El Paso County Clarifications

Traditionally, EPCDHE has provided inaccurate information regarding the State’s regulations and statutes and continues to do so with its latest (Jan 8, 2009) information which is posted on the internet.

Originally, the EPCDHE had passed a County Regulation which contained provisions that were contrary to State Regulation and State Statutes, and which unlawfully granted regulatory relief that was not recognized by the State. The net result was that if one were to follow the EPCDHE regulation, the property owner would necessarily be in violation of State Regulations. The EPCDHE regulation appears to have been withdrawn in December 2008, but the misinformation from the EPCDHE continues.

Here we have addressed the misinformation in the January 8, 2009 EPCDHE flier.

The flier starts with:

When an owner has received notification that his/her property has been used to manufacture methamphetamine, the owner is required by State regulations to either demolish the property, or to have an industrial hygienist conduct an assessment of the property to determine if a cleanup is required.

The opening statement is misleading since it implies that “manufacturing” is a necessary element needed to trigger the owner's statutory obligations. In fact, “manufacturing” is not a necessary element, and the property owner’s regulatory obligations may be triggered by a variety of conditions which do not involve manufacturing methamphetamine. Indeed, the definition of an illegal drug laboratory, as found in State statute explicitly includes “use” of a controlled substance as one of the elements that may be used to meet the definition.

For example, imagine that during a property transaction, a perspective buyer learns that the previous occupants of the house were nefarious criminal characters who may have dabbled in the drug market. (Although the previous occupants did not manufacture meth in the house, they smoked methamphetamine in the house, which resulted in widespread contamination.) The buyer elects to exercise their right to perform testing of the property pursuant to CRS §38-35.7-103 and hires an authorized Industrial Hygienist to test the property. The Industrial Hygienist performs testing in the house and reports that those tests indicate the presence of methamphetamine.

According to state statute “If the buyer's test results indicate that the property has been contaminated with methamphetamine or other contaminants for which standards have been established…” the seller of the property is now bound to comply with the State regulations 6 CCR 1014-3, even though manufacturing, per se may not have occurred.

State statute CRS 25-18.5-101(2) actually defines "Illegal Drug laboratory" as “…the areas where controlled substances… have been manufactured, processed, cooked, disposed of, used, or stored and all proximate areas that are likely to be contaminated as a result of such manufacturing, processing, cooking, disposal, use, or storing. As such, manufacturing is only one way of many ways that a property may meet the definition.

The EPCDHE flier concludes their first paragraph with:

One step of that cleanup process is to measure contaminant levels, which must meet specific requirements provided in 6 CCR 1014-3(7.0).

The next paragraph in the EPCDHE flier is entirely erroneous:

If the industrial hygienist concludes that certain contaminant levels do not exceed those allowed by State regulations, no cleanup is required and the property owner does not need to take any further action.

For example: Imagine Colorado Springs Police Department has been watching a property known to be a distribution point for methamphetamine. Eventually, they raid the property and they recover four kilos of methamphetamine from the property. During the raid, they take several hundred photographs of baggies, scales, and meth related drug paraphernalia throughout the property. The property meets the State’s definition of an "Illegal Drug laboratory" since it meets the conditions of CRS 25-18.5-101(2).

The landlord now hires an Industrial Hygienist to collect some samples and give him some idea of contamination levels in the house, but the landlord is willing to pay for just four samples. The Industrial Hygienist enters the property and collects four samples as requested, and the results of the samples are each below the State clean up levels. During the sampling, the Industrial Hygienist also notes considerable yellow staining on the walls, and locates several empty jars of iodine in the structure.

Although the landlord now has some better idea of the contamination levels of methamphetamine at those four locations, the contamination levels for the property as a whole, including the plumbing system, the sewer system, and the surrounding land is unknown, and the Landlord is still required to perform a Preliminary Assessment and cleanup of the property (if necessary), since the performance of the Preliminary Assessment is mandatory regardless of the results of the “testing” and making subsequent decisions based on the Preliminary Assessment is the only way permitted by State regulation and State statute that a property may be shown compliant. It is possible that, if the Preliminary Assessment is performed in a specific way, the Industrial Hygienist may occasionally issue a Decision Statement, releasing the property. However, the Industrial Hygienist is not permitted by State regulation or State statute to declare the property doesn’t need remediation just on the basis that his initial cursory samples were below the state clean-up levels.

