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