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III. Setting Standards and Cleaning up Labs
The public health risks involved with different methfields vary substantially.
Many factors contribute to the degree of toxicity at a particular location, including:the types of chemicals used during the cooking process, the length of time a site was used for manufacture, the amount of product manufactured, the disposal methods chosen by the cooks, and the amount of ventilation available in the structure.
Likewise, individuals are affected in different ways and to varying degrees by exposure to former methfields. A person's reaction depends on the level of contamination, length of exposure, the age of the exposed individual, overall health condition, and any acute susceptibilities (such as asthma or other respiratory problems).
The number of variables involved, combined with the relative lack of data on the subject, presents challenges at both the state and federal level with regard to setting standards for cleanup and remediation.
A. State Response
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Overworked, Understaffed, Under-Funded
The rapid increase in methamphetamine use and production nationwide caught many states off guard. While the federal government provides some assistance in this area, as will be discussed below, the bulk of responsibility has fallen on state and local law enforcement.
Unfortunately, the technology in place does not effectively and quickly detect methamphetamine and precursor chemicals in the field.
Current tests only detect the presence of methamphetamine and must be sent to labs for analysis, which delays the criminal investigation as well as the cleanup.
Additionally, law enforcement officers are often required to guard meth labs until contractors arrive to remove the debris, wasting time and manpower, potentially increasing the officers' exposure to toxins.
Finally, once contamination has been detected, there are inadequate standards in place to determine whether a methfield site has been decontaminated.
Even state agencies acting under elaborate guidelines for cleanup face challenges with setting acceptable residual levels for contaminants. Current standards are based on technological feasibility, not on health and safety requirements.
There is a general consensus that the long-term health effects of these chemicals are unknown, and that acceptable exposure levels have yet to be established for many of the chemicals involved in meth production.
Without health-based standards, states have little choice but to require the lowest levels of contamination achievable using current technology, also known as “technology-based” or “feasibility-based” standards.
To date, eight states (Alaska, Arizona, Arkansas, Colorado, Minnesota, Oregon, Tennessee, and Washington) have established a technology-based cleanup standard for methamphetamine.
There is an ongoing debate about the efficacy of technology-based approaches because of their imprecision in protecting public health.
These approaches either require too little remediation to protect the public from adverse health effects,
or require too much remediation, which unnecessarily increases the cost to property owners without achieving any additional benefit.
If the technology is inadequate to protect public health, even the most stringent cleanup standards will not have the required effect. If the standards are made too stringent to account for uncertainty, they may overcompensate, and the increased costs may discourage property owners from voluntary disclosure and cleanup.
Finally, the guidelines that do exist vary widely from state to state. The lack of information consolidation and transfer has potentially stunted the response of recently impacted states.
As a result, some state policies-including North Carolina's-amount to little more in practice than “air it out, wash the walls, paint everything, and replace the carpet.”
Over the past couple of years, several states have focused on passing legislation to address the epidemic by limiting access to the cold medicines crucial to meth production
and by requiring that renters and purchasers to be notified if a particular property was used for meth production.
Some states have also developed cleanup standards to remediate methfields, but the requirements and specificity vary widely among programs, as do acceptable residual levels of the toxins.
Most states that require meth detection levels to be below a certain point do not address the many precursor chemicals involved in production.
Some states require cleanup by state certified professionals, while others, including North Carolina,
let owners handle it if they desire.
Only three states-Washington, Oregon and Arizona-have written statutes and/or regulations that contractors must follow in order to become certified.
Additionally, while many states require disclosure of former methfield sites to potential buyers and new tenants, the practice is not universal.
The health implications of the many different chemicals and compounds created during the cooking process are unknown, which means that there is no consensus on acceptable health-based levels of chemical residue.
Even if levels were agreed upon, there are currently no remediation guidelines capable of achieving them.
West coast states such as Oregon and Washington are widely considered to have the most comprehensive standards and guidelines for response and remediation in the country. This is largely because they were the first states to be affected by the methamphetamine problem after it migrate up from California.
