CHAPTER 44 SENATE BILL No. 296 An  Act concerning hazardous waste; amending K.S.A. 65-3444 and K.S.A. 1998 Supp. 65-
3431 and repealing the existing sections. Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 1998 Supp. 65-3431 is hereby amended to read as
follows: 65-3431. The secretary is authorized and directed to:

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

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

      (c) Administer the hazardous waste management program pursuant
to provisions of this act.

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

      (e) Develop a statewide hazardous waste management plan.

      (f) Provide technical assistance, including the training of personnel,
to industry, local units of government and the hazardous waste manage-
ment industry to meet the requirements of this act.

      (g) Initiate, conduct and support research, demonstration projects,
and investigations and coordinate all state agency research programs with
applicable federal programs pertaining to hazardous waste management.

      (h) Establish policies for effective hazardous waste management.

      (i) Authorize issuance of such permits and orders, conduct inspec-
tions and collect samples or require information and copy records or data
as may be necessary to implement the provisions of this act and the rules
and regulations and standards adopted pursuant to this act.

      (j) Conduct and contract for research and investigations in the overall
area of hazardous waste storage, collection, transportation, treatment, re-
covery and disposal including, but not limited to, new and novel proce-
dures.

      (k) Adopt rules and regulations establishing criteria for identifying
the characteristics of hazardous waste and for listing hazardous waste.
The secretary shall prepare and keep current a listing of hazardous wastes
and set of characteristics based on the rules and regulations adopted pur-
suant to this subsection. The listing shall identify, but need not be inclu-
sive of, all the hazardous waste subject to the provisions of this act. The
criteria for identification and listing shall be consistent with the criteria
for identification and listing adopted by the administrator of the United
States environmental protection agency under the authority vested in the
administrator by the Resource Conservation and Recovery Act of 1976
(42 USC 6921) as amended by the Solid Waste Disposal Act of 1980 (P.L.
94-482, October 21, 1980), and as amended by the Hazardous and Solid
Waste Act of 1984 (P.L. 98-616, November 8, 1984).

      (l) Adopt rules and regulations establishing: (1) Appropriate measures
for monitoring generators, transporters and facilities during operation,
closure, and after closure of such facilities to insure compliance with the
rules and regulations adopted under this act and any permit issued under
this act; (2) procedures to suspend operation of such generators, trans-
porters or facilities as may be required to protect the public health and
safety or the environment; and (3) appropriate measures to insure that
any use of a hazardous waste disposal facility after closure will not en-
danger the public health or safety or the environment.

      (m) Adopt rules and regulations establishing standards for hazardous
waste generators including, but not limited to, notification of hazardous
waste generation, reporting, recordkeeping, labeling, containerization,
source separation, storage, manifests, monitoring, sampling and analysis
and manner of filing notifications, reports and manifests.

      (n) Adopt rules and regulations prescribing the form of the manifest
and requiring such manifest to accompany any hazardous waste collected,
transported, treated, recovered or disposed of, and prescribing the con-
tents of the manifest which shall include, but not be limited to, the quan-
tity and composition of the hazardous waste, generator, transporter, des-
tination, facility and the manner of signing and filing of the manifest and
for the maintenance of records.

      (o) Adopt rules and regulations establishing standards for routes used
for transporting hazardous waste within the state with the concurrence
of the state corporation commission. Such standards shall be consistent
with those of the United States department of transportation and the state
corporation commission, with respect to transportation of hazardous ma-
terials. Motor vehicles which are used for the transportation of hazardous
waste in accordance with this act shall be exempt from the requirements
of K.S.A. 66-1,108 et seq. and amendments thereto, and any rules and
regulations adopted thereunder pertaining to routes which shall be under
the jurisdiction of the secretary as provided in this act including any rules
and regulations adopted thereunder. Otherwise such motor vehicles shall
be subject to the requirements of K.S.A. 66-1,108 et seq. and amendments
thereto, and any rules and regulations adopted thereunder.

