Session Law

Identifying Information:L. 2003 ch. 130
Other Identifying Information:2003 House Bill 2247
Tax Type:Other
Brief Description:An Act concerning the environment; providing for prohibition or restriction of activities on and use of certain contaminated real property relating to waste tires; amending K.S.A. 65-3424, 65-3424a, 65-3424b, 65-3424g, 65-3424k and 65-3426 and repealing the exist- ing sections; also repealing K.S.A. 65-3424m.
Keywords:


Body:

CHAPTER 130

HOUSE BILL No. 2247


An Act concerning the environment; providing for prohibition or restriction of activities on

and use of certain contaminated real property relating to waste tires; amending K.S.A.

65-3424, 65-3424a, 65-3424b, 65-3424g, 65-3424k and 65-3426 and repealing the exist-


ing sections; also repealing K.S.A. 65-3424m.


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

New Section 1. The intent of this act is to provide a voluntary mech-

anism to assist existing state programs to address environmental contam-

ination in a cost effective manner that is protective of human health and

the environment.

New Sec. 2. As used in this act:

(a) ``Department'' means the Kansas department of health and en-

vironment.

(b) ``Environmental use control'' means an institutional or adminis-

trative control, a restriction, prohibition or control of one or more uses

of, or activities on, a specific property, as requested by the property owner

at the time of issuance, to ensure future protection of public health and

the environment when environmental contamination which exceeds de-

partment standards for unrestricted use remains on the property follow-

ing the appropriate assessment and/or remedial activities as directed by

the department pursuant to the secretary's authority. For the purposes

of this act, ``environmental contamination'' does not mean animal or pro-

cess waste from a confined feeding facility as defined in K.S.A. 65-171d,

and amendments thereto, livestock operations or the application of live-

stock waste for use as a plant nutrient. Any environmental use control

created pursuant to this act runs with the property and is binding on the

owner and subsequent owners, lessees and other users of the land.

(c) ``Owner'' means any owner of record of property, and any person

or entity with written authorization from the owner to make decisions

regarding the transfer of the subject property or placement of encum-

brances on the subject property, other than by the exercise of eminent

domain.

(d) ``Person'' means any individual, trust, firm, joint stock company,

public or private corporation, limited liability company or partnership;

the federal government or any agency or instrumentality thereof; any

state, or any agency, instrumentality or political or taxing subdivision

thereof; or any interstate body.

(e) ``Protective structure'' means an engineered physical structure im-

plemented as part of the remedial action to control or respond to a release

or threat of release of environmental contamination. Protective structure

includes capping, fencing, berming, diking, drainage structures and other

structures that may control migration or other releases of environmental

contamination.

(f) ``Property'' means real property.

(g) ``Remedial activity'' means any site cleanup, soil or groundwater

monitoring associated with a contaminated property, remedial action, cor-

rective action, emergency action, removal action or other action necessary

or appropriate to respond to a release or threat of release of environ-

mental contamination.

(h) ``Secretary'' means the secretary of health and environment.

New Sec. 3. (a) The provisions of this act, except the provisions of

subsection (b) of section 10, and amendments thereto, shall not apply to

solid waste disposal areas which are issued permits pursuant to K.S.A. 65-

3407, and amendments thereto, or which receive authorization from the

secretary for unpermitted disposal pursuant to K.S.A. 65-3407c, and

amendments thereto, provided that the owner of each such solid waste

disposal area establishes environmental use controls for the area, subject

to approval by the department, by executing and filing a restrictive cov-

enant on the property deed.

(b) The provisions of this act shall not apply to confined feeding fa-

cilities as defined in K.S.A. 65-171d, and amendments thereto.

New Sec. 4. (a) An owner of property, with departmental approval,

may restrict the use of the owner's property to mitigate the risk posed to

human health and the environment by imposing on the property an ap-

propriate environmental use control.

(b) (1) If the owner elects to voluntarily restrict use of or activities

on the owner's property, the owner or the owner's authorized represen-

tative shall make application to the department for approval of an envi-

ronmental use control. Such application shall be made on forms provided

by the department and shall be completed and submitted to the depart-

ment by the owner or the owner's authorized representative.

(2) Department approval of an application shall be subject to the

application's containing the following components: Appropriate restric-

tions to protect public health and the environment from known contam-

ination which exceeds department standards for unrestricted residential

use; access to the subject property; an inspection schedule that is appro-

priate to monitor conditions at the subject property; and the availability

of funds to administer the provisions of this act related to the subject

property.

(3) The department may require the applicant to provide financial

assurance for category 3 property as described in subsection (c)(3) of

section 6, and amendments thereto, based on the potential for long term

maintenance cost of protective structures and the potential for release or

migration of environmental contamination from the property. The appli-

cant shall provide the financial assurance by one or more methods satis-

factory to the department, including, but not limited to, environmental

insurance, guarantee, performance or other surety bond, letter of credit,

qualification as a self-insurer or other demonstration of financial capabil-

ity. The demonstration of financial capability must be adequate to provide

remedies which are protective of human health and the environment

should the proposed remedial activity fail.

