2012 Regular Session
To: Drug Policy; Judiciary, Division B
By: Senator(s) Watson
AN ACT TO REQUIRE A SELLER OR TRANSFEROR OF REAL PROPERTY TO DISCLOSE IN WRITING IF, TO HIS KNOWLEDGE, METHAMPHETAMINE PRODUCTION HAS OCCURRED ON HABITABLE PROPERTY; TO DECLARE LEGISLATIVE FINDINGS AND PURPOSE OF THE ACT; TO DEFINE CERTAIN TERMS; TO ESTABLISH A DECONTAMINATION STANDARD FOR METHAMPHETAMINE INSIDE HABITABLE PROPERTY UNLESS A DIFFERENT STANDARD IS ADOPTED BY THE DEPARTMENT OF ENVIRONMENTAL QUALITY; TO AUTHORIZE THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO ESTABLISH BY RULE THE MINIMUM STANDARDS FOR TRAINING AND CERTIFICATION OF CONTRACTORS WHO PERFORM REMEDIATION OF THE PROPERTY; TO REQUIRE STATE AND LOCAL LAW ENFORCEMENT AGENCIES TO REPORT TO THE DEPARTMENT OF ENVIRONMENTAL QUALITY WHENEVER HABITABLE PROPERTY HAS BEEN CONTAMINATED BY ITS USE AS A CLANDESTINE METHAMPHETAMINE DRUG LAB; TO REQUIRE THE DEPARTMENT OF ENVIRONMENTAL QUALITY TO MAINTAIN A LIST OF HABITABLE PROPERTIES THAT HAVE BEEN REPORTED AS CONTAMINATED; TO AMEND SECTION 89-1-527, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The Legislature finds that some properties are being contaminated with hazardous chemical residues created by the manufacture of methamphetamine. Innocent members of the public may be harmed when unknowingly exposed to these residues if the properties are not decontaminated prior to any subsequent rental, sale or use of the properties. Remediation of properties has been frustrated by the lack of a decontamination standard. The purpose of this act is to protect the public health, safety and welfare by providing specific cleanup standards and authorizing the department to establish a voluntary program that will provide for a property decontamination process that will meet state standards.
SECTION 2. Unless the context requires otherwise, the following definitions apply:
(a) "Department" means the Department of Environmental Quality of the State of Mississippi.
(b) "Habitable property" means any building or structure used as a clandestine methamphetamine drug lab that is intended to be primarily occupied by people, either as a dwelling or a business, including a storage facility, mobile home or recreational vehicle, that may be sold, leased or rented for any length of time, and does not mean any water system, sewer system, land, or water outside of such a building or structure.
(c) "Surface material" means any porous or nonporous substance common to the interior of a building or structure, including, but not limited to, ceilings and walls, window coverings, floors and floor coverings, counters, furniture, heating and cooling duct work, and any other surfaces to which inhabitants of the building or structure may be exposed.
SECTION 3. (1) The decontamination standard for methamphetamine inside habitable property is less than or equal to 0.1 micrograms of methamphetamine per one hundred (100) square centimeters of surface material unless a different standard is adopted by the department by rule to protect human health. The department may adopt standards by rule for precursors to methamphetamine that are consistent with the standard for methamphetamine.
(2) (a) The department may by rule establish the number and locations of surface material samples to be collected based on the circumstances of the contamination and acceptable testing methods.
(b) In the absence of a rule described in paragraph (a) of this subsection, at least three (3) samples must be collected from the surface material most likely to be contaminated at each property.
SECTION 4. (1) The department is authorized to establish by rule minimum standards for the training and certification of contractors and their employees who are to perform the assessment or remediation of habitable property contaminated by methamphetamine residues.
(2) The department may train and test or may approve courses to train and test contractors and their employees in the proper methods of assessing, remediating and testing habitable property contaminated by methamphetamine residues. If the department conducts the training and testing of contractors and their employees, it may adopt rules to provide for the assessment of reasonable fees to cover the state's costs of providing the training and testing.
(3) The department shall establish by rule procedures for the certification of contractors and their employees, including procedures for the decertification of contractors and their employees for cause. The rules may provide for the assessment of reasonable fees to cover the cost of the contractor certification program.
