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The components of an exposure control plan are:

 

1    The policy and compliance plan (OSHA 1910.1030) to provide a safe work environment.

2    Supporting documentation (requirements, training)

3    Each employee’s job exposure expectation

4    Universal precautions  for all activities and training

5    Personal Protective Equipment is provided at no cost to employees

6    Housekeeping requirements for storage of regulated medical waste, conventional waste

7    Employee vaccinations

 

Each individual site, hospital, and/or kiosk has its own local rules and regulations and the site exposure control plan serves as a part of this support. OSHA 1910.1200Hazard Communication OSHA 1910.1200 Hazard Communication standard communicates the importance of the right information in the right hands.  For each chemical that is used in the workplace, a MSDS must be on file for easy access.  

 

This Material Safety Data Sheet (MSDS) is provided should there be a fire, and/or if a dangerous fume is present during use.  Mixing precautions by the producer of the substance is provided along with  safety information and any other substance-specific information to support safe use.  All of the MSDSs of the chemicals used by the facility or on a job site must be stored with the site exposure control plan in a right-to-know binder or central location for quick access.  Copies of the MSDS forms should be in a file cabinet for easy inspection or should there be a need for the information on site where the chemicals are stored.  Collating your MSDS information, training records, company specific policies and procedures, and any state mandated license material in a binder for the response vehicle is vital.  It is very important to have easy access to this information when questioned for it.  And, if you know someone is going to ask for it when you arrive on site, print copies for the OSHA rep and/or anyone else who may need it.

 

Federal Regulations and Standards

In the 1970’s, waste disposal legislation was poor or non-existent.  The 1965 Solid Waste Disposal Act encouraged states to develop waste management programs.  The Clean Air Act and Clean Water Act had required installation of pollution control devises on smokestacks and pipes.  These Acts did not directly dictate where the waste was supposed to go nor the processing of the waste prior to disposal.  Landfills at the time were simply holes in the ground that were compacted by bulldozers until full and then covered with topsoil in preparation for commercial development above.Prior to the Resource Conservation and Recovery Act (RCRA), there wasn’t stringent record keeping requirements to identify the origination of the waste.  The Resource Conservation and Recovery Act were enacted in 1976 to address the limitations of the existing legislation.  The RCRA is an amendment to the Solid Waste Disposal Act.  

 

The four basic goals of RCRA are (1) to create definitions to determine the classes of wastes coming under its authority; (2) to create a tracking system for hazardous waste from its creation to its ultimate disposal; (3) to establish handling standards for the waste from its generation to its disposal; and (4) provides authority for mandatory clean-up of polluted treatment, storage, and disposal sites.RCRA was the first environmental law to take a life-cycle approach when it established standards for waste from its generation to its disposal.  When cleaning a crime/trauma scene, the waste associated with a human decomposition, suicide, homicide, or accident falls under RCRA Subtitle C.  

 

Subtitle C is the hazardous waste management program that was created to ensure safe hazardous waste handling from the moment it is generated to the moment it is finally disposed.Clandestine methamphetamine labs can be broken down into two legs of remediation, Bulk Decontamination and Residual Decontamination.  Both of these types of contamination are covered by each of the regulatory arms of RCRA and CERCLA, the Comprehensive Emergency, Response, Compensation and Liability Act (1980).  RCRA takes a command-and-control approach by dictating the protocol for waste handling from its generation to disposal, while CERCLA focuses on liability related to prior waste disposal and the remediation of contaminated sites.  

 

“Almost every methamphetamine lab will produce either a listed or characteristic hazardous waste under RCRA”

 

North Carolina Journal of Law & Technology

 

CERCLA is not simply used to punish unauthorized disposal.  CERCLA is also intended to ensure remediation of sites after the toxins have been released.  CERCLA, also known as “Superfund”, has a joint and strict liability structure and its reach is broad.  CERCLA liability spans several categories of “potentially responsible parties”, including current property owners or operators and past property owners or operators.  These definitions enable the EPA to assign liability to every party who comes into contact as a contributor with a contaminated property (19).  During the 1960’s and 1970’s residents of this later declared Superfund site began suffering a number of medical problems such as chronic headaches and skin rashes to geographical clusters of cancers, birth defects, and miscarriages.  The soil in this area was tested in 1978 and showed high levels of chemical contaminants in the soil and air.  

