Colorado Meth-lab Regulations

As a result of these efforts, several new bills have recently been passed. A discussion of the newest Colorado Bill pertaining to Meth-labs (The Colorado Methlab Omnibus Bill), can be found by clicking here and copy of the bill can be obtained from here. A discussion of the new Real Estate Disclosure and Discovery Bill, SB 06-002, is available by clicking here.

The following is an overview of Colorado's State Board of Health methlab clean-up regulations titled Regulations Pertaining to the Cleanup of Methamphetamine Laboratories, (6 CCR 1014-3). A copy of the regulations can be obtained by clicking here.

Colorado's clean-up regulations are the most comprehensive in the nation, and this page merely addresses the regulations in general terms. The toxicological exposure model used to support the cleanup thresholds can be found by clicking here.

This discussion was prepared by Caoimhín P. Connell, Forensic Industrial Hygienist for Forensic Applications, Inc. Mr. Connell was a member of two of the four Stakeholder Teams that wrote the regulations, and was the primary author of the actual assessment protocols.

The impetus behind the Colorado regulations was essentially a liability immunity law that would protect homeowners, and commercial property owners from future law suits in the event that a clandestine methamphetamine laboratory was discovered on their property. The Act itself (available by clicking here) was HB 04-1182. This act, which was signed by Governor Owens on April 21, 2004, laid the foundation for the regulations and required the Colorado Board of Health to establish methlab clean-up standards to even the playing field, and standardize how labs (and therefore, toxicological risk) could be controlled. The act provided immunity to property owners from civil lawsuits from future tenants, residents, owners, etc. provided the property owner followed the regulations promulgated by the Board of Health.

The regulations require assessments by a person defined as an Industrial Hygienist in Colorado Revised Statute, CRS §24-30-1402. The regulation does NOT require the industrial hygienist to be a Certified Industrial Hygienist, since the Board acknowledged that ABIH Certification was not a de facto stamp of competency in industrial hygiene or methlabs (or anything else for that matter). Since the promulgation of the regulations, many non-qualified people claiming to be Industrial Hygienists have attempted to perform the required assessments. People claiming to be Industrial Hygienists have included construction contractors, "certified" mould inspectors, autobody workers, and janitors, etc. Work performed by these individuals have been rejected by the different Governing Bodies. Furthermore, just because a consultant is an bona fide Industrial Hygienist, does not mean they are authorized to perform the work; since not all Industrial Hygienists meet the training requirements of the regulation, assessments performed by these Industrial Hygienists have also been rejected by Governing Bodies and the courts.

Recently, in an effort to "cash in" on the methlab scourge, some individuals have attempted to claim that they are “Industrial Hygienists” by virtue of an educational exemption clause in the Colorado regulation which otherwise requires an individual to have obtained a minimum of a baccalaureate or graduate degree in industrial hygiene, biology, chemistry, engineering, physics, or a closely related physical or biological science. These individuals have tried to claim that since they have a two year degree, they are Industrial Hygienists. However, for a consultant to qualify for this exemption, they must have already been a practicing Industrial Hygienist since 1993. Home inspectors, environmental consultants, asbestos inspectors, mould inspectors, etc. are not practicing industrial hygiene, and do not by virtue of that experience qualify for the exemption. A property owner who hires such an individual may be forced to discard all of the work of that consultant and hire a bona fide Industrial Hygienist.

FACTs has been used by Governing Bodies, to refute and reject methlab assessments performed by unauthorized certified industrial hygienists and other consultants who are not authorized to perform such assessments. State regulation protects consumers from these problems by requiring the industrial hygienist to provide the property owner with a "statement of qualifications" which is an affidavit attesting to the industrial hygienist's ability to perform the work. To view a copy of our statement of qualifications click here.

We have addressed these and other myths later in this discussion.

Codification History

House Bill 04-1182 became codified in the Colorado revised statutes Title 25, Article 18.5 Parts 101-103, (CRS §25-18.5-101).Title 25, Article 18.5 contains:

25-18.5-101. Definitions

25-18.5-102. Illegal drug laboratories - rules. (Requires the Board of Health to promulgate standards for cleanup.)

25-18.5-103. Discovery of illegal drug laboratory - property owner - cleanup - liability

Section 103 Addresses discovery thusly:

An ancillary bill, Senate Bill 05-217 (SB05-217), provided some clarification for some deficiencies in HB 04-1182. Governor Owens objected to some of the language, but not the overall intention of SB05-217, and so although he did not sign the Bill, he did not veto the Bill and so the Bill came to be Law in mid June, 2005.

