Enrolled SB 64: Adopting the Uniform Environmental Covenants Act; relating to environmental real property covenants and notices of activity and use limitation at contaminated sites to ensure the protection of human health, safety, and welfare, and the environment; and providing for an effective date.
00Enrolled SB 64 01 Adopting the Uniform Environmental Covenants Act; relating to environmental real property 02 covenants and notices of activity and use limitation at contaminated sites to ensure the 03 protection of human health, safety, and welfare, and the environment; and providing for an 04 effective date. 05 _______________ 06 * Section 1. AS 46.04 is amended by adding new sections to read: 07 Article 2A. Uniform Environmental Covenants Act. 08 Sec. 46.04.300. Environmental covenant. (a) An environmental covenant is 09 required if the department makes a remedial decision as part of an environmental 10 response project and that environmental response project results in 11 (1) residual contamination remaining in the environment in 12 concentrations that are safe for some, but not all, uses; or 13 (2) an engineered feature or structure that requires monitoring, 14 maintenance, or operation, or that will not function as intended if disturbed. 15 (b) An environmental covenant may be held by one or more holders. A holder
01 may own an interest in the real property subject to an environmental covenant. The 02 interest of a holder is an interest in real property. 03 (c) A right of the department under AS 46.04.300 - 46.04.390 or under an 04 environmental covenant, other than a right as a holder, is not an interest in real 05 property. 06 (d) The department is bound by any obligation it specifically assumes in an 07 environmental covenant, but the department does not assume obligations merely by 08 signing an environmental covenant. A person other than the department that signs an 09 environmental covenant is bound by the obligations the person assumes in the 10 environmental covenant, but signing the environmental covenant does not change 11 obligations, rights, or protections granted or imposed under law other than under 12 AS 46.04.300 - 46.04.390 unless otherwise provided in the environmental covenant. 13 (e) The following apply to interests in real property in existence at the time an 14 environmental covenant is created or amended: 15 (1) an interest that has priority under other law is not affected by an 16 environmental covenant unless the person that owns the interest subordinates that 17 interest to the environmental covenant; 18 (2) AS 46.04.300 - 46.04.390 do not require a person that owns a prior 19 interest to subordinate that interest to an environmental covenant or to agree to be 20 bound by the environmental covenant; 21 (3) an environmental covenant may contain a subordination agreement, 22 or a subordination agreement may be contained in a separate record; 23 (4) the department may decide not to sign an environmental covenant 24 unless each person holding an interest in the land or any part of the land, including 25 each mortgagee, lessee, lienor, and encumbrancer, irrevocably subordinates the 26 interest to the environmental covenant; the department may waive the requirement in 27 this paragraph; 28 (5) an agreement by a person to subordinate a prior interest to an 29 environmental covenant affects the priority of that person's interest but does not by 30 itself impose any affirmative obligation on the person with respect to the 31 environmental covenant;
01 (6) if the environmental covenant covers commonly owned property in 02 a common interest community, the record may be signed by any person authorized by 03 the governing board of the owners' association. 04 Sec. 46.04.305. Contents of environmental covenant. (a) An environmental 05 covenant must 06 (1) state that the interest is an environmental covenant executed under 07 AS 46.04.300 - 46.04.390; 08 (2) contain a legally sufficient description of the real property subject 09 to the environmental covenant; 10 (3) describe the activity and use limitations on the real property; 11 (4) identify every holder; 12 (5) be signed by the commissioner of the department, every holder, 13 and, unless waived by the department, every owner of the fee simple of the real 14 property subject to the environmental covenant except that for an environmental 15 covenant affecting a land or mineral interest of the Department of Natural Resources, 16 the signature of the commissioner of natural resources may not be waived; and 17 (6) identify the name and location of any administrative record for the 18 environmental response project reflected in the environmental covenant. 19 (b) In addition to the information required under (a) of this section, an 20 environmental covenant may contain other information, restrictions, and requirements 21 agreed to by the persons who signed it or required by the department, including 22 (1) requirements for notice following transfer of a specified interest in, 23 or concerning proposed changes in use of, applications for building permits for, or 24 proposals for any site work affecting the contamination on, the property subject to the 25 environmental covenant; 26 (2) requirements for periodic reporting describing compliance with the 27 environmental covenant; 28 (3) rights of access to the property granted in connection with 29 implementation or enforcement of the environmental covenant; 30 (4) a brief narrative description of the contamination and remedy, 31 including the contaminants of concern, the pathways of exposure, limits on exposure,
