Legislature(2017 - 2018)BUTROVICH 205
02/26/2018 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB202 | |
| Confirmation Hearings: Big Game Commercial Services Board | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 202 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
February 26, 2018
3:30 p.m.
MEMBERS PRESENT
Senator Cathy Giessel, Chair
Senator John Coghill, Vice Chair
Senator Natasha von Imhof
Senator Bert Stedman
Senator Kevin Meyer
Senator Click Bishop
MEMBERS ABSENT
Senator Bill Wielechowski
COMMITTEE CALENDAR
SENATE BILL NO. 202
"An Act relating to the liability of a Native corporation for
the release or threatened release of hazardous substances
present on certain lands."
- MOVED SB 202 OUT OF COMMITTEE
CONFIRMATION HEARINGS:
Big Game Commercial Services Board
Michelle Heun from Palmer, Alaska
Cash Joyce from Wasilla, Alaska
Robert Beans from Palmer, Alaska
- CONFIRMATIONS ADVANCED
PREVIOUS COMMITTEE ACTION
BILL: SB 202
SHORT TITLE: NATIVE CORP. LIABILITY FOR CONTAMINATION
SPONSOR(s): SENATOR(s) HOFFMAN
02/19/18 (S) READ THE FIRST TIME - REFERRALS
02/19/18 (S) RES, JUD
02/26/18 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
SENATOR LYMAN HOFFMAN
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 202.
MARIDON BOARIO, staff to Senator Hoffman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Commented on SB 202 for the sponsor.
EMILY NAUMAN, Attorney
Legislative Legal Division
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered legal questions on SB 202.
HALLIE BISSETT, Executive Director
Alaska Native Village Corporation Association
Anchorage, Alaska
POSITION STATEMENT: Supported SB 202.
MICHELLE HEUN
Palmer, Alaska
POSITION STATEMENT: Nominee to the Big Game Commercial Services
Board.
CASH JOYCE
Wasilla, Alaska
POSITION STATEMENT: Nominee for the transporter position on the
Big Game Commercial Services Board.
ROBERT BEANS
Palmer, Alaska
POSITION STATEMENT: Nominee for private landowner member on the
Big Game Commercial Services Board.
SAM ROHRER, President
Alaska Professional Hunters Association (APHA)
Kodiak, Alaska
POSITION STATEMENT: Supported Mr. Joyce's appointment to the Big
Game Commercial Services Board.
ACTION NARRATIVE
3:30:09 PM
CHAIR CATHY GIESSEL called the Senate Resources Standing
Committee meeting to order at 3:30 p.m. Present at the call to
order were Senators Bishop, Coghill, Stedman, Von Imhof, and
Chair Giessel. Senator Wielechowski was excused.
SB 202-NATIVE CORP. LIABILITY FOR CONTAMINATION
3:30:41 PM
CHAIR GIESSEL announced consideration of SB 202. She said it
addresses a problem that Native corporations have about
receiving contaminated lands under the Alaska Native Claims
Settlement Act (ANCSA).
3:31:10 PM
SENATOR LYMAN HOFFMAN, Alaska State Legislature, Juneau, Alaska,
sponsor of SB 202, said this legislation came to him from the
Alaska Native Village Corporation Association that formed
because of receiving hazardous substance contaminated lands
under ANSCA that need remediation.
He said concerns about this issue were raised the 1990s, and the
1998 Department of Interior's (DOI) report to Congress confirmed
them and identified more than 650 contaminated sites requiring
remediation. These sites were contaminated under the federal
government's watch and then transferred to Native ownership,
Senator Hoffman said. In 2016, the Bureau of Land Management
(BLM) updated the DOI's report to Congress acknowledging that
the agency had not acted on much of the 1998 report
recommendations. The update identified the DOD as the single
largest pre-transfer owner of contaminated sites still requiring
clean-up.
SENATOR HOFFMAN said the Alaska Native Villages Corporation
Association testified before Congressional committees on the
problem as recently as last summer and pushed for the federal
government to deal with the problem sites. The association's
federal legislative priority list includes protecting the Alaska
Native Corporation from liability claims on land that was
contaminated before it was transferred to them.
3:33:09 PM
He said SB 202 amends Alaska statutes so that Alaska Native
Corporations are not liable for the contamination, removal, or
remediation actions of the contamination before the lands were
transferred to them under ANCSA.
He explained that though this change in state statute would not
solve the federal issues of this problem, it is an important
step toward protection of Alaska Native corporations from
liability for actions of prior owners.
CHAIR GIESSEL noted the map of Alaska with red dots denoting
contaminated sites.
SENATOR HOFFMAN explained that the red dots are orphan sites;
yellow dots are in clean-up programs, the blue dots are
informational, and green dots denote that clean-up is completed
or about to be completed.
