Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
KRS 224.01-410, EO
2008-507, 2008-531
NECESSITY, FUNCTION AND CONFORMITY:
KRS 224.01-410(3) and
(6) requires the cabinet to establish
administrative regulations for the cleanup of methamphetamine contaminated
properties. EO 2008-507 and 2008-531, effective June 16, 2008, abolish the
Environmental and Public Protection Cabinet and establish the new Energy and
Environment Cabinet. This administrative regulation establishes the assessment
of contaminated properties and the tiered response system.
Section 1. Applicability. This administrative
regulation shall apply to methamphetamine contaminated properties discovered by
Kentucky State Police or local law enforcement on or after July 15,
2008.
Section 2. Assessment of an
Inhabitable Property.
(1) The cabinet shall
provide the Kentucky State Police and local law enforcement with the initial
site assessment form, Clandestine Drug Lab Preliminary Assessment Tier
Selection Criteria (TAS), DEP 1016, April 2018.
(a) Based on the results of the Tier
Selection Criteria portion of the form, if the property is determined to be a
contaminated property, law enforcement shall assign a tier for cleanup
response, pursuant to
KRS
224.01-410(5).
(b) Once the form has been completed, it
shall be sent to the cabinet, where it shall be available for review as an open
record.
(2) Law
enforcement shall consult with the cabinet prior to making a Tier 4
recommendation.
(3) A certified
contractor may determine that an alternate tier for cleanup response is more
appropriate, based on assessments and testing of the property.
(a) If during the cleanup process, the
contractor discovers evidence that would alter the tier assignment for the
contaminated property, the contractor shall do the following:
1. Halt all cleanup activities;
2. Contact the cabinet within three (3)
business days to request a variance from the initial tier assignment;
and
3. Provide a written
justification for the variance request, including results of assessments
completed, sample results, photographs, and all other evidence and
documentation supporting the variance request.
(b) Once all supporting documentation has
been provided to the cabinet, there shall be a review and decision made by the
cabinet to determine if the variance request has been granted.
(c) Once the review is complete and the
decision is made, all cleanup activities shall resume in accordance with the
decision regarding the tier.
Section 3. Classification as a Tier 1. A tier
1 shall include the following:
(1) Crime scene
investigation shows that the methamphetamine manufacturing or cooking process
was initiated;
(2) (b) Limited
amounts of reagents or precursors for methamphetamine manufacturing are present
and open;
(3) (c) It is uncertain
whether a 'cook' was completed;
(4)
(d) The investigation by the police finds:
(a)
One (1) or two (2) anhydrous ammonia "Nazi" 'cooks' were completed;
and
(b) Less than two (2) ounces of
methamphetamine was produced per production event;
(5) The investigation shows methamphetamine
production lasted less than three (3) days; or
(6) Minor spills and staining are observed on
surfaces near the suspected cooking location.
Section 4. Classification as a Tier 2. A tier
2 shall include the following:
(1) Crime scene
investigation finds that methamphetamine, reagents, or precursors were
produced;
(2) Police investigation
finds:
(a) One (1) or two (2) red phosphorus
(Red-P); or
(b)
1. Three (3) to four (4) "Nazi" method
'cooks' may have been completed; and
2. Less than two (2) ounces of
methamphetamine was produced per production event;
(3) The police investigation shows
methamphetamine production lasted longer than three (3) days, but less than two
(2) weeks; or
(4) Spills and
staining are observed in multiple areas of the structure.
Section 5. Classification as a Tier 3. A tier
3 shall include the following:
(1)
Investigation of the crime scene shows that numerous Red-P or "Nazi" 'cooks',
or precursors and reagent production have occurred;
(2) The investigation suggests each cook that
was completed could yield more than two (2) ounces but less than one (1) pound
of methamphetamine per production event;
(3) The investigation suggests
methamphetamine production was conducted over a period of two (2) weeks to
several months;
(4) Moderate to
severe spills and staining are observed in the cooking areas and throughout the
structure;
(5) Investigation shows
releases outside the structure observed including:
(a) Burn pits;
(b) Open dumps; and
(c) Outside cooking areas;
(6) A property where the method
for methamphetamine production was determined to be the P2P/Methylamine
method;
(7) A property with
re-occurring 'cooks'; or
(8) A
property where there is insufficient evidence to complete the Clandestine Drug
Lab Preliminary Assessment Tier Selection Criteria (TAS), DEP 1016, April
2018.
Section 6.
Classification as a Tier 4.
(1) A tier 4 shall
include the following:
(a) Investigation of
the property by the police suggests that the lab is capable of producing large
quantities, greater than one (1) pound of methamphetamine, reagents, or
precursors during a production event;
(b) Investigation shows severe environmental
effects outside the structure due to potentially large quantities of hazardous
materials dumped or released, or drummed and buried wastes are discovered on
the property;
(c) Investigation
suggests methamphetamine production was conducted longer than two (2) weeks to
several months; or
(d) Spills and
staining have occurred inside and outside the structure.
(2) Law enforcement agencies shall consult
with the cabinet prior to making this tier recommendation.
(3) Releases of hazardous substances,
pollutants, or contaminants to the environment shall be subject to the
requirements of
KRS 224.01-400 and
401 KAR
100:030.
Section 7. Incorporation by Reference.
(1) "Clandestine Drug Lab Preliminary
Assessment Tier Selection Criteria", DEP 1016, April 2018, is incorporated by
reference.
(2) This material may be
inspected, copied, or obtained, subject to applicable copyright law, at the
Division of Waste Management, 300 Sower Boulevard, Frankfort, Kentucky 40601, 8
a.m. to 4:30 p.m., Monday through Friday.
(3) This material may also be obtained on the
division's Web site at eec.ky.gov/environmental-protection/waste.
STATUTORY AUTHORITY:
KRS 224.01-410(3),
(6), EO 2008-507,
2008-531