HB 238: "An Act relating to the oil and hazardous substance release response fund, repealing the oil and hazardous substance municipal impact assistance program and the authority in law by which marine highway vessels may be designed and constructed to aid in oil and hazardous substance spill cleanup in state marine water using money in the oil and hazardous substance release response fund, amending requirements relating to the revision of state and regional master prevention and contingency plans, altering requirements applicable to liens for recovery of state expenditures related to oil or hazardous substances, relating to a restoration standard in certain state environmental laws, modifying definitions of related terms, amending the manner of computing the amounts required for the suspension and reimposition of the oil conservation surcharge, relating to fees to be charged and collected by the Department of Environmental Conservation, and annulling a regulation related to costs for certain site restorations."
00HOUSE BILL NO. 238 01 "An Act relating to the oil and hazardous substance release response fund, 02 repealing the oil and hazardous substance municipal impact assistance program 03 and the authority in law by which marine highway vessels may be designed and 04 constructed to aid in oil and hazardous substance spill cleanup in state marine 05 water using money in the oil and hazardous substance release response fund, 06 amending requirements relating to the revision of state and regional master 07 prevention and contingency plans, altering requirements applicable to liens for 08 recovery of state expenditures related to oil or hazardous substances, relating to 09 a restoration standard in certain state environmental laws, modifying definitions 10 of related terms, amending the manner of computing the amounts required for 11 the suspension and reimposition of the oil conservation surcharge, relating to fees 12 to be charged and collected by the Department of Environmental Conservation, 13 and annulling a regulation related to costs for certain site restorations." 14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
01 * Section 1. AS 43.55.230(a) is amended to read: 02 (a) Not later than 30 days after the end of each calendar quarter, the 03 commissioner of administration shall determine the cumulative total of money 04 (1) that is the sum of 05 (A) the amounts that have [HAS] been deposited through that 06 calendar quarter into the general fund under AS 43.55.210; and 07 (B) the amounts expended from the oil and hazardous 08 substance release response fund established in AS 46.08.010 that, through 09 that calendar quarter, have been recovered or otherwise received under 10 AS 46.08.020(a)(2) and deposited in the general fund to the credit of the 11 oil and hazardous substance release mitigation account; 12 (2) expended through that calendar quarter from the oil and hazardous 13 substance release response fund established in AS 46.08.010. 14 * Sec. 2. AS 44.46.025 is amended by adding a new subsection to read: 15 (c) The Department of Environmental Conservation shall adopt regulations that 16 prescribe reasonable fees, and establish procedures for the collection of the fees, to 17 cover direct costs of 18 (1) oil discharge financial responsibility approvals under AS 46.04.040; 19 (2) oil discharge contingency plan review and approval under 20 AS 46.04.030. 21 * Sec. 3. AS 46.03.760(e) is amended to read: 22 (e) In addition to liability under (a) - (d) of this section, a person who violates 23 or causes or permits to be violated a provision of AS 46.03.740 - 46.03.750 is liable 24 to the state, in a civil action brought under AS 46.03.822, for the full amount of actual 25 damages caused to the state by the violation, including 26 (1) direct and indirect costs associated with the abatement, containment, 27 or removal of the pollutant; 28 (2) restoration of the environment to a condition as near to the 29 original condition as feasible [ITS FORMER STATE]; 30 (3) amounts paid [AS GRANTS UNDER AS 29.60.510 - 29.60.599 31 AND] as emergency first response advances and reimbursements under
