65-34,113. Civil penalties and remedies for violations.
65-34,113
65-34,113. Civil penalties and remedies for violations.(a) Any person who violates any provisions of K.S.A.65-34,109or 65-34,110, and amendments thereto, shall incur, in addition toany 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 aperson has violated any provision of K.S.A. 65-34,109 or65-34,110, and amendments thereto, may impose a penalty within the limitsprovided in subsection(a), which penalty shall constitute an actual and substantial economicdeterrent to the violation for which it is assessed.
(c) No penalty shall be imposed pursuant to this section except upon thewritten order of the director of the division of environment to the personwho committed the violation. Such order shall state the violation, thepenalty to be imposed and the right of such person to appeal to thesecretary. Within 15 days after service of the order, any such person maymake written request to the secretary for a hearing thereon in accordancewith 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 reviewand civil enforcement of agency actions.
(e) Notwithstanding any other provision of this act, the secretary, uponreceipt of information that the storage or release of a regulated substancemay present a hazard to the health of persons or to the environment, maytake such action as the secretary determines to be necessary to protect thehealth of such persons or the environment. Operating a storage tank withouta permit issued pursuant to K.S.A. 65-34,106, and amendments thereto, shall bedeemed to constitute such a hazard. The action the secretary maytake shall include, but is not limited to:
(1) Issuing an order, subject to review pursuant to the Kansasadministrative procedure act, directing the owner or operator of the storagetank, or the custodian of the regulated substance which constitutessuch hazard, to take such steps as are necessary to prevent the act, toeliminate the practice which constitutes such hazard, to investigate theextent of and remediate any pollution resulting from the storage orrelease. Such order may include, with respect to a facility or site,permanent or temporary cessation of operation.
(2) Issuing an order, subject to review pursuant to the Kansasadministrative procedure act, directing an owner, tenant or holder of anyright of way or easement of any real property affected by a known releasefrom a storage tank to permit entry on to and egressfrom that property, byofficers, employees, agents or contractors of the department or of theperson responsible for the regulated substance or the hazard, for thepurposes of monitoring the release or to perform such measures to mitigatethe release as the secretary shall specify in the order.
(3) Commencing an action to enjoin acts or practices specified inthis subsection or requesting the attorney general or appropriate countyor district attorney to commence an action to enjoin those acts orpractices. Upon a showing that a person has engaged in those acts orpractices, a permanent or temporary injunction, restraining order or otherorder may be granted by any court of competent jurisdiction. An action forinjunction under this subsection shall have precedence over other cases inrespect to order of trial.
(4) Applying to the appropriate district court for an order of thatcourt directing compliance with the order of the secretary pursuant to theact for judicial review and civil enforcement of agency actions. Failureto obey the court order shall be punishable as contempt of the courtissuing the order. The application under this subsection shall haveprecedence over other cases in respect to order of trial.
(f) In any civil action brought pursuant to this section in which atemporary restraining order, preliminary injunction or permanent injunctionis sought it shall be sufficient to show that a violation of the provisionsof this act, or the rules and regulations adopted thereunder has occurredor is imminent. It shall not be necessary to allege or prove at any stageof the proceeding that irreparable damage will occur should the temporaryrestraining order, preliminary injunction or permanent injunction not beissued or that the remedy at law is inadequate.
History: L. 1989, ch. 186, § 14;L. 1992, ch. 311, § 8;L. 2003, ch. 12, § 2; July 1.