Sampling is a useful tool for helping in the decision making process, however, it can never be used as a substitute for a Preliminary Assessment or as the sole basis to obtain regulatory relief in the absence of a Preliminary Assessment.

According to State regulations:

Decision Statement:
If, based on the totality of the circumstances, the consultant finds that insufficient evidence exists to support the hypothesis that any given area is non-compliant, that area shall be deemed to be compliant with section 25-18.5-103 (2), C.R.S., and shall be released. If objective sampling data indicates contamination is less than the cleanup level, that data may be used as prima facie evidence that insufficient evidence exists to support the hypothesis that any given area is non-compliant.

In the above example, although the Industrial Hygienist’s samples all indicated that methamphetamine concentrations were below threshold levels, the Industrial Hygienist also noted the potential for iodine contamination and “…based on the totality of the circumstances,…” the consultant has sufficient evidence to support the hypothesis that any given area is non-compliant (based on the yellow staining in the presence of the iodine bottles).

Next the EPCDHE flier incorrectly states:

There are no special legal requirements for methamphetamine laboratory cleanup contractors, but inadequately trained personnel may present a danger to themselves and others and may create liability issues for the property owner.

In fact, there are both Federal and State requirements that apply to contactors involved in the clean-up process. The State regulations define “Contractor” as “… one or more individuals or commercial entities hired to perform work in accordance with the requirements of this regulation.”

Furthermore, Section 5.5 of the State regulations state:

Decontamination of ventilation systems by a contractor that is trained and equipped to comply with the protocol for ventilation system decontamination presented in Appendix C of these regulations.

And Appendix C of the regulations explicitly states:

Decontamination of ventilation systems shall be conducted by a ventilation contractor experienced in the decontamination of ventilation systems in structures used as drug laboratories.

Contractors engaged in commerce in El Paso County, Colorado are within the jurisdiction of Region VIII Occupational Safety and Health Administration (OSHA). Region VIII OSHA, consistent with other OSHA regions, considers the clean-up of illegal drug labs to be within the definition and scope of Title 29 of the Code of Federal Regulations, Part 1910, Subpart H, §1910.120 “Hazardous waste operations and emergency response.” As such, the remediation contractor is required by this Federal Standard to meet specific training requirements, documentation, and to have in place various well defined programs and protocols.

The EPCDHE flier states:

In addition, work done by inadequately trained personnel may not result in the required clean-up standards being met.

But the EPCDHE flier fails to note that work done by inadequately trained personnel would be a violation of the above cited Federal Standard. As such, the contractor is Federally obligated to have documentation that they are in compliance with 29 CFR §1910.120 (e), and the property owner should ensure that the contractor provides them with that documentation as a part of their selection process.

In the next paragraph of the EPCDHE flier, the EPCDHE incorrectly states:

After the cleanup is performed, follow up sample tests must show that the property meets the cleanup standards established by State regulations. Furthermore, the final report must include a specifically worded statement, signed by the industrial hygienist, indicating that the cleanup was conducted in accordance with State regulations.

Instead, State regulations require the Industrial Hygienist to make one of two declarations. They may, if they wish, declare that the clean-up process was performed according to State regulations or they may choose to declare the following:

“I do hereby certify that I conducted a preliminary assessment of the subject property in accordance with 6 CCR 1014-3, § 4. I further certify that the cleanup standards established by 6 CCR 1014-3, § 7 have been met as evidenced by testing I conducted.”

In the above declaration, the Industrial Hygienist is making no statement whatsoever about how the clean-up was performed.

Skip a paragraph and move to the next point on the EPCDHE flier, where the EPCDHE opens the paragraph with an incorrect statement, then makes a very important truthful statement and concludes the paragraph with misinformation. EPCDHE states:

Once the Governing Body has received the final report, the law confers immunity to the owner from future health-based lawsuits upon the property owner. However, there is no legal requirement for the Governing Body to review, approve, or even maintain a copy of the cleanup report. It is recommended that the property owner always keep his or her own copy of the report.

