Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

F I S C A L I M P A C T R E P O R T

SPONSOR Garcia, MP

DATE TYPED 3/5/05

HB 1057

SHORT TITLE Clandestine Drug Laboratory Act

SB

ANALYST Hanika-Ortiz

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

None

$81.9

Recurring

GF

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the District Attorney (AODA)

Department of Public Safety (DPS)

Department of Finance and Administration (DFA)

New Mexico Department of Environment (NMED)

New Mexico Corrections Department (NMCD)

Department of the Public Defender (PDD)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of Bill

HB 1057 enacts the “Clandestine Drug Laboratory Act” and requires DPS to provide notice to a

landlord, owner, occupant or manager of real property, mobile home or recreational vehicle

parks, and mobile homes or recreational vehicles that a property has been used as a clandestine

drug laboratory, and also provides notice to NMED, the local fire department and to the local

county health office. The property owner must remediate the property to comply with the NMED

standards. The property owner may attempt to recover damages from the person who operated a

clandestine drug laboratory on the property. The bill requires that all remediation plans be ap-

proved by NMED.

House Bill 1057 -- Page 2

Section 1

•

Proposes the “Clandestine Drug Laboratory Act”.

Section 2

•

Defines “board,” “clandestine drug laboratory,” “controlled substance,” “remediation”

and “residual contamination.”

Section 3

•

Describes law enforcement procedures upon discovery of a clandestine drug laboratory;

including seizure of laboratory components, removal of persons and the attaching of a no-

tice of contamination.

Section 4

•

Describes the notice of contamination, including a statement that a fourth degree felony is

committed for violation of the provisions and a misdemeanor is committed for disturbing

the posted notice.

Section 5

•

Provides for remediation by the property owner of residual contamination at a clandestine

drug laboratory. The NMED must determine that a property has been remediated. The

property will be condemned if the property owner refuse to remediate the property within

the required time limit.

Section 6

•

An owner will not sell, lease, rent, loan, assign or exchange the property until remedia-

tion is completed unless the owner provides written notice that is received by the inter-

ested party that the property is contaminated. A civil penalty of $1 thousand will be im-

posed for any harm resulting from an owner’s failure to comply; any contract may be

voided.

Section 7

•

A landlord may remove or dispose of a mobile home or RV in a space-rental park that

was used as a clandestine drug lab if the landlord requests the lienholder and owner of the

unit to remove it within 30 days and the vehicle is not so removed. An owner of the prop-

erty may dispose of the property in lieu of remediation and cleanup.

Section 8

•

A person operating a drug lab shall pay restitution to the owner of the property for all

costs and fees that the owner incurred to remediate or dispose of the property.

Section 9

•

Anyone entering the property before the residual contamination is removed is guilty of a

fourth degree felony. Anyone disturbing the notice is guilty of a misdemeanor.

Section 10

•

Amends the Hazardous Waste Act to include an emergency incident involving chemicals

related to illegal drug manufacturing within the definition of a “hazardous substance inci-

dent.”

House Bill 1057 -- Page 3

Section 11

•

The Environmental Improvement Board will adopt rules concerning remediation stan-

dards for hazardous substance incidents.

Section 12

•

The effective date of the Act is July 1, 2005.

Significant Issues

HB1057 establishes a process for ensuring that people are not exposed to structures or facilities

used for illegal drug manufacturing, and that the facilities are cleaned up or condemned before

they are reoccupied. HB 1057 places responsibility of clean up on the property owner and re-

stricts use of property until the clean up is completed and approved by NMED.

The majority of clandestine drug labs manufacture methamphetamine. These labs are set up in

motels, houses, apartments, storage units, and vehicles. Nearly 400 illegal drug lab seizures oc-

cured in New Mexico between 2001 and 2004. Hazardous chemicals are used that can contami-

nate structural materials, furnishings, wastewater systems and soils. Local health jurisdictions

usually assess properties to determine the degree and extent of contamination of methampheta-

mine and chemical residues and biohazards such as hypodermic needles, feces, and blood.

Proper decontamination is necessary to reduce the public health risks of injuries and hazardous

exposures associated with clandestine drug labs. The children often found in these structures (63

in 2003 alone) are exposed to the hazards posed by the manufacturing operations and the con-

tamination left behind.

PERFORMANCE IMPLICATIONS

NMED currently does not approve work plans for drug lab cleanups, or make determinations of

the adequacy of cleanup. The technical approach to cleanup and the timeline are established on a

case-by-case basis.

HB1057 requires law enforcement officials to remove and seize hazardous materials encountered

in illegal drug labs. HB1057 should recognize that only qualified and trained individuals should

approach illegal drug laboratories. In response to HJM 77 (passed in 2004 by the 46

th

Legisla-

ture), a multi-disciplinary best practices protocol was developed to ensure that law enforcement

personnel, social workers, and others who might be the first to discover illegal drug laboratories

know how to respond safely.

