HOUSE BILL No. 2196
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
(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
(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;
(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, 2002.
Date Composed: 10/29/2003 Date Modified: 10/29/2003