01 and the location and extent of the contamination; 02 (5) a limitation on the amendment or termination of the environmental 03 covenant that is in addition to the limitations contained in AS 46.04.300 - 46.04.390; 04 and 05 (6) rights of the holder in addition to the right of the holder to enforce 06 the environmental covenant under AS 46.04.335. 07 (c) In addition to other conditions for the department's approval of an 08 environmental covenant, the department may require a specified person who has an 09 interest in the real property that is the subject of the environmental covenant to sign 10 the environmental covenant. 11 Sec. 46.04.310. Validity of environmental covenant; effect on other 12 instruments. (a) An environmental covenant entered into in accordance with 13 AS 46.04.300 - 46.04.390 runs with the land. 14 (b) An environmental covenant is valid and enforceable even if 15 (1) it is not appurtenant to an interest in real property; 16 (2) it can be or has been assigned to a person other than the original 17 holder; 18 (3) it is not of a character that has been traditionally recognized at 19 common law; 20 (4) it imposes a negative burden; 21 (5) it imposes an affirmative obligation on a person having an interest 22 in the real property or on the holder; 23 (6) the benefit or burden does not touch or concern real property; 24 (7) there is no privity of estate or contract; 25 (8) the holder dies, ceases to exist, resigns, or is replaced; or 26 (9) the owner of an interest subject to the environmental covenant and 27 the holder are the same person. 28 (c) An instrument that creates restrictions or obligations with respect to real 29 property that would qualify as activity and use limitations except for the fact that the 30 instrument was recorded before the effective date of AS 46.04.300 - 46.04.390 is not 31 invalid or unenforceable because of any of the limitations on enforcement of interests
01 described in (b) of this section or because it was identified as an easement, servitude, 02 deed restriction, or other interest. Except as provided in this section, AS 46.04.300 - 03 46.04.390 do not apply to an instrument described in this subsection. 04 (d) AS 46.04.300 - 46.04.390 do not invalidate or render unenforceable any 05 interest, whether designated as an environmental covenant or other interest, that is 06 otherwise enforceable under the law of this state. 07 Sec. 46.04.315. Notice of environmental covenant. (a) A copy of the 08 environmental covenant shall be provided by the persons and in the manner required 09 by the department to 10 (1) each person that signed the environmental covenant; 11 (2) each person holding a recorded interest in the real property subject 12 to the environmental covenant; 13 (3) each person in possession of the real property subject to the 14 environmental covenant; 15 (4) each municipality or other unit of local government in which real 16 property subject to the environmental covenant is located; and 17 (5) any other person the department requires. 18 (b) The validity of an environmental covenant is not affected by failure to 19 provide a copy of the environmental covenant as required under this section. 20 Sec. 46.04.320. Recording of environmental covenant. (a) An environmental 21 covenant and an amendment or termination of the environmental covenant must be 22 recorded in every recording district in which any portion of the real property subject to 23 the environmental covenant is located. For purposes of indexing, a holder shall be 24 treated as a grantee. 25 (b) An owner of land may not record an environmental covenant unless the 26 owner simultaneously records any subordination documentation required under 27 AS 46.04.300(e). 28 (c) Except as otherwise provided in AS 46.04.325(f), an environmental 29 covenant is subject to state law governing recording and priority of interests in real 30 property. 31 (d) A holder shall provide a copy of the final recorded environmental
01 covenant, an amendment made to the environmental covenant, termination 02 documentation, and documentation of other matters related to the environmental 03 covenant to the department. 04 Sec. 46.04.325. Duration; modification or termination of environmental 05 covenant by administrative or court action. (a) An environmental covenant is 06 perpetual unless it is 07 (1) by its terms, limited to a specific duration or terminated by the 08 occurrence of a specific event; 09 (2) terminated by consent under AS 46.04.330; 10 (3) terminated under (b), (e), or (g) of this section; 11 (4) terminated by foreclosure of an interest that has priority over the 12 environmental covenant; or 13 (5) terminated or modified in an eminent domain proceeding, but only 14 if 15 (A) the department is a party to the proceeding; 16 (B) every person whose consent is required under 17 AS 46.04.330(a) is given notice of the pendency of the proceeding; and 18 (C) the court determines, after hearing, that the activity and use 19 limitations subject to termination or modification are no longer required to 20 protect human health, safety, or welfare, or the environment. 