Legislature(2017 - 2018)BARNES 124
02/26/2018 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB305 | |
| Confirmation Hearing(s):|| Big Game Commercial Services Board | |
| HB367 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 367 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 305 | TELECONFERENCED | |
HB 367-NATIVE CORP. LIABILITY FOR CONTAMINATION
2:08:37 PM
CO-CHAIR JOSEPHSON announced that the final 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."
2:08:40 PM
REPRESENTATIVE CHARISSE MILLETT, sponsor, explained HB 367 would
remove from Alaska Native corporations the liability for land
conveyed to them under the provisions of the Alaska Native
Claims Settlement Act (ANCSA). In 1971, nearly 44 million acres
of land began being conveyed to 12 Native corporations; much of
the selected lands were in proximity to Tribal and village land.
As an aside, Representative Millett disclosed she is a Doyon
Limited shareholder. She returned to the bill and explained
subsequent to conveyance, it was found some of the land had been
contaminated, much of it during the '50s, '60s, and '70s when
military scientific research and government nuclear testing were
conducted in Alaska. Further, radar installations were
established throughout the state prior to regulation by the U.S.
Environmental Protection Agency (EPA) and the Department of
Environmental Conservation (DEC). As the Native corporations
sought to develop their lands, the contamination was identified.
Representative Millett said HB 367 directs if the conveyed
(contaminated) land was not contaminated by the present
landowner, but by the federal government, the Native corporation
would be held harmless. She reminded the committee the same
issue was raised by previous legislation [HJR 29, passed in the
Twenty-Seventh Alaska State Legislature and HJR 6, passed in the
Twenty-Eight Alaska State Legislature] related to 137 legacy
wells, which were contaminated by military and\or private
testing; in the case of the legacy wells, "the federal
government now has been, taken ownership of the contamination
and now has cleaned them up ... [except] for 23." Although all
seek to clean up the lands, she said the Alaska Native
corporations should not suffer; in fact, a small corporation
would be depleted if held liable for the cost of complying with
state and federal regulations. She concluded ANCSA was a
wonderful idea, however, now that the lands are conveyed, Native
corporations are not able to assume the ownership of the land
and the liability for its restoration.
2:14:01 PM
HANS RODVIK, Staff, Representative Charisse Millett, Alaska
State Legislature, on behalf of Representative Millett, sponsor
of HB 367, paraphrased from the sectional analysis as follows
[original punctuation provided]:
Section 1: Amends AS 46.03.822(a) to reference
creation of new subsection N
Section 2: Amends AS 46.03.822(m), by including a new
definition of Native corporation, as given in Unites
States federal law
Section 3: Adds a new subsection (subsection N) to AS
46.03.822, which removes Alaska Native corporations
from liability from damages or costs related to
release or threatened release of hazardous substances
on their land, if that land was already contaminated
when it was transferred to them under the Alaska
Native Claims Settlement Act (ANSCA)
Section 4: Repeals AS 46.03.822(c)(3), which was an
insufficient attempt at properly absolving Alaska
Native corporations from liability to damages or costs
concerning contaminated lands they were transferred
under ANSCA
CO-CHAIR JOSEPHSON asked whether there is a legal distinction if
a Native corporation selected lands after December 1971, knowing
the land was contaminated.
REPRESENTATIVE MILLETT advised at the time of conveyance, many
Native corporations relied on Bureau of Land Management (BLM),
U.S. Department of the Interior (DOI), surveys that did not
reveal contamination. The contamination of lands yet to be
conveyed was discovered in the '90s, thus some of the
conveyances are "on hold," pending an understanding of the
liability issues.
CO-CHAIR JOSEPHSON questioned whether HB 367 would apply to
spills not by the federal government, such as those by a
contractor.
REPRESENTATIVE MILLETT said the bill relates to any
contamination of the land, and provided examples of contaminants
found.
MR. RODVIK added the [former] landowner responsible for the
largest number of sites - over 162 sites - is the U.S.
Department of Defense (DoD), a fact which was confirmed by DEC
in 2015.
CO-CHAIR JOSEPHSON asked for the role of Congress in this
matter.
REPRESENTATIVE MILLETT reminded the committee through the
aforementioned legacy well legislation, Alaska asked Congress
for recognition of the issue and for restoration funding, which
was partially accomplished by U.S. Senator Lisa Murkowski by a
$50 million rider attached to the [Fiscal year 2017 Interior and
Environment Appropriations Bill]. Although more funds are
needed, Native corporations continue to petition federal
agencies for [remediation funding].
