Legal uncertainty relating to methamphetamine contamination and remediation

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March 14, 2019
Annelise Chan
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March 14, 2019
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methamphetamine contamination

This summary considers a complicated issue with no ready answer:  the current discontinuity and uncertainty arising from the application of competing standards in the Tenancy Tribunal and Courts, around methamphetamine contamination in residential dwellings.

In a previous article, available here, I expressed hope that the situation for landlords was set to improve.  However I noted that the law had not changed so the status quo continued; that comment was unfortunately a sign of things to come, as conflict and uncertainty has developed.

I will briefly consider the applicable tests for methamphetamine contamination and safety, and how these are currently being applied.

New Zealand Standard NZS 8510:2017 (“the Standards”):  Testing and decontamination of methamphetamine contaminated properties

The Standards are effective from June 2017 and was established pursuant to the Standards and Accreditation Act 2015.

The purpose of the Act includes protecting the health, safety, and well-being of individuals.

The Standards set 1.5 μg/100 cm2 as the target remediation level.

In part, this is based on the findings of the Institute Of Environmental Science And Research Limited in a report dated 7 October 2016.  This peer reviewed report did not provide a complete review of the toxicology of methamphetamine, but referenced a variety of studies and applied a substantial margin for safety and uncertainty to recommend remediation to 2.0 μg/100 cm2 for uncarpeted, and 1.5 μg/100 cm2 for carpeted, residential homes not used for manufacture.

The Standards do not have the force of law, although accredited organisations in the meth testing and remediation industry are required to follow them as a condition of their accreditation, and prior to the Gluckman Report (discussed below) and in certain instances since, the Standards have been treated as determinative by the Tenancy Tribunal.

Any property showing results greater than 1.5 μg/100 cm2 would be defined as having “methamphetamine contamination” under the Standards.

Any such contaminated property is considered contaminated until a clearance certificate is issued following decontamination according to the Standards, and a post contamination assessment showing levels under 1.5 μg/100 cm2.

Previously, the Tenancy Tribunal has treated any property showing levels over 1.5 μg/100 cm2 as being:

  • Unsafe,
  • A risk to the health of the occupants, and
  • A breach by the landlord of the Residential Tenancies Act.

Methamphetamine contamination in residential properties: Exposures, risk levels, and interpretation of standards (“the Gluckman Report”)

The Gluckman Report was by the Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman, ONZ KNZM FRSNZ FMedSci FRS and is dated 29 May 2018.

It does not have force of law and does not change the Standards, although it does recommend against strict application of the Standards.

The focus is on proportionality and risk management.  The Gluckman Report notes an absence of firm data on the effect of third hand methamphetamine contamination.

It states that:

  • The Standards guideline of 1.5 μg/100 cm2 should not be universally applied;
  • If methamphetamine is not detected over 15 μg/100 cm2 anywhere within a property, there is little cause for concern unless there are other reasons to suspect methamphetamine manufacturing activity;
  • Where remediation is undertaken, the Standards should be used as a guide;
  • Methamphetamine levels that exceed the Standards clean-up level of 1.5 μg/100 cm2 should not be regarded as signalling a health risk.  Exposure to methamphetamine levels (from smoking only) below 15 μg/100 cm2 would be highly unlikely to give rise to any adverse effects.

 

It has been used by the Tenancy Tribunal to justify findings that levels of contamination under 15 μg/100 cm2 do not pose a health risk, and do not require remediation.  Anecdotal advice from a Tenancy Tribunal adjudicator is that in practice the Tribunal is currently treating 15 μg/100 cm2 as the new relevant level for all purposes in the way that 1.5 μg/100 cm2 was previously.

It is arguable that the Gluckman Report is a convenient political device to limit the liability of Housing NZ to remediate houses that are contaminated under 15 μg/100 cm2, even though this has imposed some political/ legal costs in the form of tenants who were evicted or charged for remediation in the past due to levels between 1.5 and 15 μg/100 cm2.

It has been criticised for cherry-picking data, being based on inadequate or selective research, ignoring evidence of harm cause by methamphetamine exposure, and taking a position that is an extreme outlier compared with all other jurisdictions.  This criticism is mainly by individuals or organisations associated with the testing and remediation industry, so is itself vulnerable to a potential allegation of bias.

