History: L. 1999, ch. 170, § 7; L. 2005, ch. 153, § 8; Apr. 21.
History: L. 1999, ch. 170, § 8; July 1.
(a) "Act" means the Kansas chemical control act;
(b) "administer" means the application of a regulated chemical whether by injection, inhalation, ingestion or any other means, directly into the body of a patient or research subject, such administration to be conducted by: (1) A practitioner, or in the practitioner's presence, by such practitioner's authorized agent; or
(2) the patient or research subject at the direction and in the presence of the practitioner;
(c) "agent or representative" means a person who is authorized to receive, possess, manufacture or distribute or in any other manner control or has access to a regulated chemical on behalf of another person;
(d) "bureau" means the Kansas bureau of investigation;
(e) "department" means the Kansas department of health and environment;
(f) "director" means the director of the Kansas bureau of investigation;
(g) "dispense" means to deliver a regulated chemical to an ultimate user, patient or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare the regulated chemical for that delivery;
(h) "distribute" means to deliver other than by administering or dispensing a regulated chemical;
(i) "manufacture" means to produce, prepare, propagate, compound, convert or process a regulated chemical directly or indirectly, by extraction from substances of natural origin, chemical synthesis or a combination of extraction and chemical synthesis, and includes packaging or repackaging of the substance or labeling or relabeling of its container. The term excludes the preparation, compounding, packaging, repackaging, labeling or relabeling of a regulated chemical:
(1) By a practitioner as an incident to the practitioner's administering or dispensing of a regulated chemical in the course of the practitioner's professional practice; or
(2) by a practitioner, or by the practitioner's authorized agent under the practitioner's supervision, for the purpose of, or as an incident to research, teaching or chemical analysis and not for sale;
(j) "person" means individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity;
(k) "practitioner" means a person licensed to practice medicine and surgery, pharmacist, dentist, podiatrist, veterinarian, optometrist licensed under the optometry laws as a therapeutic licensee or diagnostic and therapeutic licensee, or scientific investigator or other person authorized by law to use a controlled substance in teaching or chemical analysis or to conduct research with respect to a controlled substance;
(l) "regulated chemical" means a chemical that is used directly or indirectly to manufacture a controlled substance or other regulated chemical, or is used as a controlled substance analog, in violation of the state controlled substances act or this act. The fact that a chemical may be used for a purpose other than the manufacturing of a controlled substance or regulated chemical does not exempt it from the provisions of this act. Regulated chemical includes:
(1) Acetic anhydride (CAS No. 108-24-7);
(2) benzaldehyde (CAS No. 100-52-7);
(3) benzyl chloride (CAS No. 100-44-7);
(4) benzyl cyanide (CAS No. 140-29-4);
(5) diethylamine and its salts (CAS No. 109-89-7);
(6) ephedrine, its salts, optical isomers and salts of optical isomers (CAS No. 299-42-3), except products containing ephedra or ma huang, which do not contain any chemically synthesized ephedrine alkaloids, and are lawfully marketed as dietary supplements under federal law;
(7) hydriodic acid (CAS No. 10034-85-2);
(8) iodine (CAS No. 7553-56-2);
(9) lithium (CAS No. 7439-93-2);
(10) methylamine and its salts (CAS No. 74-89-5);
(11) nitroethane (CAS No. 79-24-3);
(12) chloroephedrine, its salts, optical isomers, and salts of optical isomers (CAS No. 30572-91-9);
(13) phenylacetic acid, its esters and salts (CAS No. 103-82-2);
(14) phenylpropanolamine, its salts, optical isomers, and salts of optical isomers (CAS No. 14838-15-4);
(15) piperidine and its salts (CAS No. 110-89-4);
(16) pseudoephedrine, its salts, optical isomers, and salts of optical isomers (CAS No. 90-82-4);
(17) red phosphorous (CAS No. 7723-14-0);
(18) sodium (CAS No. 7440-23-5); and
(19) thionylchloride (CAS No. 7719-09-7);
(20) gamma butyrolactone (GBL), including butyrolactone; butyrolactone gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2(3H)-furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide; 4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric acid lactone and 4-hydroxybutanoic acid lactone; CAS No. 96-48-0; and
(21) 1,4 butanediol, including butanediol; butane-1,4-diol; 1,4-butylene glycol; butylene glycol; 1,4-dihydroxybutane; 1,4-tetramethylene glycol; tetramethylene glycol; tetramethylene 1,4-diol; CAS No. 110-63-4;
(m) "regulated chemical distributor" means any person subject to the provisions of the Kansas chemical control act who manufactures or distributes a regulated chemical;
(n) "regulated chemical retailer" means any person who sells regulated chemicals directly to the public;
(o) "regulated chemical transaction" means the manufacture of a regulated chemical or the distribution, sale, exchange or other transfer of a regulated chemical within or into the state or from this state into another state; and
(p) "secretary" means the secretary of health and environment.