SB 05-217 added the definition of a “Governing Body.”

CRS 25-18.5-103 was modified to cover tenant possessions in a meth lab and stipulated that a tenant or occupant had ten days address their personal belongings otherwise, the structure owner (car or building) could dispose of the personal belongings without liability.

CRS 25-18.5-103 was also modified in that it allowed an owner of property found in a methlab to remove that item or debris from the structure prior to an assessment provided that the item is removed by an authorized individual duly trained in such activities, and is moved to a secure location that will prevent theft or exposing another to any toxic or hazardous chemicals until the property or debris is appropriately destroyed or cleaned according to board rules. Nothing in the statute prevents the "Governing Body" from impounding or otherwise securing the temporary storage location or restricting access to the location. For the purposes of the regulation, the temporary holding location effectively becomes a new "illegal drug lab" by definition, and requires a preliminary assessment of the location and the contents.

SB05-217 also added new sections, such as Section 104 which states if a structure or vehicle has been determined to be contaminated or if a governing body or law enforcement agency issues a notice of probable contamination, the owner of the structure or vehicle shall not permit any person to have access to the structure or vehicle unless the person is trained or certified to handle contaminated property pursuant to board rules or federal law. This also includes the owner themselves.

SB05-217 also added CRS 25-18.5-105 which states that an illegal drug laboratory that has not met the cleanup standards shall be deemed a public health nuisance. And that the governing body may enact ordinances or resolutions to enforce the new rules including, but not limited to, preventing unauthorized entry; requiring contaminated property to meet cleanup standards before it is occupied; notifying the public of contaminated property; coordinating services and sharing information between law enforcement, building, public health, and social services agencies and officials; and charging reasonable inspection and testing fees.

The Regulations

So, as required by the Act, the Colorado Board of Health promulgated a set of rules titled (appropriately enough): Regulations Pertaining to the Cleanup of Methamphetamine Laboratories and these became codified as Board of Health 6 CCR 1014-3. The regulations were approved January 19, 2005 and became effective March 30th, 2005.

These ARE the Methlab Regulations. The regulations contain nine Sections and five Appendices.
Section 1 - Purpose
Section 2 - Applicability
Section 3 - Definitions
Section 4 - Preliminary Assessment
Section 5 - Decontamination Procedures
Section 6 - Sampling and Analysis
Section 7 - Cleanup Levels
Section 8 - Documentation
Section 9 - References

Appendix A - Sampling Methods and Procedures
Attachment to Appendix A - Sampling Theory
Appendix B – Analytical Methods
Appendix C – Ventilation System Decontamination
Appendix D – Individual Sewerage Disposal Systems (ISDSs)

Section 1 – Purpose
To establish cleanup standards and procedures that a property owner is required to meet in order to obtain immunity from civil liabilities.

Section 2 – Applicability
The requirements of this section apply when 1) an owner of property has received notification from a peace officer that chemicals, equipment, or supplies indicative of a clan-lab are located at the property, or 2) when a drug laboratory is otherwise discovered, and 3) the owner of the property where the clan-lab is located has received notice.

Section 3 – Definitions
This section contains vital terms that have been carefully constructed to ensure clarity.

Section 4 – Preliminary Assessment
A comprehensive preliminary assessment be conducted by the IH in accordance with Section 6.7 of the regulations prior to decontamination. Furthermore, the decontamination plan MUST be based on the Industrial Hygienist's Preliminary Assessment. Access to the property is limited to those with appropriate training and personal protective equipment. Information collected during the preliminary assessment must include an array of topics, including (but not limited to ): physical address, legal description, number and type of structures present, descriptions of adjacent and/or surrounding properties, description of available law enforcement reports, identification of structural features that may indicate separate functional spaces, identification of manufacturing methods, identification of chemicals used, identification and documentation of areas of a) contamination b) chemical storage areas, c) waste disposal areas, d) cooking areas; signs of contamination such as staining, etching, fire damage, or outdoor areas of dead vegetation, potential disposal into the sanitary sewer or ISDS, ventilation systems with adjacent units or common areas... and an whole laundry list of other items that include sewerage septic tanks, soils, ventilation systems, and more.

