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.
00Enrolled 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).