Washington set its minimum acceptable levels for methamphetamine, volatile organic compounds (precursors to ozone, also referred to as “VOCs”), mercury, and lead well below levels currently recognized as safe.
Even though the determinations were technology- or feasibility-based, the extremely low levels probably protect against most potential health risks.
The Washington State Department of Health justified these low levels on the grounds that, because there are no health-based standards, overly conservative estimates were necessary.
Where small amounts of toxins can cause serious health effects, it is better to err on the side of caution. On the other hand, Washington's overly stringent regulations may be criticized for unnecessarily boosting costs without ensuring adequate protection. After all, if a cleanup fails to protect the public from harm, it is arguably not worth the effort or the cost of implementation.
Unfortunately, even the most thorough standards in the nation are still not very comprehensive. Washington's guidelines only deal with four chemicals:(1) methamphetamine, (2) VOCs, (3) lead (which is rarely used anymore in meth production), and (4) mercury (which is also seldom used).
Even the best standards in the country fail to regulate dozens of the dangerous chemicals and compounds that are potentially present at a methfield site.
The Midwest is home to the second wave of the methamphetamine problem.
Although originally relegated to rural areas, the problem has moved into more populated cities.
Deborah Durkin of the Minnesota Department of Health compares the spread of meth to a brush fire, stating that “[w]e have had smoldering activity for a long time [on the West Coast and in rural areas throughout the Midwest,] and we are really just now reaching that peak where the problem moves from rural saturation to increased numbers in our big cities.”
States in the Southeast, the most recently affected region of the country, have experienced a profound surge in meth production over the past few years.
These states have been required to develop policies and responses very quickly to attempt to address the problem.
B. Federal Response
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Go Ahead, We'll Be Here If You Need Us
Federal methamphetamine policy has been implemented most prominently by the Drug Enforcement Administration (“DEA”), which deals with law enforcement issues, and the Environmental Protection Agency (“EPA”), which deals with chemical and environmental issues.
In both arenas, the federal government has been a relatively minor player as compared to the states.
This is particularly true for methfield remediation.
Even though two very broad-sweeping pieces of legislation-the Resource Conservation and Recovery Act (“RCRA”)
and the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”)
-give the EPA authority to play a much larger role in assisting states with the problem, at present, no federal standards provide any guidance for the remediation of former methamphetamine laboratories.
Although RCRA and CERCLA both apply to methfield cleanup and have been invoked in situations involving the cleanup and prosecution of superlabs, in practice they offer very little guidance or support to states for “mom and pop” sites.
1. RCRA-From the Cradle to the Grave (Hypothetically)
RCRA,
which was originally passed by Congress in 1976, gives the EPA authority to control hazardous waste at every level of production; in other words, from the “cradle to the grave.”
RCRA covers the generation, transportation, storage, and disposal of hazardous waste.
It also establishes a framework for managing non-hazardous wastes.
In addition to the “cradle to grave” tracking system, RCRA provides a system for identifying and cataloging various hazardous wastes.
Waste may be classified as hazardous either (1) because it is present on a list maintained by EPA,
or (2) because it exhibits a hazardous characteristic
such as corrosivity,
reactivity,
ignitability,
or toxicity.
RCRA also sets standards and guidelines for generators
and transporters
of hazardous wastes as well as operators of hazardous waste treatment, storage, and disposal (“TSD”) facilities.
Finally, RCRA outlines a permit system for enforcing these standards,
as well as a procedure for delegating the administration of the permit program to the individual states.
RCRA was intended to make disposal of waste safer than it had been by encouraging recycling and the development of improved technologies without directly regulating American industrial production.
Another goal of RCRA was to allow each state to maintain responsibility for its solid waste problem.
In the context of methamphetamine production, the provisions regulating use and disposal of hazardous wastes are technically applicable. Individuals or companies that generate, transport, or dispose of hazardous waste inappropriately or without a permit are potentially liable under RCRA, and either the EPA
or private citizens
may bring charges against them. If they are found liable, violators may be required to pay for cleanup costs.