Section 5 – Decontamination procedures
This section provides the decon procedures that MUST be followed. The procedures require a significant degree of expertise and, as such, specialized training. At the moment, OSHA is considering such work to be under the scope and applicability of 29 CFR 1910.120, HazWOper. Therefore, remediation contractors must be 40 Hour Hazardous Waste Site trained.

Section 6.0 - Sampling and Analytical Procedures
This section contains the crux of the verification process. It requires a very high degree of technical expertise and thorough knowledge of sampling theory. The immunity of the property owner hinges on the competency of the Industrial Hygienist performing this work. Not all Industrial hygienists, or Certified Industrial Hygienists have the training and experience necessary to properly perform this work. Furthermore, due to the unusual hazards that may be encountered during the assessment, (we have encountered booby traps, explosives, and even armed criminals, during our assessments), not all consulting Industrial Hygienists feel comfortable offering the preliminary services.

Our Industrial Hygienist, with 17 years experience, is Colorado’s only practicing Industrial Hygienist certified by both HIDTA, (High Intensity Drug Trafficking Area; Office of National Drug Control Policy, Clandestine Drug Lab Safety Program) and Colorado Department of Law, P.O.S.T. He has received extensive specialized meth-lab training such as the identification of “anti personnel devices” (booby-traps commonly found at meth-labs) through both the Iowa National Guard, Midwest Counterdrug Training Center and the Multijurisdictional Counter Drug Task Force, St. Petersburg College. Mr. Connell has processed clandestine laboratories from both the criminal and civil perspectives.

Section 7.0 - Cleanup Levels
The following cleanup levels have been established to determine if a property has been adequately decontaminated. All discovered and duly noticed clan-labs must meet the cleanup level for methamphetamine. Additional cleanup levels that may be applied to a property must be based on information gained during the preliminary assessment.

7.1. Surface wipe samples and vacuum samples for methamphetamine shall not exceed a concentration of 0.5 µg /100 cm2. (With special caveats for composite samples)

7.2. If there is evidence of iodine contamination on materials or surfaces that will not be removed, surface wipe samples for iodine shall not exceed a concentration of 22 µg/100 cm2.

7.3. If the preliminary assessment indicates the phenyl-2-propanone (P2P) method of methamphetamine manufacturing was used, surface wipe samples for lead shall not exceed a concentration of 40 µg /ft2, and vapor samples for mercury shall not exceed a concentration of 1.0 µg /m3.

7.4. The investigation and cleanup of outdoor contamination, including soil, surface water and groundwater, shall be conducted in accordance with the Colorado Hazardous Waste Regulations, the Colorado Solid Waste Regulations, and Water Quality Control Commission Regulations 31 and 41.

Section 8.0 - Reporting
A final report describing various aspects of the property must be prepared by the IH to document the decontamination process and demonstrate that the property has been decontaminated to the cleanup levels listed in Section 7.0. The final report must include a comprehensive compendium of documents and checks.

Appendices

The appendices contain the details, the flesh about the bones, as it were. In the appendices, the Industrial Hygienist and the remediation contractor can find the "nuts and bolts" of how the work is to be performed, and the rationale of why.

MYTHS!
Since the promulgation of the standards, many myths have emerged surrounding the new regulations.

Myth 1
The new regulations have no teeth.

The facts:
The regulation as codified in CRS 25-18.5-103 REQUIRES a property owner to meet the clean-up standard or demolish the property. Many counties are placing a definitive time-frame on how quickly this process must take place. For example, El Paso County (encompassing Colorado Springs), has promulgated Chapter 4, Methamphetamine Laboratory Cleanup Regulations, which require a Preliminary Assessment within 30 days. (Since the El Paso County Regulations contradict the State statutes and regulations in many ways, and provide, without statutory authority, release from State requirements, where there are conflicts, the property owner should adhere to the State statutes and State regulations, which take precedence over county regulations.)

The regulation has teeth, to be sure, and gives the authority to enforce the regulations directly to the county, city, town or even law enforcement agency with claimed jurisdiction over that venue.

Myth 2
Tenant / property owner has the right to remove their personal items from the property after the bust or notification.

The facts:
Pursuant to CRS 25-18.5-103 (3), NO PERSONNEL PROPERTY WHATSOEVER, including cars, clothing, personal items, or any other thing "subject to ownership" may be removed from the property until it complies with the regulations. Meaning that either it must be properly destroyed, or it has been cleared for removal by an industrial hygienist, or it is being removed, by a duly trained and authorized party (usually a contractor) to a secure location where it will then be properly destroyed or cleared for removal by an industrial hygienist, or decontaminated in a fashion that has been based on an Industrial Hygienist’s preliminary assessment.