2:20:03 PM
REPRESENTATIVE BIRCH asked whether there is a potential for
Native corporations to return or exchange lands that have a high
level of contamination, through the "over-selection" provision
of ANCSA.
REPRESENTATIVE MILLETT advised some transfers have been stopped;
she acknowledged there was a large amount of over-selection
[land] for some of these same reasons. She deferred to Mr.
Rodvik.
MR. RODVIK was unsure whether corporations could return
contaminated land; federal "land swaps" with the state do occur,
although he did not know what terms would be acceptable to
Native corporations.
REPRESENTATIVE JOHNSON recalled this issue has been discussed
around the state; in fact, near Nome there is radioactive waste.
She encouraged Representative Millett to add support from local
governments to the bill.
REPRESENTATIVE MILLETT agreed to continue seeking letters of
support; she stated the potential financial impact to the
Kuskokwim Corporation - if it were forced to assume
responsibility for cleaning up contamination - after it
"received the land in good faith."
2:24:17 PM
CO-CHAIR JOSEPHSON directed attention to a document, included in
the committee packet, provided by the Alaska Native Village
Corporation Association entitled, "ANCSA CONTAMINATED LAND"
dated September 2016, and a document provided by DEC entitled,
"Brownfields Resources for ANCSA Contaminated Lands," dated
10/16/16.
REPRESENTATIVE JOHNSON expressed her support for the bill.
2:25:06 PM
REPRESENTATIVE LINCOLN said the ultimate remedy is to correct a
historical injustice against - not just Alaska Native
corporations (ANCs) - but against everyone in the state. He
urged for a unified approach from all Alaskans, state
government, ANCs, and village corporations to advocate for the
bill in one voice. He restated liability is an existential
threat to ANCs and prevents accurate reporting of known sites to
DEC. Representative Lincoln directed attention to DEC's first
three recommendations for action: establish an exchange of
information between ANCSA landowners and federal, state, local,
and Tribal agencies; compile a coordinated and comprehensive
inventory of contaminated sites, as directed by HB 367; work at
the federal level.
REPRESENTATIVE MILLETT acknowledged not all the contaminated
land in Alaska is owned by Native corporations; her research
revealed beginning in the '30s, '40s, and '50s military and
scientific testing occurred on what was considered inhabitable
land, especially from the Alaska Peninsula to the Aleutian
Islands. Further, discussion of the situation in Alaska has
raised awareness of testing in other Western states, although
not to be compared to the testing that was done in Alaska prior
to statehood. She further agreed that a unified voice is
important and that in order for Native corporations to be
successful, they must be able to develop their assets.
REPRESENTATIVE RAUSCHER asked whether the lands in question have
to be "preidentified."
REPRESENTATIVE MILLETT explained HB 367 affects conveyed and
selected lands which are proven to have been contaminated prior
to their transfer to a Native corporation. However, due to the
fear of liability, some lands have not been completely surveyed
and some lands are very remote. In fact, oil and gas
exploration in remote areas has uncovered barrels of
contaminated waste.
REPRESENTATIVE JOHNSON inquired as to how many ANCs have
attempted to address environmental assessments of their lands.
REPRESENTATIVE MILLETT said land is owned by 12 Native
Corporations, Tribal corporations, and village corporations, and
over 1,000 sites have been identified, with varying degrees of
contamination. Cleanup costs could range from hundreds of
thousands of dollars to many millions of dollars; for example,
remediation of one legacy well has cost over tens of millions of
dollars.
2:32:59 PM
MR. RODVIK advised more information on environmental assessments
is forthcoming at a later hearing.
REPRESENTATIVE MILLETT pointed out DOI is aware of the problem
and commissioned a report in 1998 that contained action items,
and which was updated in 2016; however, although DOI has
accepted responsibility, work is needed to obtain federal
funding and begin restoration.
REPRESENTATIVE JOHNSON asked - subsequent to the passage of HB
367 - what the procedure to approach the federal government
would be.
REPRESENTATIVE MILLETT explained, in a manner similar to the
legacy well legislation, she would work in partnership with the
Alaska congressional delegation and with likeminded states.