(4) The application shall include an accurate legal description or sur-

vey of the portion of the property where an environmental use control is

proposed.

(c) The department shall review the application. If the application is

disapproved by the department, the applicant may modify the application

in a manner necessary to obtain department approval and resubmit the

application for the department's approval. If the application is approved

by the department, the department shall provide the applicant a written

approval.

(d) An environmental use control pursuant to this act may be ap-

proved by the department as part of the remedial activity for the property

when residual contamination which exceeds department standards for

unrestricted residential use on the subject property.

New Sec. 5. (a) After an environmental use control has been ap-

proved by the department, the owner must register the environmental

use control with the register of deeds in the county where the property

is located or, if property is owned by the United States or a division

thereof, a notice of the environmental use control must be filed with the

register of deeds in the county where the property is located. When reg-

istering the environmental use control or filing the notice, the following

must be included:

(1) A notarized original environmental use control agreement be-

tween the applicant and the department; and

(2) an adequate legal description or legal survey of the property which

identifies the portion of the property which is subject to the environ-

mental use control.

(b) The applicant must provide to the department a notarized copy

of the recorded environmental use control agreement with the register

of deeds seal for the property.

(c) Recorded environmental use controls established pursuant to this

act shall be enforceable as set forth in section 9, and amendments thereto.

New Sec. 6. (a) Funding needs may be satisfied by department ap-

propriations for property where adequate funding is supplied by federal

grants, designated fee funds or other funding sources.

(b) Any funding requirements for an application pursuant to this act,

will be based on a one time payment for the property, made by the orig-

inal applicant.

(c) Funding requirements for other properties will be determined

individually and be based on the size of the property to which the envi-

ronmental use control applies, toxicity and mobility of the contaminants

to which the environmental use control applies, frequency of site inspec-

tions and the anticipated inspection costs, as determined by the depart-

ment.

(1) Category 1 property includes property with the following char-

acteristics: The property is not greater than five acres in size, the residual

contamination is characterized by low toxicity and mobility, there is min-

imal anticipated maintenance of protective structures and the anticipated

inspection frequency is once every five years. Category 1 properties would

have a one-time payment by the applicant not to exceed $2,000 to fund

the life of the environmental use control.

(2) Category 2 property includes property with the following char-

acteristics: The property may cover areas larger than five acres in size,

the residual contamination is characterized by moderate toxicity and mo-

bility, there is limited anticipated maintenance of protective structures

and more complicated and/or costly inspections are anticipated, with an

inspection frequency of not more than once per year. Category 2 property

would have a one-time payment by the applicant not to exceed $10,000

to fund the life of the environmental use control.

(3) Category 3 property includes property with some or all of the

following characteristics: The property may cover a large acreage, the

residual contamination is characterized by higher toxicity or mobility,

complicated maintenance or monitoring of protective structures is re-

quired and frequent or complicated site inspections are anticipated,

which may be more frequent than once per year. The inspection cost of

category 3 properties is also dependent on the future uses of the property

and the maintenance of protective structures by the property owner. For

this reason, long term care agreements between the department and the

applicant will be required for category 3 properties. These long term care

agreements will include a provision to reimburse the department for costs

incurred to perform the long term care at the property.

(d) The secretary shall remit to the state treasurer, in accordance with

K.S.A. 75-4215, and amendments thereto, all moneys received from fees

and long term care reimbursement agreements pursuant to this section.

Upon receipt of the remittance, the state treasurer shall deposit the entire

amount in the state treasury and credit it to the environmental use control

fund.

New Sec. 7. (a) An environmental use control may be granted either

in perpetuity or for a term of years, as determined by the department.

An environmental use control may not be approved for a term of years

unless provisions are included that ensures the protection of human

health and the environment beyond the expiration of the environmental

use control. Upon expiration of the term if contamination remains above

department standards, as set forth in the approved environmental use

control, the department can require additional action.

(b) An environmental use control runs with the land and is binding

on all successors in interest to property until the environmental use con-

trol is removed upon the department's approval or upon expiration of the

term of the environmental use control.

(c) An environmental use control shall be removed if the property

owner demonstrates to the department's satisfaction that the original risk

to human health or the environment which created the need for the

control is no longer present. An owner must submit a request to the

department for approval to remove all or a portion of the environmental

use controls from the property. The department shall review the request

and provide the owner with the department's decision to approve or deny

the request within 120 days after the department's receipt of the request.

If the department denies the request, justification shall be provided to

the owner with a written explanation of the denial, which may include

that the applicant has not provided the documentation to demonstrate

that the request is protective of human health and the environment, as

determined by the department.

(d) If the department approves an owner's request to remove all or

a portion of environmental use controls, the owner shall file the approval

with the register of deeds in the county where the property is located.