      (p) Adopt rules and regulations establishing standards for transport-
ers of hazardous waste including, but not limited to, notification of haz-
ardous waste transport, manifests, labeling, recordkeeping and the filing
of reports.

      (q) Adopt rules and regulations establishing standards and procedu-
res to protect public health and the environment from any release of
hazardous waste into the environment and to insure the prompt correc-
tion of any such release and damage resulting therefrom by the person
transporting, handling or managing such hazardous waste.

      (r) 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 real property upon which a hazardous waste
treatment, storage or disposal facility is or has been located shall be sub-
ject to such terms and conditions as to the use of such property as the
secretary shall specify to protect human health and the environment.

      (s) Adopt rules and regulations establishing a permit system which
includes standards for facilities and procedures for implementation of a
permit system for the construction, alteration, or operation of a hazardous
waste treatment, storage or disposal facility including, but not limited to,
content of applications, evidence of financial responsibility, existing hy-
drogeological characteristics, environmental assessment, training of per-
sonnel, maintenance of operations, qualifications of ownership, continuity
of operation, public notification and participation and compliance with
those standards established pursuant to subsection (t).

      (t) Adopt rules and regulations establishing minimum standards for
the design, location, construction, alteration, operation, termination, clos-
ing and long-term care of facilities for the treatment, storage or disposal
of hazardous waste including, but not limited to, notification of hazardous
waste treatment, storage or disposal, general facility standards, contin-
gency plans, emergency procedures, manifest system, recordkeeping, in-
spections, monitoring, reporting, closure and postclosure plans and fi-
nancial requirements. The operator of the facility shall be responsible for
long-term care of the facility for 30 years after closure of the facility except
that the secretary may modify the long-term care requirements for any
facility when all hazardous waste is removed from the facility at closure.
The secretary may extend the long-term care responsibility of any oper-
ator of a facility as the secretary may deem necessary to protect the public
health and safety or the environment. Any person acquiring rights of
possession or operation of any facility permitted by the secretary for the
treatment, storage or disposal of hazardous waste at any time after the
facility has begun to accept waste and prior to the end of the required
period of long-term care shall be subject to all of the requirements, terms
and conditions of the permit for the facility including all requirements
relating to long-term care of the facility. The sale or acquisition of a
hazardous waste disposal facility during the long-term care period shall
be subject to the assignment of long-term care responsibilities as deter-
mined by the secretary.

      (u) Adopt rules and regulations establishing a schedule of annual fees
to be paid to the secretary by: (1) Persons owning or operating hazardous
waste treatment, storage or disposal facilities; (2) hazardous waste trans-
porters; or (3) hazardous waste generators producing or bringing into
existence hazardous waste in Kansas. The fees shall be for monitoring
facilities both during and after operation, for monitoring generators of
hazardous waste in Kansas and for monitoring the transportation of haz-
ardous wastes. The fees shall be sufficient to reimburse the cost of the
state in performing these monitoring responsibilities. The fee established
under this subsection for each hazardous waste facility shall not exceed
$50,000 annually. In setting fees, the secretary may exempt those fees
which would be payable by generators for hazardous waste which is
treated to recover substantial amounts of either energy or materials from
hazardous wastes. The secretary shall remit at least monthly any moneys
collected from such fees to the state treasurer. Upon receipt of any such
remittance, the state treasurer shall deposit the entire amount thereof in
the state treasury to the credit of the state general fund hazardous waste
management fund created by section 3 and amendments thereto.

      (v)  (1) Adopt rules and regulations establishing a schedule of fees to
be paid to the secretary by permittees operating hazardous waste disposal
facilities. In establishing fees, the secretary shall give consideration to
degree of hazard, costs of treatment and disposal, estimated future re-
ceipts and estimated future expenses to the state for monitoring, main-
tenance and supervision of the facilities after closure. Fees shall be in an
amount of not to exceed $.01 per pound of hazardous waste disposed of.
Each permittee, as an advance payment of the fees authorized under this
subsection, shall remit to the secretary an amount to be established by
the secretary not to exceed $25,000 upon request and notification by the
secretary that an initial application for a permit or initial renewal thereof
has been approved, subject to receipt of the advance payment. Com-
mencing with the second renewal, no advance payment shall be required.
The advance payment shall constitute a credit against any fee which may
be assessed pursuant to this subsection.

