00 CS FOR SENATE BILL NO. 9(STA) 01 "An Act relating to the evaluation and cleanup of sites where certain controlled 02 substances may have been manufactured or stored; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 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, qualified under federal regulations to investigate and dismantle 01 illegal drug manufacturing sites, determines that a site constitutes an illegal drug 02 manufacturing site, the law enforcement agency that employs the officer shall notify 03 the owner of the property, any lienholder of record, the occupants and users of the 04 property, and the department that the determination has been made. The owner of the 05 property may appeal the determination to the superior court for review of whether the 06 determination was made in compliance with this subsection. In the appeal, the burden 07 of proving by a preponderance of the evidence that the determination was made in 08 compliance with this subsection is on the law enforcement agency that employed the 09 officer who made the determination. 10 (b) The notice to the property owner required under (a) of this section shall be 11 given in a manner that is consistent with the Alaska Rules of Civil Procedure for the 12 service of process in a civil action in this state and must include the following 13 information: 14 (1) the parcel identification number and legal description of the 15 property where the site is located; 16 (2) a statement of the determination made by the law enforcement 17 officer that the site was an illegal drug manufacturing site and the findings that formed 18 the basis for the determination; 19 (3) a citation to, and short summary of, AS 46.03.510, which restricts 20 transfer and occupancy of the site until it is determined to be fit for use; and 21 (4) the following information, which shall be provided to the law 22 enforcement agency by the department: 23 (A) a copy of the standards contained in regulations adopted 24 under AS 46.03.530 that determine whether the property is fit for use; 25 (B) a copy of the sampling procedures established under 26 AS 46.03.520(b) and a copy of the list of laboratories maintained under 27 AS 46.03.520(c) that must be used for determining whether the property is fit 28 for use; and 29 (C) a copy of the guidelines for decontamination established by 30 the department under AS 46.03.540(b). 31 (c) The notice to the department required under (a) of this section must 01 include 02 (1) the parcel identification number and legal description of the 03 property where the site is located; 04 (2) a statement of the determination made by the law enforcement 05 officer that the site was an illegal drug manufacturing site and the findings that formed 06 the basis for the determination; 07 (3) the name and mailing address of the person who owns the property 08 where the site is located; and 09 (4) the name and mailing address of any lienholder of record for the 10 property where the site is located. 11 (d) The notice required under (a) of this section for the occupants and users of 12 the property shall be accomplished by immediate posting of the entryway of the 13 property with a notice that includes the location of the property, the information 14 described in (b)(2) and (3) of this section, and a statement that the property may pose a 15 substantial risk of physical harm to persons or animals that enter or occupy the 16 property. 17 (e) If a person other than the owner, such as a property manager or rental 18 agency, is authorized to let others use or occupy property for which an owner has 19 received a notice under (a) of this section or is authorized to transfer, sell, lease, or 20 rent the property to others, the owner of the property shall communicate the substance 21 of the notice to that person within four days after receiving the notice. 22 Sec. 46.03.510. Restrictions on property. (a) Until determined to be fit for 23 use under AS 46.03.550, the property for which a notice has been issued under 24 AS 46.03.500(a) may not be transferred, sold, leased, or rented to another person 25 except as provided in (b) of this section, and a person may not use or occupy the 26 property at any time after the fourth day following the day on which the property was 27 posted with the notice required under AS 46.03.500(d), except as necessary for testing 28 or decontamination under AS 46.03.520 and 46.03.540. An oral or written contract 29 that would transfer, sell, lease, rent, or otherwise allow the use of the property in 30 violation of this subsection is voidable between the parties at the option of the 31 purchaser, transferee, user, lessee, or renter. However, this subsection does not 01 (1) make voidable a promissory note or other evidence of indebtedness 02 or a mortgage, trust deed, or other security interest securing the promissory note or 03 evidence of indebtedness, if the note or evidence of indebtedness, mortgage, trust 04 deed, or other security interest was given to a person other than the person 05 transferring, selling, using, leasing, or renting the property to induce the person to 06 finance the transfer, sale, use, leasing, or rental of the property; 07 (2) make voidable a lease or rental agreement between the property 08 owner and the person who caused the property to be contaminated and determined 09 unfit for use; or 10 (3) impair obligations or duties required to be performed on 11 termination of a contract, as required by the contract, such as payment of damages or 12 return of refundable deposits. 