The current legal position: can the Gluckman Report and the Standards be reconciled?

One option is to treat levels above 15 μg/100 cm2, or any level where methamphetamine manufacturing is suspected, as being a triggering event for the application of the Standards.

Once triggered, remediation would be undertaken using the process set out in the Standards, and the remediation target of 1.5 μg/100 cm2 for a clearance certificate would apply.

A problem is that any house found to be within the range of 1.5 to 15 μg/100 cm2 would be considered contaminated (according to the Standards) but safe (according to the Gluckman Report), which seems counterintuitive.

An unresolved question: consider a house where some of the rooms are contaminated over 15 μg/100 cm2, and some are contaminated between 1.5 and 15 μg/100 cm2.  Given that there has been a Gluckman triggering event, do the Standards deem the entire house to be contaminated, to a level requiring decontamination back to under 1.5 μg/100 cm2, or is decontamination required only for the rooms or sections over the 15 μg/100 cm2 level?

An alternative approach is to say that a property found to be contaminated over 1.5 but less than 15 μg/100 cm2, may be remediated back to 14.99 μg/100 cm2, as this is “Gluckman safe”.  This alternative is not preferred, as it accords no force to the Standards.

A better way which avoids any requirement to take a creative approach to reconciling the apparently competing approaches, is to make a data based determination as to the acceptable degree of contamination which resolves the uncertainty and lack of information identified by Gluckman, and to immediately change the Standards to reflect this and avoid discontinuity. Given the limitations of the Gluckman Report (focusing on absences, and reviewing only a limited range of international data) it may only have future relevance as ‘raising issues’ rather than having any value as evidence for a determination.

Another option for reconciliation is if the Gluckman Report is determined to be the best information currently available despite its limitations.  In that case the government could bite the bullet and move the Standards to reflect its findings.

An additional complication!

Advice provided in a letter dated 12 November 2018 from the Hon. Iain’s Lees Galloway, the Minister for Workplace Relations and Safety, to Simon Fleming, director of Meth Xpert NZ Ltd (an accredited testing company) and chairperson of board of the Methamphetamine Testing Industry Association of New Zealand, is that:

  • WorkSafe apply the Standards when determining what Personal Protective Equipment a decontamination team must use, and that the Standards set the duties of a Person Conducting a Business or Enterprise, and
  • The Gluckman Report has not changed this approach, or the Standards.

Failure to mitigate contamination risks (as defined by the Standards) could result in prosecution of a decontamination company, and means that WorkSafe favours the Standards, not the Gluckman Report’s approach to safety.

It is unclear in light of this whether a property considered contaminated by the Standards but still safe according to Gluckman, would be considered a breach of the landlord’s obligation under the Residential Tenancies Act to:

  • Provide the premises in a reasonable state of cleanliness; and
  • Comply with all requirements in respect of buildings, health, and safety under any enactment.

Conclusion

So then, should the Gluckman Report’s recommendation for a higher level be ignored pending changes to the law or standards?  This is not currently the approach taken by the Tenancy Tribunal, and it remains to be seen whether the political and legal institutions resolve this question.

In the interim any landlord who identifies contamination levels between 1.5 and 15 μg/100 cm2 is in legal limbo in terms of:

  • The tenant’s liability,
  • Their own risk of breaching health and safety obligations, and
  • The extent of remediation that is required to meet the requirements of the law, or can be charged to the tenant.

There is also the question of whether a landlord doing pre-tenancy testing should use testing equipment calibrated to 1.5 or 15 μg/100 cm2.  Any accredited tester is bound by the Standards to use the 1.5 μg/100 cm2 level, but from a landlord’s perspective may put them is a position where their property is considered ‘Standards contaminated’ but ‘Gluckman safe’.

It is unknown which approach insurance companies will wish to take; inquiries are underway.

There are currently cases being heard before the Tenancy Tribunal and District Court that may offer clarity.  If so, a further update will be provided.

In the interim this is not a position any landlord will want to be in.  Until the competing approaches are reconciled; there is no confirmed correct answer to this difficult problem.

For advice and assistance in relation to methamphetamine contamination or other tenancy problems, contact Gaze Burt’s litigation and dispute resolution team here.

 

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