An Act concerning drycleaners; amending the Kansas drycleaner
environmental response
act; amending K.S.A. 1998 Supp. 65-34,144, 65-34,145, 65-34,146,
65-34,148, 65-34,150,
65-34,151, 65-34,152 and 65-34,153 and repealing the
existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 1998 Supp.
65-34,144 is hereby amended to read
as follows: 65-34,144. (a) It shall be unlawful for any person
to:
(1) Operate a drycleaning facility in
violation of this act, rules and
regulations adopted pursuant to this act or orders of the secretary
pur-
suant to this act;
(2) prevent or hinder a properly
identified officer or employee of the
department or other authorized agent of the secretary from
entering,
inspecting, sampling or responding to a release as authorized by
this act;
(3) knowingly make any false material
statement or representation in
any record, report or other document filed, maintained or used for
the
purpose of compliance with this act;
(4) knowingly destroy, alter or conceal
any record required to be
maintained by this act or rules and regulations adopted under this
act;
(5) willfully allow a release or
knowingly fail to make an immediate
response to a release in accordance with this act and rules and
regulations
pursuant to this act.
(b) A person who violates any
provision of this section may incur, in a civil action brought by the secretary, a civilThe director of the division of environment, upon a finding that a person has violated a
provision of subsection (a), may impose on such person an administrative
penalty in
an amount not to exceed $500 for every violation.
(c) In assessing any
civilan administrative penalty under this
section,
the district courtdirector of the division of
environment shall consider,
when applicable, the following factors:
(1) The extent to which the violation
presents a hazard to human
health;
(2) the extent to which the violation has
or may have an adverse effect
on the environment;
(3) the amount of the reasonable costs
incurred by the state in de-
tection and investigation of the violation; and
(4) the economic savings realized by the
person in not complying with
the provision for which a violation is charged.
Sec. 2. K.S.A. 1998 Supp. 65-34,146
is hereby amended to read as
follows: 65-34,146. (a) There is hereby established in the state
treasury
the drycleaning facility release trust fund. The fund shall be
administered
by the secretary. RevenueMoneys from the
following sources shall be
deposited in the state treasury and credited to the fund:
(1) Any proceeds from the taxes and fees
imposed by this act;
(2) any interest attributable to
investment of moneys in the dryclean-
ing facility release trust fund;
(3) moneys recovered by the state under
the provisions of this act,
including any moneys paid under an agreement with the secretary or
as
civil penalties; and
(4) moneys received by the secretary in
the form of gifts, grants, re-
imbursements or appropriations from any source intended to be used
for
the purposes of this act.
(b) Moneys in the fund may be expended
for only the following pur-
poses and for no other governmental purpose:
(1) The direct costs of administration
and enforcement of this act;
and
(2) the costs of corrective action as
provided in K.S.A. 1998 Supp.
65-34,148, and amendments thereto.
(c) It is the intent of the legislature
that the fund shall remain intact
and inviolate for the purposes set forth in this act, and moneys in
the
fund shall not be subject to the provisions of K.S.A. 75-3722,
75-3725a
and 75-3726a, and amendments thereto.
(d) On or before the 10th day of each
month, the director of accounts
and reports shall transfer from the state general fund to the
drycleaning
facility release trust fund interest earnings based on: (1) The
average daily
balance of moneys in the drycleaning facility release trust fund
for the
preceding month; and (2) the net earnings rate for the pooled
money
investment portfolio for the preceding month.
(e) All expenditures from the drycleaning
facility release trust fund
shall be made in accordance with appropriation acts upon warrants
of the
director of the accounts and reports issued pursuant to vouchers
approved
by the secretary for the purposes set forth in this section.
Sec. 3. K.S.A. 1998 Supp. 65-34,145
is hereby amended to read as
follows: 65-34,145. (a) Each owner of an operating
drycleaning facility
shall register annually with the department on a form provided by
the
department. The registration shall be accompanied by a fee of
$100 for each operating drycleaning facility owned by the owner. The
secretary shall remit daily the fees paid pursuant to this section to the
state trea- surer, who shall deposit the entire amount in the state treasury
to the credit of the fund.