01 AS 46.08.070(c); and 02 (4) all incidental administrative costs. 03 * Sec. 4. AS 46.04.200(a) is amended to read: 04 (a) The department shall 05 (1) prepare [AND ANNUALLY REVIEW AND REVISE] a statewide 06 master oil and hazardous substance discharge prevention and contingency plan; 07 (2) annually review the statewide master oil and hazardous 08 substance discharge prevention and contingency plan; and 09 (3) revise the statewide master oil and hazardous substance 10 discharge prevention and contingency plan; the commissioner shall revise the 11 statewide master plan whenever, in the judgment of the commissioner, revision 12 is necessary, but a revision under this paragraph may not occur more often than 13 once during each fiscal year. 14 * Sec. 5. AS 46.04.200(c) is amended to read: 15 (c) In preparing and annually reviewing the state master plan, the 16 commissioner shall 17 (1) consult with municipal and community officials, and with 18 representatives of affected regional organizations; and 19 (2) [SUBMIT THE DRAFT PLAN TO THE PUBLIC FOR REVIEW 20 AND COMMENT; 21 (3) SUBMIT TO THE LEGISLATURE FOR REVIEW, NOT LATER 22 THAN THE 10TH DAY FOLLOWING THE CONVENING OF EACH REGULAR 23 SESSION, THE PLAN AND ANY ANNUAL REVISION OF THE PLAN; 24 (4)] require or schedule unannounced oil spill drills to test the 25 sufficiency of an oil discharge prevention and contingency plan approved under 26 AS 46.04.030 or of the cleanup plans of a party identified under (b)(2) of this section 27 [; AND 28 (5) SUBMIT THE PLAN AND ANY ANNUAL REVISION TO THE 29 ALASKA STATE EMERGENCY RESPONSE COMMISSION FOR ITS REVIEW 30 AND APPROVAL UNDER AS 46.13.045]. 31 * Sec. 6. AS 46.04.200 is amended by adding a new subsection to read:
01 (d) In preparing a revision of the statewide master plan, the commissioner shall 02 submit 03 (1) the draft plan to the 04 (A) public for review and comment; and 05 (B) Alaska State Emergency Response Commission for its 06 review and approval under AS 46.13.045; and 07 (2) the proposed revision of the plan to the legislature for review not 08 later than the 10th day following the convening of each regular session. 09 * Sec. 7. AS 46.04.210(a) is amended to read: 10 (a) For any region of the state, the boundaries of which are determined by the 11 commissioner by regulation, in which the department is required to review and approve 12 an oil discharge prevention and contingency plan submitted by a person under 13 AS 46.04.030, the department shall 14 (1) prepare [AND ANNUALLY REVIEW AND REVISE] a regional 15 master oil and hazardous substance discharge prevention and contingency plan; 16 (2) annually review the regional master oil and hazardous substance 17 discharge prevention and contingency plan; and 18 (3) revise the regional master oil and hazardous substance 19 discharge prevention and contingency plan; the commissioner shall revise a 20 regional master plan whenever, in the judgment of the commissioner, revision is 21 necessary, but a revision under this paragraph may not occur more often than 22 once during each fiscal year. 23 * Sec. 8. AS 46.04.210(b) is amended to read: 24 (b) The provisions of AS 46.04.200(b) - (d) [AS 46.04.200(b) AND (c)] apply 25 to preparation and review of a regional master plan under this section. 26 * Sec. 9. AS 46.04.900(5) is amended to read: 27 (5) "containment and cleanup" includes all direct and indirect efforts 28 associated with the prevention, abatement, containment, or removal of a pollutant [, 29 AND THE RESTORATION OF THE ENVIRONMENT TO ITS FORMER STATE]; 30 when applied to expenses, the term includes the additional costs of providing a 31 reasonable and appropriate function or service incurred in response to the discharge of
01 a pollutant, including administrative expenses for the incremental costs of providing 02 the function or service; 03 * Sec. 10. AS 46.08.005 is amended to read: 04 Sec. 46.08.005. PURPOSE. The legislature finds and declares that the release 05 of oil or hazardous substances into the environment presents a real and substantial 06 threat to the public health and welfare and [,] to the environment [, AND TO THE 07 ECONOMY] of the state. The legislature therefore concludes that it is in the best 08 interest of the state and its citizens to provide a readily available fund for the payment 09 of the expenses incurred by the Department of Environmental Conservation as an 10 emergency first response to a release or threatened [AND THE DEPARTMENT OF 11 TRANSPORTATION AND PUBLIC FACILITIES IN THE PROTECTION OF THE 12 ENVIRONMENT OF THE STATE FROM THE] release of oil or hazardous 13 substances. 