3:34:47 PM
SENATOR MEYER joined the committee.
3:34:56 PM
MARIDON BOARIO, staff to Senator Hoffman, Alaska State
Legislature, Juneau, Alaska, explained that these sites are
called "orphan" because they have not been put into a clean-up
program and the responsible parties have not been identified.
SENATOR HOFFMAN said these sites are spread all across the
state.
CHAIR GIESSEL asked for a sectional analysis of SB 202.
3:35:28 PM
MS. BOARIO provided the analysis as follows:
Section 1 amends AS 46.03.822(a) to add subsection (n) which
relieves Native corporations from liability if the Native
corporation can prove the hazardous materials were already
present on the land before the land was transferred to the
Native corporation under the Alaska Native Claims Settlement Act
(43 U.S.C 1601 et seq.)
Section 2 amends AS 46.03.822(m) to add a new paragraph that
defines Native Corporation to have the same meaning as in
federal law under U.S.C 1602(m) (ANCSA statutes), which says,
Native Corporation means "any regional corporation, any village
corporation, any urban corporation, and any group corporation."
3:36:18 PM
Section 3 amends AS 46.03.822 to add a new subsection (n) that
relieves Native corporations from liability if the Native
corporation can prove the hazardous materials were already
present on the land before the land was transferred to the
Native corporation under the Alaska Native Claims Settlement Act
(43 U.S.C 1601 et seq.)
3:36:33 PM
Section 4 repeals AS 46.03.822 (c)(3), which is a narrower
exemption for Native corporations currently in statute and
replaces it with the exemption in AS 46.06.822.
SENATOR COGHILL asked for an explanation of what is narrower and
if it is primarily the definition of corporations.
MS. BOARIO answered that was her understanding.
3:37:31 PM
SENATOR BISHOP asked if there is a federal definition of "orphan
site."
MS. BOARIO answered yes.
SENATOR BISHOP asked if the military was responsible for the
contamination, because that could be researched.
SENATOR HOFFMAN said page 23 of the report - Hazardous Substance
Contamination of Alaska Native Claims Settlement Act lands in
Alaska - provides a list of some of the 94 orphan sites
identified on September 9, 2015; 41 of those are owned by ANCSA
corporations. Others could potentially be on private, municipal,
or DOD land.
CHAIR GIESSEL noted that the report Senator Hoffman was
referring to was very extensive and contained other very
interesting materials.
SENATOR VON IMHOF asked what has to change to get the sites off
orphan status?
MS. BOARIO said the definition is on page 20 of that same
report. A site is considered to be an orphan if contamination
was present at the time of conveyance and the site is not
currently within a clean-up program.
SENATOR HOFFMAN said although corporations are trying to get the
federal government to clean up the sites, this legislation
doesn't deal with that. It is trying to deal with the liability
issue that is hovering over the corporations from actions that
were not of their making.
SENATOR VON IMHOF asked if the feds could supersede this bill in
any way, making it irrelevant.
SENATOR HOFFMAN said he didn't think so. Congress could probably
pass legislative action saying that the lands they conveyed were
transferred as contaminated, but it was the understanding of the
corporations that they were receiving lands that were
uncontaminated.
3:41:20 PM
EMILY NAUMAN, Attorney, Legislative Affairs Agency, Alaska State
Legislature, answered that SB 202 specifically deals with state
liability and the question is whether future federal law could
supersede this law. The answer is both yes and no, and she
explained that there is a whole secondary structure of federal
liability in the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) that could also cause
liability to run to a Native corporation, but she didn't know of
any specific provision that allow or disallow that. However, it
is always possible that the federal government could enact such
a large piece of legislation - it being so comprehensive - that
the state could be crowded out of this particular area of
environmental regulation, but that would be extremely unlikely.
SENATOR COGHILL said he wanted to know the difference in the
definitions for "corporation" in U.S. Code 1601 that is being
replaced with 1602(m) and he wanted to know the difference.
MS. NAUMAN answered the definitions are substantially the same.
However, the reference to "narrowing" the waiver of liability is
based on the fact that the current waiver of liability in AS
46.03.822(c)(3), which is repealed in section 4 and only waives
liability if the Native corporation could prove that the spill
or threat of a spill was caused by negligence or an intentional
act or omission of a third party, and that the Native
corporation didn't know or didn't have reason to know that the
hazardous substance was spilled or threatened to spill, and that
the Native corporation took action to clean up the hazardous
substance if it did spill. The new exemption provided in the
bill doesn't require a finding of any of those facts before a
Native corporation's liability is waived. Under SB 202, a Native
corporation's liability just simply wouldn't exist.