(b) The owner of a drycleaning
facility shall post the owner's regis- tration number, in a manner prescribed by the secretary, in the
public area of each operating drycleaning facility owned by the
owner.
Sec. 4. K.S.A. 1998 Supp. 65-34,148
is hereby amended to read as
follows: 65-34,148. (a) Whenever a release poses a threat to human
health
or the environment, the department, consistent with rules and
regulations
adopted by the secretary pursuant to subsections (d) and (e) of
K.S.A.
1998 Supp. 65-34,143, and amendments thereto, shall expend
moneys
available in the fund to provide for:
(1) Investigation and assessment of a
release from a drycleaning fa-
cility, including costs of investigations and assessments of
contamination
which may have moved off the drycleaning facility;
(2) necessary or appropriate emergency
action, including but not lim-
ited to treatment, restoration or replacement of drinking water
supplies,
to assure that the human health or safety is not threatened by a
release
or potential release;
(3) remediation of releases from
drycleaning facilities, including con-
tamination which may have moved off of the drycleaning facility,
which
remediation shall consist of clean up of affected soil, groundwater
and
surface waters, using the most cost effective alternative that is
technolog-
ically feasible and reliable, provides adequate protection of human
health
and environment and to the extent practical minimizes
environmental
damage;
(4) operation and maintenance of
corrective action;
(5) monitoring of releases from
drycleaning facilities including con-
tamination which may have moved off of the drycleaning
facility;
(6) payment of reasonable costs incurred
by the secretary in providing
field and laboratory services;
(7) reasonable costs of restoring
property, as nearly as practicable to
the conditions that existed prior to activities associated with the
investi-
gation of a release or clean up or remediation activities;
(8) removal and proper disposal of wastes
generated by a release of
a drycleaning solvent; and
(9) payment of costs of corrective action
conducted by the depart-
ment or by entities other than the department but approved by the
de-
partment, whether or not such corrective action is set out in a
corrective
action plan, provided, however, that reimbursement for corrective
action
costs incurred before the effective date of this act shall be
limited to
$100,000 per site.
(b) Nothing in subsection (a) shall be
construed to authorize the de-
partment to obligate moneys in the fund for payment of costs which
are
not integral to corrective action for a release of drycleaning
solvents from
a drycleaning facility. Moneys from the fund shall not be used: (1)
For
corrective action at sites that are contaminated by solvents
normally used
in drycleaning operations where the contamination did not result
from
the operation of a drycleaning facility; (2) for corrective action
at sites,
other than drycleaning facilities, that are contaminated by
drycleaning
solvents which were released while being transported to or from a
dry-
cleaning facility by a party other than the owner of such
drycleaning fa-
cility or the owner's agents or employees; (3) to pay any costs
associated
with any fine or penalty brought against a drycleaning facility
owner under
state or federal law; or (4) to pay any costs related to corrective
action at
a drycleaning facility that has been included by the United States
envi-
ronmental protection agency on the national priorities list or at
any facility
which is a hazardous waste disposal facility, as defined in K.S.A.
65-3430
and amendments thereto.
(c) Nothing in this act shall be
construed to restrict the department
from:
(1) Modifying, in the discretion of the
secretary, the priority status of
a site where warranted under the system of priorities established
pursuant
to subsection (d) of K.S.A. 1998 Supp. 65-34,143 and
amendments thereto; or
(2) temporarily postponing completion of
corrective action for which
moneys from the fund are being expended whenever such
postponement
is deemed necessary in order to make moneys available for
corrective
action at a site with a higher priority.
(d) At any multisource site, the
secretary shall utilize the moneys in
the fund to pay for the proportionate share of the liability for
corrective
action costs which is attributable to a release from one or more
dryclean-
ing facilities and for that proportionate share of the liability
only.
(e) At any multisource site, the
secretary is authorized to make a
determination of the relative liability of the fund for costs of
corrective
action, expressed as a percentage of the total cost of corrective
action at
a site, whether known or unknown. The secretary shall issue an
order
establishing such percentage of liability. Such order shall be
binding and
shall control the obligation of the fund until or unless amended by
the
secretary. In the event of an appeal from such order, such
percentage of
liability shall be controlling for costs incurred during the
pendency of the
appeal.