History: L. 1999, ch. 170, § 9; L. 2000, ch. 69, § 1; L. 2001, ch. 171, § 6; July 1.
(b) the lawful administering or dispensing of a regulated chemical by a licensed practitioner in the course of professional practice or research;
(c) the purchase, distribution or possession of a regulated chemical by a local, state or federal law enforcement agency while in the discharge of official duties unless the Kansas bureau of investigation properly notifies the local law enforcement agency relying on the exclusion that its investigatory activities are contrary to the public interest; or
(d) products containing ephedra or ma huang, which do not contain any chemically synthesized ephedrine alkaloids, and are lawfully marketed as dietary supplements under federal law.
History: L. 1999, ch. 170, § 10; L. 2003, ch. 124, § 11; July 1.
(1) Adopt such rules and regulations, standards and procedures as may be necessary to carry out the purposes and provisions of this act;
(2) expend and authorize the expenditure of moneys from the chemical control act fund;
(3) report to the legislature on further assistance needed to administer the chemical control program;
(4) administer the chemical control program pursuant to provisions of this act;
(5) cooperate with appropriate federal, state, interstate and local units of government and with appropriate private organizations in carrying out the duties under this act;
(6) issue such orders necessary to implement the provisions of this act, and enforce the same by all appropriate administrative and judicial proceedings;
(7) collect and disseminate information and conduct educational and training programs relating to the chemical control program;
(8) accept, receive and administer grants or other funds or gifts from public and private entities, including the federal government, for the purpose of carrying out the provisions of this act;
(9) enter into contracts and agreements with the director of the Kansas bureau of investigation, other government agencies or private entities as necessary to carry out the provisions of this act; and
(10) examine and copy records and other information.
(b) The secretary may request the attorney general to bring an action in district court to seize property contaminated with chemicals for purposes of disposal or to enforce any other provision of this act.
(c) The director is authorized to: (1) Provide investigative assistance to the department of health and environment when requested by the secretary or the secretary's duly authorized agent;
(2) conduct civil actions necessary to seize chemicals or chemical-contaminated materials from alleged illegal drug manufacturing sites or to gain access to illegal drug manufacturing sites;
(3) serve as the single point of contact for screening alleged illegal drug manufacturing sites to determine if clean up or evaluation by a local health officer or the secretary is necessary;
(4) serve as the contact agency for conducting any clean up action necessary at an alleged illegal drug manufacturing site where the removal of floors, walls, furniture or soil is not required and where the contamination of groundwater has not occurred; and
(5) enter into any agreements with the secretary necessary to carry out the provisions of this act.
History: L. 1999, ch. 170, § 11; July 1.
(b) It shall be unlawful for any person to market, sell, distribute, advertise, or label any drug product containing ephedrine, pseudoephedrine, red phosphorus, lithium metal, sodium metal, iodine, anhydrous ammonia, pressurized ammonia or phenylpropanolamine, or their salts, isomers or salts of isomers if the person knows or reasonably should know that the purchaser will use the product to manufacture a controlled substance.
(c) It shall be unlawful for any person to market, sell, distribute, advertise or label any drug product containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers or salts of isomers for indication of stimulation, mental alertness, weight loss, appetite control, energy or other indications not approved pursuant to the pertinent federal over-the-counter drug final monograph or tentative final monograph or approved new drug application.