21 (b) The department may terminate or reduce the burden on the real property of 22 an environmental covenant if the department finds that some or all of the activity and 23 use limitations under the environmental covenant are no longer required to protect 24 human health, safety, or welfare, or the environment, or modify the environmental 25 covenant if the department determines that modification is required adequately to 26 protect human health, safety, or welfare, or the environment. 27 (c) The department shall provide notice of any proposed action under (b) of 28 this section to each person with a current recorded interest in the real property subject 29 to the environmental covenant, each holder, all other persons who originally signed 30 the environmental covenant, or their successors or assigns, and any other person with 31 rights or obligations under the environmental covenant. The department shall provide
01 60 days for comment on the proposed action by parties entitled to notice. A 02 determination by the department under this subsection is a final agency decision. Any 03 person entitled to notice under this subsection may request an adjudicatory hearing 04 under the procedures established by the department under AS 46.04.890. 05 (d) A person entitled to notice under (c) of this section may apply in writing to 06 the department for a determination under (b) of this section that an existing 07 environmental covenant be terminated, that the burden of an environmental covenant 08 be reduced, or that an environmental covenant be modified. The application must 09 specify the determination sought by the applicant, the reasons why the department 10 should make the determination, and the information that would support it. If the 11 department fails to begin a proceeding under (b) of this section within 90 days after 12 receiving the application, the applicant may bring a civil action in superior court for 13 termination, reduction of burden, or modification of the environmental covenant under 14 (e) of this section. 15 (e) The superior court for a recording district in which the real property 16 subject to an environmental covenant is located may, in a de novo action, under the 17 doctrine of changed circumstances, terminate an environmental covenant, reduce an 18 environmental covenant's burden on the real property, or modify the terms of an 19 environmental covenant if the department fails to begin a proceeding within 90 days as 20 provided under (d) of this section. The applicant under (d) of this section, a holder of 21 the environmental covenant, or another person identified in (c) of this section may 22 begin an action under this subsection. The person beginning the action shall serve 23 notice of the action on the department and any person entitled to notice under (c) of 24 this section. The person bringing the action shall make the department a party to the 25 action. The court shall terminate, reduce the burden of, or modify an environmental 26 covenant if the court determines that the person bringing the action shows that some or 27 all of the activity and use limitations under the environmental covenant do not, or are 28 no longer required to, protect human health, safety, or welfare, or the environment. 29 (f) An environmental covenant may not be extinguished, limited, or impaired 30 through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine 31 of adverse possession, prescription, abandonment, waiver, lack of enforcement,
01 acquiescence, or a similar doctrine. 02 (g) The department shall terminate an environmental covenant if the 03 environmental covenant was required under AS 46.04.300 solely because of the level 04 or concentration of residual contamination on the property, and the department 05 determines that level or concentration of residual contamination does not endanger 06 human health, safety, or welfare, or the environment. The department shall provide 07 notice of a termination under this subsection to each person with a current recorded 08 interest in the real property subject to the environmental covenant, each holder, all 09 other persons who originally signed the environmental covenant, or their successors or 10 assigns, and any other person with rights or obligations under the environmental 11 covenant. 12 Sec. 46.04.330. Amendment or termination of environmental covenant by 13 consent. (a) An environmental covenant may be amended or terminated if the 14 amendment or termination is consented to and signed 15 (1) by the department; 16 (2) unless waived by the department, by the current owner of the fee 17 simple of the real property subject to the environmental covenant; 18 (3) by each person that originally signed the environmental covenant, 19 unless the person 20 (A) waived the right to consent to termination or modification 21 in the environmental covenant or in another signed and acknowledged 22 instrument recorded with the recording district; 23 (B) fails to object to the amendment or termination within 60 24 days after a party to the covenant mails, by certified mail, return receipt 25 requested, to the person's last known address, a notice requesting the person's 26 consent to amendment or termination and the return receipt is signed by the 27 person; or 28 (C) cannot be found, as determined by a court, because the 29 person no longer exists or cannot be located or identified with the exercise of 30 reasonable diligence; and 31 (4) except as otherwise provided in (d)(2) of this section, by the holder.