(f) Any authorized officer, employee or
agent of the department, or
any person under order or contract with the department, may enter
onto
any property or premises, at reasonable times and upon written
notice to
the owner or occupant, to take corrective action where the
secretary de-
termines that such action is necessary to protect the public health
or
environment. If consent is not granted by the person in control of
a site
or suspected site regarding any request made by any officer,
employee
or agent of the department, or any person under order or contract
with
the department, under the provisions of this section, the secretary
may
issue an order directing compliance with the request. The order may
be
issued after such notice and opportunity for consultation as is
reasonably
appropriate under the circumstances.
(g) Notwithstanding the other provisions
of this act, in the discretion
of the secretary, an owner may be responsible for up to 100% of the
costs
of corrective action attributable to such owner if the secretary
finds, after
notice and an opportunity for a hearing in accordance with the
Kansas
administrative procedure act, that:
(1) Requiring the owner to bear such
responsibility will not prejudice
another owner or person who is eligible, under the provisions of
this act,
to have corrective action costs paid by the fund; and
(2) the owner:
(A) Caused a release by willful or wanton
actions and such release
was caused by operating practices contrary to those generally in
use at
the time of the release;
(B) is in arrears for moneys owed
pursuant to this act, after notice
and an opportunity to correct the arrearage;
(C) substantially obstructs the efforts
of the department to carry out
its obligations under this act, provided, however, that the
exercise of legal
rights shall not constitute a substantial obstruction;
(D) caused or allowed the release because
of a material violation of
the performance standards established in this act or the rules and
regu-
lations adopted by the secretary under this act; or
(E) has more than once failed to report
or failed to take an immediate
response to a release, knowing or having reason to know of such
release.
For purposes of this subsection (g), unless a
transfer is made solely to
take advantage of this provision, purchasers of stock or other
indicia of
ownership and other successors in interest shall not be considered
to be
the same owner or operator as the seller or transferor of such
stock or
indicia of ownership even though there may be no change in the
legal
identity of the owner or operator. To the extent that an owner is
respon-
sible for corrective action costs under this subsection, such owner
shall
not be entitled to the exemption set out in subsection (c) of
K.S.A. 1998
Supp. 65-34,149 and amendments thereto.
(h) The fund shall not be liable for the
payment of costs in excess of $2,000,000$5,000,000 for corrective action
at any contaminated dryclean-
ing site. For purposes of this subsection, ``contaminated
drycleaning site''
means the areal extent of soil or groundwater contamination with
dry-
cleaning solvents.
(i) There shall be a deductible of
$2,500$5,000 of corrective action
costs incurred because of a release from a drycleaning facility.
Nothing
herein shall prohibit the department from taking corrective action
be-
cause the department cannot obtain the deductible.
Sec. 5. K.S.A. 1998 Supp. 65-34,150 is hereby
amended to read as
follows: 65-34,150. (a) Subject to the provisions of K.S.A. 1998
Supp. 65-
34,152 and amendments thereto, there is hereby imposed
on and after July 1, 1995, an environmental surcharge in the
form of a gross receipts
tax for the privilege of engaging in the business of laundering and
dry-
cleaning garments and other household fabrics in this state. The
tax shall
be at a rate of 2%2.5% of the gross
receipts received from drycleaning
or laundering services. The tax shall be paid by the consumer to
the
retailer and it shall be the duty of the retailer to collect from
the consumer
the full amount of the tax imposed or an amount as nearly as
possible or
practicable to the average thereof.
(b) Gross receipts otherwise taxable
pursuant to this section shall be
exempt from the tax imposed by this section if they arise from:
(1) Services rendered through a
coin-operated device, whether au-
tomatic or manually operated, available for use by the general
public;
(2) the laundering without use of
drycleaning solvents of uniforms,
linens or other textiles for commercial purposes, including any
rental of
uniforms, linens or dust control materials; or
(3) charges or services to entities that
qualify for exemption from
retailers' sales tax on laundering and drycleaning services
pursuant to
K.S.A. 79-3606 and amendments thereto.