Unless these conditions are met, NO PERSONNEL PROPERTY WHATSOEVER may be removed by any person.

Myth 3
Following the bust or notification, the tenant or property owner may reenter the house.

The facts:
Pursuant to CRS 25-18.5-104, if a structure OR vehicle has been determined to be contaminated or if a Governing Body or Law Enforcement Agency issues a notice of "probable contamination," no person may enter the property or vehicle unless the person is trained or certified to handle contaminated property pursuant to board rules or federal law. Otherwise, NO entry may take place by the owner, or the tenants. The "Governing Body" may secure the structure themselves by placing their own locks on the entrance to control access.

Myth 4
The tenant has the unchallenged right to their personal property, after the bust, and the landlord is responsible for that property.

The facts:
Pursuant to CRS 25-18.5-103(1)(b) the owner of any personal property within a structure OR vehicle contaminated by illegal drug laboratory activity has ten days after the date of discovery of the laboratory or contamination to make appropriate arrangements to assess the property by an industrial hygienist or secure for assessment, or destruction. If, within those ten days, the owner of the personal property fails to comply with the regulations, the owner of the structure may take possession of the items or vehicles and may dispose of that personal property in any manner consistent with the regulations (including cleaning the items and selling them).

Myth 5
Tenants may clean their own items and then remove them.

The facts:
Cleaning of personal belongings is not permitted until those items have been assessed by an industrial hygienist (See Myth 7).

Following the assessment, only those parties who have been properly trained may perform the decontamination.

Myth 6
Unless methamphetamine was actually being manufactured, the property isn't a "meth lab."

The facts:
Virtually ANY methamphetamine related activities, including smoking meth within a residence, is sufficient to categorize the property as an "illegal drug laboratory" pursuant to the regulations. Pursuant to CRS 25-18.5-101, Definitions, an illegal drug laboratory is defined as "the areas where controlled substances, have been manufactured, processed, cooked, disposed of, or stored and all proximate areas that are likely to be contaminated as a result of such manufacturing, processing, cooking, disposing, or storing." Smoking methamphetamine pyrolyzes the drug, which is thus "processed" and therefore meets the definition of a drug laboratory. This broad scope is necessary since studies have shown that smoking meth in a residence can result in as much contamination or even more contamination than production and synthesis.

Myth 7
Only a Certified Industrial Hygienist can perform the assessment and verification sampling.

The facts:
The regulations do not require the services of a certified industrial hygienist. Any industrial hygienist meeting the requirements of Colorado Revised Statute CRS 24-30-1402 and the requirements of 6 CCR 1014-3 is permitted to perform the work. However, not every industrial hygienist or certified industrial hygienist necessarily meets the training requirements of 6 CCR 1014-3; which explicitly require an industrial hygienist to be proficient in, and have experience with, meth-labs. Therefore, just because a consultant is an actual industrial hygienist does not mean they may perform the role of the consultant.

Any organization who represents itself as being authorized to perform the work, but who do not actually meet the necessary requirements, not only face the very real threat of future litigation losses being subrogated to them (when their clients find out they have not gained the liability immunity as described by HB1182), but those consultants could also face criminal charges of fraud pursuant to Title 18 of the Colorado Revised Statutes Article 5, Part 301 Section 1(e), punishable by a minimum of 3 months in prison (maximum 12 months in prison).

Myth 8
Cars are exempt.

The facts:
According to the new regulations, all vehicles including private passenger cars, vans, trucks trailers, RVs, and campers are covered by the regulations. If a police officer or a Sheriff’s Deputy stops a car during a "routine traffic stop," and identifies methamphetamine in the vehicle, that vehicle would be considered an illegal drug lab as defined by the new regulations.

Myth 10
The State Board of Health enforces the regulations.

The facts:
The statutes explicitly placed the onus of responsibility of enforcement on the local level. According to SB 05-217, if the city council or board of county commissioners where the property in question is located has NOT designated who the governing body will be, then the governing body automatically becomes the local health department, building department, and law enforcement agency. And these are the agencies that can enact their own fines, fees, and charges in order to finance the enforcement efforts.

Myth 11
The regulations require testing to determine if a meth-lab is present.