So let’s break this down:

Once the Governing Body has received the final report, the law confers immunity to the owner from future health-based lawsuits upon the property owner.

This is not true. Liability immunity is not conveyed to the property owner by virtue of the fact that a Governing Body has received a report (for precisely the very reasons that EPCDHE mentioned in the flier – that is, Governing Body is under no obligation to approve or even read the Industrial Hygienist’s report). Instead, the property owner is granted liability immunity only when the property owner can demonstrate that they 1) Performed a Preliminary Assessment; 2) They based their remediation decisions on the Preliminary Assessment, and 3) The Industrial Hygienist issued a Decision Statement based on sampling that was based on the Preliminary Assessment, and can document these actions, as evidenced by a copy of the results provided to the Governing Body; 4) The work was performed by a legitimate Industrial Hygienist (and not some “environmental consultant” or someone just claiming to be an Industrial Hygienist.

If the property owner, did not perform a Preliminary Assessment, or the consultant who performed the assessment work was not a legitimate, authorized, Industrial Hygienist, or the Preliminary Assessment was fatally flawed, or the clean-up was not properly performed, or final verification sampling was not properly performed, then the Property Owner does not receive liability immunity, even if the final report is received by the Governing Body.

The second clause made by EPCDHE in the paragraph is very, very, important:

However, there is no legal requirement for the Governing Body to review, approve, or even maintain a copy of the cleanup report.

Many people are under the false impression that since the Governing Body accepted the final report, that their consultant, his work, the remediators and their work, and all aspects of the project have all been done correctly since the Governing Body “approved” the final report. We frequently hear new home buyers or tenant erroneously state: “Well, the county issued a letter saying they received the report, and so everything is OK.” However, we have even seen such letters from County Health Offices for properties that remain completely contaminated and are not in compliance with regulations. The County Health Department or Governing Body has not necessarily done anything wrong, they have merely issued a letter acknowledging receipt of a report. In their letter, they frequently will state that the consultant has told them everything is "O.K." and they are taking the consultant's word for the statement with no further action. The property may still be contaminated and may still pose an health hazard and may still be non-compliant, but unless somebody checks up on things, no one will ever know - until someone gets hurt.

Careful reading of the letter from the County Health department will usually reveal that the letter is merely stating that the County Health Department has received a final report.

However, as stated even by the EPCDHE, the Governing Body is under no obligation to even open the envelop in which the report may arrive. They are merely obligated to “receive” the report.

So if the property owner, hired a consultant who was not really an Industrial Hygienist, or was an Industrial Hygienist who didn’t know anything about methlabs or the regulations and failed to comply with those regulations and between the consultant and the remediators, they completely botched the job, and maybe even increased the level of contamination in the house, and the final report was written in pencil on a napkin, and submitted to the Governing Body, the Governing Body may still “receive” the report, and file it away with all the others and issue a letter stating they “received” the report. However, that does not relieve the owner of the regulatory obligations, and the property owner will not receive liability immunity.

The last statement in the EPCDHE paragraph is incorrect:

It is recommended that the property owner always keep his or her own copy of the report.

In fact, it is a State requirement that the property owner (and the Industrial Hygienist) retain their copy for a minimum of seven years.

The last paragraph in the EPCDHE flier provides inaccurate information and indicates that practices in El Paso may be in violation of State statutes. EPCDHE states:

After an industrial hygienist has cleared a property, the owner may request for the property to be removed from any government-sponsored informational listing of methamphetamine laboratories. In El Paso County, a list of known methamphetamine laboratories is maintained by the Colorado Springs Police Department on the Springsgov.com website. An owner can request that his/her property be removed from the list by providing a copy of the industrial hygienist’s clearance statement and making a written request to the Colorado Springs Metro VNI (Vice, Narcotics and Intelligence) Unit.

According to Colorado Revised Statutes §38-35.7-103(4), if a property was remediated in accordance with the standards established pursuant to CRS §25-18.5-102, and evidence of such remediation was received by the Governing Body the property shall be removed from any government-sponsored informational service listing. Statute does not require a request by the proper owner for the property address to be removed. If the Colorado Springs Police Department is maintaining a list anyway, it may be in violation of State statutes.

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