Does the man in the red shirt know something the others don't? Meth clean-up site in Bristol, Virginia. Photo by Robert Spiegel and uploaded by Albert Herring pursuant to wikicommons generic license to freely distribute. No endorsements implied.
by David Cmelik
The Government would have you believe that every meth trash dump was an EPA superfund site. It has been a big law enforcement money maker. Community oriented policing (COPs) grants included “more than $120 million to the Drug Enforcement Administration (DEA) for clandestine methamphetamine lab clean-up.” Community Oriented Police Services available at (last visited February 19, 2014).
Oh my god. There’s, like, household chemicals and stuff in that poison! Yes, it’s true that many of Uncle Fester’s ingredients are heinous and, when combined, can be (1) volatile; (2) corrosive; and (3) explosive. But they are often diluted and fast-dissipating. Not to mention deadly addictiveand completely against the dentist’s orders when combined in a way that illicit manufacturers intend. Yes, I and everyone else also not addicted to meth understands that. But prosecutors, just like many of us lawyers, are not rocket scientists—and they fall in love with the law enforcement message that meth lab sites are also an environmental scourge that, of course, must command excessive penalties and justify exponential increases in budgets. The Government sometimes uses phrases like “caustic,” “toxic,” and “explosive.” But these proclamations are overstated. Meth dump trash often includes CMP, camping fuel, lithium, and pseudoephedrine. Lithium hydride is a non-combustible, white crystaline solid with no likely mortality as the result of “any level of exposure.” Centers for Disease Control Documentation for Immediately Dangerous To Life or Health Concentrations (IDLHs): Lithium Hydride. Available at http://www.cdc.gov/niosh/idlh/7580678.html (last visited March 5, 2013). There appear to be no CDC IDLH concentration levels for CMP (1′,4′-cyclohexadienyl)-2-methylaminopropane). This is true as well for pseudoephedrine which is, as we all know, a cold medicine. Superfund material? Nein. Don't take my word for it. Even the Iowa Department of Public Health acknowledges that “[a]fter a bust and seizure of a meth lab, there is often only a low exposure risk to chemical residues.” Iowa Department of Public Health Guidelines for Cleaning up Former Methamphetamine Labs, available at http://www.idph.state.ia.us/eh/common/pdf/hseess/meth_lab_cleanup.pdf (last visited February 19, 2014). The United States Environmental Protection Agency has established a lab procedure to characterize whether a particular waste byproduct is “toxic” and has further codified acceptable levels for 40 chemicals at 40 CFR 261.24. See RCRA Hazardous Waste Identification of Methamphetamine Production Process By-products: Report to Congress Under the USA PATRIOT Improvement and Reauthorization Act of 2005 by Stephen L. Johnson, Environmental Protection Agency September 26, 2008 available at: (last visited March 5, 2013). Included on the list are arsenic, mercury, barium, lead, and benzene—all of which are “toxic” only at unacceptable levels as measured by the test. Notably absent from the list, for example, is the muriatic acid the Government sometimes identifies as a “toxic” meth waste product—presumably at any level since the Government typically can point to no toxicity measurements. Muriatic acide can cause burns but the EPA distinguishes toxicity from corrosiveness; corrosiveness is defined as to what extent an acid or an alkaline solution can dissolve flesh, metal, and other materials. Johnson at p. 9. The EPA uses a specific standard to determine whether a hazardous waste solution may be characterized as a corrosive: Specifically, aqueous wastes are considered corrosive if they have a pH greater than or equal to 12.5 or less than or equal to 2. Liquid wastes are considered corrosive if they corrode steel at a rate greater than 6.35 mm per year using a specific test method. Johnson at p. 9.
Ether and acetone can be described vaguely as “flammable” and “explosive” but the Centers for Disease Control notes that “[t]here is no evidence in the available toxicological data that acetone presents an [Immediately Dangerous to Life] hazard below the lower explosive limit (LEL) of 25,000 ppm.” Centers for Disease Control Documentation for Immediately Dangerous To Life or Health Concentrations: Acetone available at (last visited March 5, 2013). Moreover, the EPA defines waste as characteristically ignitable if it is: “. . . liquid waste, other than solutions containing 24% alcohol by volume with a flashpoint of less than 60 degrees C (140 degrees F) using specified tests; (2) non-liquid waste that can spontaneously catch fire or catch fire through friction or absorption of moisture under normal handling conditions and burns so vigorously and persistently that it creates a hazard; (3) certain compressed gases; and (4) substances, such as chlorate, permanganate, inorganic peroxide or nitrate that yield oxygen readily to stimulate the combustion of organic matter (i.e., oxidizers).”
Johnson at 9 (emphasis added)(citing 40 CFR 261.21). While acetone solutions tested in laboratory conditions may be characterized as ignitable, there is no evidence that dilute waste byproducts are corrosive, toxic, or ignitable. This is problematic because: [T]he determination of whether a particular waste meets the definition of “hazardous” under . . . hazardous waste regulations is determined by more than simply its chemical makeup. The waste identification process can be complicated, and it is generally not possible to make a blanket statement as to whether a waste would be defined as hazardous . . . without knowing specific details about its generation.
Johnson at p. 11. The phrases “toxic,” “caustic,” and “explosive” are buzzwords that have found their way into legal vernacular but they have an actual scientific meaning that apparently contradicts the law enforcement party line on this issue. If defense lawyers cede this science to law enforcement and prosecutors who take the bait, courts may assume, without more, that a particular meth trash dump is tantamount to superfund sites. If prosecutors are going to use those phrases to describe the sheer horror, horror I say, of meth dump sites, they should at least determine that their definitions actually comport with EPA and Iowa Department of Public Health definitions and protocols.
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