(d) It shall be unlawful for any person to purchase, receive or otherwise acquire at retail any compound, mixture or preparation containing more than 3.6 grams of pseudoephedrine base or ephedrine base in any single transaction or any compound, mixture or preparation containing more than nine grams of pseudoephedrine base or ephedrine base within any 30-day period.
(e) For persons arrested and charged under subsection (a), (b) or (c), bail shall be at least $50,000 cash or surety, unless the court determines on the record that the defendant is not likely to re-offend, the court imposes pretrial supervision or the defendant agrees to participate in a licensed or certified drug treatment program.
(f) A violation of subsection (a), (b) or (c) shall be a drug severity level 2 felony. A violation of subsection (d) shall be a class A nonperson misdemeanor.
History: L. 1999, ch. 170, § 12; L. 2002, ch. 155, § 4; L. 2005, ch. 153, § 3; L. 2006, ch. 194, § 34; L. 2007, ch. 169, § 13; May 17.
(1) Any regulated transaction involving an extraordinary quantity of a regulated chemical, an uncommon method of payment or delivery, or any other circumstance that may indicate that the regulated chemical will be used in violation of this act.
(2) Any proposed regulated transaction with a person whose description or other identifying characteristic the bureau has previously furnished to the regulated chemical distributor or retailer.
(3) Any unusual or excessive loss or disappearance of a regulated chemical under the control of the regulated chemical distributor or retailer. The regulated person responsible for reporting a loss in-transit is the distributor.
(b) Each report submitted pursuant to subsection (a), whenever possible shall be made orally to the bureau at the earliest practicable opportunity after the regulated chemical distributor or retailer becomes aware of the circumstances involved and as much in advance of the conclusion of the transaction as possible. Written reports of these transactions shall subsequently be filed within 15 days after the regulated chemical distributor or retailer becomes aware of the circumstances of the event. A transaction may not be completed with a person whose description or identifying characteristics have previously been furnished to the regulated distributor by the bureau unless the transaction is approved by the bureau.
(c) This section shall not apply to any of the following:
(1) Any pharmacist, pharmacy or other authorized person who sells or furnishes a substance listed in subsection (1) of K.S.A. 65-7003 and amendments thereto upon the prescription or order of a practitioner as defined under subsection (x) of K.S.A. 65-1626 and amendments thereto;
(2) any practitioner as defined under subsection (x) of K.S.A. 65-1626 and amendments thereto who administers, dispenses or furnishes a substance listed in subsection (1) of K.S.A. 65-7003 and amendments thereto to such patients within the scope of a practitioner's professional practice. Such administration or dispensing shall be in the patient record;
(3) an [any] sale, transfer, furnishing or receipt of any drug which contains any substance listed in subsection (1) of K.S.A. 65-7003 and amendments thereto and which is lawfully sold, transferred or furnished over-the-counter without a prescription pursuant to the federal food, drug and cosmetic act or regulations adopted thereunder; and
(4) a regulated chemical retailer who only sells or distributes regulated chemicals that are nonprescription, over-the-counter medicines with less than three grams of base ingredient in the package in the following manner:
(A) Blister packs of not more than two dosage units per blister;
(B) liquid cold or cough medicines;
(C) liquid cold or cough gel capsules; and
(D) nasal drops or sprays.
History: L. 1999, ch. 170, § 13; July 1.
History: L. 1999, ch. 170, § 14; July 1.
(b) Any final action of the secretary pursuant to this section is subject to review in accordance with the act for judicial review and civil enforcement of agency actions.
History: L. 1999, ch. 170, § 15; July 1.
(b) No penalty shall be imposed pursuant to this section except after notice of violation and opportunity for hearing upon the written order of the secretary or the director of the division of environment, if designated by the secretary, to the person who committed the violation. The order shall state the violation, the penalty to be imposed and the right to appeal to the secretary for a hearing thereon. Any person may appeal an order by making a written request to the secretary for a hearing within 15 days of service of such order. Proceedings under this subsection shall be conducted in accordance with the provisions of the Kansas administrative procedure act.
