
site or facility, including the requirements relating to long-term care of
the site or facility.

(19) Enter into cooperative agreements with the secretary of com-
merce for the development and implementation of statewide market de-
velopment for recyclable materials.

(20) Adopt rules and regulations for the management of nonhaz-
ardous special wastes.

(b) In adopting rules and regulations, the secretary shall allow the
exemption contained in subsection (f)(1) of 40 CFR 258.1 (October 9,
1991), as amended and in effect on the effective date of this act.

(c) (1) Any rules and regulations adopted by the secretary which es-
tablish standards for solid waste processing facilities or solid waste dis-
posal areas that are more stringent than the standards required by federal
law or applicable federal regulations on such date shall not become ef-
fective until 45 days after the beginning of the next ensuing session of
the legislature, which date shall be specifically provided in such rule and
regulation.

(2) The provisions of subsection (c)(1) shall not apply to rules and
regulations adopted before January 1, 1995, which establish standards for
location, design and operation of solid waste processing facilities and dis-
posal areas.

(d) Any solid waste disposal area which qualifies for the exemption
provided for by subsection (b) and which successfully demonstrates that
naturally occurring geological conditions provide sufficient protection
against groundwater contamination shall not be required to construct a
landfill liner or leachate collection system. The secretary shall adopt rules
and regulations which establish criteria for performing this demonstration
and standards for liner and leachate collection systems for exempt landfills
which fail the demonstration. Solid waste disposal areas which qualify for
the exemption provided for by subsection (b) may be designed with
trenches or units which have straight vertical walls. All solid waste disposal
areas which qualify for the exemption provided for by subsection (b) shall
be required to comply with all applicable federal requirements specified
in subtitle D of the resource conservation and recovery act and 40 CFR
Part 258 (October 9, 1991), as amended and in effect on the effective
date of this act, or equivalent rules and regulations adopted by the sec-
retary and approved by the U.S. environmental protection agency, in-
cluding location restrictions, operating requirements and closure stan-
dards for municipal solid waste landfills. Operating requirements include,
but are not limited to, hazardous waste screening, daily cover, interme-

Ch. 139             1997 Session Laws of Kansas             789

diate cover, disease vector control, gas monitoring and management, air
emissions, survey controls, compaction, recordkeeping and groundwater
monitoring.

The identification of groundwater contamination caused by disposal
activities at a solid waste disposal area which has qualified for the exemp-
tion provided for by subsection (b) shall result in:

(1) The loss of such exemption; and

(2) the application of all corrective action and design requirements
specified in federal laws and regulations, or in equivalent rules and reg-
ulations adopted by the secretary and approved by the U.S. environmental
protection agency, to such disposal area.

Sec. 2. K.S.A. 1996 Supp. 65-171d is hereby amended to read as
follows: 65-171d. (a) For the purpose of preventing surface and subsur-
face water pollution and soil pollution detrimental to public health or to
the plant, animal and aquatic life of the state, and to protect beneficial
uses of the waters of the state and to require the treatment of sewage
predicated upon technologically based effluent limitations, the secretary
of health and environment shall make such rules and regulations, includ-
ing registration of potential sources of pollution, as may in the secretary's
judgment be necessary to: (1) Protect the soil and waters of the state from
pollution resulting from underground storage reservoirs of hydrocarbons
and liquid petroleum gas; (2) control the disposal, discharge or escape of
sewage as defined in K.S.A. 65-164 and amendments thereto, by or from
municipalities, corporations, companies, institutions, state agencies, fed-
eral agencies or individuals and any plants, works or facilities owned or
operated, or both, by them; and (3) establish water quality standards for
the waters of the state to protect their beneficial uses.

(b) The secretary of health and environment may adopt by reference
any regulation relating to water quality and effluent standards promul-
gated by the federal government pursuant to the provisions of the federal
clean water act and amendments thereto, as in effect on January 1, 1989,
which the secretary is otherwise authorized by law to adopt.

