HB 367-NATIVE CORP. LIABILITY FOR CONTAMINATION  1:59:19 PM CHAIR CLAMAN announced that the next order of business would be HOUSE BILL NO. 367, "An Act relating to the liability of a Native corporation for the release or threatened release of hazardous substances present on certain lands." 1:59:45 PM HANS RODVICK, Staff, Representative Charisse Millett, Alaska State Legislature, advised that HB 367 deals with issues going back to the 1971 Alaska Native Claims Settlement Act (ANCSA). At that time, he explained, as those lands were beginning to be conveyed to Native Corporations throughout the state, folks realized that portions of certain conveyed lands contained contamination prior to that conveyance. These issues began to be discussed by the Alaska Native communities in 1990s. In 1998, the United States Congress directed the Secretary of the Interior [Donald P. Hodel] to review the issue and report. That report found that approximately 650 sites were known to have been conveyed to Alaska Native Corporations under ANCSA, except the outcome of that report "didn't produce much, other than it surveyed the issue well, but no action was really taken." Approximately one decade went by and in 2014, the United States Congress mandated that the United States Department of the Interior update that inventory of contaminated lands. He explained that in 2016, the United States Department of the Interior completed its report and found that 500-plus sites required remediation and cleanup in order to truly resolve the issue. The largest party of those pre-transferred contaminated lands was found to be the United States Department of Defense. Subsequent to the 2016 report, he advised, and work with organizations, such as the Alaska Native Village Corporation Association (ANVCA) drafted this bill and also a bill at the federal level. He explained that HB 367 will not solve the problem of cleaning up the lands, but it will help bring Alaska Native Corporations into a place where they are able to actually begin addressing these matters. Essentially, the intent is to remove liability from the Alaska Native Corporations which were transferred contaminated lands and, he stressed that the Alaska Native Corporations were unaware of those contaminations during the process of the conveyance of lands. The issue, he explained, is that under current state law, the Alaska Native Corporations would be liable for the cleanup, cost, and damages that may arise from those contaminated lands of which is addressed in this legislation to remove that level of liability. 2:03:05 PM REPRESENTATIVE LEDOUX offered sympathy for this issue and asked why it is strictly limited to Alaska Native Corporation lands. She noted that Alaska has strict liability laws wherein someone can be completely innocent when something was conveyed to them, and they had absolutely no idea it was contaminated. In the event this legislature addresses this issue for one category of folks, she suggested possibly revisiting the entire law. MR. RODVICK described the Alaska Native Claims Settlement Act (ANCSA) as a monumental piece of legislation in Alaska's history that involved 44 million acres of conveyed lands. He pointed out that it is not just the Alaska Native Corporations who are affected with contaminated lands, many of the villages and smaller corporations that, under the current liability state statutes, "could be honestly decimated" if found liable and had to deal with the contamination. Possibly, he offered, there is a conversation to be had in looking at other parties who are responsible for contamination, but the scope of this bill focuses on the Alaska Native Corporations. 2:04:48 PM REPRESENTATIVE LEDOUX asked how it would work under this bill if, for instance, an Alaska Native Corporation received conveyed land through ANCSA and it then conveyed some of that land to a second party, and that party found that the land was contaminated. She asked whether this legislation would also immunize the second party. MR. RODVICK related that he would have to get back to the committee with legal opinions in terms of Alaska Native Corporations passing on conveyed lands, selling lands, or conveying it to other parties, if that second party would be relieved from liability. The intent of this legislation, he explained, is to focus on the corporations with contamination on their lands because those corporations want to help remediate these environmental disasters so they can move forward with their communities with responsible resource development or the use of their lands. 2:06:12 PM REPRESENTATIVE LEDOUX commented that she would like to receive an answer to her question. 2:06:19 PM REPRESENTATIVE EASTMAN asked when the last land grant was conveyed under ANCSA. MR. RODVICK answered that he would have to research that question. 2:06:35 PM REPRESENTATIVE EASTMAN referred to the conveyance of the last land grant and asked whether there are any circumstances where an Alaska Native Corporation or someone else would be in possession, control, or have some administrative responsibilities over the land, prior to it formally, officially, and legally, granted to them. He opined that if that is the case, rather than having the immunization start or the trigger begin when the land was granted, possibly a more appropriate trigger would be when the person received the land grant and came to possess or control or administer or manage the land. MR. RODVICK opined that the process of conveying lands under ANCSA is ongoing because there is still land that has not been fully conveyed to the Alaska Native Corporations by particular parties. In terms of the word "grant" versus "convey," that issue was discussed in the House Resources Standing Committee, and he asked Representative Eastman whether that is what he is considering in terms of the actual timeframe for the removal of liability. 