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HB 59: "An Act relating to the evaluation and cleanup of sites where certain controlled substances may have been manufactured or stored; and providing for an effective date."

00                              HOUSE BILL NO. 59                                                                          
01 "An Act relating to the evaluation and cleanup of sites where certain controlled                                        
02 substances may have been manufactured or stored; and providing for an effective date."                                  
03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
04    * Section 1.  The uncodified law of the State of Alaska is amended by adding a new section                         
05 to read:                                                                                                                
06       PURPOSE.  The purpose of this Act is to provide a just, equitable, and practicable                                
07 method, to be cumulative with and in addition to any other remedy provided by law, whereby                              
08 property that endangers the life, safety, or welfare of the general public or occupants of the                          
09 property because of toxic chemical contamination that may result from illegal drug                                      
10 manufacturing may be required to be decontaminated or vacated and secured against use.                                  
11    * Sec. 2.  AS 46.03 is amended by adding new sections to read:                                                     
12                   Article 7A.  Cleanup of Illegal Drug Sites.                                                         
13            Sec. 46.03.500.  Notice of illegal drug manufacturing site.  (a)  When a law                               
14       enforcement officer, qualified under federal regulations to investigate and dismantle                             
01       illegal drug manufacturing sites, determines that a site constitutes an illegal drug                              
02       manufacturing site, the law enforcement agency that employs the officer shall notify                              
03       the owner of the property, the occupants and users of the property, and the department                            
04       that the determination has been made.  The owner of the property may appeal the                                   
05       determination to the superior court for review of whether the determination was made                              
06       in compliance with this subsection.  In the appeal, the burden of proving by a                                    
07       preponderance of the evidence that the determination was made in compliance with                                  
08       this subsection is on the law enforcement agency that employed the officer who made                               
09       the determination.                                                                                                
10            (b)  The notice to the property owner required under (a) of this section shall be                            
11       given in a manner that is consistent with the Alaska Rules of Civil Procedure for the                             
12       service of process in a civil action in this state and must include the following                                 
13       information:                                                                                                      
14                 (1)  the parcel identification number and legal description of the                                      
15       property where the site is located;                                                                               
16                 (2)  a statement of the determination made by the law enforcement                                       
17       officer that the site was an illegal drug manufacturing site and the findings that formed                         
18       the basis for the determination;                                                                                  
19                 (3)  a citation to, and short summary of, AS 46.03.510, which restricts                                 
20       transfer and occupancy of the site until it is determined to be fit for use; and                                  
21                 (4)  the following information, which shall be provided to the law                                      
22       enforcement agency by the department:                                                                             
23                      (A)  a copy of the standards contained in regulations adopted                                      
24            under AS 46.03.530 that determine whether the property is fit for use;                                       
25                      (B)  a copy of the testing procedures established under                                            
26            AS 46.03.520(b) and a copy of the list of laboratories maintained under                                      
27            AS 46.03.520(c) that must be used for determining whether the property is fit                                
28            for use; and                                                                                                 
29                      (C)  a copy of the guidelines for decontamination established by                                   
30            the department under AS 46.03.540(b).                                                                        
31            (c)  The notice to the department required under (a) of this section must                                    
01       include                                                                                                           
02                 (1)  the parcel identification number and legal description of the                                      
03       property where the site is located;                                                                               
04                 (2)  a statement of the determination made by the law enforcement                                       
05       officer that the site was an illegal drug manufacturing site and the findings that formed                         
06       the basis for the determination; and                                                                            
07                 (3)  the name and mailing address of the person who owns the property                                   
08       where the site is located.                                                                                        
09            (d)  The notice required under (a) of this section for the occupants and users of                            
10       the property shall be accomplished by immediate posting of the entryway of the                                    
11       property with a notice that includes the location of the property, the information                                
12       described in (b)(2) and (3) of this section, and a statement that the property may pose a                         
13       substantial risk of physical harm to persons or animals that enter or occupy the                                  
14       property.                                                                                                         
15            (e)  If a person other than the owner, such as a property manager or rental                                  
16       agency, is authorized to let others use or occupy property for which an owner has                                 
17       received a notice under (a) of this section or is authorized to transfer, sell, lease, or                         
18       rent the property to others, the owner of the property shall communicate the substance                            
19       of the notice to that person within four days after receiving the notice.                                         
20            Sec. 46.03.510.  Restrictions on property.  (a)  Until determined to be fit for                            
21       use under AS 46.03.550, the property for which a notice has been issued under                                     
22       AS 46.03.500(a) may not be transferred, sold, leased, or rented to another person                                 
23       except as provided in (b) of this section, and a person may not use or occupy the                                 
24       property at any time after the fourth day following the day on which the property was                             
25       posted with the notice required under AS 46.03.500(d), except as necessary for testing                            
26       or decontamination under AS 46.03.520 and 46.03.540.  An oral or written contract                                 
27       that would transfer, sell, lease, rent, or otherwise allow the use of the property in                             
28       violation of this subsection is voidable between the parties at the option of the                                 