 

Additional research into the area revealed that a large portion of Love Canal had been built upon a landfill.  This landfill contained over 21,000 tons of chemical wastes.  The landfill that contained this waste was lined with clay and the contamination plume penetrated this clay and infiltrated local groundwater sources, significant soil deposits, and even local housing basements.  Beginning in September 2006, the Environmental Protection Agency (EPA) modernized the hazardous waste tracking system by standardizing the Uniform Hazardous Waste Manifest form.  This action improved the waste handling process, helped standardize interstate commerce, and reduce the paperwork required with hazardous waste disposal.  The new process will save waste handlers and regulators time and money, while guaranteeing the continued, safe management of hazardous waste.  

 

The new hazardous waste management forms are (1) to standardize content and appearance; (2) enhance reporting of international waste shipments (imports and exports); (3) to make the form more available by increasing the distribution to a wide range of sources; and (4) to clarify processing procedures for rejected waste shipments and shipment container residues.  One drawback of the current system is the variability in state manifest requirements.  The new system has reduced the time and money wasted by businesses involved in multiple state compliance requirements for transporting and disposing of their hazardous waste.The hazardous waste manifest system dictated by RCRA requires each state to spend from $6 to $37 million to administer the hazardous waste manifest system annually.  

 

According to the EPA’s estimates, the annual national savings for government administration and industry compliance from this change was between $12 and $20 million.The Occupational Safety and Health Standards (OSHA) standard 29 CFR 1910.1030 applies to all occupational exposure to blood or other potentially infectious materials.  This Subpart Title: Toxic and Hazardous Substances, Title: Bloodborne Pathogens discusses: 

(1) occupational exposure to blood or other potential infectious materials; 

(2) the establishment of an exposure control plan; 

(3) methods of compliance through engineering and work practice controls; 

(4) personal protective equipment requirements; 

(5) the handling and disposal requirements of bloodborne pathogen contaminated waste; 

(6) training requirements; 

(7) vaccination availability; and 

(8) record keeping. 

 

State Regulation

Regulations prior to 1976 adopted by the Texas state administrative agencies were not published in a standardized collection.  These regulations were issued an identification number consisting of 10 digits, but researching was limited due to the multiple agencies charged with implementing and enforcing the laws.  

 

The Texas Legislature directed the Secretary of State to compile these regulations in 1977.  This compilation was named the Texas Administrative Code (TAC).  

 

The Texas Register publishes “proposed, adopted, withdrawn and emergency rule actions, notices of state agency review of agency rules, governor’s appointments, and attorney general opinions.”  The Texas Register reports the adoption of an agency final rule to the Circulation Desk and this final rule is inserted into the Texas Administrative Code.  

 

Under the TAC, 16 titles cover a broad subject group in categories related to the oversight agencies that administer and enforce the codes.  Title 25 Health Services Subchapter K. covers the definition, treatment, and disposition of special waste from Health Care-Related facilities.  Under the federal Resource Conservation and Recovery Act, they cite listed and characteristic waste to account for hazardous material.  In comparison, the TAC Title 25 has almost 50 definitions related to special waste.  

 

For instance, definition (6) Body Fluids are broken down into ten subcategories that range from semen to pericardial fluid.  Blood, blood products, anatomical remains, and pathological waste are all cited in different definitions. TAC Title 30 Environmental Quality also covers hazardous waste under the definitions of animal waste from animals intentionally exposed to pathogens, bulk human blood and blood products, pathological waste, microbiological waste, and sharps.  What you find at the state level, under TAC Title 30, is exemptions for household waste and waste from a place of lodging.  Title 42 Chapter 82 Subchapter III Section 6922 of RCRA does not cite these exemptions.  

 

So what might be exempt at the state level could be enforced and prosecuted on the federal level.

 

What this shows is that at the federal level, the legislation is purposely written vague to cover a wide range of waste and conditions.  Under the U.S. Constitution, states cannot regulate interstate commerce.  So, the adoption of standards at the state level must meet the hurdle set by the federal legislation.  Each state, such as Texas, can come in and clarify what they consider hazardous waste and dictate the treatment and disposal method as long as it doesn’t contradict the federal legislation. 

