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
(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
(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
(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
(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
(a) The property has been decontaminated
and written approval for release by the Energy and Environment Cabinet has been
(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
(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
(a) The Notice of Methamphetamine Contamination
has been authorized to be removed from the entrances of the inhabitable property;
(b) Disclosure requirements no longer
(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;