Unlike ANCSA lands, responsible parties for some of the legacy
wells were unknown.
2:36:43 PM
CURTIS MCQUEEN, Chief Executive Officer, Eklutna Inc., informed
the committee Eklutna Inc. represents the first aboriginal
people of Anchorage and the Eklutna Dena'ina of the Matanuska-
Susitna Borough (Mat-Su Borough). He expressed his appreciation
of lawmakers' support. Mr. McQueen said Eklutna relied on
information it received prior to 1971 when it made its land
selections; in fact, because many of Eklutna's aboriginal lands
were already developed, Eklutna is still in the process of
receiving its land. In the village of Eklutna, the corporation
is in the process of removing a hydroelectric dam from the
Eklutna River and restoring salmon habitat. He said Eklutna is
very pro-development and is supportive of the military, although
one of its contaminated sites is Camp Mohawk, which was a mobile
[military] camp behind the Eklutna school between Cook Inlet and
the village. The Tribal government of Eklutna has worked to
clean up surface contamination from Camp Mohawk; however,
polychlorinated biphenyl (PCB) and diesel fuel have leached into
the silt bed and are reaching the mouth of the Eklutna River and
Cook Inlet. He said this threatens previous work that has been
done to restore king salmon in north Cook Inlet. Eklutna seeks
balance, and partners with the Alaska military; part of its
ANCSA land selection includes 17,000 acres of Joint Base
Elmendorf-Richardson (JBER). In response to an earlier
question, he said the lead agency seeking to identify and
address the cleanup of contaminated lands in Alaska is the U.S.
Army Corps of Engineers (USACE), which successfully cleans up
sites when funded. As a Formerly Used Defense Site (FUD site),
Eklutna is now five years into research of the site, and a plan
for cleanup should be complete within two more years. He said
the cleanup cost predictions are "well into the millions, maybe
tens of millions, just to clean up our site, alone." He noted
the Alaska congressional delegation continues to search for
future funding for USACE, and he urged for a joint resolution in
support of all of the federal agencies that are responsible for
restoration. Further, he advised Eklutna has sites that were
not contaminated by the military, such as land in the Mat-Su
Borough that was contaminated by railroad construction in the
'30s and '40s, and was cleaned up by the joint efforts of
Eklutna, the borough, and the state. From Eklutna's
perspective, DEC has not forced village corporations to restore
their land, which would bankrupt many of the 179 small village
corporations; however, he cautioned this policy could be altered
after a change of administration, and HB 367 would protect ANCSA
landowners as they search for funding. Mr. McQueen concluded
the current federal administration, the state administration,
village corporations, and ANCs are pro-development, but at the
same time need to address contaminated lands.
2:43:53 PM
REPRESENTATIVE BIRCH directed attention to a document provided
in the committee packet entitled, "Alaska Native Village
Corporation Association House Resources Committee," on the page
entitled, "2018 State Priorities," and praised priority "4.
Support the Stand For Alaska [campaign]." He then directed
attention to the page entitled, "2018 Federal Legislative
Priorities," priority "5. Swap ANCSA contaminated lands with
federal government," and asked whether swapping contaminated
land with the federal government is a realistic option.
MR. MCQUEEN expressed his belief ANCs and village corporations
do not have the aforementioned option; he pointed out Eklutna
has been waiting for 45 years for its 67,000 acres in the Knik
River watershed - although some land may be conveyed by 2019 -
that is clean and beautiful land. He explained the conveyance
process is slowed by many interest groups, bureaucracy, and the
lack of land; however, Eklutna would be interested in swapping
land.
REPRESENTATIVE PARISH asked whether the aforementioned land in
JBER has been granted to Eklutna.
MR. MCQUEEN explained Eklutna is part of the North Anchorage
Land Agreement and is owed approximately 17,000 acres within
JBER, and the Municipality of Anchorage is owed approximately
15,000 acres. In the '80s, parties agreed not to pursue legal
action; recently, he recalled, "part of JBER might have shrunk,
by the army shrinking the base," thus the shareholders of
Eklutna view the JBER land as a future conveyance, and do not
seek JBER land at this time due to its importance to the
military.
