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Sunday, August 06, 2006

Ind. Law - "Who should pay price for meth messes?"

"Who should pay price for meth messes? Proposed law makes property owners responsible for cleanup cost." That is the headline to a story today in the South Bend Tribune, by Anita Munson. Some quotes:

PLYMOUTH -- Methamphetamine cooks aren't always the most careful people in the world.

Meth labs can explode without warning, and chemical exposure can create its own problems, including burns, respiratory damage and worse.

Police warn those who may innocently encounter a meth lab to stay far enough away to avoid breathing any associated vapors, which can be toxic.

Sgt. Don McCay and fellow investigators in the Suppression Division of the Indiana State Police displayed frustration when they talked about cleanup of a meth lab or a dump site during a recent seminar for media. McCay said one pound of manufactured meth creates five to seven pounds of toxic waste, with cleanup a costly proposition for taxpayers.

And it could become even more so with a proposed law that would require anyone owning property on which a meth lab was discovered, or a meth dump of toxic materials, be made to pay for cleanup by a company certified by the state to do so.

Although meth is easy to make, the process for making it contaminates the property, McCay explained in the seminar that also covered meth-related crime. Anything and everything from carpeting, appliances and furniture, to drywall, insulation, plumbing and more can make a home used as a meth lab potentially hazardous to new residents if it is not properly decontaminated.

That's because, McCay said, remnants of a lab can sometimes be reactivated. If that happens, toxic fumes can be released, or a storage container could actually explode.

Specially trained environmental contractors are hired by the state, with funding provided by the U.S. Drug Enforcement Agency, to come in and properly remove the waste products from the site.

But Indiana residents have no way of knowing -- for now -- if the property they just bought or rented was ever the sight of such perilous activity.

The proposed new law -- which the Indiana Department of Environmental Management is authorized to adopt under Senate Enrolled Act 444, Section 6 -- would require environmental cleanup companies doing meth lab or meth dump cleanup to become state certified. [ILB -see discussion below for clarification]

The law would place the responsibility for paying for the cleanup squarely on the property owner's shoulders, even if he was unaware of the illegal activity.

The cleanup would be required at an apartment building, multi-family dwelling, condominium, hotel or motel, rental storage units, outbuildings accessible to children, and more where the controlled substance was manufactured, with some exceptions, before the property could be reoccupied or transferred.

Open land, on which no structure is contaminated, would be exempted.

In a letter dated June 20 to IDEM, Ryan Asberry, director of research with the Indiana Economic Development Corp. in Indianapolis, said the IEDC does not object to the fiscal impact associated with the proposed law.

Asberry wrote, "A portion of the affected property owners may be small business who would incur economic costs as a result of the rule.

The cost of complying with the rule would also be a source of revenue for contractors who provide decontamination services ... The benefit realized by the contractors may partially offset the overall economic impact borne by small businesses."

Both Asberry and IDEM admit the cost of compliance with the rule is difficult to compute.

IDEM held a public hearing in June on the matter, and the commissioner is now reviewing the issue. If approved by the commissioner, the rule will then go before the Indiana attorney general and the governor. If approved, the rule becomes law effective 30 days after filing.

What is this story about? In the 2005 session, the General Assembly enacted a law, SEA 444, that included this provision:
SECTION 6. IC 13-14-1-15 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 15. (a) The department shall maintain a list of persons certified to inspect and clean property that is polluted by a contaminant. The list may specifically note persons with particular expertise or experience in the inspection or cleanup of property contaminated by chemicals used in the illegal manufacture of a controlled substance (as defined in IC 35-48-1-9) or by waste produced from the illegal manufacture of a controlled substance.

(b) The department may specify by rule that a person who meets certain qualifications prescribed by the department is a person certified to inspect and clean property that is polluted by a contaminant.

(c) The department shall adopt rules under IC 4-22-2:

(1) to implement this section; and
(2) concerning the inspection and remediation of contaminated property.
The "department" as used here is the Department of Environmental Management.

This is odd, because this is the first time since IDEM was created in 1986 that the General Assembly has required IDEM to adopt a rule. The environmental rulemaking authority is otherwise the responsibility of the Indiana environmental boards. Special statutes govern their rulemaking procedure, laws designed to insure adequate public notice, opportunity to testify, etc. Environmental rulemaking as a result is much more prolonged than that of other state agencies, but intended to allow more input from those impacted.

The 2005 meth law, however, states that IDEM shall do the rulemaking itself. That means one hearing, conducted not in front of a board but a hearing officer -- in this case an employee of IDEM. Thereafter, the IDEM Commissioner needs simply to sign the rule.

And that is how things stands today. Here is the proposed rule, #06-125, published in one of the final issues of the Indiana Register. A public hearing was held on 6/27/06. All that remains now is for the IDEM Commissioner, after reviewing the public comments, to finalize the rule.

What does the proposed rule require? Think of a person with a rental property, or a farmer with an outbuilding, that had been turned into a meth lab without the knowledge of the property owner. The duties of the property owner are described starting on p. 6 of the document. The owner of the contaminated property shall clean up the property as required under the new rule before further use of the property or transfer of any interest in the property. (318 IAC 1-3-2) The property must be decontaminated under the supervision of a qualified inspector. (318 IAC 1-3-5)

How much is this going to cost the property owner? Nowhere in the information in pages 1 and 2 of the proposed rule does anyone venture a quess. But the cleanup contractors will make money. See this statement on p. 2:

[T]he economic impact of this rulemaking cannot be meaningfully quantified at this time. Compliance with this rule will be a significant cost to property owners affected by this rule. At the same time, compliance with this rule would allow remediation contractors, wrecking contractors, and other contractors to receive payment for services performed under this rule. The Department expects the costs to property owners to roughly balance the benefits to contractors who clean up these properties.
Well yes.

So does this proposed rule go beyond the directive set in the authorizing statute? Or is it the statute that places these responsibilities on the property owner? In either case, if not the property owner, then who should be responsible for the cost of the cleanup?

Posted by Marcia Oddi on August 6, 2006 06:07 PM
Posted to Environment | Indiana Government | Indiana Law