(e) An environmental use control may not be extinguished, limited

or impaired through adverse possession, abandonment, waiver, lack of

enforcement or other common law principles relating to covenants or by

the exercise of eminent domain.

(f) An environmental use control may be modified by mutual written

agreement by the property owner and the department.

(g) The department shall not acquire any liability by virtue of ap-

proving an environmental use control or by approving removal of all or a

portion of environmental use controls.

New Sec. 8. (a) An environmental use control pursuant to this act

may restrict or prohibit the activities at or uses of property. The restric-

tions imposed shall be those agreed to by the applicant and deemed nec-

essary by the department to protect the public from exposures to contam-

inants which remain at the property.

(b) An environmental use control pursuant to this act may include or

require the following:

(1) Prompt notification to the department of any transfer of the prop-

erty, such notice to be given by the transferor;

(2) prompt notification to the department of any change in use of the

property, such notice to be given by the property owner;

(3) maintenance of protective structures or remedial systems at the

property, such as soil caps, soil covers, soil surfaces, berms, drainage struc-

tures, vegetation, monitoring wells or other structures or systems;

(4) access to the property by agents of the department as necessary

to inspect and monitor remediation activities, monitoring wells, surface

streams and protective structures or remedial systems and to ensure im-

plementation and enforcement of the requirements, restrictions and

other limitations of the environmental use controls;

(5) any other obligations necessary to reduce or eliminate risks or

threats to human health and the environment from the property; or

(6) a one-time payment or long term care agreement to provide fund-

ing for environmental use control oversight.

(c) Restrictions, prohibitions and zoning requirements placed on

property by a local or state government may be substituted in place of an

environmental use control. Such restrictions, prohibitions and zoning

requirements may be utilized in addition with any environmental use

controls approved by the department. This provision does not grant or

expand authority of local government to restrict, prohibit, zone or regulate

land.

(d) All interests not limited by the environmental use control shall

remain with the owner.

New Sec. 9. (a) Upon receipt of information that approved environ-

mental use controls are not being implemented in accordance with an

approved environmental use control agreement or that property subject

to an approved environmental control presents a hazard to human health

or the environment, the secretary may take such actions as may be nec-

essary to protect human health or the environment. The action the sec-

retary may take shall include, but not be limited to:

(1) Issuing an order directing the owner of the subject property to

take such steps as are necessary to correct any deficiencies and fully im-

plement the approved environmental use controls.

(2) Issuing an order retracting the approval of the remedial action for

the subject property, which included the environmental use control as

part of the remedy and require the owner of the property to implement

remediation of the property to a cleanup standard which will allow for

unrestricted use of the property.

(3) For category 3 property as described in subsection (c)(3) of sec-

tion 6, and amendments thereto, commencing an action enjoining acts or

practices set forth in the approved environmental use controls or re-

questing that the attorney general or appropriate district or county attor-

ney commence an action to enjoin such actions which result in approved

environmental use controls not being implemented or not being fully or

properly implemented or which present substantial and imminent threat

or hazard to human health or the environment.

(b) Any order of the secretary pursuant to subsection (a)(1) or (a)(2)

is subject to hearing and review in accordance with section 14, and

amendments thereto.

(c) An environmental use control may not be separated from the

property and survives foreclosure of a mortgage, lien or other encum-

brance, as well as tax sales and the issuance of a tax deed.

New Sec. 10. (a) The department shall provide oversight of the en-

vironmental use control for property to ensure that the property is being

used only for the purposes permitted by the terms of the environmental

use control agreement and is not being used in a manner that is prohibited

or restricted by the terms of the agreement.

(b) The department shall develop and maintain an environmental use

control tracking system on all approved environmental use controls. The

tracking system data shall be made available to the public in a manner

which allows review by either city or county and shall include the follow-

ing:

(1) Name of the property;

(2) address of the property, including the city and county;

(3) legal description of the property;

(4) cause and type of the environmental contamination;

(5) description of the environmental use control; and

(6) duration of the environmental use control.

New Sec. 11. (a) There is established in the state treasury the envi-

ronmental use control fund. Moneys from the following sources shall be

deposited in the state treasury and credited to the fund:

(1) Moneys collected from the environmental use control one-time

payments and long term care agreement reimbursements;

(2) moneys received by the secretary in the form of gifts, grants, re-

imbursements or appropriations from any source intended to be used for

purposes of the fund; and

(3) interest attributable to the investment of moneys in the fund.

(b) Moneys in the environmental use control fund shall be expended

only for costs of:

(1) Review of environmental use control applications;

(2) oversight of remedial projects which include an environmental

use control as an element of their remedy, including inspections, moni-

toring and tracking of the environmental use control;

(3) activities performed by the department to address immediate or

emergency threats to human health or the environment related to prop-

erties subject to environmental use controls;

(4) development, operation and maintenance of the environmental

use control tracking system; and

(5) administration and enforcement of the provisions of this act.

