HCS CSSB 178(FIN)(EFD FLD H)(CRT RULE FLD: "An Act relating to civil nuisance actions."
00HOUSE CS FOR CS FOR SENATE BILL NO. 178(FIN)(efd fld H)(crt rule fld H) 01 "An Act relating to civil nuisance actions." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. AS 09.45.230 is repealed and reenacted to read: 04 Sec. 09.45.230. ACTION BASED ON PRIVATE NUISANCE. (a) A person 05 may bring a civil action to enjoin or abate a private nuisance. Damages may be 06 awarded in the action. 07 (b) A person may not maintain an action under this section based upon an air 08 emission or water or solid waste discharge, other than the placement of nuclear waste, 09 where the emission or discharge was expressly authorized by and is not in violation 10 of a term or condition of 11 (1) a statute or regulation; 12 (2) a license, permit, or order that is 13 (A) issued after public hearing by the state or federal 14 government; and
01 (B) subject to 02 (i) continuing compliance monitoring; 03 (ii) periodic review by the issuing agency; 04 (iii) renewal on a periodic basis; or 05 (iv) AS 46.40; or 06 (3) a court order or judgment. 07 (c) The provisions of (b) of this section do not apply to actions in which the 08 air emission or water or solid waste discharge that is the subject of the action produces 09 a result that was unknown or not reasonably foreseeable at the time of the 10 authorization. 11 (d) The provisions of (b) of this section remain in effect only as long as both 12 of the following are satisfied: 13 (1) AS 46.03.900 defines "pollution" as including the contamination or 14 altering of waters, land, or subsurface land of the state in a manner that creates a 15 nuisance; and 16 (2) AS 46.14.990 defines "emission" as the release of one or more air 17 contaminants to the atmosphere. 18 (e) Notwithstanding other provisions of law, except AS 09.50.170 - 09.50.240 19 and AS 19.25.080 - 19.25.180, a person may not bring a civil action to enjoin or abate 20 a private nuisance or to recover damages for a private nuisance unless the action is 21 authorized by this section. 22 (f) A person who is shielded under (b) of this section from a nuisance action 23 shall indemnify, defend, and hold the state harmless from a claim or court action for 24 inverse condemnation, including damages, costs, and attorney fees, for which the state 25 may become liable because of the air emission or wastewater or solid waste discharge 26 for which the person is shielded by (b) of this section. The state shall immediately 27 tender the defense of the inverse condemnation claim or court action to the person. 28 The provisions of (b) of this section do not apply to shield the person, if the person 29 fails to accept or refuses the tender of the defense. A person who prevails in the 30 defense of the claim or court action for inverse condemnation described under this 31 subsection shall be awarded full reasonable attorney fees and costs.
01 * Sec. 2. AS 09.45 is amended by adding a new section to article 4 to read: 02 Sec. 09.45.255. DEFINITION. In AS 09.45.230 - 09.45.255, "nuisance" means 03 a substantial and unreasonable interference with the use or enjoyment of real property, 04 including water. 05 * Sec. 3. This Act applies to an action if a final judgment has not been entered in the 06 action before the effective date of this Act, and to that extent this Act is retroactive under 07 AS 01.10.090. 08 * Sec. 4. As provided under AS 01.10.030, if a provision of this Act or the application of 09 a provision of this Act to a person or circumstance is held unconstitutional, the remainder of 10 this Act and the application of this Act to other persons or circumstances are not affected.