      (2) The secretary shall remit at least monthly any moneys collected
pursuant to this subsection to the state treasurer. Upon receipt of any
such remittance, the state treasurer shall deposit the entire amount
thereof in the state treasury to the credit of the hazardous waste perpetual
care trust fund, which fund is hereby limited to the following uses: (A)
Payment of extraordinary costs of monitoring a permitted hazardous
waste disposal facility after the responsibility of the operator has termi-
nated; (B) payment of costs of repairing a hazardous waste disposal fa-
cility, as a result of a postclosure occurrence which poses a substantial
hazard to public health or safety or to the environment. If an expenditure
made under this subsection would not have been necessary had the per-
son responsible for the operation or long-term care of the permitted haz-
ardous waste disposal facility complied with the requirements of a plan
of operation approved by the secretary when the permit was issued, a
cause of action in favor of the hazardous waste perpetual care trust fund
shall be accrued to the state of Kansas against such person, and the sec-
retary shall take such action as is appropriate to enforce this cause of
action by recovering any amounts so expended. The net proceeds of any
such recovery shall be deposited in the state treasury and credited to the
hazardous waste perpetual care trust fund; and (C) on an emergency basis
up to 20% of the balance in the hazardous waste perpetual care trust fund
may be allocated for investigation, engineering and construction related
to the removal, treatment and disposal of hazardous waste disposed of in
any hazardous waste disposal facility, when such hazardous waste is found
to pose an imminent and substantial risk to the public health or safety or
the environment.

      (3) On or before the 10th of each month, the director of accounts
and reports shall transfer from the state general fund to the hazardous
waste perpetual care trust fund interest earnings based on:

      (A) The average daily balance of moneys in the hazardous waste per-
petual care trust fund for the preceding month; and

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

      (4) All expenditures from the hazardous waste perpetual care trust
fund shall be made in accordance with appropriation acts upon warrants
of the director of accounts and reports issued pursuant to vouchers ap-
proved by the secretary for the purposes set forth in this subsection.

      (w) (v)  (1) Adopt rules and regulations establishing a schedule of fees
to be paid to the secretary by applicants for permits to construct, modify
or operate a hazardous waste facility. The fees established under this
subsection shall not exceed $175,000 for each application submitted.
These fees shall be based upon resources required to review the appli-
cation, the type of facility, quantity of waste processed, type of waste
processed, degree of hazard and potential impact upon human health and
environment. Fees collected under this subsection shall be used by the
secretary to recover the costs associated with the review and processing
of the permit application for which the fee was paid.

      (2) The secretary shall remit at least monthly any money collected
pursuant to this subsection to the state treasurer. Upon receipt of any
such remittance, the state treasurer shall deposit the entire amount
thereof in the state treasury to the credit of the environmental permit
fund, which fund is hereby established in the state treasury. Moneys in
the environmental permit fund may be expended for the following pur-
poses: (A) Technical reviews of applications for permits including permit
modifications and permit renewals for hazardous waste facilities; (B) eval-
uating options available for minimizing the generation of hazardous
wastes; (C) completing background investigations of applicants pursuant
to subsection (c) of K.S.A. 65-3437 and amendments thereto; (D) com-
pleting the site investigations pursuant to subsection (d) of K.S.A. 65-
3437 and amendments thereto; or (E) assuring that the permittee fulfills
all permit conditions during the effective period of the permit.

      (3) On or before the 10th of each month , the director of accounts
and reports shall transfer from the state general fund to the environmen-
tal permit fund interest earnings based on:

      (A) The average daily balance of moneys in the environmental permit
fund for the preceding month; and

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

      (4) All expenditures from the environmental permit 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 subsection hazardous waste
management fund created by section 3 and amendments thereto.