(c) The tax imposed by this section shall
be imposed on the same tax
base as the Kansas retailers' sales tax and shall be in addition to
all other
state and local sales or excise taxes.
(d) The secretary of revenue shall remit
daily the taxes paid under
this act to the state treasurer, who shall deposit the entire
amount in the
state treasury to the credit of the fund. For the purpose of this
section,
the proceeds of the tax shall include all funds collected and
received by
the director of taxation pursuant to this section, including
interest and
penalties on delinquent taxes.
(e) Every retailer liable for the payment
of taxes imposed by this
section shall report the taxes for the same periods and at the same
time
as the returns that the retailer files under the Kansas retailers'
sales tax
act, as prescribed by K.S.A. 79-3607 and amendments thereto. Each
re-
tailer shall report the tax imposed by this act on a form
prescribed by the
secretary of revenue.
(f) All taxes imposed by this section and
not paid at or before the
time taxes are due from the retailer under the Kansas retailers'
sales tax
act shall be deemed delinquent and shall bear interest at the rate
pre-
scribed by subsection (a) of K.S.A. 79-2968 and amendments thereto
from
the due date until paid. In addition, there is hereby imposed upon
all
amounts of such taxes remaining due and unpaid after the due date
a
penalty on the unpaid balance of the taxes due in the amounts and
per-
centages prescribed by K.S.A. 79-3615 and amendments thereto.
(g) Whenever any taxpayer or person
liable to pay tax imposed by this
section refuses or neglects to pay the tax, the amount of the tax,
including
any interest or penalty, shall be collected in the manner provided
by law
for collection of delinquent taxes under the Kansas retailers'
sales tax act.
(h) Insofar as not inconsistent with this
act, the provisions of the Kan-
sas retailers' sales tax act shall apply to the tax imposed by this
section.
(i) The secretary of revenue is hereby
authorized to administer and
enforce the provisions of this section and to adopt such rules and
regu-
lations as may be necessary to carry out the responsibilities of
the sec-
retary of revenue under this section.
Sec. 6. K.S.A. 1998 Supp. 65-34,151
is hereby amended to read as
follows: 65-34,151. (a) Subject to the provisions of K.S.A. 1998
Supp. 65-
34,152 and amendments thereto, there is hereby imposed
on and after July 1, 1995, a fee on the purchase or acquisition
of drycleaning solvent
by any owner of a drycleaning facility. The fee shall be paid to
the director of taxation by the person who acquiresdistributes the solvent to the di- rector of taxation.
(b) The amount of the fee imposed by this
section on each gallon of
drycleaning solvent shall be an amount equal to the product of the
solvent
factor for the drycleaning solvent and the following fee
rate:
(1) For any purchase or
acquisition on and after July 1, 1995, and before January 1, 1996, $3.50 per gallon;
and
(2) thereafter,fee
rate of $3.50 plus .25 added on January 1 of each successive calendar year, beginning in
1996, until the fee rate reaches a
maximum of $5.50 per gallon.
(c) The solvent factor for each
drycleaning solvent is as follows:
Drycleaning solvent
Solvent Factor
Perchloroethylene
1.00
Chlorofluorocarbon-113
1.00
1,1,1-trichloroethane
1.00
Other chlorinated drycleaning solvents
1.00
Any nonchlorinated drycleaning solvent
0.10
(d) In the case of a fraction of a
gallon, the fee imposed by this section
shall be the same fraction of the fee imposed on a whole
gallon.
(e) If any fee is paid pursuant
to this section with respect to dryclean- ing solvents that are subsequently resold for use other
than in a dryclean- ing facility or are actually used other than in a
drycleaning facility, the purchaser shall be entitled to claim, pursuant to rules and
regulations adopted by the secretary of revenue, a refund or credit for
any fee paid. No person who distributes drycleaning solvent shall sell any
such solvent for use in a drycleaning facility unless such person first
obtains the reg- istration number of the owner of such facility.
