902 KAR 47:200. Public health methamphetamine contamination.

 

      RELATES TO: KRS 211.180, 212.210,

218A.1431, 224.01-410, 224.99-010(14), (15)

      STATUTORY AUTHORITY: KRS 211.180,

212.210, 224.01-410(9), (10)

      NECESSITY, FUNCTION, AND CONFORMITY: KRS

224.01-410(9) requires the Department for Public Health to promulgate administrative

regulations to establish requirements for notices, notice posting, and notice

removal for an inhabitable property contaminated with methamphetamine. KRS

224.01-410(10) requires the Department for Public Health to promulgate

administrative regulations to establish disclosure requirements for a

methamphetamine property if the property is to be leased, rented, or sold. This

administrative regulation establishes standards for the posting and removal of

warning signs for a methamphetamine-contaminated property and establishes disclosure

and appeal procedures for the owner of a methamphetamine-contaminated property

if the property is to be leased, rented, or sold.

 

      Section 1. Definitions. (1) "Cabinet"

means the Kentucky Cabinet for Health and Family Services.

      (2) "Commissioner" means the

commissioner of the Kentucky Department for Public Health.

      (3) "Clandestine Drug Lab

Preliminary Assessment Tier Selection Criteria Form (TASS), DEP 1016 means the

evaluation tool incorporated by reference in 401 KAR 101:030 and used by law enforcement

to determine the tiered level of methamphetamine contamination within the

inhabitable property.

      (4) "Decontaminated" means the

removal of methamphetamine contamination from an inhabitable property in a

manner in accordance with 401 KAR 101:040.

      (5) "Disclosure" means the

notification made by the owner of a methamphetamine contaminated property to a

potential buyer, lessee, or renter of that property advising them that the

property is contaminated.

      (6) "Methamphetamine Disclosure Statement"

means the documentation provided by the property owner to the potential buyer,

lessee, or renter that conforms to the requirements established in Section 4(2)

of this administrative regulation.

      (7) "Notice of Methamphetamine

Contamination" means the form DFS 407 used to denote methamphetamine

contamination within an inhabitable property.

      (8) "Posted" or "posting"

means the physical affixing of the Notice of Methamphetamine Contamination to

the entrances of an inhabitable property with one (1) or more rooms with living,

sanitary, and sleeping facilities arranged for the use of one (1) family or individual.

      (9) "Released" means the authorization

by the cabinet for the removal of the posted Notice of Methamphetamine Contamination

and an authorization to the property owner that all disclosure requirements

established in this administrative regulation are no longer applicable.

 

      Section 2. Posting of Property. (1) Upon written

notification received from law enforcement that an inhabitable property has

been found to contain evidence of methamphetamine contamination and has had

posted a Notice of Methamphetamine Contamination on all exterior entrances to

the inhabitable property, the local health department shall request from the responding

law enforcement agency a copy of the Clandestine Drug Lab Preliminary Assessment

Tier Selection Criteria Form (TASS), DEP 1016, incorporated by reference in 401

KAR 101:030.

      (2) Upon receipt of the issuance of a Notice

of Methamphetamine Contamination by law enforcement, the local health department

shall within ten (10) business days:

      (a) Notify by certified mail the property

owner listed on the deed of the inhabitable property that the property has been

posted with a Notice of Methamphetamine Contamination;

      (b) Notify the cabinet in writing that a Notice

of Methamphetamine Contamination has been posted upon the property;

      (c) Provide the cabinet with a copy of

the Clandestine Drug Lab Preliminary Assessment Tier Selection Criteria Form

(TASS), DEP 1016;

      (d) Notify the Kentucky State Police

Methamphetamine Coordinator; and

      (e) Notify the Energy and Environment

Cabinet Superfund Branch.

      (3) The Notice of Methamphetamine Contamination

shall remain posted at the property entrances until the property owner receives

notification from the local health department as established in Section 5(2) of

this administrative regulation that the posting may be removed.