(c) For the purposes of this act, including K.S.A. 65-161 through
65-171h and amendments thereto, and rules and regulations adopted pur-
suant thereto:

(1) ``Pollution'' means: (A) Such contamination or other alteration of
the physical, chemical or biological properties of any waters of the state
as will or is likely to create a nuisance or render such waters harmful,
detrimental or injurious to public health, safety or welfare, or to the plant,
animal or aquatic life of the state or to other designated beneficial uses;
or (B) such discharge as will or is likely to exceed state effluent standards
predicated upon technologically based effluent limitations.

(2) ``Confined feeding facility'' means any lot, pen, pool or pond: (A)
Which is used for the confined feeding of animals or fowl for food, fur

790             1997 Session Laws of Kansas             Ch. 139

or pleasure purposes; (B) which is not normally used for raising crops;
and (C) in which no vegetation intended for animal food is growing.

(3) ``Animal unit'' means a unit of measurement calculated by adding
the following numbers: The number of beef cattle weighing more than
700 pounds multiplied by 1.0; plus the number of cattle weighing less
than 700 pounds multiplied by 0.5; plus the number of mature dairy cattle
multiplied by 1.4; plus the number of swine weighing more than 55
pounds multiplied by 0.4; plus the number of swine weighing 55 pounds
or less multiplied by 0.1; plus the number of sheep or lambs multiplied
by 0.1; plus the number of horses multiplied by 2.0; plus the number of
turkeys multiplied by 0.018; plus the number of laying hens or broilers,
if the facility has continuous overflow watering, multiplied by 0.01; plus
the number of laying hens or broilers, if the facility has a liquid manure
system, multiplied by 0.033; plus the number of ducks multiplied by 0.2.
However, each head of cattle will be counted as one full animal unit for
the purpose of determining the need for a federal permit. ``Animal unit''
also includes the number of swine weighing 55 pounds or less multiplied
by 0.1 for the purpose of determining applicable requirements for new
construction of a confined feeding facility for which a permit or registra-
tion has not been issued before January 1, 1998, and for which an appli-
cation for a permit or registration and plans have not been filed with the
secretary of health and environment before January 1, 1998, or for the
purpose of determining applicable requirements for expansion of such
facility. However, each head of swine weighing 55 pounds or less shall be
counted as 0.0 animal unit for the purpose of determining the need for a
federal permit.

(4) ``Animal unit capacity'' means the maximum number of animal
units which a confined feeding facility is designed to accommodate at any
one time.

(5) ``Habitable structure'' means any of the following structures which
is occupied or maintained in a condition which may be occupied: A dwell-
ing, church, school, adult care home, medical care facility, child care
facility, library, community center, public building, office building or li-
censed food service or lodging establishment.

(d) In adopting rules and regulations, the secretary of health and en-
vironment, taking into account the varying conditions that are probable
for each source of sewage and its possible place of disposal, discharge or
escape, may provide for varying the control measures required in each
case to those the secretary finds to be necessary to prevent pollution. If
a freshwater reservoir or farm pond is privately owned and where com-
plete ownership of land bordering the reservoir is under common private
ownership, such freshwater reservoir or farm pond shall be exempt from
water quality standards except as it relates to water discharge or seepage
from the reservoir to waters of the state, either surface or groundwater,

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or as it relates to the public health of persons using the reservoir or pond
or waters therefrom.

(e) (1) Whenever the secretary of health and environment or the
secretary's duly authorized agents find that the soil or waters of the state
are not being protected from pollution resulting from underground stor-
age reservoirs of hydrocarbons and liquid petroleum gas or that storage
or disposal of salt water not regulated by the state corporation commission
or refuse in any surface pond is causing or is likely to cause pollution of
soil or waters of the state, the secretary or the secretary's duly authorized
agents shall issue an order prohibiting such underground storage reservoir
or surface pond. Any person aggrieved by such order may within 15 days
of service of the order request in writing a hearing on the order.