(f) The secretary of revenue shall remit
daily the fees paid pursuant
to this section to the state treasurer, who shall deposit the
entire amount
in the state treasury to the credit of the fund. For the purpose of
this
section, the proceeds of the fee shall include all funds collected
and re-
ceived by the director of taxation pursuant to this section,
including in-
terest and penalties on delinquent fees.
(g) Subject to rules and regulations
adopted pursuant to this section,
the fees imposed by this act shall be paid to the director of
taxation for
the same reporting period and on the same reporting date as the
pur-
chaser or user of the solvent reports Kansas retailers' sales tax,
as pre-
scribed in K.S.A. 79-3607 and amendments thereto. The fees imposed
by
this section shall be reported on a form prescribed by the
secretary of
revenue.
(h) Subject to rules and regulations
adopted pursuant to this section,
all fees imposed under the provisions of this section and not paid
on or
before the 25th day of the month succeeding the reporting period
in
which the solvent was purchased shall be deemed delinquent and
shall
bear interest at the rate prescribed by subsection (a) of K.S.A.
79-2928
and amendments thereto from the due date until paid. In addition,
there
is hereby imposed upon all amounts of such fees remaining due
and
unpaid after the due date a penalty on the unpaid balance of the
fees due
in the amounts and percentages prescribed by K.S.A. 79-3615 and
amendments thereto.
(i) Whenever any person liable to pay the
fee imposed by this section
refuses or neglects to pay the fee, the amount of the fee,
including any
interest or penalty, shall be collected in the manner provided by
law for
collection of delinquent taxes under the Kansas retailers' sales
tax act.
(j) Insofar as not inconsistent with this
act, the provisions the Kansas
retailers' sales tax act shall apply to the fees imposed by this
section.
(k) The secretary of revenue is hereby
authorized to administer and
enforce the provisions of this section and to adopt such rules and
regu-
lations as may be necessary to carry out the responsibilities of
the sec-
retary of revenue under this section.
Sec. 7. K.S.A. 1998 Supp. 65-34,152
is hereby amended to read as
follows: 65-34,152. (a) Whenever on April 1 of any year the
unobligated
principal balance of the fund equals or exceeds
$4,000,000$6,000,000,
the taxes and fees imposed by K.S.A. 1998 Supp. 65-34,150
and 65-
34,151, and amendments thereto, shall not be levied on or
after the next
July 1. Whenever on April 1 of any year thereafter the unobligated
prin-
cipal balance of the fund equals $2,000,000$4,000,000 or less, the taxes and fees imposed by K.S.A. 1998 Supp. 65-34,150 and
65-34,151 and 65- 34,152, and amendments thereto, shall again
be levied on and after the
next July 1.
(b) The director of accounts and reports,
not later than April 5 of
each year, shall notify the secretary of revenue of the amount of
the
unobligated balance of the fund on April 1 of such year. Upon
receipt of
the notice, the secretary of revenue shall notify taxpayers under
K.S.A.
1998 Supp. 65-34,150 and 65-34,151 and
65-34,152, and amendments thereto, if the levy of taxes and fees under those
sections will terminate
or recommence on the following July 1.
Sec. 8. K.S.A. 1998 Supp. 65-34,153
is hereby amended to read as
follows: 65-34,153. (a) Any person adversely affected by any order
or
decision of the director of the division of environment or
the secretary
under this act may, within 15 days of service of the order or
decision,
make a written request for a hearing. Hearings under this section
shall
be conducted in accordance with the provisions of the Kansas
adminis-
trative procedure act.
(b) Any person adversely affected by any
final action of the secretary
pursuant to this act may obtain a review of the action in
accordance with
the act for judicial review and civil enforcement of agency
actions.
Sec. 9. K.S.A. 1998 Supp. 65-34,144, 65-34,145,
65-34,146, 65-
34,148, 65-34,150, 65-34,151, 65-34,152 and 65-34,153 are hereby
re-
pealed.
Sec. 10. This act shall take effect and be in
force from and after its
publication in the statute book.