13 (b) Notwithstanding (a) of this section, property covered by (a) of this section 14 may be transferred or sold if full written disclosure is made to the prospective 15 transferee or purchaser that the property has been determined to be an illegal drug 16 manufacturing site and the property has not been determined to be fit for use. The 17 disclosure shall be attached to the earnest money receipt, if any, and shall accompany 18 the transfer or sale document. The disclosure is not considered to be part of the 19 transfer or sale document, however, and may not be recorded. The property shall 20 continue to be subject to the restrictions in (a) of this section after transfer or sale 21 under this subsection. 22 (c) A person who knowingly transfers, sells, leases, or rents property to 23 another, knowingly allows another to use or occupy property, or, being the owner of 24 property, knowingly occupies or uses the property, in violation of this section is guilty 25 of a class A misdemeanor. In this subsection, "knowingly" has the meaning given in 26 AS 11.81.900(a). 27 (d) It is an affirmative defense to a prosecution under (c) of this section for 28 allowing another to use or occupy the property that the defendant or an agent of the 29 defendant, within four days after receiving a notice under AS 46.03.500, filed an 30 appropriate civil action to remove the user or occupier from the property for which the 31 notice was received. 01 Sec. 46.03.520. Sampling and testing procedures. (a) If the owner of the 02 property for which notice was received under AS 46.03.500(b) desires to determine if 03 the property is fit for use, the owner shall cause the site to be tested for the substances 04 covered in regulations adopted under AS 46.03.530, using the sampling procedures 05 and laboratory services specified under (b) and (c) of this section. The property owner 06 shall inform the laboratory used for a test under this subsection that the test is related 07 to property that has been determined to be an illegal drug manufacturing site. 08 (b) The department shall establish sampling and testing procedures for 09 evaluating substances on property that may have been an illegal drug manufacturing 10 site. 11 (c) The department shall establish and maintain a list of laboratories in the 12 state that have the capacity to perform the testing procedures established under this 13 section and have notified the department that they wish to be on the list maintained 14 under this subsection. A laboratory may not be included on the list unless the 15 laboratory agrees to send the department a copy of test results related to properties 16 whose owners have informed the laboratory that the test results are for property that 17 has been determined to be an illegal drug manufacturing site. 18 Sec. 46.03.530. Standards for determining fitness. (a) Property for which a 19 notice was received under AS 46.03.500(b) is not fit for use if sampling and testing of 20 the property under AS 46.03.520 shows the presence of one of the following 21 substances above the limit set by the department for that substance: lead, mercury, 22 methamphetamines, volatile organic compounds, iodine, sodium hydroxide, red 23 phosphorus, lithium metal, sodium metal, or another substance for which the 24 department has set a limit under (b) of this section. 25 (b) The department shall adopt regulations that set the limit for each substance 26 specifically listed in (a) of this section for purposes of determining whether the 27 property for which a notice was received under AS 46.03.500 is fit for use. The 28 department shall also determine whether there are other substances associated with 29 illegal drug manufacturing sites that may pose a substantial risk of physical harm to 30 persons or animals that enter or occupy the site and shall adopt regulations that set 31 limits for those substances for purposes of determining whether the property for which 01 notice was received under AS 46.03.500 is fit for use. 02 Sec. 46.03.540. Decontamination requirements. (a) If the owner desires to 03 decontaminate the property for which a notice has been issued under AS 46.03.500, 04 the owner shall follow the guidelines established by the department under (b) of this 05 section. 