Kansas Session Laws Chapter 112

CHAPTER 112 HOUSE BILL No. 2145 An Act concerning solid waste; amending K.S.A. 1998 Supp. 65-3407 and 65-3407c and
repealing the existing sections. Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 1998 Supp. 65-3407 is hereby amended to read as
follows: 65-3407. (a) Except as otherwise provided by K.S.A. 1998 Supp.
65-3407c and amendments thereto, no person shall construct, alter or
operate a solid waste processing facility or a solid waste disposal area of
a solid waste management system, except for clean rubble disposal sites,
without first obtaining a permit from the secretary.

(b) Every person desiring to obtain a permit to construct, alter or
operate a solid waste processing facility or disposal area shall make ap-
plication for such a permit on forms provided for such purpose by the
rules and regulations of the secretary and shall provide the secretary with
such information as necessary to show that the facility or area will comply
with the purpose of this act. Upon receipt of any application and payment
of the application fee, the secretary, with advice and counsel from the
local health authorities and the county commission, shall make an inves-
tigation of the proposed solid waste processing facility or disposal area
and determine whether it complies with the provisions of this act and any
rules and regulations and standards adopted thereunder. The secretary
also may consider the need for the facility or area in conjunction with the
county or regional solid waste management plan. If the investigation re-
veals that the facility or area conforms with the provisions of the act and
the rules and regulations and standards adopted thereunder, the secretary
shall approve the application and shall issue a permit for the operation of
each solid waste processing or disposal facility or area set forth in the
application. If the facility or area fails to meet the rules and regulations
and standards required by this act the secretary shall issue a report to the
applicant stating the deficiencies in the application. The secretary may
issue temporary permits conditioned upon corrections of construction
methods being completed and implemented.

(c) Before reviewing any application for permit, the secretary shall
conduct a background investigation of the applicant. The secretary shall
consider the financial, technical and management capabilities of the ap-
plicant as conditions for issuance of a permit. The secretary may reject
the application prior to conducting an investigation into the merits of the
application if the secretary finds that:

(1) The applicant currently holds, or in the past has held, a permit
under this section and while the applicant held a permit under this section
the applicant violated a provision of subsection (a) of K.S.A. 65-3409, and
amendments thereto; or

(2) the applicant previously held a permit under this section and that
permit was revoked by the secretary; or

(3) the applicant failed or continues to fail to comply with any of the
provisions of the air, water or waste statutes, including rules and regula-
tions issued thereunder, relating to environmental protection or to the
protection of public health in this or any other state or the federal gov-
ernment of the United States, or any condition of any permit or license
issued by the secretary; or if the secretary finds that the applicant has
shown a lack of ability or intention to comply with any provision of any
law referred to in this subsection or any rule and regulation or order or
permit issued pursuant to any such law as indicated by past or continuing
violations; or

(4) the applicant is a corporation and any principal, shareholder, or
other person capable of exercising total or partial control of such corpo-
ration could be determined ineligible to receive a permit pursuant to
subsection (c)(1), (2) or (3) above.

(d) Before reviewing any application for a permit, the secretary may
request that the attorney general perform a comprehensive criminal back-
ground investigation of the applicant; or in the case of a corporate appli-
cant, any principal, shareholder or other person capable of exercising total
or partial control of the corporation. The secretary may reject the appli-
cation prior to conducting an investigation into the merits of the appli-
cation if the secretary finds that serious criminal violations have been
committed by the applicant or a principal of the corporation.

(e) The fees for a solid waste processing or disposal permit shall be
established by rules and regulations adopted by the secretary. The fee for
the application and original permit shall not exceed $5,000. The annual
permit renewal fee shall not exceed $2,000. No refund shall be made in
case of revocation. In establishing fees for a construction and demolition
landfill, the secretary shall adopt a differential fee schedule based upon
the volume of construction and demolition waste to be disposed of at
such landfill. All fees shall be deposited in the state treasury and credited
to the solid waste management fund. A city, county, other political sub-
division or state agency shall be exempt from payment of the fee but shall
meet all other provisions of this act.

(f) Plans, designs and relevant data for the construction of solid waste
processing facilities and disposal sites shall be prepared by a professional
engineer licensed to practice in Kansas and shall be submitted to the
department for approval prior to the construction, alteration or operation
of such facility or area. In adopting rules and regulations, the secretary
may specify sites, areas or facilities where the environmental impact is
minimal and may waive such preparation requirements provided that a
review of such plans is conducted by a professional engineer licensed to
practice in Kansas.