29       purchaser, transferee, user, lessee, or renter.  However, this subsection does not                                
30                 (1)  make voidable a promissory note or other evidence of indebtedness                                  
31       or a mortgage, trust deed, or other security interest securing the promissory note or                             
01       evidence of indebtedness, if the note or evidence of indebtedness, mortgage, trust                                
02       deed, or other security interest was given to a person other than the person                                      
03       transferring, selling, using, leasing, or renting the property to induce the person to                            
04       finance the transfer, sale, use, leasing, or rental of the property;                                              
05                 (2)  make voidable a lease or rental agreement between the property                                     
06       owner and the person who caused the property to be contaminated and determined                                    
07       unfit for use; or                                                                                                 
08                 (3)  impair obligations or duties required to be performed on                                           
09       termination of a contract, as required by the contract, such as payment of damages or                             
10       return of refundable deposits.                                                                                    
11            (b)  Notwithstanding (a) of this section, property covered by (a) of this section                            
12       may be transferred or sold if full written disclosure is made to the prospective                                  
13       transferee or purchaser that the property has been determined to be an illegal drug                               
14       manufacturing site and the property has not been determined to be fit for use.  The                               
15       disclosure shall be attached to the earnest money receipt, if any, and shall accompany                            
16       the transfer or sale document.  The disclosure is not considered to be part of the                                
17       transfer or sale document, however, and may not be recorded.  The property shall                                  
18       continue to be subject to the restrictions in (a) of this section after transfer or sale                          
19       under this subsection.                                                                                            
20            (c)  A person who knowingly transfers, sells, leases, or rents property to                                   
21       another, knowingly allows another to use or occupy property, or, being the owner of                               
22       property, knowingly occupies or uses the property, in violation of this section is guilty                         
23       of a class A misdemeanor.  In this subsection, "knowingly" has the meaning given in                               
24       AS 11.81.900(a).                                                                                                  
25            (d)  It is an affirmative defense to a prosecution under (c) of this section for                             
26       allowing another to use or occupy the property that the defendant or an agent of the                              
27       defendant, within four days after receiving a notice under AS 46.03.500, filed an                                 
28       appropriate civil action to remove the user or occupier from the property for which the                           
29       notice was received.                                                                                              
30            Sec. 46.03.520. Testing procedures.  (a)  If the owner of the property for                                 
31       which notice was received under AS 46.03.500(b) desires to determine if the property                              
01       is fit for use, the owner shall cause the site to be tested for the substances specified in                       
02       AS 46.03.530, using the procedures and laboratory services specified under (b) and (c)                            
03       of this section.  The property owner shall inform the laboratory used for a test under                            
04       this subsection that the test is related to property that has been determined to be an                            
05       illegal drug manufacturing site.                                                                                  
06            (b)  The department shall establish procedures for testing property that may                                 
07       have been an illegal drug manufacturing site.                                                                     
08            (c)  The department shall establish and maintain a list of laboratories in the                               
09       state that have the capacity to perform the testing procedures and have notified the                              
10       department that they wish to be on the list maintained under this subsection.  A                                  
11       laboratory may not be included on the list unless the laboratory agrees to send the                               
12       department a copy of test results related to properties whose owners have informed the                            
13       laboratory that the test results are for property that has been determined to be an illegal                       
14       drug manufacturing site.                                                                                          
15            Sec. 46.03.530.  Standards for determining fitness.  (a)  Property for which a                             
16       notice was received under AS 46.03.500(b) is not fit for use if a test of the property                            
17       shows the presence of one of the following substances above the limit set by the                                  
18       department for that substance:  lead, mercury, methamphetamines, and volatile organic                             
19       compounds.                                                                                                        
20            (b)  The department shall adopt regulations that set the limit for each substance                            
21       listed in (a) of this section for purposes of determining whether the property for which                          
22       a notice was received under AS 46.03.500 is fit for use.                                                          
23            Sec. 46.03.540.  Decontamination requirements.  (a)  If the owner desires to                               
24       decontaminate the property for which a notice has been issued under AS 46.03.500,                                 
25       the owner shall follow the guidelines established by the department under (b) of this                             
26       section.                                                                                                          
27            (b)  The department shall establish guidelines for decontamination of sites that                             
28       are determined to be unfit for use under AS 46.03.530.  The department shall provide                              
29       a copy of the guidelines to any person who requests a copy.                                                       
30            Sec. 46.03.550.  Fitness for use.  (a)  Property for which a notice has been                               
31       issued under AS 46.03.500 shall be determined by the department to be fit for use if                              
01       the owner submits satisfactory evidence to the department that                                                    
02                 (1)  based on testing procedures established by the department under                                    
03       AS 46.03.520(b) and performed by laboratories that are on the list maintained by the                              
04       department under AS 46.03.520(c), the limits on substances specified in AS 46.03.530                              
05       are not exceeded on the property;                                                                                 
06                 (2)  if the property was ever tested under AS 46.03.520 and the test                                    
07       results showed the property to be unfit for use under AS 46.03.530, decontamination                               
08       procedures were performed in accordance with the guidelines established under                                     
09       AS 46.03.540(b) and the requirements of (1) of this subsection have been met; or                                  
10                 (3)  a court has held that the determination that the property was an                                   
11       illegal drug manufacturing site was not made in compliance with AS 46.03.500(a).                                  
