Legislature(2005 - 2006)BUTROVICH 205
02/15/2006 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB269 | |
| HB107 | |
| SB240 | |
| SB249 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 240 | TELECONFERENCED | |
| *+ | SB 249 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | HB 269 | ||
| = | HB 107 | ||
HB 269-HAZARDOUS SUBSTANCE RELEASE LIABILITY
8:41:05 AM
CHAIR RALPH SEEKINS announced HB 269 to be up for consideration.
JANE PIERSON, Staff to Representative Jay Ramras, introduced the
bill. She explained that HB 269 is meant to address a United
States Supreme Court decision in the case of Cooper Industries
v. Aviall Services. The US Supreme Court found that a
responsible party who cleans up a contaminated property couldn't
bring a contribution action against another responsible party
until such time as it has been sued by the state or federal
government or has entered into a formal administrative
settlement of liability.
The Aviall decision puts into question the rights of Alaskans
who conduct voluntary cleanups on contaminated property against
other potentially responsible parties. Voluntary cleanups form
the majority of environmental cleanups and relieve a substantial
burden from the state.
8:42:49 AM
MS. PIERSON summarized the right to contribution actions
provides incentives for voluntary cleanups by allowing parties
to recover some of the costs from other responsible parties that
fail to assist with remediation. HB 269 would clarify language
in AS 46.03.822(j) thereby ensuring that responsible parties
that conduct voluntary cleanups may bring contributions actions
against other responsible parties.
8:43:51 AM
SENATOR GENE THERRIAULT asked Ms. Pierson to summarize the
written decision of the US Supreme Court.
MS. PIERSON explained the decision stated that it was a timing
issue of when contribution claims could be started. The Court
said they couldn't be started until such time as the state or
federal government had formally sued. The problem is that
instead of bringing other responsible parties in from the
beginning, it is now uncertain when they can be brought into the
action.
SENATOR THERRIAULT asked whether other responsible parties could
be brought in voluntarily before a suit occurred.
MS. PIERSON said yes. The owner would pay to clean up the
property and the courts would get involved only if there was a
disagreement.
8:45:33 AM
SENATOR HOLLIS FRENCH said he read several pages of the US
Supreme Court opinion in the Aviall case. It was a statutory
cause of action and because the statute didn't authorize a
contribution action before there was a lawsuit, there couldn't
be a contribution action unless there was a lawsuit and that
means there is no such thing as a voluntary agreement to clean
up a spill. It was a very narrow and legalistic view of what
Congress had done and because Congress didn't specify that two
parties could voluntarily get together and do the cleanup, a
party cannot sue to bring in another party, he explained.
SENATOR THERRIAULT asked for a definition of "contribution
action."
SENATOR FRENCH posed a hypothetical situation of a gas station
owner who has a leaky tank and sells the business to a new
owner. The new owner is aware of the leaky tank and two years
later gets sued to clean it up. A "contribution action" is when
the new owner forces the help of the previous owner to do the
cleanup. The statute wouldn't allow the new owner to sue the
previous owner unless the new owner had been sued first. Because
the statute does not authorize it, the statute must be fixed to
allow for a voluntary contribution claim.
CHAIR SEEKINS said he understood it to be that a private party
that has not been sued under the Comprehensive Environmental
Response Compensation and Liability Act (CERCLA) may not obtain
contribution from other liable parties.
8:51:24 AM
SENATOR HUGGINS asked Ms. Pierson how the sponsor discovered the
need for the bill.
MS. PIERSON advised the committee that it came as a request from
the attorney general's office.
BRECK TOSTAVIN, Senior Assistant Attorney General, Department of
Law (DOL), informed the committee that their interpretation of
the Aviall decision was correct. The concern with that decision
in regard to state law is that AS 46.03.822 is patterned after
CERCLA. That decision creates an uncertainty of whether the
Alaska Supreme Court would interpret a case in the same way that
the US Supreme Court did. The concern is that they could
interpret it to require the state to actually sue a responsible
party to allow that responsible party to bring in others for a
contribution action.
The voluntary cleanup process in Alaska occurs in a forward
process. When contamination is found, the Department of
Environmental Conservation (DEC) sends out notifications to the
responsible parties who hire consultants and then engage in the
voluntary cleanup. They then seek to recover costs from other
responsible parties. HB 269 would keep the current process in
place. The Aviall decision conflicts with the Laidlaw decision
[Federal Deposit Insurance Corporation v. Laidlaw Transit] where
the Alaska Supreme Court said that a lawsuit was not required
for a contribution action. The Court said a formal
administrative action initiated by the DEC was enough to trigger
rights to a contribution action. The bill clarifies that the
timing of the contribution right is triggered by the potential
liability determination by the DEC.
8:55:02 AM
CHAIR SEEKINS reiterated that a person could bring a
contribution action once that person receives a notice of
potential liability determination from the DEC. An
administrative action gives the authority to go after a
contribution action on another potentially responsible party.
MR. TOSTAVIN agreed. Once a party receives notification and
begins to incur expenses associated with the cleanup, they have
the contribution action right.
CHAIR SEEKINS noted there was no one else signed up to testify
and so he closed public testimony.
SENATOR FRENCH expressed support for the bill.
8:57:15 AM
SENATOR HUGGINS moved to adopt version G as the working document
before the committee. Hearing no objections, the motion carried.
SENATOR HUGGINS moved to adopt the Senate Judiciary Standing
Committee letter of intent. Hearing no objections, the motion
carried.
SENATOR THERRIAULT moved SCS HB 269(JUD) from committee with
individual recommendations and the attached fiscal notes and the
letter of intent. Hearing no objections, the motion carried.
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