(g) Each permit granted by the secretary, as provided in this act, shall
be subject to such conditions as the secretary deems necessary to protect
human health and the environment and to conserve the sites. Such con-
ditions shall include approval by the secretary of the types and quantities
of solid waste allowable for processing or disposal at the permitted loca-
tion.

(h) As a condition of granting a permit to operate any processing
facility or disposal area for solid waste, the secretary shall require the
permittee to: (1) Provide a trust fund, surety bond guaranteeing pay-
ment, irrevocable letter of credit or insurance policy, to pay the costs of
closure and postclosure care; or (2) pass a financial test or obtain a finan-
cial guarantee from a related entity, to guarantee the future availability
of funds to pay the costs of closure and postclosure care. The secretary
shall prescribe the methods to be used by a permittee to demonstrate
sufficient financial strength to become eligible to use a financial test or a
financial guarantee procedure in lieu of providing the financial instru-
ments listed in (1) above. Solid waste processing facilities or disposal
areas, except municipal solid waste landfills, may also demonstrate finan-
cial assurance for closure and postclosure care costs by use of ad valorem
taxing power. In addition, the secretary shall require the permittee to
provide liability insurance coverage during the period that the facility or
area is active, and during the term of the facility or area is subject to
postclosure care, in such amount as determined by the secretary to insure
the financial responsibility of the permittee for accidental occurrences at
the site of the facility or area. Any such liability insurance as may be
required pursuant to this subsection or pursuant to the rules and regu-
lations of the secretary shall be issued by an insurance company author-
ized to do business in Kansas or by a licensed insurance agent operating
under authority of K.S.A. 40-246b, and amendments thereto, and shall
be subject to the insurer's policy provisions filed with and approved by
the commissioner of insurance pursuant to K.S.A. 40-216, and amend-
ments thereto, except as authorized by K.S.A. 40-246b, and amendments
thereto. Nothing contained in this subsection shall be deemed to apply
to any state agency or department or agency of the federal government.

(i) Permits granted by the secretary, as provided in this act: (1) Shall
not be transferable except that a permit for a solid waste disposal area
may be transferred if both of the following conditions are met: (A) The
area is permitted for only solid waste produced on site from manufactur-
ing and industrial processes or on-site construction or demolition activi-
ties; and (B) the only change in the permit is a name change resulting
from a merger, acquisition, sale, corporate restructuring or other business
transaction; and (2) shall be revocable or subject to suspension whenever
the secretary shall determine that the solid waste processing or disposal
facility or area is, or has been constructed or operated in violation of this
act or the rules and regulations or standards adopted pursuant to the act,
or is creating or threatens to create a hazard to persons or property in
the area or to the environment, or is creating or threatens to create a
public nuisance, or upon the failure to make payment of any fee required
under this act. The secretary also may revoke, suspend or refuse to issue
a permit when the secretary determines that past or continuing violations
of the provisions of subsection (c)(3) of K.S.A. 65-3407, and amendments
thereto, have been committed by a permittee, or any principal, share-
holder or other person capable of exercising partial or total control over
a permittee.

(j) In case any permit is denied, suspended or revoked the person,
city, county or other political subdivision or state agency may request a
hearing before the secretary in accordance with K.S.A. 65-3412, and
amendments thereto.

(k) (1) No permit to construct or operate a solid waste disposal area
shall be issued on or after the effective date of this act if such area is
located within 1/2 mile of a navigable stream used for interstate commerce
or within one mile of an intake point for any public surface water supply
system.

(2) Any permit, issued before the effective date of this act, to con-
struct or operate a solid waste disposal area is hereby declared void if
such area is not yet in operation and is located within 1/2 mile of a navi-
gable stream used for interstate commerce or within one mile of an intake
point for any public surface water supply system.

(3) The provisions of this subsection shall not be construed to pro-
hibit: (A) Issuance of a permit for lateral expansion onto land contiguous
to a permitted solid waste disposal area in operation on the effective date
of this act; (B) issuance of a permit for a solid waste disposal area for
disposal of a solid waste by-product produced on-site; (C) renewal of an
existing permit for a solid waste area in operation on the effective date
of this act; or (D) activities which are regulated under K.S.A. 65-163
through 65-165 or 65-171d, and amendments thereto.

(l) Before reviewing any application for a solid waste processing fa-
cility or solid waste disposal area, the secretary shall require the following
information as part of the application:

(1) Certification by the board of county commissioners or the mayor
of a designated city responsible for the development and adoption of the
solid waste management plan for the location where the processing facility
or disposal area is or will be located that the processing facility or disposal
area is consistent with the plan. This certification shall not apply to a solid
waste disposal area for disposal of only solid waste produced on site from
manufacturing and industrial processes or from on-site construction or
demolition activities.