(c) 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 use control fund interest earnings based on:

(1) The average daily balance of moneys in the environmental use

control fund for the preceding month; and

(2) the net earnings rate of the pooled money investment portfolio

for the preceding month.

(d) All expenditures from the environmental use control fund shall

be made in accordance with appropriation acts upon warrants of the di-

rector of accounts and reports issued pursuant to vouchers approved by

the secretary or the secretary's designee for purposes set forth in this

section.

New Sec. 12. The secretary shall adopt rules and regulations to im-

plement the provisions of this act.

New Sec. 13. The department shall publish annually in the Kansas

register a summary of the number of approved environmental use control

agreements pursuant to this act.

New Sec. 14. Any person adversely affected by any order or decision

of the secretary pursuant to this act, within 15 days after service of the

order or decision, may request in writing a hearing. Hearings under this

section shall be conducted in accordance with the provisions of the Kansas

administrative procedure act. Any action of the secretary pursuant to this

section is subject to review in accordance with the act for judicial review

and civil enforcement of agency actions.

New Sec. 15. If any provision of this act or its application to any

person or circumstance is held invalid, the invalidity does not affect other

provisions or applications of this act which can be given effect without

the invalid provision or application. To this end the provisions of this act

are severable.

Sec. 16. K.S.A. 65-3424 is hereby amended to read as follows: 65-

3424. As used in K.S.A. 65-3424 through 65-3424i, and amendments

thereto, unless the context otherwise requires:

(a) Terms have the meaning provided by K.S.A. 65-3402, and amend-

ments thereto.

(b) ``Abatement'' means the processing or removing to an approved

storage site of waste tires which are creating a danger or nuisance.

(c) ``Beneficial use'' means the use or storage of waste tires in a way

that:

(1) Creates an on-site economic benefit to the owner of the tires,

including, but not limited to, bumpers for boat docks or boats, playground

equipment, silo covers, traffic control, feed bunks, water tanks, wind-

breaks constructed of baled tires or in a manner consistent with rules and

regulations of the secretary, erosion control on the face of an earthen dam

and stabilization of soil or sand blow-outs caused by wind; and

(2) as determined by the secretary, causes no adverse impacts to hu-

man health or the environment and complies with all applicable zoning

requirements.

(d) ``Contaminated waste tire'' means a tire which, as determined in

accordance with rules and regulations adopted by the secretary, is recov-

ered in a project to abate a waste tire accumulation and is so coated by

or filled with dirt, mud, sludge or other natural substances as to render

the tire substantially unsuitable for processing.

(e) ``Landfill'' means a disposal site in which the method of disposing

of solid waste is by landfill, dump or pit and which has a solid waste

disposal area permit issued under K.S.A. 65-3401 et seq., and amend-

ments thereto. ``Illegal waste tire accumulation'' means any waste tire pile

containing more than 50 waste tires except the following:

(1) A waste tire accumulation on the premises of a facility which has

been issued a permit by the secretary pursuant to K.S.A. 65-3407 or 65-

3424b, and amendments thereto, and managed in accordance with the

conditions of such permit; or

(2) a waste tire accumulation which is exempt from the waste tire

collection center permit requirement pursuant to K.S.A. 65-3424b, and

amendments thereto.

(f) ``Mobile waste tire processor'' means a person who processes

waste tires at other than a fixed site.

(g) ``Process'' means: (1) Cut or otherwise alter whole waste tires so

that they are no longer whole; or (2) bale for disposal or beneficial use.

(h) ``Store'' or ``storage'' means the placing of waste tires in a manner

that does not constitute disposal of the waste tires. Storage includes the

beneficial use of waste tires as silo covers and such other beneficial uses

as the secretary determines do not create health or environmental risks.

(i) ``Tire'' means a continuous solid or pneumatic rubber covering

used to encircle the wheel of a vehicle or aircraft, or an innertube of such

a covering.

(j) ``Tire retailer'' means a person in the business of selling new or

used replacement tires at retail.

(k) ``Used tire'' means a tire that: (1) Has been removed from a wheel

following a period of use or remains on a wheel removed from a vehicle

or aircraft following a period of use; and (2) has been determined to have

value in accordance with rules and regulations established pursuant to

subsection (e)(7) of K.S.A. 65-3424b, and amendments thereto.

(l) ``Vehicle'' has the meaning provided by K.S.A. 8-1485 and amend-

ments thereto and includes implements of husbandry, as defined by

K.S.A. 8-1427 and amendments thereto.

(m) ``Waste tire'' means a whole tire that: (1) Has been removed from

a wheel following a period of use or remains on a wheel removed from a

vehicle or aircraft following a period of use; and (2) is no longer suitable

for its original intended purpose because of wear, damage or defect.

(n) ``Waste tire collection center'' means a site where used or waste

tires are collected from the public or from customers of a business prior

to being offered for recycling or disposal.

(o) ``Waste tire processing facility'' means a fixed site where equip-

ment is used to process waste tires.