06 (b) The department shall establish guidelines for decontamination of sites that 07 are determined to be unfit for use under AS 46.03.530. The department shall provide 08 a copy of the guidelines to any person who requests a copy. 09 Sec. 46.03.550. Fitness for use. (a) Property for which a notice has been 10 issued under AS 46.03.500 shall be determined by the department to be fit for use if 11 the owner certifies and submits satisfactory evidence to the department that 12 (1) based on sampling and testing procedures established by the 13 department under AS 46.03.520(b) and testing performed by laboratories that are on 14 the list maintained by the department under AS 46.03.520(c), the limits on substances 15 specified in regulations adopted under AS 46.03.530 are not exceeded on the property; 16 (2) if the property was ever tested under AS 46.03.520 and the test 17 results showed the property to be unfit for use under AS 46.03.530, decontamination 18 procedures were performed in accordance with the guidelines established under 19 AS 46.03.540(b) and the requirements of (1) of this subsection have been met; or 20 (3) a court has held that the determination that the property was an 21 illegal drug manufacturing site was not made in compliance with AS 46.03.500(a). 22 (b) The department shall maintain a list of properties for which the department 23 has received notice under AS 46.03.500(c). When the department determines under 24 (a) of this section that a property on the list is fit for use, the department shall remove 25 the property from the list and notify the owner of the property that the property is fit 26 for use. On request, the department shall give a copy of the list maintained under this 27 section to any person who requests the list. 28 Sec. 46.03.560. Securing the property. The owner of property for which a 29 notice was received under AS 46.03.500(b) shall ensure that the property is vacated 30 and secured against use 31 (1) within four days after receiving the notice if the owner does not test 01 the property under AS 46.03.520 within four days after receiving the notice; or 02 (2) within four days after receiving the test results if the owner tests 03 the property within four days after receiving the notice, the test shows the presence of 04 a substance that exceeds the limits set in regulations adopted under AS 46.03.530, and 05 the owner does not begin decontamination procedures under AS 46.03.540 within four 06 days after receiving the test results. 07 Sec. 46.03.570. Duties of the department; regulations.  (a) The department 08 shall adopt regulations implementing AS 46.03.500 - 46.03.599. 09 (b) The department shall periodically review information related to 10 decontamination of illegal drug manufacturing sites to determine whether substances 11 should be added to or deleted from the list of substances specifically named in 12 AS 46.03.530(a). The department shall report written findings to the governor if the 13 department determines that a change should be made to the list of specific substances 14 in AS 46.03.530(a). The governor shall notify the legislature when written findings 15 have been made under this subsection and provide a copy of the findings to a legislator 16 on request. 17 Sec. 46.03.599. Definitions. In AS 46.03.500 - 46.03.599, 18 (1) "illegal drug manufacturing site" means property on which there is 19 reasonable cause to suspect contamination with chemicals associated with the 20 manufacturing of a controlled substance and where 21 (A) activity involving the unauthorized manufacture of a 22 controlled substance listed on schedule I or II in AS 11.71 or a precursor 23 chemical for the substances has occurred; or 24 (B) there are kept, stored, or located any of the devices, 25 equipment, things, or substances used for the unauthorized manufacture of a 26 controlled substance listed on schedule I or II in AS 11.71; 27 (2) "site" means an illegal drug manufacturing site. 28  * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 29 read: 30 REGULATIONS. The Department of Environmental Conservation may immediately 31 begin to develop and adopt regulations to implement this Act. The regulations take effect 01 under AS 44.62 (Administrative Procedure Act). 02  * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 CERTIFICATION OF EFFECTIVE DATE OF REGULATIONS. The lieutenant 05 governor shall certify to the revisor of statutes the effective date of the initial regulations 06 adopted by the Department of Environmental Conservation under sec. 3 of this Act. 07  * Sec. 5. Sections 1 and 2 of this Act take effect on the effective date of the initial 08 regulations adopted by the Department of Environmental Conservation under sec. 3 of this 09 Act. 10  * Sec. 6. Sections 3 and 4 of this Act take effect immediately under AS 01.10.070(c).