The local fire departments and the local county health offices will have to enact policies and pro-

cedures when notified that a clandestine drug laboratory has been discovered.

FISCAL IMPLICATIONS

The bill does not contain an appropriation for implementing the notification procedures. The

requirements of notification include a determination and verification to the owner/landlord or

manager of the area where the clandestine drug laboratory existed. Additional resources will be

expended to accomplish the goals of the notification procedure. In addition, the creation of two

new crimes for violation of the Clandestine Drug Laboratory Act would necessarily implicate

additional resources for prosecution of these matters.

House Bill 1057 -- Page 4

The NMED anticipate the cost for additional staff, travel, telecommunications equipment, office

supplies, sampling equipment and analysis, field supplies and protection is $81.850 annually.

There will be a significant positive impact on public health and safety; and additional cost sav-

ings to public and private health care agencies through the early identification of chemical expo-

sure and the proper drug lab waste product management.

ADMINISTRATIVE IMPLICATIONS

HB 1057 will place additional responsibility on the DPS and NMED to ensure compliance under

the Act.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Conflicts with SB 668, Stringency of Hazardous Waste Act Rules

TECHNICAL ISSUES

The DPS has the following comments:

•

In Section 2 the “environmental improvement board” and in Section 5 “department of

environment” are both charged with adopting standards for remediation. The bill is not

clear if these terms are the same.

•

Section 6 provides that until remediation is completed the owner shall not sell, lease, rent,

assign or exchange the residually contaminated property unless the owner provides notice

that a controlled substance was manufactured on the property and that the property was

contaminated and receives notice that the notice was received by the other party. This

section may create a potential loop hole allowing a property owner who does not wish to

remediate to pass the property on to another party.

•

The bill is unclear as to the time limits for remediation, the levels of remediation for mo-

tel rooms and vehicles as opposed to dwellings, mobile homes and recreational vehicles.

Private remediation companies, oversight of these companies and follow up on any certi-

fication requirements is not addressed.

•

Adding an illegal drug manufacturing operation to the definition of a hazardous substance

incident under the Hazardous Waste Act would cause such incident to fall under the Haz-

ardous Material Response Act, requiring the New Mexico State Police to coordinate and

assign an Emergency Response Officer to all clandestine lab scenes.

•

The roles for the local fire department and the local county health office has not been

identified in the bill.

•

The bill is unclear what liability and follow up exists for the officer who fulfills the re-

quirements under Section 4.

•

The bill is unclear which agency under “local government agency” will condemn a prop-

House Bill 1057 -- Page 5

erty, the current abatement or property code enforcement ordinances that will be im-

pacted and which legal department would track and file for property forfeiture.

The PDD has the following comments:

•

The reason that violating a notice of removal is a 4th degree felony is not clear. For an

“unauthorized person” to enter the property once the notice is posted would be a felony

offense. There are many reasons why an innocent owner may need to enter his/her prop-

erty prior to the time the residue from a drug manufacturing process is removed. Who

would be “authorized” (and who would “authorize” such persons) is not clear from the

bill.

•

There is virtually no chance that a landlord would ever actually be able to recover

cleanup costs from an offender.

•

There is no limitation on the amount or nature of the remediation required by the board,

or on the costs thereof.

Under Section 7, thirty days is allowed before a contaminated vehicle is removed. The public

may be exposed to a significant health hazard during that time depending on the location.

OTHER SUBSTANTIVE ISSUES

The AOC notes the activities of a law enforcement officer upon discovery of a lab could have an

impact upon legitimate business activities or habitation. There may need to be procedures set up

which would permit a business or inhabitants to limit the scope of or challenge the scope of a

contamination determination so that business or living as usual could continue. Also, even if the

scope of a contamination determination legitimately encompasses a business or living space,

there may need to be procedures to challenge a decision by the NMED as to whether remediation

has been completed.

ALTERNATIVES

The DOH to lead as opposed to the NMED in implementing the provisions of the Act.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

A serious environmental health hazard would continue to exist in New Mexico. Owners of sub-

ject properties will not be held accountable for the activities at their properties. Illegal drug labo-

ratories may not be cleaned up in a manner protective of human health and the environment. Ex-

posure to chemicals by adults and children who may reside or utilize property or vehicles con-

taminated by residue from methamphetamine laboratories may continue to occur.

AMENDMENTS

DPS suggests Page 2, Section 3, line 19 to replace “a law enforcement officer” with “an agency”.

NMED suggests Page 4, Section 4, Subsection G, line 9 after “until…” insert “…the department

of environment has determined that…”.

ANA/rs