(p) ``Waste tire site'' means a site at which 1,000 or more whole waste

tires are accumulated. ``Waste tire site'' does not include: (1) A site that

is an integral part of a permitted waste tire processing facility; (2) an

accumulation of tires on the premises of a tire retreading business, for

use in the business; (3) an accumulation of tires on the premises of a

business that, in the ordinary course of business, removes tires from mo-

tor vehicles; (4) an accumulation of tires on the premises of a tire retailer,

accumulated in the normal course of the tire retailer's business; or (5) an

accumulation of tires which has a beneficial use approved by statute or

rules and regulations adopted by the secretary, or by the secretary pur-

suant to statute or rules and regulations.

Sec. 17. K.S.A. 65-3424a is hereby amended to read as follows: 65-

3424a. (a) The owner or operator of any waste tire site shall provide the

department with information concerning the site's location and size and

the approximate number of waste tires that are accumulated at the site.

(b) No person shall:

(1) (a) Maintain a waste tire site unless such person holds a valid

permit issued for such site pursuant to K.S.A. 65-3424b and amendments

thereto an illegal waste tire accumulation;

(2) dispose of waste tires in the state unless the waste tires are dis-

posed of for processing, or collected for processing, at a solid waste proc-

essing facility, a waste tire site which is an integral part of a waste tire

processing facility, a waste tire processing facility or a waste tire collection

center or are made available to: (A) The department of wildlife and parks

for use by the department; or (B) a person engaged in a farming or ranch-

ing activity, including the operation of a feedlot as defined by K.S.A. 47-

1501, and amendments thereto, as long as the accumulation has a bene-

ficial use to the person accumulating the tires and (i) the secretary

determines that the use has no adverse environmental effects and (ii) the

accumulation is in accordance with all applicable zoning regulations

(b) transfer ownership of waste tires to any person unless the recip-

ient: (1) Has been issued a permit by the secretary pursuant to K.S.A. 65-

3407, and amendments thereto, or K.S.A. 65-3424b, and amendments

thereto; (2) intends to use the waste tires for a beneficial use; or (3) is a

tire retailer who collects waste tires from the public or other tire retailers

in the ordinary course of business;

(3) (c) deposit waste tires in a landfill as a method of ultimate disposal,

except that the secretary may authorize, by rules and regulations or by

permits issued pursuant to K.S.A. 65-3407, and amendments thereto: (A)

The final disposal of processed waste tires at permitted municipal solid

waste landfills and permitted waste tire monofills; (B) the final disposal

of contaminated whole, unprocessed waste tires at permitted municipal

solid waste landfills and permitted waste tire monofills; (C) the use of

waste tires in their original state as part of or supplemental to a proven

and approved leachate collection system at a landfill; or (D) the use of

waste tires which have been cut into two or more parts as daily cover

material for a landfill; or (E) the final disposal of small numbers of whole,

unprocessed waste tires in landfills if such tires are intermingled with

other solid waste and retrieval of such tires would be hazardous; or

(4)(d) receive money in exchange for waste tires unless: (A) The per-

son holds a permit issued by the secretary pursuant to K.S.A. 65-3407 or

65-3424b, and amendments thereto; or (B) the person is a tire retailer

who collects waste tires from the public or from other tire retailers in the

ordinary course of business.

Sec. 18. K.S.A. 65-3424b is hereby amended to read as follows: 65-

3424b. (a) The secretary shall establish a system of permits for mobile

waste tire processors and, waste tire processing facilities, and permits for

waste tire transporters and waste tire collection centers. Such permits

shall be issued for a period of one year and shall require an application

fee established by the secretary in an amount not exceeding $250 per

year.

(b) The secretary shall adopt rules and regulations establishing stan-

dards for mobile waste tire processors, waste tire processing facilities and

associated waste tire sites, waste tire collection centers and waste tire

transporters. Such standards shall include a requirement that the per-

mittee file with the secretary a bond or other financial assurance in an

amount determined by the secretary to be sufficient to pay any costs

which may be incurred by the state to process any waste tires or dispose

of any waste tires or processed waste tires if the permittee ceases business

or fails to comply with this act.

(c) Any person who contracts or arranges with another person to col-

lect or transport waste tires for storage, processing or disposal shall so

contract or arrange only with a person holding a permit from the secre-

tary. Any person contracting or arranging with a person, permitted by the

secretary, to collect or transport waste tires for storage, processing or,

disposal, transfers ownership of those waste tires to the permitted person

and the person contracting or arranging with the person holding such

permit to collect or transport such tires shall be released from liability

therefor. Any person contracting or arranging with any person, permitted

by the secretary, for the collection, transportation, storage, processing or,

disposal or beneficial use of such tires shall maintain a record of such

transaction for a period of not less than five three years following the date

of the transfer of such tires. Record-keeping requirements for beneficial

use shall not apply when tire retailers allow customers to retain their old

tires at the time of sale.