12            (b)  The department shall maintain a list of properties for which the department                             
13       has received notice under AS 46.03.500(c).  When the department determines under                                  
14       (a) of this section that a property on the list is fit for use, the department shall remove                       
15       the property from the list and notify the owner of the property that the property is fit                          
16       for use.  On request, the department shall give a copy of the list maintained under this                          
17       section to any person who requests the list.                                                                      
18            Sec. 46.03.560.  Securing the property.  The owner of property for which a                                 
19       notice was received under AS 46.03.500(b) shall ensure that the property is vacated                               
20       and secured against use                                                                                           
21                 (1)  within four days after receiving the notice if the owner does not test                             
22       the property under AS 46.03.520 within four days after receiving the notice; or                                   
23                 (2)  within four days after receiving the test results if the owner tests                               
24       the property within four days after receiving the notice, the test shows the presence of                          
25       a substance that exceeds the limits set in regulations adopted under AS 46.03.530, and                            
26       the owner does not begin decontamination procedures under AS 46.03.540 within four                                
27       days after receiving the test results.                                                                            
28            Sec. 46.03.570.  Duties of the department; regulations.  (a)  The department                             
29       shall adopt regulations implementing AS 46.03.500 - 46.03.599.                                                    
30            (b)  The department shall periodically review information related to                                         
31       decontamination of illegal drug manufacturing sites to determine whether substances                               
01       should be added to or deleted from AS 46.03.530.  The department shall report written                             
02       findings to the governor if the department determines that a change should be made to                             
03       the list of substances in AS 46.03.530.  The governor shall notify the legislature when                           
04       written findings have been made under this subsection and provide a copy of the                                   
05       findings to a legislator on request.                                                                              
06            Sec. 46.03.599.  Definitions.  In AS 46.03.500 - 46.03.599,                                                
07                 (1)  "illegal drug manufacturing site" means property on which there is                                 
08       reasonable cause to suspect contamination with chemicals associated with the                                      
09       manufacturing of a controlled substance and where                                                                 
10                      (A)  activity involving the unauthorized manufacture of a                                          
11            controlled substance listed on schedule I or II in AS 11.71 or a precursor                                   
12            chemical for the substances has occurred; or                                                                 
13                      (B)  there are kept, stored, or located any of the devices,                                        
14            equipment, things, or substances used for the unauthorized manufacture of a                                  
15            controlled substance listed on schedule I or II in AS 11.71;                                                 
16                 (2)  "site" means an illegal drug manufacturing site.                                                   
17    * Sec. 3.  The uncodified law of the State of Alaska is amended by adding a new section to                         
18 read:                                                                                                                   
19       REGULATIONS.  The Department of Environmental Conservation may immediately                                        
20 begin to develop and adopt regulations to implement this Act.  The regulations take effect                              
21 under AS 44.62 (Administrative Procedure Act).                                                                          
22    * Sec. 4.  The uncodified law of the State of Alaska is amended by adding a new section to                         
23 read:                                                                                                                   
24       CERTIFICATION OF EFFECTIVE DATE OF REGULATIONS.  The lieutenant                                                   
25 governor shall certify to the revisor of statutes the effective date of the initial regulations                         
26 adopted by the Department of Environmental Conservation under sec. 3 of this Act.                                       
27    * Sec. 5.  Sections 1 and 2 of this Act take effect on the effective date of the initial                           
28 regulations adopted by the Department of Environmental Conservation under sec. 3 of this                                
29 Act.                                                                                                                    
30    * Sec. 6.  Sections 3 and 4 of this Act take effect immediately under AS 01.10.070(c).