The facts:
Nowhere in the regulation is the collection of samples or testing required to determine if a property is a meth-lab. Consultants who do not understand this, are, by that very fact, not authorized to do the work, since they lack sufficient understanding of the regulation to comply with it.

Myth 12
If a consultant does go into a property and finds meth contamination, but that contamination is less than 0.5 µg/100cm2, then the property is OK, and not covered by the regulations.

The facts:
False! If a consultant arbitrarily chooses non-mandatory sampling at the beginning of the assessment process, and those samples result in any contamination, even below the State’s value of 0.5 µg/100cm2, then the property MUST be declared a meth-lab. The initial declaration is NOT necessarily based on testing – the initial declaration is found within the language of the mandatory Attachment to Appendix A of the regulation (Hypothesis Testing). Therefore, any consultant who has declared a property to not be a meth-lab based on such initial testing, faces not only civil liability, but may also face criminal liability by accepting work they were not qualified to perform. There is no de minimis concentration of methamphetamine at the beginning of the assessment process below which, a property could be declared “not a meth lab” or “not of regulatory concern.”

The single exception to this, would be if the consultant, while attempting to test the initial assessment hypothesis failed to so do, and by virtue of that work simultaneously performed the work as required by the regulation for a post decontamination assessment, and similarly failed to support the post decontamination hypothesis – only then could the preliminary assessment results be used to derive a “decision statement” and declare the property compliant with State regulation.

Liability immunity is gained exclusively by following the process described in the State regulation and concluding that process with a “Decision Statement” as found in Appendix A of the Regulation. If any deviation to that process occurs, the property cannot be declared compliant and the consultant is not at liberty to arbitrarily declare that the property is not a concern, or that there was no meth-lab present.

Myth 13
Colorado’s “clearance level” is 0.5 µg of methamphetamine per 100cm2

The facts:
This is a myth, usually promoted by unauthorized industrial hygienists and unauthorized consultants. There are many situations wherein the residual meth concentrations are inconsequential and may be far below the numerical value of 0.5 µg/100cm2, but the lab has not met the statutory requirements for clearance. The “clearance level” in Colorado is referred to as a “decision level” for a very good reason, and a "decision statement" can only be made under well defined parameters. We anticipate many future law suits arising out of the fact that some meth-labs are being declared "clean," by ill-informed consultants based on sampling, when in fact, those labs are not clean, have not met State regulations, and the property owner has not achieved liability immunity.

Since it is not the role of the governing body to approve or prohibit any particular data package, the unsuspecting property owner may presume that because the data package has been accepted by the governing body, it is acceptable and the property owner has obtained liability immunity. The property owner may not find out that their data package is not acceptable until they are facing a toxic tort law suit from a subsequent property occupant.

Conclusion

The Colorado regulations were developed by a concert of concerned citizens: attorneys, first responders, Industrial Hygienists/toxicologists, property managers, remediation contractors, government officials, and law enforcement personnel, just to name a few. The hard work of these teams, ensured that no one faction, and no one agenda oriented philosophy emerged. Rather, the resulting regulations reflect a dynamic balance of concerns, liabilities, and assets from a representative cross section of commerce and citizenry.

Although all participants worked equally hard in developing the regulations, particular recognition must be given to the driving force and organization behind the regulations provided by the tireless efforts of Colleen Brisnehan, Environmental Protection Specialist with the Hazardous Materials and Waste Management Division. Further, the validity of the whole exposure effort hinged on the foundational work by Tracy Hammon, Toxicologist/Risk Assessor with the Disease Control and Environmental Epidemiology Division, State of Colorado. Although everyone worked very hard to construct the regulations, Ms. Brisnehan and Ms. Hammon were almost exclusively responsible for ensuring the final "product" was tenable, fair, and acceptable to all concerned.

Throughout the State of Colorado, highly professional law enforcement agencies are on-board and actively participating in addressing the scourge of meth-labs. However, some limited individuals within the otherwise highly professional West Metro Task Force are “snubbing” the State’s methamphetamine regulations (even to the point of denying the existence of the State regulations and statutes and interfering with the enforcement of those regulations). These limited individuals have been providing property owners with inaccurate information, increasing the liability of those property owners. Virtually the remainder of the State of Colorado’s law enforcement community is aggressively and progressively addressing the meth problem in Colorado, and property owners within the jurisdiction of the West Metro Task Force should contact a reputable Industrial Hygienist or the State of Colorado directly with questions.

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