(c) Any sum assessed under this section shall be deposited in the chemical control fund.
(d) Any final action of the secretary pursuant to this section is subject to review in accordance with the act for judicial review and civil enforcement of agency actions.
History: L. 1999, ch. 170, § 16; July 1.
(b) A civil action under this section may be commenced in the name of the state by the attorney general in the county in which the violation is alleged to have occurred.
(c) Any sum assessed under this section shall be deposited in the chemical control fund.
History: L. 1999, ch. 170, § 17; July 1.
(b) Revenues from the following sources shall be deposited in the state treasury and credited to the fund: (1) Moneys received by the secretary in the form of grants, gifts, bequests, reimbursements, or appropriations from any source intended to be used for the purposes of the fund;
(2) interest attributable to the investment of moneys in the fund; and
(3) moneys collected under K.S.A. 65-7010 and 65-7011 and amendments thereto.
(c) Moneys in the chemical control fund can only be expended directly or through contracts for the costs of: (1) Administration and enforcement of the provisions of this act;
(2) contracting for services needed to supplement the department's staff in alleged illegal drug manufacturing site clean ups;
(3) consultation needed concerning alleged illegal drug manufacturing site clean ups;
(4) activities to address immediate or emergency threats to human health or the environment related to alleged illegal drug manufacturing sites; and
(5) development of educational materials and programs for informing the regulated community and the public about illegal drug manufacturing issues.
(d) On or before the 10th of each month following the month in which moneys are deposited into the chemical control fund, and thereafter on or before the 10th of each month, the director of accounts and reports shall transfer from the state general fund to the chemical control fund interest earnings based upon: (1) The average daily balance of moneys in the chemical control fund for the preceding month; and
(2) the net earnings rate of the pooled money investment portfolio for the preceding month.
(e) All expenditures from the fund shall be made in accordance with appropriation acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the secretary for the purposes set forth in this section.
(f) Moneys from the fund shall not supplant any other local, state or federal funds unless the secretary finds that it is in the best interests of the state to supplant such other funds and to make expenditures from the fund in a more timely manner to investigate or clean up chemicals, chemical-contaminated materials, soil or groundwater resulting from an alleged illegal drug manufacturing site or an arrest made pursuant to the Kansas chemical control act, to conduct any other clean up action necessary at an alleged illegal drug manufacturing site, or to abate any imminent and substantial danger to public health or safety or to the environment related to a release from an illegal drug manufacturing site.
History: L. 1999, ch. 170, § 18; L. 2001, ch. 156, § 1; July 1.
(2) authorize any person to carry out any clean up action in accordance with the directions or requirements of the secretary, if the secretary determines that the person will commence and complete the clean up properly and in a timely manner;
(3) undertake directly or by contract any cleanup action necessary at an alleged illegal drug manufacturing site including the cleanup, storage and disposal of chemicals and chemical contaminated materials located at an alleged illegal drug manufacturing site;
(4) to abate any imminent and substantial danger to the public health, safety or the environment related to a release from an illegal drug manufacturing site;
(5) direct or authorize a person responsible for creating an illegal drug manufacturing site as defined in subsection (b) to conduct a clean up or perform any related actions;
(6) recover moneys expended by the state responding to alleged illegal drug manufacturing 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 the provisions of this act; and
(9) request the attorney general to bring an action in any district court to seize property contaminated with chemicals for purposes of clean up, disposal or to enforce any other provision of this act.
(b) The following persons shall be considered responsible for creating an alleged illegal drug manufacturing site and shall be jointly and severally liable for those cleanup costs incurred by the state and for damages for injury to or destruction of any natural resources caused by chemicals at the site: (1) Any person operating an alleged illegal drug manufacturing site;
(2) any owner or operator of an alleged illegal drug manufacturing site who obtained actual knowledge of the alleged illegal drug manufacturing site or damages caused by the site who failed to contact appropriate federal, state or local law enforcement authorities regarding the presence of the site; and
(3) any person who, by any acts or omissions, caused or contributed to the alleged illegal drug manufacturing site, unless the acts or omissions were in material compliance with applicable laws, standards, regulations, licenses or permits.
