65-34,118. Corrective action; duties of owners and operators; duties of secretary; consent agreement, contents.
65-34,118
65-34,118. Corrective action; duties of owners and operators; duties ofsecretary; consent agreement, contents.(a) Whenever the secretary has reason to believe that there isor has been a release into the environment from apetroleum storage tankand has reason to believe that such release poses a danger to human healthor the environment, the secretary shall obtain corrective action for suchrelease from the owner or operator, or both, or from any past owner oroperator who has contributed to such release. Such corrective action shallbe performed in accordance with a plan approved by the secretary. Uponapproval of such plan, the owner or operator shall obtain and submit to thesecretary at least three bids from persons qualified to perform thecorrective action except that, the secretary may waive this requirementupon a showing that the owner or operator has made a good faith effort buthas not been able to obtain three bids from qualified bidders.
(b) If the owner or operator is unable or unwilling to performcorrective action as provided for in subsection (a) or no owner or operatorcan be found, the secretary may undertake appropriate corrective actionutilizing funds from theunderground fund, if the release was from an underground petroleum storagetank, orfrom the aboveground fund, if the release was from an aboveground petroleumstoragetank.Costsincurred by the secretary in taking a corrective action, includingadministrative and legal expenses, are recoverable from the owner or operatorand may be recovered in a civil action in district court brought bythe secretary. Corrective action costs recovered under this section shallbe deposited in theunderground fund, if the release was from an underground petroleum storagetank, orfrom the aboveground fund, if the release was from an aboveground petroleumstoragetank. Correctiveaction taken by the secretary under this subsection need not be completedin order to seek recovery of corrective action costs, and an action torecover such costs may be commenced at any stage of a corrective action.
(c) An owner or operator shall be liable for all costs of correctiveaction incurred by the state of Kansas as a result of a releasefrom a petroleum storage tank, unless theowner or operator, or both, enter into a consent agreement with thesecretary in the name of the state within a reasonable period of time,which time period may be specified by rule and regulation. At a minimum,the owneror operator, or both, must agree that:
(1) The owner or operator shall be liable for the appropriate amountspursuant to K.S.A. 65-34,119 and amendmentsthereto;
(2) the state of Kansas and therespectivefund are relieved of all liability to an owner or operator for any loss ofbusiness, damages and taking of property associated with the corrective action;
(3) the department or its contractors may enter upon the property of theowner or operator, at such time and in such manner as deemed necessary, tomonitor and provide oversight for the necessary corrective action toprotect human health and the environment;
(4) the owner or operator shall be fully responsible for removal,replacement or retrofitting of petroleum storage tanks and thecostthereofshall not be reimbursable from the respective fund;
(5) the owner or operator shall effectuate corrective action accordingto a plan approved by the secretary pursuant to subsection (a);
(6) the liability of the state and the respective fund shall not exceed$1,000,000, less the deductibleamount, for any release from a petroleum storage tank;and
(7) such other provisions as are deemed appropriate by the secretary toensure adequate protection of human health and the environment.
(d) For purposes of this act, corrective action costs shall include theactual costs incurred for the following:
(1) Removal of petroleum products from petroleum storagetanks, surfacewaters, groundwater or soil;
(2) investigation and assessment of contamination caused by a releasefrom a petroleum storage tank;
(3) preparation of corrective action plans approved by the secretary;
(4) removal of contaminated soils;
(5) soil treatment and disposal;
(6) environmental monitoring;
(7) lease, purchase and maintenance of corrective action equipment;
(8) restoration of a private or public potable water supply, wherepossible, or replacement thereof, if necessary; and
(9) other costs identified by the secretary as necessary for properinvestigation, corrective action planning and corrective action activitiesto meet the requirements of this act.
History: L. 1989, ch. 186, § 19;L. 1992, ch. 311, § 14; July 1.