 

California, in relation to Texas, has gone even further to document the required permits and processes, enforcement guidelines, and has created more detailed definitions related to the components of the industry.  California legislators have created requirements that range from the impact resistance test requirements for Biohazard Bags to Enforcement Officer requirements that go all the way down to “health specialist trainees”.  Trauma Scene, Trauma Scene Waste, and Trauma Scene Waste Management Practitioners are all clearly defined in the Medical Waste Management Act.  

 

This detailed legislation may seem tedious but there are benefits to more clearly defined legislation.  When the legislation is written in direct relation to your individual task, such as Trauma Scene Waste Management Practitioners in California, the target market is more knowledgeable about your service.  

 

The interstate commerce of waste disposal cannot be limited by the states in response to the public outrage expressed in “Not in my backyard” (NIMBY) or the philosophy of something near “yes, sounds great but don’t put it near me.”  

 

One of the best examples is the residual nuclear waste from power plants that must be stored on site before they approve a plan to transport, across many state lines, this waste to Nevada’s Yucca Mountain storage facility.  

 

No one wants hazardous waste moving down their street or stored on property anywhere close to where they live, but these are byproducts of necessary processes or accidents that must be disposed of properly.  The framers of the U.S. Constitution constructed these guidelines before the knowledge of hazardous waste, such as bloodborne pathogens and nuclear fuel rods, was ever developed. 

 

In general, administrative agencies have the power to assess administrative penalties and to issue orders requiring actions necessary under law.  Persons affected by such action have the right to an adjudicatory hearing before an administrative law judge.  

 

Texas law provides that administrative law judge hears evidence and issues findings of fact and conclusions of law based on the evidence.  This administrative law judge then issues a recommendation for decision to the agency.  

 

A final agency decision rests with agency, such as the commissioners of the TCEQ.  Examples of government action options are below.

 

Procedures before administrative law judges.

a. Non-jury trial.

b. Administrative law judges can order discovery.

c. Parties submit proposed findings of fact and conclusions of law.

 

Procedure before agency.

a. Parties generally are given a brief opportunity to summarize their arguments to the commissioners. 

b. No evidence taken; decision based on administrative law judge's report, although agency need not accept recommendation.

 

Appeals of administrative enforcement action.

a. To County District Court.

b. Court's review is similar to an appellate court's review of a trial decision;

c. Generally, no evidence at district court.

d. District court reviews errors of law and whether substantial evidence supports agency decision.

 

Administrative penalties are generally less than civil penalties.  Statutes give the attorney general the right to sue for civil penalties and injunctive relief.  Both parties have the right to demand a jury trial regarding the number of 

violations and the amount of civil penalty.    

 

Status of the 

State Public Health Law

 

“The mission of public health is fulfilling society’s interest in assuring the conditions in which people can be healthy.”  

National Academy of Sciences, 1988

 

One of the most important goals of government is the preservation of the public health.  Public health law encompasses the prevention of injury and chronic illness, improvement of the environment, protection of the food and water supply, better housing, sanitation, hygiene, and the control of infectious disease.  Even though the role of the federal government has increased in matters of public health, the states remain the primary public health authority.  The inherent power of the state as a sovereign government preserves this authority. 

 

Under these state governments, health authorities at the local level, municipal and county, often have delegated authority to monitor, implement, and enforce these objectives.  Public health officials at the local level are often the first to identify and respond to health threats through county or ordinances and regulations.  

 

At the very least, public health law should ensure that public health agencies are fully capable of responding to current and coming health threats.  

Due to the limits to the legislative approach, many problems are addressed through improved leadership and training, improved infrastructure for surveillance, and innovative prevention strategies.

 

The law is only one factor that guides public officials, first responders, and the companies contracted to treat and dispose of health threats.  Public health law statutes are not standardized from state to state and it is difficult to deduct generalizations for a group statute for comparison and compliance.  

 

These statutes evolved independently, leading to significant variations in the structure and substance.  The process for detecting, controlling, and preventing communicable diseases varies between states .

 

The majority of communicable disease law in the United States has been passed in reaction to specific disease threats.  Communicable disease statutes focused on smallpox, yellow fever, and the plague in the 1700’s.  In the 1800’s, the communicable disease statutes focused primarily on combating cholera and tuberculosis.  