3:45:55 PM
SENATOR COGHILL said he understood from the sponsor that they
just have to prove the land was contaminated before the
transfer.
MS. NAUMAN and SENATOR HOFFMAN said that was correct.
3:46:15 PM
CHAIR GIESSEL opened public testimony.
HALLIE BISSETT, Executive Director, Alaska Native Village
Corporation Association, Anchorage, Alaska, said the association
was created in 2008 by founding members of the Kuskokwim
Corporation that consists of both full-paid members and
affiliate-level members of the Alaska Native Village Corporation
created under the ANCSA of 1971. While over 220 or so village
corporations were created under that act, only about 176 are
left. That is because of mergers and companies that have
dissolved or gone out of business. The association has a nine-
member board of directors. In order to serve on it, you have to
be a CEO, a chair, or a COO. Their focus has been on the issue
of ANCSA-contaminated lands since 2012.
MS. BISSETT said they are very grateful for the past support
they have received from the legislature in their quest to get
some resolution to this issue at the federal level by amending
CERCLA, the federal law that makes ANCSA corporations liable for
cleanup of these lands. In the past couple of years, they
discovered through legal analysis that a change is needed at the
state level, as well, because it is very similar to the federal
CERCLA law.
She pointed out a couple of things that she had heard: that the
94 orphan sites are not even in any kind of program to be
cleaned up, and 98 percent of them are within two miles of a
village. Since she has been working on this project she has met
people from one side the river and everybody is dying of a
specific kind of cancer and on the other side they are not.
People of Unalakleet have asked her if she knows about the glow-
in-the-dark fish and are pretty sure that PCP contamination that
is causing everyone in the region to have Parkinson's disease.
MS. BISSETT said this problem is real and these sites need to be
cleaned up. All the other sites are in institutional control and
are "allegedly cleaned up" according to the federal government.
But the fact that they got any contaminated lands at all is a
true injustice. The corporations gave up 88 percent of their
traditional lands in exchange for contaminated lands, and that's
just unacceptable. It's been 45-plus years and the land is still
sitting out there contaminated.
MS. BISSET said they are asking the federal government every
year for these changes. Senator Sullivan was very successful in
getting them in front of the Senate Environmental Public Works
Committee in March 2017 and in August the committee came to
Alaska and were shown some of these sites. They were successful
in getting language introduced at the federal level on SB 822 to
amend CERCLA, which will also give them the same liability
shield that SB 202 gives them at the state level. That would
allow them to access more federal funds for cleanup. She is
talking specifically about using Brown Field grants to clean up
the sites and getting them back to their original use (including
subsistence use) or to develop them into a commercial property.
She explained the reason they cannot get those grants now is
because the corporation is identified as a potential responsible
party (PRP). The BLM had no resources to survey when the lands
were transferred, and they were not given the documentation that
they would have needed to know that there was contamination on
these sites. She concluded that while the road before them is
long, this is a good step in the right direction.
3:52:23 PM
CHAIR GIESSEL, finding no further comments, closed public
testimony and found no questions from members.
SENATOR COGHILL moved to report SB 202, version A, from
committee with individual recommendations and attached zero
fiscal note(s). There were no objections and it was so ordered.
3:53:34 PM
At ease
^Confirmation Hearings: Big Game Commercial Services Board
CONFIRMATION HEARINGS:
Big Game Commercial Services Board
3:55:03 PM
CHAIR GIESSEL called the meeting back to order and announced
consideration of the governor's appointee to the Big Game
Commercial Services Board. A fact sheet about the Big Game
Commercial Services Board states that members serve a limit of
two consecutive terms of four years. There are nine members; two
are licensed guides and outfitters, two are transporters, one is
a member of the Board of Game who does not hold either a guide
or transport license, two members are private land owners, and
there are two public members. This board regulates the
activities of commercial services to big game hunters and the
compensation is travel and per diem. They meet at least twice
per year for about three days per meeting and a maximum of 14
days in meetings.
She said this board, in particular, has had some financial
issues in the past, and it was actually suspended for a period
of time. At its last audit review (2015) the recommendation was
only for a three-year renewal. Another audit will be done next
year. The biggest issue, aside from the lack of public notice
for some of their meetings and exams and minutes not being
prepared in a timely manner, is unfunded debt. In 2014-2015 they
accrued a $1-million debt, which is predominantly due to
inadequate fee setting and legal challenges to board
adjudication issues.
CHAIR GIESSEL said the people they will interview today are
brand new members; the board has four remaining veteran members
to help orient the new ones.
3:58:22 PM
CHAIR GIESSEL invited Ms. Heun who is applying for one of the
transporter seats to tell them why she wants to serve.