The sweeping mandate provided by RCRA places almost all methfields within its reach.
Almost every methamphetamine lab will produce either a listed
or characteristic
hazardous waste under RCRA.
Additionally, ignorance that a particular chemical is covered under RCRA is no defense to a violation.
The government only has to prove the defendant knew the material was hazardous, meaning it could cause injury to people or to the environment.
Given that the list of ingredients includes battery acid and camp stove fuel, it is reasonable to infer that meth lab operators have at least some understanding of the hazardous nature of the materials they use.
Unfortunately, in most situations the reward of prosecution under RCRA is simply not worth the effort for several reasons. First, operators of methamphetamine labs are generally difficult to locate.
If they are caught, operators are highly likely to be insolvent and therefore unable to pay cleanup costs and/or penalties.
This is particularly true of smaller labs because users are often cooking to support their own habits. Finally, prosecution by the EPA under RCRA typically yields lower penalties than criminal prosecution by the DEA or state law enforcement for crimes such as possession, conspiracy to manufacture a controlled substance, or racketeering.
2. CERCLA-The Not-So-Super Fund
CERCLA (also known as “Superfund”)
was the first piece of federal legislation that granted the government broad powers to require and direct cleanup of hazardous waste sites.
Under CERCLA, the EPA can require cleanup of any release
of hazardous waste that threatens human health or the environment.
The terms “release,”
“facility,”
and “hazardous substance”
are broadly defined under CERCLA. Many of the chemicals used in methamphetamine production that are RCRA hazardous wastes also meet the CERCLA definition of “hazardous substance.”
Unlike RCRA, however, CERCLA is intended to ensure remediation of sites after toxins have been released, not simply to punish unauthorized disposal. CERCLA is a joint and several strict liability regime, and the net of liability is broad. CERCLA liability attaches to several categories of “potentially responsible parties,”
including current owners or operators,
past owners and operators at the time of disposal,
generators who arranged for disposal or transportation,
and transporters.
Under these definitions, the EPA has authority to assign liability to almost every party who comes into contact with a contaminated property.
The broad and absolute liability imposed under CERCLA has the potential for disproportionately harsh outcomes when applied to methfield cleanup. Since labs are often set up in transient locations such as rental properties, apartments and motel rooms, property owners and managers are at risk of being left with the remediation bill long after the lab operators have moved on to a new location.
Enforcing such widespread liability may actually function as a disincentive to remediate property. As property owners abandon properties that they cannot afford to clean up, lenders and local governments are faced with the responsibility of either cleaning the contaminated properties or allowing them to lay dormant and dirty, contributing nothing to the tax base and potentially contaminating contiguous properties.
Although the abandonment scenario is a real concern in the remediation of methfield sites, it is probably not a threat under CERCLA because the EPA generally only enforces it against the most severely polluted properties in the nation, which have been compiled by the EPA into the National Priorities List (“NPL”).
Only the most heavily contaminated sites, or sites that pose an “imminent and substantial danger to the public health or welfare”
would be likely to receive any attention at all, and would probably be of the larger superlab variety. Moreover, cuts in the trust fund that fuels cleanup efforts have led some to conclude that the “Superfund” would be more aptly named the “Puny-fund.”
Consequently, the EPA must be extremely selective with prosecution efforts, which provides an additional reason to conclude that smaller “mom and pop” labs will almost certainly remain, at least functionally, unregulated.
The Superfund Amendments and Reauthorization Act (“SARA”) attempted to clarify CERCLA and provided standards for remediating properties contaminated by hazardous waste.
Congress intended SARA to increase the focus on health problems created by contaminated sites by utilizing standards and requirements found in other environmental regulations to establish satisfactory cleanup levels under CERCLA.
SARA, however, provides no standards for methfield cleanup, and offers states little information to utilize in drafting their own standards and regulations.
