Small spills of pollutants no longer have to be reported to the Kansas Department of Health and Environment under a new state policy.
Companies or other responsible parties used to have to alert the agency to pollutant spills of any size. But the new policy sets minimum quantities for what needs to be reported. The state agency says the new rules bring Kansas in step with federal law and neighboring states.
“Previously, all chemical spills were required to be reported to KDHE even if the spill was of a volume that was of such low risk as to pose no risk to human or animal health or the environment – such as a gallon of paint,” wrote Randy Stookey, the senior vice president of government affairs for the Kansas Grain and Feed Association and the Kansas Agribusiness Retailers Association, in an email to KMUW.
“Such a reporting system caused confusion for regulated persons.”
But some Wichitans dealing with contamination in their own backyards said the new rule doesn’t consider the well-being of residents.
“What they've done is best for the corporations, not for the communities,” said Aujanae Bennett, the neighborhood association leader for Northeast Millair. Many in the Wichita neighborhood learned in 2022 about a 2.9 mile-long plume of contaminated groundwater beneath it.
In 2021, the Legislature passed a law directing KDHE to establish minimum reportable quantities for pollution spills. In March, KDHE finalized the new set of rules, which designated Kansas’ minimum spill reporting quantities as those set by the federal government. Oil spills of less than 25 gallons, or liquid fertilizer spills of less than 100 gallons, no longer have to be reported – unless they’re in waters of the state or occur within 90 days of each other and exceed the new limits.
The change will reduce costs and paperwork for KDHE, the agency wrote in an economic impact statement, adding that the number of spill reports will drop by 10 to 25 percent as a result. Even if the spills aren’t reported, the regulations still require those responsible for the pollution to clean it up.
“Many of these releases are minor in volume and the regulated community is well adept at cleaning up the releases completely and without oversight,” the KDHE wrote in an economic impact statement.
Dorothy Daley is a professor of Environmental Studies and of Public Affairs and Administration at the University of Kansas. She has studied hazardous waste policy in the past.
“I understand that receiving this information is work for KDHE, but research highlights that absent regulation, industry will pursue profit maximization,” Daley wrote in an email to KMUW. “I would be concerned that without reporting to KDHE, small spills could be unaddressed and remain undercover.”
The 2021 legislation also established a fine of up to $5,000 for violating the new rules, such as failing to report or clean up a spill when necessary.
Some Wichita residents concerned about the change
At least two neighborhoods in Wichita – Bennett’s near 29th and Grove, and another called Forest Hills near Douglas and Webb – learned of contaminated groundwater underneath their homes in the past several years. Residents from both neighborhoods said they didn’t know until recently about the contamination, which has been there for decades.
Two residents from those neighborhoods said KDHE’s move away from required reporting, even if just for small spills, isn’t a positive step for their already frustrated neighborhoods.
“In my mind, they're not following through with the big spills,” said Jason Britain, a resident of Forest Hills. “So, it doesn't matter if it's a large spill or big spill, I'm not impressed with their follow up and their follow through.”
The groundwater plume beneath Bennett’s neighborhood is contaminated with a chemical called trichloroethene, a human carcinogen. The KDHE conducted a health study in the affected neighborhoods in 2023 and discovered high rates of liver cancer and low birth weights there.
She said the move away from required reporting, even for small spills, is harmful for residents that might have to live with them.
“It is going to be detrimental to the health of the community,” Bennett said.
But the KDHE maintains that the change is in line with federal rules by the Environmental Protection Agency and will not threaten anyone’s health.
“Not every release contains sufficient quantities of chemicals or pollutants to penetrate through the soil and impact soil or groundwater to an extent that would affect human health or the environment,” wrote Jill Bronaugh, KDHE’s communications director, in an email to KMUW.
Stookey, with the Kansas Grain and Feed Association and the Kansas Agribusiness Retailers Association, pointed out that the spill at 29th and Grove was “many times” higher than the minimum reportable quantities KDHE recently established. It would have to be reported to the agency.
And the Kansas Chapter of the Sierra Club, an environmental advocacy group, testified as neutral on the 2021 bill that initially required minimum reporting standards. Its concern was not with a change in spill reporting, but the fact that the bill excluded animal waste or manure from being classified as a pollutant.
Zack Pistora, the group’s lobbyist, said that the organization felt the change in reporting requirements could improve the KDHE’s ability to address major pollutant spills.
“It was just one of those things where I'm thinking about the old tale of a boy who cried wolf,” Pistora said. “We just want to make sure that when we have the instances in which it is an emergency or a concerning spill, that it raises up to the magnitude of getting the agency's attention on it. That we're not diluting that information somehow with spills that aren't quite the same in terms of impact.”
Industry players requested KDHE adopt the new rules
KDHE reported in its economic impact statement that industries the agency regulates requested the change in spill reporting requirements.
“KDHE meets periodically with the regulated community…,” the agency wrote.
“It was from these meetings that the regulated community requested KDHE consider revising the spill reporting regulations to be consistent with federal reporting requirements.”
The KDHE, Kansas Grain and Feed Association, Evergy and ONEOK – a natural gas transmission company – all testified in favor of the 2021 legislation that allowed the change.
A joint legislative committee on Administrative Rules and Regulations commended KDHE last October for its “efforts to solicit stakeholder input, including through email, regarding these proposed changes regarding reporting of hazardous material spills.”
More industry players weighed in last December when KDHE held a public hearing to request feedback on a draft of the new spill reporting regulations. The Kansas Railroad Association wrote in support of the effort to reduce the regulatory burdens on industry, but asked for the rules to be less stringent.
The draft of the proposed regulations said all spills within 100 feet of surface water or in “sensitive groundwater areas” had to be reported to the KDHE, no matter the size. The Kansas Railroad Association – along with two other companies – argued against the need for such a clause.
“Without specifying a reportable quantity for notification, insignificant and de minimis releases that present no threat to waters of the state or the soil would be required to be reported with no benefit to the environment,” wrote Patrick Hubbell, with the Kansas Railroad Association, in an email to KDHE. KMUW obtained the email through an open records request. Hubbell also served last year as a statehouse lobbyist for Union Pacific Railroad, the party responsible for the spill at 29th and Grove.
KDHE concurred that these two requirements about reporting near certain bodies of water were unnecessary and struck them from the final regulation.
KDHE said that it also invited “municipal representatives” and county emergency response managers to participate in discussions about the new regulations, though they did not submit any formal comments or feedback.