 

Epidemics of poliomyelitis, influenza, and venereal disease in the early to middle 1900’s forced the legislatures to react with disease-specific laws.  In the later 1900’s, legislatures passed HIV/AIDS-specific law that added another layer to the piecemeal public health law.  The scientific understanding of diseases was very different from today 100 years ago.  

 

The concept of communicable disease was established, but the technology to identify the most common infectious agents is relatively new.  Public health laws that have been passed down from generation to generation may lack the adoption of more technically advanced tools used for diagnosis, treatment, and epidemiological review of the spread of disease.  

 

Older statutes may fail to distinguish between methods of disease transmission such as casual contact, prolonged contact, or contact with blood or other bodily fluids.  For example, a South Dakota statute passed in the late nineteenth century last amended in 1977 made it a misdemeanor for a person infected with a communicable disease to “intentionally expose himself in any public place or thoroughfare.”  

 

We now know, through our updated understanding of disease transmission, that this statute is inappropriate for diseases that are transmitted through blood or other bodily fluids.  Modern developments in constitutional law may not reconcile with existing public health law.  

 

Evolving standards in disability discrimination were not even contemplated when some of these statutes were enacted.  For instance, federal disability law prohibits discrimination against individuals with infectious diseases.  

 

This conflict between the individual and the protection of the public health may require officials to adopt statutes based on “significant risk” when addressing persons with infectious diseases in employment, public services, and public accommodations.  Each individual state possesses the police power to produce laws that protect the health, safety, and welfare of its citizens.   

 

 

This power can be enforced provided that the states do not act in an unreasonable manner, but there isn’t a national standard that dictates the scope of the states police power in protecting the public health.  

 

Some states due address, through detailed statutes, an individual’s right to travel, privacy, and the right to associate freely when applying these restrictions due to the risk to public health.  Still, other states leave this type of power within the discretion of the public health officials. 

 

Ebola infection hit the continental United States in Fall of 2014.  Before his trip to the U.S., Thomas Eric Duncan’s temperature was screened 3 times and had a consistent reading of 97.3 degrees Fahrenheit (CNN.com).  Mr. Duncan then boarded a flight in Liberia to Brussels.  His trip continued from Brussels to Washington and arriving to his destination visiting family in Dallas, TX.  

 

Questionnaires are given to those taking flights out of Liberia to combat infection by segregating those with a higher risk of infection.  Those with a higher risk of infection would include those who cared for Ebola patients or handled the bodies of those who passed away from the disease.  

 

The obvious risk is that the one being questioned is honest in their answers and lack of honesty puts scores at risk.

 

 The Liberian President Ellen Johnson 

Sirleaf condemned Mr. Duncan’s actions directly when it was uncovered that 

Mr. Duncan cared for Ebola patients and failed to be honest in his questionnaire.

 

“The fact that he knew (he was exposed to the virus) and he left the country is unpardonable, quite frankly.” 

Liberian President Ellen Johnson Sirleaf (Canadian news service CBC)

 

California authorized its department of health to “quarantine, isolate, inspect and disinfect persons, animals, houses, rooms, other property, places, cities or 

localities, whenever in its judgment such action is necessary to protect or preserve the public health.”  Texas quarantined dozens in relation to Mr. Duncan and those he came in contact with.   

 

The hospital where Mr. Duncan received treatment, Texas Health Presbyterian Hospital, felt like a “ghost town” according to a local health care vendor.  Before the Ebola infection, average wait times were 52 minutes but for a short time after Mr. Duncan was treated there was no wait time. (abcnews.com).  

 

Traffic to this state-of-the-art hospital had virtually stopped.  This fear spread beyond the hospital building to 

adjoining buildings on the campus in the form of 40% to 60% appointment 

cancellations in doctor’s private offices.  Confidence was quickly restored and fear subsided once healthcare workers stopped testing positive for Ebola. 

 

Of course, in writing public health legislation, legislators must afford health authorities discretion because:

•    Legislators are not necessarily medical or scientific experts and will not be able to project every possible scenario that the statute will apply to.

•    Statutes must be flexible to be effective over time.

 

This flexibility does not omit the use of scientific discretion, but statutes must hold health officials accountable by requiring them to justify their decisions based on science and the need to protect public health.  