      (x) (w)  (1) Adopt rules and regulations establishing a schedule of fees
to be paid to the secretary by off-site hazardous waste treatment and
disposal facilities. In establishing fees, the secretary shall give consider-
ation to the degree of hazard, energy content, quantity of waste, costs of
treatment or disposal, and estimated future receipts. Fees shall be in an
amount not to exceed $.01 per pound of hazardous waste treated, or
burned for energy or material recovery. In no event shall the fees estab-
lished under this subsection exceed the following annual calendar year
caps: $60,000 for a facility which burns hazardous waste for energy or
material recovery only; $200,000 for a facility which burns hazardous
waste for treatment or disposal only. Facilities which burn hazardous
waste for: (i) Energy or material recovery; and (ii) treatment or disposal
shall be subject to a total facility cap of $200,000, which includes a sep-
arate cap of $60,000 for hazardous wastes which are burned for energy
or material recovery. The secretary shall establish a differential fee sched-
ule for hazardous wastes based upon waste characteristics which is con-
sistently applied to all facilities which burn hazardous wastes. In all other
cases, fees shall be in an amount not to exceed $.05 per pound of haz-
ardous waste disposed of except that in no event shall any fee be estab-
lished under this exception prior to July 1, 1996, and which exceeds
$50,000 in any 12-month period for the treatment or disposal of hazard-
ous waste at any facility if such facility: (A) Operates under a permit or
permits granted by the secretary pursuant to K.S.A. 65-3430 et seq., and
amendments thereto; (B) treats or disposes of hazardous waste generated
by such facility or a single generator located on property contiguous to
such facility, or both; and (C) was treating or disposing of hazardous waste
generated on such contiguous property as of July 1, 1991, with the knowl-
edge of the secretary. In establishing the amount of fees pursuant to the
immediately preceding exception, the secretary shall base the same upon
the degree of hazard, quantity of waste, costs of treatment or disposal,
estimated receipts for disposal services and waste reduction efforts of
such facility.

      (2) The secretary shall remit at least monthly any money collected
pursuant to this subsection to the state treasurer. Upon receipt of any
such remittance, the state treasurer shall deposit the entire amount
thereof in the state treasury to the credit of the environmental permit
fund hazardous waste management fund created by section 3 and amend-
ments thereto, except that 25% of any such deposit shall be deposited to
the credit of the hazardous waste collection fund created by K.S.A. 65-
3460 and amendments thereto.

      (y) (x) Encourage, coordinate or participate in one or more waste
exchange clearing houses for the purpose of promoting reuse and recy-
cling of industrial wastes.

      (z) (y) Adopt rules and regulations establishing the criteria to specify
when a change of principal owners or management of a hazardous waste
treatment, storage or disposal facility occurs and under what circum-
stances and procedures a new permit shall be required to be issued to
the transferees of a facility which was permitted to the transferor.

      (aa) (z) Adopt rules and regulations concerning the generation, trans-
portation, storage, blending, marketing, burning and types of hazardous
waste for which any method, technique or process to recover energy will
be considered hazardous waste treatment. Such rules and regulations
should specify a minimum heat value of the waste so as to ensure that a
legitimate energy recovery will occur and should consider other charac-
teristics of the waste which are appropriate to ensure that such method,
technique or process for energy recovery will not pose a threat to the
public health or environment.

      Sec.  2. K.S.A. 65-3444 is hereby amended to read as follows: 65-
3444. (a) A person who violates any provisions of this act, shall incur, in
addition to any other penalty provided by law, a civil penalty in an amount
not to exceed $25,000 for every such violation and, in the case of a con-
tinuing violation, every day such violation continues shall be deemed a
separate violation.

