00 CS FOR HOUSE BILL NO. 59(JUD)
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
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
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
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 covered in
02 regulations adopted under AS 46.03.530, using the procedures and laboratory services
03 specified under (b) and (c) of this section. The property owner shall inform the
04 laboratory used for a test under this subsection that the test is related to property that
05 has been determined to be an 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 notified the department that they have the capacity to perform the
10 testing procedures and that they wish to be on the list maintained under this
11 subsection. A laboratory may not be included on the list unless the laboratory agrees
12 to send the department a copy of test results related to properties whose owners have
13 informed the laboratory that the test results are for property that has been determined
14 to be an illegal 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, volatile organic
19 compounds, and other substances for which the department has set a limit under (b) of
20 this section.
21 (b) The department shall adopt regulations that set the limit for each substance
22 specifically listed in (a) of this section for purposes of determining whether the
23 property for which a notice was received under AS 46.03.500 is fit for use. The
24 department may also determine whether there are other substances associated with
25 illegal drug manufacturing sites that may pose a substantial risk of harm to persons
26 who occupy the site or to public health and may adopt regulations that set limits for
27 those substances for the purposes of determining whether the property for which
28 notice was received under AS 46.03.500 is fit for use.
29 Sec. 46.03.540. Decontamination requirements. (a) If the owner desires to
30 decontaminate the property for which a notice has been issued under AS 46.03.500,
31 the owner shall follow the guidelines established by the department under (b) of this
02 (b) The department shall establish guidelines, including guidelines to protect
03 the safety of those removing the controlled substances, for decontamination of sites
04 that are determined to be unfit for use under AS 46.03.530. The department shall
05 provide a copy of the guidelines to any person who requests a copy.
06 Sec. 46.03.550. Fitness for use. (a) Property for which a notice has been
07 issued under AS 46.03.500 shall be determined by the department to be fit for use if
08 the owner certifies to the department under penalty of unsworn falsification that
09 (1) based on testing procedures established by the department under
10 AS 46.03.520(b) and performed by laboratories that are on the list maintained by the
11 department under AS 46.03.520(c), the limits on substances specified in regulations
12 adopted under AS 46.03.530 are not exceeded on the property;
13 (2) if the property was ever tested under AS 46.03.520 and the test
14 results showed the property to be unfit for use under AS 46.03.530, decontamination
15 procedures were performed in accordance with the guidelines established under
16 AS 46.03.540(b) and the requirements of (1) of this subsection have been met; or
17 (3) a court has held that the determination that the property was an
18 illegal drug manufacturing site was not made in compliance with AS 46.03.500(a).
19 (b) The department shall maintain a list of properties for which the department
20 has received notice under AS 46.03.500(c). When the department determines under
21 (a) of this section that a property on the list is fit for use, the department shall remove
22 the property from the list and notify the owner of the property that the property is fit
23 for use. On request, the department shall give a copy of the list maintained under this
24 section to any person who requests the list.
25 Sec. 46.03.560. Securing the property. The owner of property for which a
26 notice was received under AS 46.03.500(b) shall ensure that the property is vacated
27 and secured against use
28 (1) within four days after receiving the notice if the owner does not test
29 the property under AS 46.03.520 within four days after receiving the notice; or
30 (2) within four days after receiving the test results if the owner tests
31 the property within four days after receiving the notice, the test shows the presence of
01 a substance that exceeds the limits set in regulations adopted under AS 46.03.530, and
02 the owner does not begin decontamination procedures under AS 46.03.540 within four
03 days after receiving the test results.
04 Sec. 46.03.570. Duties of the department; regulations. (a) The department
05 shall adopt regulations implementing AS 46.03.500 - 46.03.599.
06 (b) The department shall periodically review information related to
07 decontamination of illegal drug manufacturing sites to determine whether substances
08 should be added to or deleted from the list of substances specifically named in
09 AS 46.03.530(a). The department shall report written findings to the governor if the
10 department determines that a change should be made to the list of specific substances
11 in AS 46.03.530(a). The governor shall notify the legislature when written findings
12 have been made under this subsection and provide a copy of the findings to a legislator
13 on request.
14 Sec. 46.03.599. Definitions. In AS 46.03.500 - 46.03.599,
15 (1) "illegal drug manufacturing site" means property on which there is
16 reasonable cause to suspect contamination with chemicals associated with the
17 manufacturing of a controlled substance and where
18 (A) activity involving the unauthorized manufacture of a
19 controlled substance listed on schedule I or II in AS 11.71 or a precursor
20 chemical for the substances has occurred; or
21 (B) there are kept, stored, or located any of the devices,
22 equipment, things, or substances used for the unauthorized manufacture of a
23 controlled substance listed on schedule I or II in AS 11.71;
24 (2) "site" means an illegal drug manufacturing site.
25 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to
27 REGULATIONS. The Department of Environmental Conservation may immediately
28 begin to develop and adopt regulations to implement this Act. The regulations take effect
29 under AS 44.62 (Administrative Procedure Act).
30 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to
01 CERTIFICATION OF EFFECTIVE DATE OF REGULATIONS. The lieutenant
02 governor shall certify to the revisor of statutes the effective date of the initial regulations
03 adopted by the Department of Environmental Conservation under sec. 3 of this Act.
04 * Sec. 5. Sections 1 and 2 of this Act take effect on the effective date of the initial
05 regulations adopted by the Department of Environmental Conservation under sec. 3 of this
07 * Sec. 6. Sections 3 and 4 of this Act take effect immediately under AS 01.10.070(c).