(4) Any contractor and the contractor's employees certified to perform the remediation of habitable property in any other state are approved for certification in Mississippi unless the department determines that the certification process in the other state is not substantially similar to the minimum certification standards established by the department.
(5) The department shall maintain a list of certified contractors and shall make the list available to local health officials, law enforcement officials and the public.
SECTION 5. (1) Whenever a state or local law enforcement agency becomes aware that habitable property has been contaminated by its use as a clandestine methamphetamine drug lab, the agency shall report the contamination to the department and to the local health officer.
(2) The department shall maintain a list of habitable property that has been reported as contaminated, and the list must be made available to the public through a Web site except as provided in subsection (3) of this section.
(3) Upon confirmation by the department that habitable property has been properly remediated to the standards established in Section 3 of this act or that the habitable property meets the decontamination standards without decontamination, the department shall remove the habitable property from the list required in subsection (2) of this section. The department shall provide written notification to the local health officer and the property owner of record when the documentation shows that the habitable property has been properly assessed or remediated.
(4) The department may adopt rules establishing reasonable requirements for the sufficiency of documentation to be provided by a certified contractor.
SECTION 6. (1) Before signing an agreement to sell or transfer habitable property, the seller or transferor shall disclose in writing to the buyer or transferee if, to the seller's or transferor's knowledge, methamphetamine production has occurred on the property. If methamphetamine production has occurred on the property, the disclosure shall include a statement informing the buyer or transferee the status of removal and remediation on the property.
(2) Unless the buyer or transferee and seller or transferor agree to the contrary in writing before the closing of the sale, a seller or transferor who fails to disclose, to the best of his knowledge, at the time of sale any of the facts required, and who knew or had reason to know of methamphetamine production on the property, is liable to the buyer or transferee for:
(a) Costs relating to remediation of the property according to the Department of Environmental Quality's clandestine drug labs general cleanup guidelines and best practices; and
(b) Reasonable attorney fees for collection of costs from the seller or transferor.
An action under this subsection shall be commenced within six (6) years after the date on which the buyer or transferee closed the purchase or transfer of the real property where the methamphetamine production occurred.
(3) This section preempts all local ordinances relating to the sale or transfer of habitable property designated as a clandestine methamphetamine drug lab site.
SECTION 7. Section 89-1-527, Mississippi Code of 1972, is amended as follows:
89-1-527. (1) The fact or suspicion that real property is or was:
(a) The site of a natural death, suicide, homicide or felony crime, except for illegal drug activity that affects the physical condition of the property, its physical environment or the improvements located thereon, and as provided in Section 6 of this act;
(b) The site of an act or occurrence that had no effect on the physical condition of the property, its physical environment or the improvements located thereon;
(c) Owned or occupied by a person affected or exposed to any disease not known to be transmitted through common occupancy of real estate including, but not limited to, the human immunodeficiency virus (HIV) and the acquired immune deficiency syndrome (AIDS);
does not constitute a material fact that must be disclosed in a real estate transaction. A failure to disclose such nonmaterial facts or suspicions shall not give rise to a criminal, civil or administrative action against the owner of such real property, a licensed real estate broker or any affiliated licensee of the broker.
(2) A failure to disclose in any real estate transaction any information that is provided or maintained, or is required to be provided or maintained, in accordance with Section 45-33-21 through Section 45-33-57, shall not give rise to a cause of action against an owner of real property, a licensed real estate broker or any affiliated licensee of the broker. Likewise, no cause of action shall arise against any licensed real estate broker or affiliated licensee of the broker for revealing information to a seller or buyer of real estate in accordance with Section 45-33-21 through Section 45-33-57. Any factors related to this subsection, if known to a property owner or licensee shall be disclosed if requested by a consumer.
(3) Failure to disclose any of the facts or suspicions of facts described in subsections (1) and (2) shall not be grounds for the termination or rescission of any transaction in which real property has been or will be transferred or leased. This provision does not preclude an action against an owner of real estate who makes intentional or fraudulent misrepresentations in response to a direct inquiry from a purchaser or prospective purchaser regarding facts or suspicions that are not material to the physical condition of the property, including, but not limited to, those factors listed in subsections (1) and (2).
SECTION 8. This act shall take effect and be in force from and after July 1, 2012.