 

      Section 3. Appeals Process. (1) A homeowner

listed on the deed of the property who has received a Notice of Methamphetamine

Contamination and who believes that the notice has been issued improperly may make

a written request of appeal to the Commissioner of Public Health, Department

for Public Health, 275 East Main Street, Frankfort, Kentucky 40621, within

thirty (30) days of the date the notice was posted on the property.

      (2) Upon receipt of an appeal, the commissioner

shall forward the request to the Administrative Hearings Branch, which shall set

the date, time, and place for the hearing requested within sixty (60) days of

the date postmarked on the appeal envelope.

      (3) The notice of appeal hearing shall

conform to KRS 13B.050;

      (4) The appeal hearing shall be conducted

by a hearing officer appointed by the commissioner and in accordance with KRS

13B.080, 13B.090, and 13B.110.

      (5) The hearing officer shall make a

recommended order in accordance with KRS 13B.110.

      (6) The secretary shall:

      (a) Issue a final order in accordance

with KRS 13B.120 after receipt of the hearing officer’s recommended order; and

      (b) Forward a copy of the final order to the

Department of Public Health.

      (7) An official record of the appeal

hearing complying with KRS 13B.130 shall be retained by the Cabinet for Health

and Family Services’ Administrative Hearings Branch.

 

      Section 4. Disclosure Requirements. (1) A

property owner who chooses not to decontaminate a posted property contaminated

by the production of methamphetamine shall disclose, in writing, the presence

of contamination including the following information to all prospective buyers,

tenants, and lessees of the property:

      (a) The physical address of the property;

      (b) The location within the posted

property that was used in the production of methamphetamine; and

      (c) A copy of the Notice of

Methamphetamine Contamination.

      (2) The property owner shall sign and

date the Methamphetamine Disclosure Statement and maintain a copy of the Methamphetamine

Disclosure Statement and documents attached thereto for the duration of their

ownership.

      (3) If a posted inhabitable property is

sold or ownership is otherwise transferred, the new owner shall assume all

responsibility for disclosure as established in this section.

      (4) Upon request by the prospective

buyer, tenant, or lessee, the property owner shall provide a copy of any

documentation related to the methamphetamine contamination provided to the

owner by law enforcement, the Energy and Environment Cabinet, the Department

for Public Health, or the local health department.

      (5) In cases if the posted inhabitable property

is a mobile home, the owner shall assume all responsibilities for disclosure if

the property is relocated to a new physical address.

      (6) Failure by the property owner to

disclose methamphetamine contamination as outlined in this section shall constitute

a Class D Felony as required under KRS 224.99-010.

 

      Section 5. Removal of the Posting. (1)

The local health department shall authorize the removal of the Notice of Methamphetamine

Contamination if:

      (a) The property has been decontaminated

and written approval for release by the Energy and Environment Cabinet has been

received; or

      (b) A properly submitted appeal as established

in Section 3 of this administrative regulation has resulted in the secretary

determining the property was issued a Notice of Methamphetamine Contamination

improperly and a copy of such determination has been received by the local

health department.

      (2) The local health department shall notify,

in writing within ten (10) business days of notification established in

subsection (1) of this section the property owner listed on the deed of the

property that:

      (a) The Notice of Methamphetamine Contamination

has been authorized to be removed from the entrances of the inhabitable property;

and

      (b) Disclosure requirements no longer

apply.

      (3) The local health department shall notify

within ten (10) business days the cabinet, the Division of Waste Management,

and the Kentucky State Police Methamphetamine Coordinator that the inhabitable property

has been released.

      (4) The local health department shall

retain copies of notifications of release from Energy and Environmental Cabinet

for at least seven (7) years.

 

      Section 6. Incorporation by Reference. (1)

The following material is incorporated by reference:

      (a) "DFS 407, Notice of

Methamphetamine Contamination", July 2009; and

      (b) "DFS 407, Notice of

Methamphetamine Contamination", 2009.

      (2) This material may be inspected,

copied, or obtained, subject to applicable copyright law, at the Department for

Public Health, 275 East Main Street, Frankfort, Kentucky 40621, Monday through

Friday, 8 a.m. to 4:30 p.m. (35 Ky.R. 2843; Am. 36 Ky.R. 328;

eff. 8-12-2009.)