3:58:59 PM
MICHELLE HEUN, nominee to the Big Game Commercial Services
Board, Palmer, Alaska, reviewed her biography. She is a licensed
transporter since June 2014, having retired from the state in
2013. She now owns and operates her small family lodge business
in the Talkeetna Mountains, accessible by air only. She welcomes
the opportunity to answer any of their questions and pursued
this seat because she is affected by the new fees, fines and
regulations, and she likes to question them and possibly provide
alternatives.
CHAIR GIESSEL noted that this board had increased its fees in
2016 in compliance with statute requiring licensing fees to
cover regulatory costs. It looks like each one of the Alaska
resident fees went up by about $200 per two-year license renewal
and for non-residents it went up by about $400.
4:01:26 PM
SENATOR COGHILL thanked Ms. Heun for her service to the state
and then advised her that every once in a while, they like to
"get hard" on transporters, because of pressure from other
people, but it sounds like she will defend them well.
CHAIR GIESSEL invited Mr. Joyce to tell them a little about
himself and why he would want to serve on the board.
4:02:40 PM
CASH JOYCE, nominee for the transporter position, Big Game
Commercial Services Board, Wasilla, Alaska, said he was born and
raised in Alaska and is interested in being an unbiased
representative for the people.
SENATOR MEYER said he is the owner operator of Vast Alaska, LLC,
and asked him to explain what that is.
MR. JOYCE replied that Vast Alaska is a registered guide
outfitter business and he and his wife also own Neacola Mountain
Air Taxi with a transporter license.
SENATOR COGHILL asked if he had a chance to be involved in any
of the board meetings.
MR. JOYCE answered that he teleconferenced in to the February 15
meeting.
CHAIR GIESSEL added that Mr. Joyce was appointed in January
2018.
SENATOR COGHILL thanked him for being willing to step up and
asked what some the board's major issues are.
MR. JOYCE replied there seems to be a conflict between residents
and non-residents and the budget deficit.
SENATOR COGHILL said a group called "Resident Hunters of Alaska"
will make him earn his keep. It's important that both residents
and non-residents have good rules to play by.
CHAIR GIESSEL invited Mr. Beans to tell them a little about
himself and why he would want to serve on the board.
4:06:42 PM
ROBERT BEANS, nominee for private landowner member, Big Game
Commercial Services Board, Palmer, Alaska, said he was born and
raised in Alaska. In fact, he was born on a reservation when
Alaska was a Territory. He would bring his vast experience on
boards and commissions from the local, regional, state, and
national levels to the board. He is pragmatic and listens to all
sides before rendering a decision on an issue. He is interested
in serving the state in this position, because he currently sits
on the Calista Regional Corporation of ANCSA and has experience
on a local ANCSA Village Corporation Board.
CHAIR GIESSEL said she noticed that he also served as a Village
Public Safety Officer and volunteer firefighter.
MR. BEANS added that he also was an Alaska State Trooper.
SENATOR COGHILL thanked him for being willing to serve and asked
as a landowner what he expects from that seat on this board.
MR. BEANS answered as a landowner he would provide insight into
how they perceive issues. Right now, there currently isn't a way
for landowners to self-police their lands. Normally they rely on
the state police to do that.
SENATOR COGHILL said one of the things the board will look at is
the number of people going into certain areas. He remarked that
elbow-room in Alaska when it comes to guiding and transporting
can get crowded and intense and asked if he had been involved in
issues where guides or transporters are struggling with a
certain area of hunting.
MR. BEANS replied no; however, he was involved in village to
village contention, which lead him and two other individuals to
create what was called a "Moose Moratorium" for the Lower Yukon
River. Because of that effort in 1987, there are now upwards of
5,000 moose in that region.
SENATOR COGHILL remarked that it sounds like he is a good
problem solver.
4:12:09 PM
CHAIR GIESSEL, finding no questions from the committee, opened
public testimony on all three appointees.
SAM ROHRER, President, Alaska Professional Hunters Association
(APHA), Kodiak, Alaska, supported Mr. Joyce's appointment to the
Big Game Commercial Services Board. He is a respected member of
the hunting industry and his experience as both a guide and a
transporter make him well suited to this appointment.
4:14:04 PM
CHAIR GIESSEL finding no further comments on the three
appointees, closed public testimony and thanked them for being
willing to serve. She read the committee report as follows: In
accordance with AS 39.05.080, the Resources Committee reviewed
the following and recommends the appointees be forwarded to a
joint session for consideration: Big Game Commercial Services
Board: Robert Beans, Palmer; Michelle Heun, Palmer; and Cash
Joyce, Wasilla. This does not reflect an intent by any of the
members to vote for or against the confirmation of the
individuals during any further sessions.
4:15:19 PM
CHAIR GIESSEL, finding no further business, adjourned the Senate
Resources Committee meeting at 4:15 p.m.