(d) The owner or operator of each site that contains a waste tire, used

tire or new tire accumulation of any size must control mosquito breeding

and other disease vectors.

(e) No person shall:

(1) own or operate a waste tire processing facility or waste tire col-

lection center or act as a mobile waste tire processor or waste tire trans-

porter unless such person holds a valid permit issued therefor pursuant

to subsection (a); or

(2) own or operate a waste tire processing facility or waste tire col-

lection center or act as a mobile waste tire processor or waste tire trans-

porter except in compliance with the standards established by the sec-

retary pursuant to subsection (b).

(e) The provisions of subsection (d)(1) shall not apply to, except that:

(1) A tire retreading business where fewer than 1,000 1,500 waste

tires are kept on the business premises may operate a waste tire collection

center on the premises;

(2) a business that, in the ordinary course of business, removes tires

from motor vehicles if where fewer than 1,500 of these tires are kept on

the business premises may operate a waste tire collection center or a waste

tire processing facility or both on the premises;

(3) a retail tire-selling business which is serving as a waste tire col-

lection center if where fewer than 1,500 waste tires are kept on the busi-

ness premises may operate a waste tire collection center or a waste tire

processing facility or both on the premises;

(4) the department of wildlife and parks may perform one or more of

the following to facilitate a beneficial use of waste tires: (A) Operate a

waste tire collection center on the premises of any state park, state wildlife

area, or state fishing lake; (B) operate a waste tire processing facility on

the premises of any state park, state wildlife area, or state fishing lake; or

(C) act as a waste tire transporter to transport waste tires to any state

park, state wildlife area, or state fishing lake;

(5) a person engaged in a farming or ranching activity, including the

operation of a feedlot as defined by K.S.A. 47-1501, and amendments

thereto, as long as the accumulation has a beneficial use may perform one

or more of the following to facilitate a beneficial use of waste tires: (A)

Operate an on-site waste tire collection center; (B) operate an on-site

waste tire processing facility; or (C) act as a waste tire transporter to

transport waste tires to the farm, ranch or the feedlot;

(6) a waste tire collection center where fewer than 1,500 used tires

are kept on the premises;

(6) a watershed district may perform one or more of the following to

facilitate a beneficial use of waste tires: (A) Operate a waste tire collection

center on the premises of a watershed district project or work of improve-

ment; (B) operate a waste tire processing facility on the district's property;

or (C) act as a waste tire transporter to transport waste tires to the dis-

trict's property;

(7) a waste tire collection center where a person may operate a waste

tire collection center if: (A) Fewer than 1,500 used tires are kept on the

premises; or (B) 1,500 or more used tires are kept on the premises, if the

owner demonstrates through sales and inventory records that such tires

have value, as established in accordance with standards adopted by rules

and regulations of the secretary;

(8) local units of government operating managing waste tires at solid

waste processing facilities and or solid waste disposal areas permitted by

the secretary under the authority of K.S.A. 65-3407, and amendments

thereto may perform one or more of the following in accordance with the

conditions of the solid waste permit: (A) Operate a waste tire collection

center on the premises of the permitted facility; (B) operate a waste tire

processing facility on the premises of the permitted facility; (C) act as a

waste tire transporter to transport waste tires to the permitted facility; or

(D) act as a mobile waste tire processor;

(9) a person transporting may act as a waste tire transporter to trans-

port: (A) Waste tires mixed with other municipal solid waste; (B) fewer

than five waste tires for lawful disposal; (C) waste tires generated by the

business, farming activities of the person or the person's employer; or (D)

waste tires for a beneficial use approved by statute or, rules and regula-

tions, or adopted by the secretary (E) waste tires from an illegal waste

tire accumulation to a person who has been issued a permit by the sec-

retary pursuant to K.S.A. 65-3407 or 65-3424b, and amendments thereto,

provided approval has been obtained from the secretary; or (F) five to 50

waste tires for lawful disposal, provided the transportation act is a one

time occurrence to abate a legal accumulation of waste tires; or

(10) a business engaged in processing, for resource recovery pur-

poses, only waste tires generated by the business a tire retailer that in

the ordinary course of business also serves as a tire wholesaler to other

tire retailers may act as a waste tire transporter to transport waste tires

from those retailers back to a central location owned or operated by the

wholesaler for consolidation and final disposal or recycling.

(f) All fees collected by the secretary pursuant to this section shall be

remitted to the state treasurer in accordance with the provisions of K.S.A.

75-4215, and amendments thereto. Upon receipt of each such remittance,

the state treasurer shall deposit the entire amount in the state treasury

to the credit of the waste tire management fund.

Sec. 19. K.S.A. 65-3424g is hereby amended to read as follows: 65-

3424g. (a) There is hereby established in the state treasury the waste tire

management fund.

