HB 95: "An Act relating to the liability of certain security interest holders arising out of an unpermitted release of a hazardous substance or the substantial threat of an unpermitted release of a hazardous substance, and to liens on the property of certain security interest holders resulting from an oil or hazardous substance spill or the substantial threat of a release of oil or a hazardous substance."
00HOUSE BILL NO. 95 01 "An Act relating to the liability of certain security interest holders arising out 02 of an unpermitted release of a hazardous substance or the substantial threat of 03 an unpermitted release of a hazardous substance, and to liens on the property 04 of certain security interest holders resulting from an oil or hazardous substance 05 spill or the substantial threat of a release of oil or a hazardous substance." 06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 07 * Section 1. AS 46.03.826 is amended by adding new paragraphs to read: 08 (16) "indicia of ownership" means evidence of interests in real or 09 personal property held as security for a loan or other obligation, including full title to 10 real or personal property acquired through foreclosure or an equivalent procedure, and 11 including a mortgage, deed of trust, assignment, lien, pledge, or other right to or other 12 form of encumbrance against property that is recognized under applicable law as 13 establishing a bona fide security interest; 14 (17) "participating in the management of a vessel or facility" means the
01 actual participation in the management or operational affairs by the person who is the 02 holder of the security interest; in this paragraph, "participating in the management of 03 a vessel or facility" 04 (A) includes exercising 05 (i) decision-making control over the borrower's 06 environmental compliance, to the degree that the security holder has 07 undertaken responsibility for the borrower's actions that result in a 08 release or threatened release; 09 (ii) management level control encompassing the 10 borrower's environmental compliance responsibilities comparable to that 11 of a manager of the borrower's enterprise; 12 (B) does not include 13 (i) the mere capacity or ability to influence, or the 14 unexercised right to control, facility operations; 15 (ii) undertaking or requiring an environmental audit or 16 inspection; 17 (iii) imposing a requirement that the borrower clean up 18 the vessel or facility before or during the term of the security interest; 19 (iv) imposing a requirement of assurance that the vessel 20 or facility remains or is maintained in compliance with all applicable 21 local, state, and federal laws and regulations for the life of the loan or 22 security interest; or 23 (v) periodic or regular monitoring of the borrower's 24 business or financial condition, loan workouts, or other actions that are 25 reasonably necessary for the security holder to adequately maintain the 26 security interest; 27 (18) "primarily to protect a security interest" means that the indicia of 28 ownership in the vessel or facility are held for the purpose of securing payment or 29 performance of a financial obligation, including a mortgage, installment sale, trust 30 receipt transaction, assignment, or other financing arrangement; "primarily to protect 31 a security interest" does not include an ownership interest in property held for
01 investment purposes, or for purposes other than as protection of a security interest. 02 * Sec. 2. AS 46.08.075 is amended by adding new subsections to read: 03 (f) Notwithstanding (a) of this section, if the property subject to the response, 04 containment, removal, or remedial action by the state is owned by a person who, under 05 AS 46.03.826(8)(B), is not considered an owner or operator under AS 46.03.822 - 06 46.03.828, the state may file a lien against only that property that was subject to the 07 state's action. If the lien is filed, the lien and the person's liability to the state for the 08 state's costs of the action is limited to the difference, if any, in the positive fair market 09 value of the property before the state's action and the fair market value of the property 10 after the conclusion of the state's action, to the extent the difference has resulted 11 directly from the state's action. In this subsection, 12 (1) "action" means response, containment, removal, or remedial action; 13 (2) "person" has the meaning given in AS 46.03.900. 14 (g) The lien imposed by (f) of this section is subject to the rights of a 15 purchaser, holder of a security interest, or judgment lien creditor if the interest of the 16 purchaser, holder, or creditor is perfected under applicable law before notice of the lien 17 imposed by (f) of this section is filed in the appropriate recorder's office under (b) of 18 this section. The purchaser, holder of a security interest, or judgment lien creditor 19 shall be afforded the same protections against the lien imposed by (f) of this section 20 as are afforded under state law to a purchaser, holder of a security interest, or 21 judgment lien creditor against a judgment lien that arises out of an unsecured 22 obligation and that arises at the same time the notice of the lien created under (f) of 23 this section is filed.