      (b) In assessing the civil penalty under this section, the district court
shall consider, when applicable, the following factors:

      (1) The extent to which the violation presents a substantial hazard to
the health of individuals;

      (2) the extent to which the violation has or may have an adverse effect
upon the environment to be determined by the court according to the
toxicity, degradability and dispersal characteristics of the hazardous waste
disposed of or the potential for such damage if no hazardous waste has
been disposed, the sensitivity of the receiving environment and the de-
gree to which the disposal degrades existing environmental quality or the
potential for such degradation if no disposal has occurred;

      (3) the amount of the reasonable costs incurred by the state in de-
tection, investigation and attempted correction of the violation;

      (4) the economic savings realized by the person in not complying with
the provision for which a violation is charged including, but not limited
to, that sum which a person would be required to expend for the planning,
acquisition, siting, construction, installation and operation of facilities nec-
essary to comply with the provision violated;

      (5) the quantity of the hazardous waste disposed of, if any, in a man-
ner which constitutes a violation; and

      (6) the amount which would constitute an actual and substantial ec-
onomic deterrent to the violation for which it is assessed.

      (c) A civil action under this section may be commenced in the name
of the state by the secretary or the county or district attorney of the county
in which the violation is alleged to have occurred, or at the request of the
secretary, by the attorney general.

      (d) Any sum assessed under this section shall be deposited as ordered
by the district court judge: (1) In the state general fund, or; (2) in a
perpetual care trust fund established under K.S.A. 65-3431, the hazard-
ous waste management fund created by section 3 and amendments
thereto,; or (3) part in the state general fund and the balance in a per-
petual care trust the hazardous waste management fund. Moneys depos-
ited in a perpetual care trust the hazardous waste management fund un-
der this subsection (d) shall be to reimburse such fund, to the extent
practicable as determined by the district court judge, for expenditures
from such fund, if any, in the matter which gave rise to the civil action.

      New Sec.  3. (a) There is hereby created in the state treasury the
hazardous waste management fund.

      (b) Subject to the provisions of subsection (c), moneys credited to
the hazardous waste management fund may be expended for the follow-
ing purposes:

      (1) Technical reviews of applications for permits pursuant to K.S.A.
65-3430 through 65-3460, and amendments thereto, including permit
modifications and permit renewals for hazardous waste facilities;

      (2) evaluating options available for minimizing the generation of haz-
ardous wastes;

      (3) completing background investigations of applicants pursuant to
subsection (c) of K.S.A. 65-3437 and amendments thereto;

      (4) completing site investigations pursuant to subsection (d) of K.S.A.
65-3437 and amendments thereto;

      (5) assuring that a permittee pursuant to K.S.A. 65-3430 through 65-
3460, and amendments thereto, fulfills all permit conditions during the
effective period of the permit; and

      (6) payment of the administrative, technical and legal costs incurred
by the secretary in carrying out the provisions of K.S.A. 65-3430 through
65-3460, and amendments thereto, including the cost of any additional
employees or increased operating costs of the department attributable
thereto.

      (c) Moneys credited to the hazardous waste management fund from
fees established pursuant to subsection (v)(1) of K.S.A. 65-3431 and
amendments thereto shall be expended only to recover costs associated
with the review and processing of the permit application for which the
fee was paid.

      (d) On or before the 10th of each month, the director of accounts
and reports shall transfer from the state general fund to the hazardous
waste management fund interest earnings based on:

      (1) The average daily balance of moneys in the hazardous waste man-
agement 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 hazardous waste management 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.

      (f) The hazardous waste management fund shall be used for the pur-
poses set forth in this section and for no other governmental purposes. It
is the intent of the legislature that the fund shall remain intact and invi-
olate for the purposes set forth in this section 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.

      (g) On the effective date of this act, the director of accounts and
reports shall transfer all moneys in the hazardous waste perpetual care
trust fund and the environmental permit fund, created pursuant to K.S.A.
65-3431 as it existed immediately before the effective date of this act, to
the hazardous waste management fund. On the effective date of this act,
all liabilities of the hazardous waste perpetual care trust fund and the
environmental permit fund are hereby transferred to and imposed upon
the hazardous waste management fund. On the effective date of this act,
the hazardous waste perpetual care trust fund and the environmental
permit fund are hereby abolished. 
Sec.  4. K.S.A. 65-3444 and K.S.A. 1998 Supp. 65-3431 are hereby
repealed.
 Sec.  5. This act shall take effect and be in force from and after its
publication in the statute book.

Approved March 31, 1999.
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