01 (b) If an interest in real property is subject to an environmental covenant, the 02 interest is not affected by an amendment of the environmental covenant unless the 03 current owner of the interest consents to the amendment or has waived in a signed 04 record the right to consent to amendments. 05 (c) Except for an assignment undertaken under a governmental reorganization, 06 assignment of an environmental covenant to a new holder is an amendment. 07 (d) Except as otherwise provided in an environmental covenant, 08 (1) a holder may not assign its interest without consent of the other 09 parties specified in (a) of this section; 10 (2) a holder may be removed and replaced by agreement of the other 11 parties specified in (a) of this section; and 12 (3) a court of competent jurisdiction may fill a vacant holder position. 13 Sec. 46.04.335. Enforcement of environmental covenant. (a) The department 14 is the administrating agency for AS 46.04.300 - 46.04.390 and is empowered to 15 administer and enforce AS 46.04.300 - 46.04.390 using the civil or administrative 16 authority granted to it in AS 46.03. However, the department may, but is not required 17 to, assume any administration or enforcement functions other than those directly 18 related to the environmental covenant. 19 (b) A civil action for injunctive or other equitable relief for violation of an 20 environmental covenant may be maintained by 21 (1) a party to the environmental covenant; 22 (2) the department; 23 (3) a person that the environmental covenant expressly grants the 24 power to enforce the environmental covenant; 25 (4) a person whose interest in the real property or whose collateral or 26 liability may be affected by the alleged violation of the environmental covenant; or 27 (5) a municipality or other unit of government that governs the real 28 property subject to the environmental covenant. 29 (c) AS 46.04.300 - 46.04.390 do not limit the regulatory authority of the 30 department in an environmental response project. 31 (d) A person is not responsible for or subject to liability for environmental
01 remediation solely because the person has the right to enforce an environmental 02 covenant. 03 Sec. 46.04.340. Notice of activity and use limitation. (a) If a legal 04 impediment prevents an environmental covenant from being entered into, an owner of 05 real property shall, after receiving authorization from the department, record a notice 06 of an activity and use limitation into the appropriate public land records. Failure to 07 record a notice of an activity and use limitation may result in disapproval of the 08 environmental response project. 09 (b) Once the owner or other person assumes an obligation under a notice of 10 activity and use limitation, that owner or person shall comply with those obligations in 11 accordance with AS 46.04.300 - 46.04.390. 12 (c) The enactment, modification, or termination of a notice of activity and use 13 limitation is not valid until it is approved by the department. 14 (d) A notice of activity and use limitation must remain in place for current and 15 subsequent landowners unless it is terminated under (e) or (m) of this section. 16 (e) A person who proposes to create, modify, or terminate a notice of activity 17 and use limitation shall provide written notice of the person's intention to the 18 department, to all persons holding an interest of record in the real property that will be 19 subject to the notice of activity and use limitation, to all persons known to the person 20 to have an unrecorded interest in the property, and to all affected persons in possession 21 of the property before the creation, modification, or termination, and shall provide the 22 department with 23 (1) a copy of the notice provided; 24 (2) a list of the persons to whom notice was given and the address or 25 other location to which the notice was directed; and 26 (3) title information required by the department. 27 (f) Before unilaterally issuing a notice of activity and use limitation, the 28 department shall provide a copy of the proposed notice of activity and use limitation to 29 all persons holding an interest of record in the real property subject to the notice of 30 activity and use limitation, all persons known to the department to have an unrecorded 31 interest in the property, and all affected persons in possession of the property, and
01 shall offer the persons a minimum of 30 days to comment on the proposed notice of 02 activity and use limitation, unless notice has already been provided under (e) of this 03 section. In determining whether to issue the notice of activity and use limitation 04 unilaterally, the department shall consider any comments received. For a notice of 05 activity and use limitation affecting a land or mineral interest of the Department of 06 Natural Resources, concurrence from the Department of Natural Resources is 07 required. 08 (g) The department shall review and make a determination regarding all 09 requests to create, modify, or terminate a notice of activity and use limitation within 10 90 days after receiving a request that includes all the information described in (a) of 11 this section. 12 (h) Upon issuance or approval of a notice of activity and use limitation, the 13 department shall record the notice in every recording district in which a portion of the 14 real property that is subject to the activity and use limitation is located. For approved 15 notices, the department may allow the owner of the property to record the notice. A 16 person may not record a notice without the department's written approval. 17 (i) Unless there is a legal impediment that prevents entering into an 18 environmental covenant, the department may authorize that any notice of activity and 19 use limitation created in accordance with this section be replaced by an environmental 20 covenant on the property that is subject to the notice of activity and use limitation. The 21 department may condition its authorization and approval of the termination of the 22 notice of activity and use limitation on the terms of the notice of activity and use 23 limitation, department approval and acceptance, and the effective recording of the 24 environmental covenant. 25 (j) Modification or termination of a notice of activity and use limitation shall 26 be recorded as provided in (h) of this section. A person may not record a modification 27 or termination of a notice of activity and use limitation without the department's 28 written approval. 29 (k) A determination by the department to issue, approve, modify, or terminate 30 a notice of activity and use limitation is subject to appeal under the procedures 31 described in AS 46.04.890.