(2) Upon receipt of a timely request, a hearing shall be conducted in
accordance with the provisions of the Kansas administrative procedure
act.

(3) Any action of the secretary pursuant to this subsection is subject
to review in accordance with the act for judicial review and civil enforce-
ment of agency actions.

(f) The secretary may adopt rules and regulations establishing fees
for the following services:

(1) Plan approval, monitoring and inspecting underground or buried
petroleum products storage tanks, for which the annual fee shall not ex-
ceed $5 for each tank in place;

(2) permitting, monitoring and inspecting salt solution mining oper-
ators, for which the annual fee shall not exceed $1,950 per company; and

(3) permitting, monitoring and inspecting hydrocarbon storage wells
and well systems, for which the annual fee shall not exceed $1,875 per
company.

(g) Prior to any new construction of a confined feeding facility with
an animal unit capacity of 300 to 999, such facility shall register with the
secretary of health and environment. Facilities with less than 300 animal
units may register with the secretary. Any such registration shall be ac-
companied by a $25 fee. Within 30 days of receipt of such registration,
the department of health and environment shall identify any significant
water pollution potential or separation distance violations pursuant to sub-
section (h). If there is identified a significant water pollution potential,
such facility shall be required to obtain a permit from the secretary. If
there is no water pollution potential posed by a facility with an animal
unit capacity of less than 300, the secretary may certify that no permit is
required. If there is no water pollution potential nor any violation of
separation distances posed by a facility with an animal unit capacity of
300 to 999, the secretary shall certify that no permit is required and that
there are no certification conditions pertaining to separation distances. If
a separation distance violation is identified, the secretary may reduce the

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separation distance in accordance with subsection (i) and shall certify any
such reduction of separation distances.

(h) Any new construction or new expansion of a confined feeding
facility shall meet or exceed the following requirements in separation
distances from any habitable structure:

(1) 1320 feet for facilities with an animal unit capacity of 300 to 999;
and

(2) 4000 feet for facilities with an animal unit capacity of 1,000 or
more.

(i) The separation distance requirements of subsection (h) shall not
apply if such person newly constructing or newly expanding a confined
feeding facility obtains a written agreement from all owners of habitable
structures which are within the separation distance stating such owners
are aware of such construction or expansion and have no objections to
such construction or expansion. The written agreement shall be filed in
the register of deeds office of the county in which the habitable structure
is located. The secretary may reduce separation distance requirements if:
(1) No substantial objection from owners of habitable structures within
the separation distance is received in response to public notice; or (2) the
board of county commissioners of the county where the confined feeding
facility is located submits a written request seeking a reduction of sepa-
ration distances.

(j) The separation distances required pursuant to subsection (h) shall
not apply to:

(1) Confined feeding facilities which are permitted or certified by the
secretary on the effective date of this act;

(2) confined feeding facilities which exist on the effective date of this
act and register with the secretary before July 1, 1996; or

(3) expansion of a confined feeding facility, including any expansion
for which an application is pending on the effective date of this act, if:
(A) In the case of a facility with an animal unit capacity of 1,000 or more
prior to the effective date of this act, the expansion is located at a distance
not less than the distance between the facility and the nearest habitable
structure prior to the expansion; or (B) in the case of a facility with an
animal unit capacity of less than 1,000 prior to the effective date of this
act and, the expansion is located at a distance not less than the distance
between the facility and the nearest habitable structure prior to the ex-
pansion the animal unit capacity of the facility after expansion does not
exceed 2,000.

(k) All plans and specifications submitted to the department for new
construction or new expansion of confined feeding facilities may be, but
are not required to be, prepared by a professional engineer or a consul-
tant.

Sec. 3. K.S.A. 1996 Supp. 65-171d and 65-3406 are hereby repealed.

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Sec. 4. This act shall take effect and be in force from and after its
publication in the statute book.

Approved April 24, 1997.