(c) Except as otherwise provided in subsection (d), the following persons shall not be considered responsible for creating an alleged illegal drug manufacturing site and shall not be liable for those cleanup costs incurred by the state: (1) Any owner or operator who became the owner or operator after the creation of the alleged illegal drug manufacturing site who did not know and reasonably should not have known of the damages when the person first became the owner or operator;
(2) a unit of state or local government that acquired ownership or control of a site by virtue of tax delinquency, abandonment, exercise of eminent domain authority, forfeiture, purchase or condemnation;
(3) any person who is not otherwise responsible under subsection (b) who acquired a site by inheritance or bequest;
(4) a local government as a result of actions taken in response to an emergency created by the chemicals at or generated by or from an alleged illegal drug manufacturing site owned by another person; and
(5) manufacturers, distributors, and retailers who are registered with the state board of pharmacy and acted or failed to act without knowledge of the existence of an illegal drug manufacturing site or without the intent to furnish supplies to an illegal drug manufacturing site.
(d) Notwithstanding the exclusions provided in subsection (c) of this section, such persons shall be liable for cleanup costs incurred by the state to the extent that the person's acts or omissions constituted gross negligence or intentional misconduct.
(e) If any person who is liable under subsection (b) of this section fails without sufficient cause to conduct a cleanup action as required by an order of the secretary, the person shall be liable for the state's cleanup costs.
(f) A local health officer, upon notification by the department or the bureau of the existence of an alleged illegal drug manufacturing site, is authorized to cause an inspection of the property to be conducted to determine the extent of contamination. In those cases where the local health officer does not have the resources or expertise to conduct such an inspection, the secretary is authorized to conduct the inspection.
(g) If the local health officer or the secretary determines that the property where the alleged illegal drug manufacturing site exists is unfit for use due to the extent of contamination, the local health officer or the secretary is empowered to post an order prohibiting use of all or portions of the property. The posting shall be in a conspicuous place on the property.
(h) In those cases where a person responsible for creating an alleged illegal drug manufacturing site fails to conduct a clean up of the site within 60 days of discovery of the site by federal, state or local law enforcement officials, the secretary is authorized to record, in accordance with Kansas law, a notice with the county register of deeds where the property is located that the land has been used to manufacture illegal drugs and that the property contains chemical contamination that may be harmful to the public health, safety or the environment. A notice of release shall be filed upon a showing to the department that the property is no longer harmful to the public health, safety and the environment.
(i) Notwithstanding any other provision of law, the State of Kansas, the department of health and environment and the Kansas bureau of investigation and their officers, employees and agents shall not be liable to a person possessing or owning chemicals located at an alleged illegal drug manufacturing site for any claims or actions arising from the identification, cleanup, storage or disposal of such chemicals by the department.
(j) Upon request of the law enforcement agency in charge after determination of the existence of an alleged illegal drug manufacturing site, any authorized officer, employee or agent of the department or any person under contract with the department may enter onto the premises of any alleged illegal drug manufacturing site, at reasonable times to review information, inspect, examine or gather data, conduct investigations, take remedial or other action where the secretary determines that such action is necessary to protect the public health or the environment.
History: L. 1999, ch. 170, § 19; July 1.
(b) A violation of this act shall constitute conduct giving rise to forfeiture pursuant to the Kansas standard asset forfeiture act K.S.A. 60-4101 et seq. and amendments thereto. When property is forfeited pursuant to a violation of the Kansas chemical control act, the department shall sell all property not destroyed pursuant to subsection (a)(2) of K.S.A. 60-4117 and amendments thereto at public sale to the highest bidder for cash without appraisal. The proceeds of any sale shall be credited to the cleanup account which is hereby created in the chemical control fund. Moneys in such account can only be expended directly or through contracts for the costs of drug manufacturing site clean ups.
History: L. 1999, ch. 170, § 20; July 1.
History: L. 1999, ch. 170, § 21; July 1.