 

In the legislative development process, the subject matter experts with direct knowledge of field activities must be consulted in order to produce useful statutes with the flexibility to be useful over time.  In addition to statutes, official guidelines offer a quick outline to organize a review of infection control policies across the spectrum of healthcare in facilities, providers, and outbreak response.  

 

The Centers for Disease Control and Prevention (CDC) has produced guidelines that for Ebola and pandemic preparedness that cover a vast ecosystem of controls to review in topics such as laboratory safety, evaluating patients, and disinfecting healthcare environments.

 

Current Topics: Pandemic Influenza

 

In the last century, three influenza pandemics have swept the globe.  In 1918, the first pandemic (the “Spanish Flu”) killed over 500,000 Americans and more than 20 million people worldwide.  One-third of the U.S. population was infected and the average life 

expectancy was reduced by 13 years.  

 

Pandemics in 1957 and 1968 killed tens of thousands of Americans and millions across the world.  There is evidence that viruses from birds played a role in each of those outbreaks.

 

During late 2003 and early 2004, outbreaks of highly pathogenic avian influenza A (H5N1) occurred among poultry in 8 countries in Asia: Cambodia, China, Indonesia, Japan, Laos, South Korea, Thailand, and Vietnam. At that time, more than 100 million birds either died from the disease or were destroyed in an attempt to prevent further spread of the disease. 

 

Today’s threat is from a new influenza strain, influenza A (H5N1).  H5N1 is spreading through bird populations across Asia, Africa, and Europe, infecting domesticated birds, including ducks and chickens, and long-range migratory birds.  The first recorded appearance of H5N1 in humans occurred in Hong Kong in 1997.  Since then, the virus has infected hundreds in the Eastern Hemisphere, with a mortality rate of over 50 percent (WHO).

 

By late February 2004, countries in Asia were reporting that the avian influenza outbreak among poultry had been contained (WHO).  Beginning in late June 2004, new outbreaks of lethal avian influenza A (H5N1) infection among poultry were reported by several countries in Asia: Cambodia, China, Indonesia, Malaysia, Thailand, and Vietnam. 

 

Since May 2005, outbreaks of H5N1 disease have been reported among poultry in China, Kazakhstan, Romania, Russia, Turkey, and Ukraine. China, Croatia, Mongolia, and Romania also have reported outbreaks of H5N1 in wild, migratory birds since May 2005.

 

Current Topics: Pandemic Influenza 

continued

 

The avian influenza A (H5N1) epizootic (animal outbreak) in Asia and parts of Europe is not expected to diminish significantly in the short term. It is likely that H5N1 infection among birds has become endemic in certain areas and that human infections resulting from direct contact with infected poultry will continue to occur. So far, the spread of H5N1 virus from person-to-person has been rare and has not continued beyond one person. 

 

There is little pre-existing natural immunity to H5N1 infection in the human population. If these H5N1 viruses gain the ability for efficient and sustained transmission among humans, an influenza pandemic could result, with potentially high rates of illness and death.

 

National Strategy

On November 1, 2005, President George W. Bush announced the National Strategy for Pandemic Influenza, a comprehensive approach to addressing the threat of pandemic influenza.  

 

The strategy outlined how we are preparing for, and how we will detect and respond to a potential 

pandemic.  Following this announcement, our Nation took a series of historic steps to address the pandemic threat.  In December 2005, Congress appropriated $3.8 billion for this strategy.  

 

The International Partnership for Avian and Pandemic Influenza, which launched at the United Nations in September 2005, has encouraged openness and coordinated action by the international community.  In the United States, we have made major investments in vaccine and antiviral development, research into the influenza virus, surveillance for disease in animals and humans, and the local, State, and Federal infrastructure necessary to respond to a pandemic.

 

The National Strategy for Pandemic Influenza announced by President George W. Bush consisted of a three-pronged approach to responding to potential pandemic threats: 

(1) preparedness and communication; 

(2) surveillance and detection; and 

(3) response and containment.  

 

President Obama refined this strategy in the Fall of 2014 with the $6.2 billion request to fight Ebola.  In a compromise bill, $5.4 billion in funding won approval.  The difference in what was requested and approved was the amount the U.S. was funding to train healthcare workers and burial participants in 

West Africa (Physician’s Money Digest).   This funding led to the strengthening of our healthcare infrastructure in the form of training and logistics to contain and

eventually end the Ebola infection in West Africa.   