(b) Money from the following sources shall be credited to the waste

tire management fund:

(1) Revenue collected from the excise tax by K.S.A. 65-3424d and

amendments thereto;

(2) permit application and renewal fees provided for by K.S.A. 65-

3424b and amendments thereto;

(3) interest provided for by subsection (e);

(4) additional sources of funding such as reimbursements and appro-

priations intended to be used for the purposes of the fund;

(5) any recoveries from abatement and enforcement actions provided

for by K.S.A. 65-3424k and amendments thereto; and

(6) any other moneys provided by law.

(c) Moneys in the waste tire management fund shall be used only for

the purpose of:

(1) Paying compensation and other expenses of employing personnel

to carry out the duties of the secretary pursuant to K.S.A. 65-3424 through

65-3424h, and amendments thereto, but not more than $250,000 or 36%,

whichever is less, of the moneys credited to the fund during the preceding

fiscal year;

(2) action by the department before July 1, 2003, to abate waste tires

accumulated prior to July 1, 1990;

(3) action by the department to implement interim measures to min-

imize nuisances or risks to public health or the environment that are or

could be created by waste tire accumulations, until the responsible party

can fully abate the site or until a state clean-up occurs pursuant to K.S.A.

65-3424k, and amendments thereto;

(4) (3) action by the department, with the consent of the city or

county, to pay for the removal and disposal or on-site stabilization of waste

tires which have been illegally accumulated after July 1, 1990, or, with

respect to the conditions of a permit issued by the department pursuant

to K.S.A. 65-3407 or 65-3424b, and amendments thereto, or illegally man-

aged, when the responsible party is unknown or unwilling or unable to

perform the necessary corrective action, provided moneys in the fund

shall only be used to pay up to 75% of the costs of the required abatement

action and the city or county shall pay the remaining 25% of such costs;

and;

(5) (4) the costs of using contractors to provide: (A) Public education

regarding proper management of waste tires; (B) technical training of

persons on the requirements of solid waste laws and rules and regulations

relating to waste tires; and (C) services described in subsection (i) of

K.S.A. 65-3424k, and amendments thereto.; and

(5) grants to public or private entities for up to 75% of the cost to

start-up or enhance projects to recycle waste tires or recover energy

through waste tire combustion. In the fiscal year beginning July 1, 2003,

waste tire grants may not exceed $200,000. In subsequent fiscal years,

waste tire grants may not exceed the amount of unspent excise tax revenue

from the preceding year calculated by subtracting all program expenses

and indirect transfers for department overhead from excise tax revenue.

All grant applications received for waste tire recycling grants shall be

reviewed by the solid waste grants advisory committee established pur-

suant to K.S.A. 65-3426, and amendments thereto. Waste tire recycling

grants shall be subject to the requirements set forth in subsection (g) of

K.S.A. 65-3415, and amendments thereto, related to the misuse of grant

funds with the exception that any grant funds recovered by the secretary

shall be deposited to the waste tire management fund. Waste tire man-

agement funds shall be used only for waste tire recycling grants. Waste

tire grants shall not be awarded, nor shall waste tire funds be disbursed

to a grant recipient, if the department determines that the grant applicant

or recipient is operating in substantial violation of applicable environ-

mental laws or regulations administered by the department.

(d) All expenditures from the waste tire management fund shall be

made in accordance with appropriations acts upon warrants of the direc-

tor of accounts and reports issued pursuant to vouchers approved by the

secretary.

(e) On or before the 10th of each month, the director of accounts

and reports shall transfer from the state general fund to the waste tire

management fund interest earnings based on: (1) The average daily bal-

ance of moneys in the waste tire management fund for the preceding

month; and (2) the net earnings rate for the pooled money investment

portfolio for the preceding month.

Sec. 20. K.S.A. 65-3424k is hereby amended to read as follows: 65-

3424k. (a) Before July 1, 2003, The secretary may undertake appropriate

abatement action and may enter into contracts for the abatement of illegal

waste tires accumulated before July 1, 1990, accumulations or illegally

managed waste tires utilizing funds from the waste tire management fund.

(b) Any authorized representative of the secretary may enter, at rea-

sonable times and upon written notice, onto any property or premises

where an accumulation of waste tires is located to conduct: (1) An in-

spection and site assessment to determine whether the accumulation cre-

ates a nuisance or risk to public health and safety or to the environment;

or (2) interim measures to minimize risk to public health and safety or to

the environment.

(c) Whenever the secretary has reason to believe that an accumula-

tion of waste tires creates a nuisance or risk to public health and safety

or to the environment or is in violation of rules and regulations adopted

by the secretary or conditions of a permit issued by the secretary, the

secretary may require the person or persons responsible for the accu-

mulation to carry out abatement activities. Such abatement activities shall

be performed in accordance with a plan approved by the secretary. The

secretary shall give notice, by letter, to the property owner and respon-

sible parties that the waste tires constitute a nuisance or risk to public

health or the environment, and that the waste tire accumulation must be

abated within a specified period. The secretary may undertake abatement

action utilizing funds from the waste tire management fund if the re-

sponsible parties fail to take the required action within the time period

specified in the notice: (1) The waste tires were accumulated before July

1, 1990, and abated before July 1, 2003; or

(2) the waste tires were accumulated after July 1, 1990, and the re-

sponsible parties fail to take the required action within the time period

specified in the notice.