01 (l) A notice of activity and use limitation, whether recorded or unrecorded, is 02 not 03 (1) a servitude arising from an environmental response project; or 04 (2) an interest in real property. 05 (m) The department shall terminate a notice of activity and use limitation for 06 real property if the notice of activity and use limitation was required solely because of 07 the level or concentration of residual contamination on the property, and the 08 department determines that level or concentration of residual contamination does not 09 endanger human health, safety, or welfare, or the environment. The department shall 10 provide notice of a termination under this subsection to all persons holding an interest 11 of record in the real property subject to the notice of activity and use limitation, all 12 persons known to the department to have an unrecorded interest in the property, and 13 all affected persons in possession of the property. 14 Sec. 46.04.345. Relationship to other land-use law. AS 46.04.300 - 15 46.04.390 do not authorize a use of real property that is otherwise prohibited under 16 AS 29.40 or AS 38.05.037, by law other than AS 46.04.300 - 46.04.390 regulating use 17 of real property, or by a recorded instrument that has priority over the environmental 18 covenant or a notice of activity and use limitation. An environmental covenant or a 19 notice of activity and use limitation may prohibit or restrict uses of real property that 20 are authorized by zoning or by law other than AS 46.04.300 - 46.04.390. 21 Sec. 46.04.350. Registry. The department shall maintain a registry that 22 contains all environmental covenants and notices of activity and use limitation and any 23 amendment or termination of those instruments. The registry may also contain any 24 other information concerning environmental covenants and notices of activity and use 25 limitation and the real property subject to them that the department considers 26 appropriate. 27 Sec. 46.04.355. Uniformity of application and construction. In applying and 28 construing AS 46.04.300 - 46.04.390, consideration must be given to the need to 29 promote uniformity of the law with respect to its subject matter among states that 30 enact similar provisions. 31 Sec. 46.04.390. Definitions. In AS 46.04.300 - 46.04.390,
01 (1) "common interest community" means a condominium, cooperative, 02 or other real property with respect to which a person, by virtue of the person's 03 ownership of a parcel of real property, is obligated to pay property taxes or insurance 04 premiums, or pay for maintenance, or improvement of other real property described in 05 a recorded environmental covenant that creates the common interest community; 06 (2) "environmental covenant" means a servitude arising under an 07 environmental response project that imposes activity and use limitations; 08 (3) "environmental response project" means a plan or work performed 09 or maintenance of work performed under a federal or state program 10 (A) including this chapter, AS 46.03, AS 46.09, 42 U.S.C. 11 9601 - 9675 (Comprehensive Environmental Response, Compensation and 12 Liability Act of 1980), as amended, and 42 U.S.C. 6901 - 6992k (Resource 13 Conservation and Recovery Act of 1976), as amended, governing 14 environmental remediation and management of contaminated real property; or 15 (B) governing maintenance, closure, or corrective action of a 16 solid waste disposal facility or hazardous waste management unit; 17 (4) "holder" means the grantee of an environmental covenant as 18 specified in AS 46.04.300(b); 19 (5) "notice of activity and use limitation" means a notice of a 20 restriction on or obligation concerning an activity on or use of real property, in 21 accordance with AS 46.04.300 - 46.04.390; 22 (6) "record" has the meaning given in AS 40.17.900. 23 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 TRANSITION: REGULATIONS. The Department of Environmental Conservation 26 and the Department of Natural Resources may adopt regulations necessary to implement this 27 Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not 28 before the effective date of the law implemented by the regulation. 29 * Sec. 3. Section 2 of this Act takes effect immediately under AS 01.10.070(c).