 

The goals of the Federal Government’s response to a pandemic are to: 

(1) stop, slow, or otherwise limit the spread of a pandemic to the United States; 

(2) limit the domestic spread of a pandemic, and mitigate disease, suffering and death;

(3) sustain infrastructure and mitigate impact to the economy and the functioning of society.

 

The central pillar of the pandemic response will be in communities.  The distributed nature of a pandemic, as well as the sheer burden of disease across the Nation over a period of months or longer merits a unique response.  The Federal Government’s support in a pandemic to any particular State, Tribal Nation, or community will be limited in comparison to the aid it mobilizes for disasters such as earthquakes or hurricanes, which strike a more confined geographic area over a shorter period of time.

 

Local communities will have to address the medical and non-medical effects of the pandemic with available resources.  It is essential for communities, tribes, States, and regions to have plans in place to support the full spectrum of their needs over the course of weeks or months, and for the Federal Government to provide clear guidance on the manner in which these needs can be met.  

 

In addition to this local response protocol, to be most effective, these measures require international preparation and coordination.  The Federal Government will work with the World Health Organization (WHO) and through diplomatic contacts to strengthen these international mechanisms.    

 

Reform

The goal of contemporary health statute development continues to be a balance consisting of a clear hazardous environment that it covers, the clarity of the powers to control this environment, and perform this service to public health while preserving the rights of the individual.  

 

The Federal Government will work with the World Health Organization (WHO) and through diplomatic contacts to strengthen these international mechanisms.  Our country’s response will configure our own Departments and Agencies to deploy personnel and material in support of an international response upon the first reports of suspected outbreaks (National Strategy for Pandemic Influenza, Executive Summary).

 

During this transformation into a more prepared stance to fight a potential pandemic, there will most likely be a renewed interest in clearly defining the role of the local agency by modernizing public health law.  With more clearly defined actions and enforcement procedures dictated under contemporary statutes, the first responders will be armed with better knowledge of how to react to a danger to public health and the proper remediation of the environment that holds the danger.  

 

First responders (such as police, EMS, and coroners) now have better-defined reactions to environments they respond to that are contaminated with bloodborne pathogens, viral, and bacteria hazards.

 

source notes

1) Salzman, James. Thompson, Barton H. Jr.

Environmental Law and Policy, Foundation Press, Copyright 2003

2) Brigham, Eugene F., Ehrhardt, Michael C.

Financial Management Theory and Practice 10th Edition.  

Publisher Mike Roche, Copyright 2002

3) Smith, James E.

Fundamentals of Environmental Enforcement

Beirne, Maynard & Parsons, Attorney At Law

4) Tomko, Edwin J., Wahl, Peter K.

Criminal Liability Concerns to the Environmental Professional-

I Should Have Known Better

Akin, Gump, Strauss, Hauer & Feld, L.L.P.

5) Gostin, Lawrence O., Burris, Scott., Lazzarini, Zita.,  Maguire, Kathleen Improving State Law to Prevent and Treat Infectious Disease, www.milbank.org, January 1998

6) The Department of Rural Sociology 

Texas A&M University System

Steve H. Murdock, Steve White, MD. Nazrul Hoque, 

Beverly Pecotte, Xiuhong You, Jennifer Balkan

The Texas Challenge in the Twenty-First Century: 

Implications of Population Change for the Future of Texas

December 2002

7) California Department of Toxic Substances Control

8) Centers for Disease Control and Prevention, www.cdc.gov

9) Texas Commission on Environmental Quality, www.tceq.com

10) Texas Department of State Health Services, 

Statistical Information, www.tdh.state.tx.us

11) U.S. Environmental Protection Agency, www.epa.gov

12) U.S. Department of Labor, Occupational Safety and 

Health Administration (OSHA), www.osha.gov

13) Mississippi Department of Environmental Quality

14) World Health Organization, http://www.who.int/en/

15) Department of Health - Public Health Stats - Florida 

http://www.doh.state.fl.us/planning_eval/intro.html

16) State of North Carolina Illegal Methamphetamine Laboratory 

Decontamination and Re-occupancy Guidelines APRIL 2005 VERSION 1.1 

17) www.Drug-Rehabs.org

18) cnn.com

19) abcnews.com

20) The North Carolina Journal of Law & Technology – Methamphetamine Residue