65-7013. Secretary; investigation and cleanup; liability; inspections.
65-7013
65-7013. Secretary; investigation and cleanup;liability; inspections.(a) The secretary is authorized to: (1) Develop a contractwith a hazardous waste response contractor for jointuse by theKansas department of health and environment and the Kansas bureau ofinvestigation to conductinvestigation and clean up of chemicals, chemical-contaminated materials, soil,or groundwaterresulting from an illegal drug manufacturing site or from an arrestmade pursuant to theprovisions of this act;
(2) authorize any person to carry out any clean up action in accordance withthedirections or requirements of the secretary, if the secretary determines thatthe person willcommence and complete the clean up properly and in a timely manner;
(3) undertake directly or by contract any cleanup action necessary at analleged illegaldrug manufacturing site including the cleanup, storage and disposal ofchemicals and chemicalcontaminated materials located at an alleged illegal drug manufacturing site;
(4) to abate any imminent and substantial danger to the public health, safetyor theenvironment related to a release from an illegal drug manufacturing site;
(5) direct or authorize a person responsible for creating an illegal drugmanufacturing siteas defined in subsection (b) to conduct a clean up or performany related actions;
(6) recover moneys expended by the state responding to alleged illegaldrugmanufacturing sites from persons responsible for creating such sites;
(7) examine and copy records and other information;
(8) enter into any agreements with the director necessary to carry out theprovisions ofthis act; and
(9) request the attorney general to bring an action in any district court toseize propertycontaminated with chemicals for purposes of clean up, disposal or to enforceany other provisionof this act.
(b) The following persons shall be considered responsible for creating analleged illegaldrug manufacturing site and shall be jointly and severally liable for thosecleanup costs incurredby the state and for damages for injury to or destruction of any naturalresources caused bychemicals at the site: (1) Any person operating an alleged illegal drugmanufacturing site;
(2) any owner or operator of an alleged illegal drug manufacturing site whoobtainedactual knowledge of the alleged illegal drug manufacturing site or damagescaused by the sitewho failed to contact appropriate federal, state or local law enforcementauthorities regarding thepresence of the site; and
(3) any person who, by any acts or omissions, caused or contributed to thealleged illegaldrug manufacturing site, unless the acts or omissions were in materialcompliance withapplicable laws, standards, regulations, licenses or permits.
(c) Except as otherwise provided in subsection (d), the following personsshall not beconsidered responsible for creating an alleged illegal drug manufacturing siteand shall not be liable for those cleanup costs incurred by the state: (1) Anyowner or operator who became the owner or operator after the creationof thealleged illegal drug manufacturing site who did not know and reasonably shouldnot have knownof the damages when the person first became the owner or operator;
(2) a unit of state or local government that acquired ownership or control ofa site byvirtue of tax delinquency, abandonment, exercise of eminent domain authority,forfeiture,purchase or condemnation;
(3) any person who is not otherwise responsible under subsection (b) whoacquired a siteby inheritance or bequest;
(4) a local government as a result of actions taken in response to anemergencycreated by the chemicals at or generated by or from an alleged illegal drugmanufacturing siteowned by another person; and
(5) manufacturers, distributors, and retailers who are registered with thestate board of pharmacy and acted or failed to act without knowledge of theexistence of an illegal drug manufacturing site or without the intent tofurnish supplies to an illegal drug manufacturing site.
(d) Notwithstanding the exclusions provided in subsection (c) of thissection, suchpersons shall be liable for cleanup costs incurred by the state to the extentthat the person's acts oromissions constituted gross negligence or intentional misconduct.
(e) If any person who is liable under subsection (b) of this section failswithout sufficientcause to conduct a cleanup action as required by an order of the secretary, theperson shall beliable for the state's cleanup costs.
(f) A local health officer, upon notification by the department or the bureauof theexistence of an alleged illegal drug manufacturing site, is authorized to causean inspection of theproperty to be conducted to determine the extent of contamination. In thosecases where thelocal health officer does not have the resources or expertise to conduct suchan inspection, thesecretary is authorized to conduct the inspection.
(g) If the local health officer or the secretary determines that the propertywhere thealleged illegal drug manufacturing site exists is unfit for use due to theextent of contamination,the local health officer or the secretary is empowered to post an orderprohibiting use of all orportions of the property. The posting shall be in a conspicuous place on theproperty.
(h) In those cases where a person responsible for creating an alleged illegaldrugmanufacturing site fails to conduct a clean up of the site within 60 days ofdiscovery of the siteby federal, state or local law enforcement officials, the secretary isauthorized to record, inaccordance with Kansas law, a notice with the county register of deeds wherethe property islocated that the land has been used to manufacture illegal drugs and that theproperty containschemical contamination that may be harmful to the public health, safety or theenvironment. Anotice of release shall be filed upon a showing to the department that theproperty is no longerharmful to the public health, safety and the environment.
(i) Notwithstanding any other provision of law, the State of Kansas, thedepartment ofhealth and environment and the Kansas bureau of investigation and theirofficers, employees andagents shall not be liable to a person possessing or owning chemicals locatedat an alleged illegaldrug manufacturing site for any claims or actions arising from theidentification, cleanup, storageor disposal of such chemicals by the department.
(j) Upon request of the lawenforcement agency in charge after determination of the existence of an allegedillegal drug manufacturing site, anyauthorized officer, employee or agent of the department or anyperson under contract with the department may enter onto the premises of anyalleged illegal drug manufacturing site, at reasonable times to reviewinformation, inspect, examine or gather data, conduct investigations, takeremedial or other action where the secretary determines that such action isnecessary to protect the public health or the environment.
History: L. 1999, ch. 170, § 19; July 1.