14 * Sec. 11. AS 46.08.010(c) is amended to read: 15 (c) The fund shall be used for actual expenses incurred under AS 46.08.040. 16 The [EXCEPT AS PROVIDED IN AS 46.08.040(d)(2), THE] fund may not be used 17 for capital improvements. 18 * Sec. 12. AS 46.08.040(a) is amended to read: 19 (a) The [IN ADDITION TO MONEY IN THE FUND THAT IS 20 TRANSFERRED TO THE COMMISSIONER OF COMMUNITY AND REGIONAL 21 AFFAIRS TO MAKE GRANTS UNDER AS 29.60.510 AND TO PAY FOR IMPACT 22 ASSESSMENTS UNDER AS 29.60.560, THE] commissioner of environmental 23 conservation may use money from the fund to 24 (1) investigate and evaluate the release or threatened release of oil or 25 a hazardous substance, and contain, clean up, and take other necessary action, such as 26 monitoring and assessing, to address a release or threatened release of oil or a 27 hazardous substance that poses an imminent and substantial threat to the public health 28 or welfare, or to the environment; and 29 (2) [PAY ALL COSTS INCURRED TO 30 (A) ESTABLISH AND MAINTAIN THE OIL AND 31 HAZARDOUS SUBSTANCE RESPONSE OFFICE;
01 (B) REVIEW OIL DISCHARGE PREVENTION AND 02 CONTINGENCY PLANS SUBMITTED UNDER AS 46.04.030; 03 (C) CONDUCT TRAINING, RESPONSE EXERCISES, 04 INSPECTIONS, AND TESTS, IN ORDER TO VERIFY EQUIPMENT 05 INVENTORIES AND ABILITY TO PREVENT AND RESPOND TO OIL 06 AND HAZARDOUS SUBSTANCE RELEASE EMERGENCIES, AND TO 07 UNDERTAKE OTHER ACTIVITIES INTENDED TO VERIFY OR 08 ESTABLISH THE PREPAREDNESS OF THE STATE, A MUNICIPALITY, 09 OR A PARTY REQUIRED BY AS 46.04.030 TO HAVE AN APPROVED 10 CONTINGENCY PLAN TO ACT IN ACCORDANCE WITH THAT PLAN; 11 AND 12 (D) VERIFY OR ESTABLISH PROOF OF FINANCIAL 13 RESPONSIBILITY REQUIRED BY AS 46.04.040; 14 (3) PAY THE EXPENSES INCURRED BY THE ALASKA DIVISION 15 OF EMERGENCY SERVICES FOR THE OIL AND HAZARDOUS SUBSTANCE 16 RESPONSE CORPS AND THE OIL AND HAZARDOUS SUBSTANCE RESPONSE 17 DEPOTS WHEN PRESENTED WITH APPROPRIATE DOCUMENTATION BY 18 THE DIVISION; 19 (4)] provide matching funds for participation 20 (A) in federal oil discharge cleanup activities; and 21 (B) under 42 U.S.C. 9601 - 9657 (Comprehensive 22 Environmental Response, Compensation, and Liability Act of 1980) [; 23 (5) RECOVER THE COSTS TO THE STATE, A MUNICIPALITY, 24 OR A VILLAGE OF A CONTAINMENT AND CLEANUP RESULTING FROM 25 THE RELEASE OR THE THREATENED RELEASE OF OIL OR A HAZARDOUS 26 SUBSTANCE; 27 (6) PREPARE, REVIEW, AND REVISE 28 (A) THE STATE'S MASTER OIL AND HAZARDOUS 29 SUBSTANCE DISCHARGE PREVENTION AND CONTINGENCY PLAN 30 REQUIRED BY AS 46.04.200; AND 31 (B) A REGIONAL MASTER OIL AND HAZARDOUS
01 SUBSTANCE DISCHARGE PREVENTION AND CONTINGENCY PLAN 02 REQUIRED BY AS 46.04.210; AND 03 (7) RESTORE THE ENVIRONMENT BY ADDRESSING THE 04 EFFECTS OF AN OIL OR HAZARDOUS SUBSTANCE RELEASE]. 05 * Sec. 13. AS 46.08.040(c) is amended to read: 06 (c) Notwithstanding other provisions of this section, money from the fund may 07 not be used for a purpose specified in (a)(2) [(a)(2) - (7) AND (d)(2)] of this section 08 unless money is available from an appropriation made specifically for that purpose. 09 * Sec. 14. AS 46.08.075(a) is amended to read: 10 (a) The state has a lien for expenditures by the state from the oil and 11 hazardous substance release response fund, or from any other state fund, for the costs 12 of response, containment, removal, or remedial action resulting from an oil or 13 hazardous substance release or spill, or, with respect to response costs, for the costs 14 of response to a threatened [THE SUBSTANTIAL THREAT OF A] release of oil 15 or a hazardous substance, against all property owned by a person who is determined 16 by the commissioner to be liable for the expenditures under this chapter, AS 46.03, 17 AS 46.04, 42 U.S.C. 9607, or other state or federal law. The lien includes interest, at 18 the maximum rate allowable under AS 45.45.010(a), from the date of the expenditures. 19 The state may file an action in a court of competent jurisdiction in order to foreclose 20 on the lien. 21 * Sec. 15. AS 46.08.075(e) is amended to read: 22 (e) A person with an ownership interest in property against which a lien is 23 recorded may bring an action in a court of competent jurisdiction to require that the 24 lien be released. The lien may be released to the extent of that person's ownership 25 interest if the court finds that the person is not liable for the expenses incurred by the 26 state in connection with the costs of response, containment, removal, or remedial 27 action resulting from the [OIL OR HAZARDOUS SUBSTANCE] release or spill, or 28 from the threatened [THREAT OF] release, of oil or a hazardous substance. 29 * Sec. 16. AS 46.08.150 is amended to read: 30 Sec. 46.08.150. CONTRACTS. The office or the division, as applicable, may 31 enter into agreements with agencies of the state and federal government, political