2:08:06 PM REPRESENTATIVE EASTMAN referred to [Section 3, AS 46.03.822(n), page 3, line 1, which read as follows: substance was present on the land at the time the land was granted. REPRESENTATIVE EASTMAN clarified that he was asking whether the last three words of the bill, "land was granted," are appropriate and meet the intent of this legislation. He commented that if this only deals with "at the time the land was granted" and there is still land that has not yet been granted, "maybe it's not right to absolve someone of responsibility because they haven't been granted the land yet, if they are the ones who may already be aware or maybe contributed to some type of contaminants or something like that." In the event those folks are responsible in some manner, he said, he did not know whether what "we are trying to do" is remove them from liability simply because they have not yet been granted the land. MR. RODVICK answered that it comes back to the difference between the definitions of "grant" and "convey." The lands were granted to the Alaska Native Corporations under ANCSA, but they have not yet been conveyed. He pointed out that those granted lands containing contamination before being actually conveyed are the lands this legislation addresses in removing liability, and the sponsor's office worked in conjunction with the Alaska Native Village Corporation Association when crafting this legislation, he said. 2:09:52 PM CHAIR CLAMAN opened invited testimony on HB 367. 2:10:16 PM HALLIE BISSETT, Executive Director, Alaska Native Village Corporation Association (ANVCA), described her background, and advised that she has served on the board of directors for Cook Inlet Region Incorporated since 2010 and she is clearly aware of the various contaminated lands. She described that one bit of contaminated land is located between the two major population centers of the Municipality of Anchorage and the Mat-Su, with Camp Mohawk in Eklutna that is currently contaminating Cook Inlet with Polychlorinated Biphenyls (PCBs). This is a real problem "right in our backyard" she described, and it cannot be ignored any longer. On 12/18/1971, the United States Congress passed the Alaska Native Claims Settlement Act (ANCSA) into law and agreed to convey to 12 Alaska Native Regional Corporations and more than 200 village corporations, 44 million acres of land. To be clear, she expressed, the Alaska Native people gave up 88 percent of their traditional lands through ANCSA. The United States Congress directed that the United States Department of the Interior oversee the transfer of these lands (coughing) late 1980s it was realized that the transfer was of contaminated lands. The Alaska Native people did not know those lands were contaminated and the federal government did not hand over the documentation "letting us know what was out there. And, what is out there? We're talking about arsenic, unexploded ordinances, PCBs, among many other things." 2:12:14 PM MS. BISSET, in response to Representative LeDoux's question as to why this legislation is limited to ANCSA, opined that it is limited to ANCSA "for the very fact that we gave up 88 percent of our traditional lands" in exchange for this settlement. The Alaska Native people were supposed to receive economically viable lands in exchange, and not lands that they were legally liable to cleanup. She stressed that a huge disservice was done to the Alaska Native people over these many years and this legislation is trying to remedy the situation by putting the legal liability shield in place to complete the inventory of the total sites out there. As was noted in the report, she offered, there are approximately 650 sites currently, but there are about 100 more sites that need to be evaluated to determine the exact condition of the land. She commented that if these events had taken place 20-30 times, she might think it was a mistake, but this has happened over 900 times. Therefore, something must be done about this and she offered that some of the effects of the contaminations as follows: people living on one side of the river are dying of a certain type of cancer and the people living on the other side of the river are not dying of this cancer; people are hanging glow-in-the-dark fish at their fish camps; and the people living in Unalakleet believe they are getting Parkinson's Disease from all of the PCBs being dumped into their water. This is a very real problem that needs to be cleaned up, the report identifies 94 "orphan sites," an orphan site means there is no intention to clean up the contamination. She stressed that the Alaska Native Village Corporation Association (ANVCA) would like to put the liability shield in place and begin cleaning up these lands. 2:14:02 PM REPRESENTATIVE EASTMAN asked how this bill assists in the clean up of contaminated lands because it absolves liability, at least in some situations, from corporations. He noted that he was unsure how that would help the owners of the land to cleaning up the contaminations, and asked that, if anything, doesn't it make it so the Alaska Native Corporations do not have to clean it up because the contamination is not their fault. MS. BISSETT responded that because the Alaska Native Corporations are potentially responsible parties, they are unable to apply for, for EPA ground fill development grants, for example, which is one of the reasons for this legislation. This bill lifts the liability problem in order to receive access to federal funds for cleanup, she advised. 2:15:17 PM CHAIR CLAMAN opened public on HB 367. After ascertaining that no one wished to testify, closed public testimony on HB 367. [HB 367 was held over.]