In 2002, President Bush signed the “Small Business Liability Relief and Brownfields Revitalization Act”
into law. A “brownfield” is defined as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.”
The Act was a response to an increasing number of abandoned or underutilized properties, and a corresponding reluctance on the part of developers to expose themselves to CERCLA liability by purchasing them.
Although brownfields are located all over the country, many are located in otherwise desirable urban or industrial areas, contributing to sprawl and dragging down the community tax base.
In addition to providing prospective purchasers who satisfy certain due diligence requirements with a defense to CERCLA liability, the Act provides funds for site assessment and remediation of contaminated property, including former methamphetamine labs (which fall under the “controlled substance” provisions of the Act).
Brownfields redevelopment funding is not intended to be a primary solution to the problem of methfield remediation, but simply one way to help pay for a cleanup.
Regardless, the defense shields and cleanup funds provide both an incentive to clean up methfield sites as well as the means to do so, provided property owners are sophisticated enough to access the funds. In 2004, the EPA provided $200,000 for a pilot program to Public Health Seattle and King County in Washington State to assess and remediate nearly 200 methfields over two years.
Even with these developments, the lack of health-based cleanup standards and guidelines still leave conspicuous gaps in the federal response to methfield remediation. As discussed above, these same gaps have provided the most significant challenges for states in their formulation of remediation guidelines. Traditional risk assessment models require, in addition to identification of contaminants, identification of health effects and contamination levels at which those health effects manifest.
Without this information, the effectiveness of state cleanup standards can only be maximized by overly conservative technology-based standards, the benefits of which are uncertain. Moreover, additional harmful compounds may currently remain completely unregulated.
3. DEA Response-Straighten Up, But Leave it Dirty
The Drug Enforcement Administration (“DEA”) currently handles the majority of federal cleanups.
However, their primary goals are investigating for the purpose of criminal prosecution, dismantling labs for evidence, and ensuring cleanup of the most dangerous chemicals.
The burden remains on state and local law enforcement to provide immediate response in a meth lab seizure.
The DEA provides support to state and local law enforcement agencies through programs such as the Clandestine Laboratory Training program
and by dispersing funds received from the Community Oriented Policing Services (“COPS”) program.
The Clandestine Laboratory Training program provides state and local law enforcement with skills and resources necessary to investigate and dismantle seized labs.
The program has provided training to more than 9300 state and local law enforcement officers and 1900 DEA employees since 1998.
When a meth lab is seized, EPA regulations require removal of all hazardous waste materials.
The DEA and the responding state or local agency-as a legal fiction under RCRA-assume the role of the “generator” of the hazardous waste, and thereby become responsible for its cleanup.
The COPS program provides support and funding for the initial cleanup and disposal of chemicals at the majority of labs seized in the United States.
In order to more effectively utilize COPS funding in methfield cleanup, in 1990 the DEA established the Hazardous Waste Cleanup Program.
The Hazardous Waste Cleanup Program outsources remediation of methfield sites to pre-approved private sector contractors.
The goal is to promote safety, efficiency, and cost-effectiveness by utilizing companies that specialize in the removal of hazardous wastes.
The program has substantially decreased average costs per cleanup, from $3,300 per cleanup in 2002 to $1,900 per cleanup in 2004.
In practice, however, the cleanup achieved under DEA supervision falls far short of total remediation. The DEA limits the scope of its response to the initial cleanup of a seized lab,
which only entails the collection and disposal of methamphetamine, lab supplies, and precursor chemicals.
The DEA is responsible for the cleanup only because it is considered part of a crime scene.
Waste may be collected primarily for evidentiary purposes.
The DEA's responsibility ends when the obvious signs of methamphetamine production have been removed and disposed.
Neither the DEA nor its contractors attempt to fully remediate the site.
Moreover, no attempt is made to document the potential contaminants so that such information could be used by another party in future cleanup efforts.
The DEA has specifically acknowledged that it is not equipped to conduct thorough remediation operations.
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