01 subdivisions, the University of Alaska, or private persons or entities to 02 (1) provide the personnel, equipment, or other services or supplies 03 necessary to establish and maintain regional oil and hazardous substances depots and 04 as necessary for response readiness; and 05 (2) train members of response corps [; AND 06 (3) CONDUCT RESEARCH INTO OIL AND HAZARDOUS 07 SUBSTANCES SPILL TECHNOLOGY; THE OFFICE SHALL INCLUDE IN THE 08 RESEARCH TOPICS FOR WHICH IT CONDUCTS OR CONTRACTS FOR 09 RESEARCH, THE RESEARCH TOPICS RECOMMENDED TO IT BY THE 10 HAZARDOUS SUBSTANCE SPILL TECHNOLOGY REVIEW COUNCIL UNDER 11 AS 46.13.120]. 12 * Sec. 17. AS 46.08.900(3) is amended to read: 13 (3) "containment and cleanup" includes the direct and indirect efforts 14 associated with the prevention, abatement, containment, or removal of oil or a 15 hazardous substance [, AND THE RESTORATION OF THE ENVIRONMENT]; when 16 applied to expenses, the term includes the additional costs of providing a reasonable 17 and appropriate function or service incurred in response to the release of the oil or 18 hazardous substance, including administrative expenses for the incremental costs of 19 providing the function or service; 20 * Sec. 18. AS 46.08.900(9) is amended to read: 21 (9) "release" 22 (A) means any spilling, leaking, pumping, pouring, emitting, 23 emptying, discharging, injecting, escaping, leaching, dumping, or disposing into 24 the environment; 25 (B) [, EXCEPT THAT "RELEASE"] does not include 26 (i) a permitted release; or 27 (ii) an act of nature; 28 * Sec. 19. AS 46.08.900(11) is amended to read: 29 (11) "threatened release" means [AN IMMINENT DANGER] that a 30 release is imminent; a release is imminent if 31 (A) it is impending, or on the point of happening; or
01 (B) though not impending, in the judgment of the 02 commissioner 03 (i) the incident or occurrence may reasonably be 04 expected to culminate in an actual release; and 05 (ii) that actual release may reasonably be expected to 06 cause personal injury, other injury to life, or loss of or damage to 07 property [WILL OCCUR]; 08 * Sec. 20. AS 46.08.900(12) is amended to read: 09 (12) "village" means a place within the unorganized borough [OR 10 WITHIN A BOROUGH IF THE POWER, FUNCTION, OR SERVICE FOR WHICH 11 A GRANT APPLICATION UNDER AS 29.60.510 IS SUBMITTED IS NOT 12 EXERCISED OR PROVIDED BY THE BOROUGH ON AN AREAWIDE OR 13 NONAREAWIDE BASIS AT THE TIME THE GRANT APPLICATION IS 14 SUBMITTED] that 15 (A) has irrevocably waived, in a form approved by the 16 Department of Law, any claim of sovereign immunity [THAT MIGHT ARISE 17 IN CONNECTION WITH THE USE OF GRANT MONEY UNDER THIS 18 CHAPTER]; and 19 (B) has 20 (i) a council organized under 25 U.S.C. 476 (sec. 16 of 21 the Indian Reorganization Act); 22 (ii) a traditional village council recognized by the United 23 States as eligible for federal aid to Indians; or 24 (iii) a council recognized by the commissioner of 25 community and regional affairs under regulations adopted by the 26 Department of Community and Regional Affairs to determine and give 27 official recognition of village entities under AS 44.47.150(b). 28 * Sec. 21. AS 46.09.900(2) is amended to read: 29 (2) "containment and cleanup" includes the direct and indirect efforts 30 associated with the prevention, abatement, containment, or removal of a hazardous 31 substance [, AND THE RESTORATION OF THE ENVIRONMENT]; when applied