(2) If the location is zoned, certification by the local planning and
zoning authority that the processing facility or disposal area is consistent
with local land use restrictions or, if the location is not zoned, certification
from the board of county commissioners that the processing facility or
disposal area is compatible with surrounding land use.

(3) For a solid waste disposal area permit issued on or after July 1,
1999, proof that the permittee owns the land where the disposal area will
be located, if the disposal area is: (A) A municipal solid waste landfill; or
(B) a solid waste disposal area that has: (i) A leachate or gas collection or
treatment system; (ii) waste containment systems or appurtenances with
planned maintenance schedules; or (iii) an environmental monitoring sys-
tem with planned maintenance schedules or periodic sampling and anal-
ysis requirements. This requirement shall not apply to a permit for lateral
or vertical expansion contiguous to a permitted solid waste disposal area
in operation on July 1, 1999, if such expansion is on land leased by the
permittee before April 1, 1999.

Sec. 2. K.S.A. 1998 Supp. 65-3407c is hereby amended to read as
follows: 65-3407c. (a) The secretary may authorize persons to carry out
the following activities without a solid waste permit issued pursuant to
K.S.A. 65-3407, and amendments thereto:

(1) Dispose of solid waste at a site where the waste has been accu-
mulated or illegally dumped. Disposal of some or all such waste must be
identified as an integral part of a site cleanup and closure plan submitted
to the department by the person responsible for the site. No additional
waste may be brought to the site following the department's approval of
the site cleanup and closure plan.

(2) Perform temporary projects to remediate soils contaminated by
organic constituents capable of being reduced in concentration by biod-
egradation processes or volatilization, or both. Soil to be treated may be
generated on-site or off-site. A project operating plan and a site closure
plan must be submitted to the department as part of the project approval
process.

(3) Dispose of demolition waste resulting from demolition of an entire
building or structure if such waste is disposed of at the site where the
building or structure was located. Prior to the department's authorization,
written approval for the disposal must be obtained from the landowner
and the local governmental or zoning authority having jurisdiction over
the disposal site. The disposal area must be covered with a minimum of
two feet of soil and seeded, rocked or paved. The final grades for the
disposal site must be compatible with and not detract from the appearance
of adjacent properties.

(4) Dispose of solid waste generated as a result of a transportation
accident if such waste is disposed of on property adjacent to or near the
accident site. Prior to the department's authorization, written approval
for the disposal must be obtained from the landowner and the local gov-
ernmental or zoning authority having jurisdiction over the disposal site.
A closure plan must be submitted to the department as part of the au-
thorization process.

(5) Dispose of whole unprocessed livestock carcasses on property at,
adjacent or near where the animals died if: (A) Such animals died as a
result of a natural disaster or their presence has created an emergency
situation; and (B) proper procedures are followed to minimize threats to
human health and the environment. Prior to the department's authori-
zation, written approval for the disposal must be obtained from the land-
owner and the local governmental or zoning authority having jurisdiction
over the disposal site.

(6) Dispose of solid waste resulting from natural disasters, such as
storms, tornadoes, floods and fires, or other such emergencies, when a
request for disposal is made by the local governmental authority having
jurisdiction over the area. Authorization shall be granted by the depart-
ment only when failure to act quickly could jeopardize human health or
the environment. Prior to the department's authorization, written ap-
proval for the disposal must be obtained from the landowner and the local
governmental or zoning authority having jurisdiction over the disposal
site. The local governmental authority must agree to provide proper clo-
sure and postclosure maintenance of the disposal site as a condition of
authorization.

(b) The secretary shall consider the following factors when determin-
ing eligibility for an exemption to the solid waste permitting requirements
under this section:

(1) Potential impacts to human health and the environment.

(2) Urgency to perform necessary work compared to typical permit-
ting timeframes.

(3) Costs and impacts of alternative waste handling methods.

(4) Local land use restrictions.

(5) Financial resources of responsible parties.

(6) Technical feasibility of proposed project.

(7) Technical capabilities of persons performing proposed work.

(c) The secretary may seek counsel from local government officials
prior to exempting activities from solid waste permitting requirements
under this section.

Sec. 3. K.S.A. 1998 Supp. 65-3407 and 65-3407c are hereby re-
pealed.

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

Approved April 14, 1999.
__________