CHAPTER 12
HOUSE BILL No. 2196
An Act amending the Kansas storage tank act; concerning unlawful
acts; amending K.S.A.
65-34,109 and 65-34,113 and repealing the existing
sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 65-34,109 is
hereby amended to read as follows:
65-34,109. (a) It shall be unlawful for any person
to:
(1) owner or operator of a
storage tank to deposit, store or dispense,
or permit any person to deposit, store or dispense, any regulated
sub-
stance into any such storage tank which
does not comply with the pro-
visions of this act, the rules and regulations promulgated
hereunder, or
any order of the secretary;.
(b) It shall be unlawful for any
person to:
(2)
(1) Construct, install, modify or operate a storage
tank without
any required permit or other written approval from the secretary or
oth-
erwise be in violation of the rules and regulations, standards or
orders of
the secretary;
(3) (2) prevent
or hinder a properly identified officer or employee
of the department or other authorized agent of the secretary from
enter-
ing, inspecting or sampling at a facility on which a storage tank
is located
or from copying records concerning such storage tank as authorized
by
this act;
(4) (3) knowingly
make any false material statement or representa-
tion in any application, record, report, permit or other document
filed,
maintained or used for purposes of compliance with this act;
(5) (4) knowingly
destroy, alter or conceal any record required to be
maintained by this act or rules and regulations promulgated
hereunder;
or
(6) (5) knowingly
allow a release, knowingly fail to report a release
or knowingly fail to take corrective action in response to a
release of a
regulated substance in violation of this act or rules and
regulations prom-
ulgated hereunder; or
(6) deposit, store or dispense any
regulated substance into any stor-
age tank which does not comply with the provisions of this act,
or the
rules and regulations promulgated hereunder, after written
notice by cer-
tified mail has been supplied by the secretary that such storage
tanks do
not comply with the provisions of the act or such rules and
regulations.
(b) (c) Any
person who violates any provision of subsection (a) or
(b)
shall be guilty of a class A misdemeanor and, upon conviction
thereof,
shall be punished as provided by law.
Sec. 2. K.S.A. 65-34,113 is hereby
amended to read as follows: 65-
34,113. (a) Any person who violates any provisions of K.S.A.
65-34,109
or 65-34,110, and amendments thereto, shall incur, in addition to
any
other penalty provided by law, a civil penalty in an amount of up
to
$10,000 for every such violation, and in case of a continuing
violation,
every day such violation continues shall be deemed a separate
violation.
(b) The director of the division of
environment, upon a finding that
a person has violated any provision of K.S.A. 65-34,109 or
65-34,110, and
amendments thereto, may impose a penalty within the limits provided
in
subsection (a), which penalty shall constitute an actual and
substantial
economic deterrent to the violation for which it is assessed.
(c) No penalty shall be imposed pursuant
to this section except upon
the written order of the director of the division of environment to
the
person who committed the violation. Such order shall state the
violation,
the penalty to be imposed and the right of such person to appeal to
the
secretary. Within 15 days after service of the order, any such
person may
make written request to the secretary for a hearing thereon in
accordance
with the Kansas administrative procedure act.
(d) Any action of the secretary pursuant
to subsection (c), (e)(1) or
(e)(2) is subject to review in accordance with the act for judicial
review
and civil enforcement of agency actions.
(e) Notwithstanding any other provision
of this act, the secretary,
upon receipt of information that the storage or release of a
regulated
substance may present a hazard to the health of persons or to the
envi-
ronment, may take such action as the secretary determines to be
neces-
sary to protect the health of such persons or the environment.
Operating
a storage tank without a permit issued pursuant to K.S.A.
65-34,106, and
amendments thereto, shall be deemed to constitute such a
hazard. The
action the secretary may take shall include, but is not limited
to:
(1) Issuing an order, subject to review
pursuant to the Kansas ad-
ministrative procedure act, directing the owner or operator of the
storage
tank, or the custodian of the regulated substance which constitutes
such
hazard, to take such steps as are necessary to prevent the act, to
eliminate
the practice which constitutes such hazard, to investigate the
extent of
and remediate any pollution resulting from the storage or release.
Such
order may include, with respect to a facility or site, permanent or
tem-
porary cessation of operation.
(2) Issuing an order, subject to review
pursuant to the Kansas ad-
ministrative procedure act, directing an owner, tenant or holder of
any
right of way or easement of any real property affected by a known
release
from a storage tank to permit entry on to and egress from that
property,
by officers, employees, agents or contractors of the department or
of the
person responsible for the regulated substance or the hazard, for
the
purposes of monitoring the release or to perform such measures to
mit-
igate the release as the secretary shall specify in the order.
(3) Commencing an action to enjoin acts
or practices specified in
this subsection or requesting the attorney general or appropriate
county
or district attorney to commence an action to enjoin those acts or
prac-
tices. Upon a showing that a person has engaged in those acts or
practices,
a permanent or temporary injunction, restraining order or other
order
may be granted by any court of competent jurisdiction. An action
for
injunction under this subsection shall have precedence over other
cases
in respect to order of trial.
(4) Applying to the appropriate district
court for an order of that
court directing compliance with the order of the secretary pursuant
to
the act for judicial review and civil enforcement of agency
actions. Failure
to obey the court order shall be punishable as contempt of the
court
issuing the order. The application under this subsection shall have
prec-
edence over other cases in respect to order of trial.
(f) In any civil action brought pursuant
to this section in which a
temporary restraining order, preliminary injunction or permanent
in-
junction is sought it shall be sufficient to show that a violation
of the
provisions of this act, or the rules and regulations adopted
thereunder
has occurred or is imminent. It shall not be necessary to allege or
prove
at any stage of the proceeding that irreparable damage will occur
should
the temporary restraining order, preliminary injunction or
permanent in-
junction not be issued or that the remedy at law is inadequate.
Sec. 3. K.S.A. 65-34,109 and 65-34,113 are hereby
repealed.
Sec. 4. This act shall take effect and be in force
from and after its
publication in the statute book.
Approved March 24, 2003.
__________