01 to expenses, the term includes the additional costs of providing a reasonable and 02 appropriate function or service incurred in response to the release of the hazardous 03 substance, including administrative expenses for the incremental costs of providing the 04 function or service; 05 * Sec. 22. AS 46.09.900(8) is amended to read: 06 (8) "threatened release" means [AN IMMINENT DANGER] that a 07 release is imminent; a release is imminent if 08 (A) it is impending, or on the point of happening; or 09 (B) though not impending, in the judgment of the 10 commissioner 11 (i) the incident or occurrence may reasonably be 12 expected to culminate in an actual release; and 13 (ii) that actual release may reasonably be expected to 14 cause personal injury, other injury to life, or loss of or damage to 15 property [WILL OCCUR]. 16 * Sec. 23. 18 AAC 78.530(a)(4), as it relates to costs to restore a site that are eligible for 17 payment of financial assistance, is annulled. 18 * Sec. 24. AS 19.65.025; AS 29.60.500, 29.60.510, 29.60.520, 29.60.530, 29.60.540, 19 29.60.550, 29.60.560, 29.60.590, 29.60.599; AS 44.46.025(a)(5), 44.46.025(a)(6); and 20 AS 46.08.040(d) are repealed. 21 * Sec. 25. USE OF MONEY IN THE OIL AND HAZARDOUS SUBSTANCE RELEASE 22 RESPONSE FUND. (a) Money from the oil and hazardous substance release response fund 23 established under AS 46.08.010 may not be used for a purpose specified in this section unless 24 the money is available from an appropriation made specifically for the purpose. 25 (b) Notwithstanding AS 46.08.040(a), 26 (1) after the effective date of this Act and before July 1, 1994, the 27 commissioner of environmental conservation may use money from the oil and hazardous 28 substance release response fund to pay not more than two-thirds of the estimated annual 29 expenses incurred 30 (A) to 31 (i) establish and maintain the oil and hazardous substance
01 response office; 02 (ii) conduct training, response exercises, inspections, and tests, 03 in order to verify equipment inventories and ability to prevent and respond to 04 oil and hazardous substance release emergencies, and to undertake other 05 activities intended to verify or establish the preparedness of the state, a 06 municipality, or a party required by AS 46.04.030 to have an approved 07 contingency plan to act in accordance with that plan; 08 (B) by the Alaska division of emergency services for the oil and 09 hazardous substance response corps and the oil and hazardous substance response 10 depots when presented with appropriate documentation by the division; 11 (C) to recover the costs to the state, a municipality, or a village of a 12 containment and cleanup resulting from the release or the threatened release of oil or 13 a hazardous substance; and 14 (D) to prepare and review and, when warranted, revise 15 (i) the state's master oil and hazardous substance discharge 16 prevention and contingency plan required by AS 46.04.200; and 17 (ii) a regional master oil and hazardous substance discharge 18 prevention and contingency plan required by AS 46.04.210; 19 (2) after June 30, 1994, and before July 1, 1995, the commissioner of 20 environmental conservation may use money from the oil and hazardous substance release 21 response fund to pay not more than one-third of the estimated annual expenses incurred 22 (A) to 23 (i) establish and maintain the oil and hazardous substance 24 response office; 25 (ii) conduct training, response exercises, inspections, and tests, 26 in order to verify equipment inventories and ability to prevent and respond to 27 oil and hazardous substance release emergencies, and to undertake other 28 activities intended to verify or establish the preparedness of the state, a 29 municipality, or a party required by AS 46.04.030 to have an approved 30 contingency plan to act in accordance with that plan; 31 (B) by the Alaska division of emergency services for the oil and
01 hazardous substance response corps and the oil and hazardous substance response 02 depots when presented with appropriate documentation by the division; 03 (C) to recover the costs to the state, a municipality, or a village of a 04 containment and cleanup resulting from the release or the threatened release of oil or 05 a hazardous substance; and 06 (D) to prepare and review and, when warranted, revise 07 (i) the state's master oil and hazardous substance discharge 08 prevention and contingency plan required by AS 46.04.200; and 09 (ii) a regional master oil and hazardous substance discharge 10 prevention and contingency plan required by AS 46.04.210. 11 * Sec. 26. TREATMENT OF APPROPRIATION TO FORMER SPILL RESERVE FOR 12 PURPOSES OF AS 43.55.230. For the purpose of AS 43.55.230(a)(2), an appropriation to 13 the former spill reserve referred to in former AS 29.60.510(b), repealed by sec. 24 of this Act, 14 is not an expenditure.