(d) The department and its representatives are authorized to enter

private property to perform abatement activities if the responsible party

fails to perform required clean-up work, but no entry shall be made with-

out the property owner's consent except upon notice and hearing in ac-

cordance with the Kansas administrative procedure act.

(d) (e) All costs incurred by the secretary in the abatement of illegal

waste tires accumulated after July 1, 1990, accumulations or illegally man-

aged waste tires or in performing interim measures, including adminis-

trative and legal expenses, are recoverable from a responsible party or

parties and may be recovered in a civil action in district court brought by

the secretary. If Any abatement costs are recovered under this section,

the city or county that shared in the cost of the abatement action shall be

reimbursed its costs not to exceed 25% of the amount recovered. The

remaining amount recovered shall be remitted to the state treasurer in

accordance with the provisions of K.S.A. 75-4215, and amendments

thereto. Upon receipt of each such remittance, the state treasurer shall

deposit the entire amount in the state treasury to the credit of the waste

tire management fund. An action to recover abatement or interim meas-

ures costs may be commenced at any stage of an abatement.

(e) (f) In performing or entering contracts for abatement actions un-

der this section, the secretary shall give preference to actions that recycle

waste tires or burn waste tires for energy recovery. Direct abatement

expenditures may include landfilling when waste tires are contaminated

or when feasible in-state markets cannot be identified.

(f) (g) Permits granted by the secretary pursuant to K.S.A. 65-3424b,

and amendments thereto, shall not be transferable and may be revoked

or suspended whenever the secretary determines that the permit holder

is operating in violation of this act or rules and regulations adopted pur-

suant to the act; is creating or threatens to create a hazard to persons,

property or the environment; or is creating or threatens to create a public

nuisance. The secretary may also revoke, suspend or refuse to issue a

permit when the secretary determines that past or continuing violations

of the provisions of K.S.A. 65-3409, and amendments thereto, have been

committed by the applicant or permit holder.

(g) (h) Neither the state of Kansas nor the waste tire management

fund shall be liable to any owner, operator or responsible party for the

loss of business, damages or taking of property associated with any abate-

ment or enforcement action taken pursuant to this section.

(h) (i) The secretary shall enter into contracts with one or more as-

sociations of tire retailers to: (1) Assist in disseminating information to all

tire retailers on the requirements of solid waste laws and rules and reg-

ulations relating to waste tires; (2) establish a point of contact for persons

requesting information on solid waste laws and rules and regulations re-

lating to waste tires; (3) assist in planning and implementing conferences,

workshops, and other requested training events for persons involved in

the generation, transportation, processing, or disposal of waste tires; and

(4) assemble and analyze data on waste tire management by tire retailers

in Kansas.

Sec. 21. K.S.A. 65-3426 is hereby amended to read as follows: 65-

3426. (a) There is hereby established within the department of health and

environment the solid waste grants advisory committee, which shall be

composed of seven eight members as follows:

(1) Six Seven members appointed by the governor, two of whom shall

represent the interests of regional solid waste management entities, two

of whom shall represent the interests of counties, one of whom shall

represent the interests of cities, one of whom shall represent the interests

of waste tire generators or handlers and one of whom shall represent the

interests of the private sector;

(2) the secretary of health and environment or the secretary's desig-

nee.

(b) Appointive members of the solid waste grants advisory committee

shall serve terms of two years. The secretary of health and environment

or the person designated by the secretary shall serve as chairperson of

the advisory committee.

(c) Members of the solid waste grants advisory committee shall re-

ceive amounts provided by subsection (e) of K.S.A. 75-3223, and amend-

ments thereto, for each day of actual attendance at any meeting of the

advisory committee or any subcommittee meeting authorized by the ad-

visory committee.

(d) The secretary of health and environment shall provide technical

support related to the activities of the solid waste grants advisory com-

mittee, including but not limited to establishing project selection criteria,

performing technology evaluations, assessing technical feasibility and de-

termining consistency with the statewide solid waste management plan,

the applicable county or regional solid waste management plan and re-

gional activities.

(e) In accordance with schedules established by the secretary of

health and environment, the solid waste grants advisory committee shall

meet to review competitive grant applications submitted pursuant to sub-

section (b) of K.S.A. 65-3415, and amendments thereto. The advisory

committee shall establish a project priority list for each fiscal year based

upon the availability of funds as estimated by the secretary and shall make

recommendations regarding the selection of grantees and the disburse-

ment of moneys.

Sec. 22. K.S.A. 65-3424, 65-3424a, 65-3424b, 65-3424g, 65-3424k,

65-3424m and 65-3426 are hereby repealed.

Sec. 23. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 21, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003