REPRESENTATIVE PARISH directed attention to the bill beginning
on page 2, line 27, and continuing to page 3, line 1 which read:
(n) In an action to recover damages or costs, a
Native corporation otherwise liable under this section
is relieved from liability under this section if the
Native corporation proves that the release or
threatened release of the hazardous substance to which
the damages relate occurred on land granted to the
Native corporation under 43 30 U.S.C. 1601 et seq.
(Alaska Native Claims Settlement Act) and the
hazardous substance was present on the land at the
time the land was granted.
REPRESENTATIVE PARISH gave an example of a serious spill
occurring tomorrow on Eklutna's acreage at JBER and asked
whether Eklutna would be held liable.
MR. MCQUEEN said the North Anchorage Land Agreement identifies
Eklutna land as a section located near Eagle River and the
Anchorage landfill, which may be received by Eklutna
incrementally, - as the base shrinks - and was conveyed in 1971.
Eklutna is not aware of any present contamination, thus Eklutna
will not know the condition of the land "until we get it."
2:50:50 PM
HALLIE BISSETT, Executive Director, Alaska Native Village
Corporation Association (ANVCA), informed the committee ANVCA
members represent about 176 village corporations that reside
within 12 land-based regional Native corporations created by
ANCSA. Since 2012, ANVCA has been working on the issue of
contaminated lands, and she acknowledged the support of
Representative Millett and others. She pointed out HB 367 is a
real solution that would shield village corporations from
liability, so they may continue to gather the inventory of
contaminated sites in Alaska, which has heretofore been
prevented due to the state's ability to assign liability when
contaminated sites are reported by villages. In addition, HB
367 would allow village corporations - once they are free from
legal designation as the responsible party - to apply for
additional funds at the federal level for cleanup, such as those
from the Brownsfields Grant Program. In response to an earlier
question, she said ANVCA seeks to return land to productive use,
and to provide technical training to villagers for jobs related
to environmental restoration work: HB 367 would provide many
benefits to rural Alaska. In response to Representative Birch,
she noted one of ANVCA's priorities is to swap land with the
federal government in the future, which is not currently an
option. Further, ANVCA will continue to seek appropriations
from the federal government, and guidance from the legislature
and DEC. She acknowledged past state support for related joint
resolutions, and legislators' present swift response to HB 367.
2:55:28 PM
CO-CHAIR JOSEPHSON questioned whether Congress needs to pass an
amendment to the Comprehensive Environmental Response
Compensation, and Liability Act (CERCLA).
MS. BISSETT said yes. U.S. Senator Dan Sullivan's amendment to
CERCLA was adopted in the U.S. Senate version; the U.S. House
bill passed without the desired language that provides a shield
from liability.
REPRESENTATIVE LINCOLN asked whether ANVCA would be eligible for
additional funding subsequent to the passage of HB 367, or if
federal action is needed.
MS. BISSETT said both the state and federal shields from
liability are needed.
[HB 367 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| Robert Beans 2018_Redacted.pdf |
HRES 2/26/2018 1:00:00 PM |
Big Game Commercial Services Board Confirmations |
| Michelle Heun 2017_Redacted.pdf |
HRES 2/26/2018 1:00:00 PM |
Big Game Commercial Services Board Confirmations |
| Cash Joyce_Redacted.pdf |
HRES 2/26/2018 1:00:00 PM |
Big Game Commercial Services Board Confirmations |
| Adam Trombley 2017_Redacted.pdf |
HRES 2/26/2018 1:00:00 PM |
Big Game Commercial Services Board Confirmations |
| HB305 Transmittal Letter 1.25.2018.pdf |
HRES 2/9/2018 1:00:00 PM HRES 2/23/2018 1:00:00 PM HRES 2/26/2018 1:00:00 PM |
HB 305 |
| HB305 ver A 1.25.2018.pdf |
HRES 2/9/2018 1:00:00 PM HRES 2/23/2018 1:00:00 PM HRES 2/26/2018 1:00:00 PM |
HB 305 |
| HB305 Sectional Analysis ver A 1.25.2018.pdf |
HRES 2/9/2018 1:00:00 PM HRES 2/23/2018 1:00:00 PM HRES 2/26/2018 1:00:00 PM |
HB 305 |
| HB305 Fiscal Note DEC-SPAR 1.25.2018.pdf |
HRES 2/9/2018 1:00:00 PM HRES 2/23/2018 1:00:00 PM HRES 2/26/2018 1:00:00 PM |
HB 305 |
| HB305 Supporting Document - Fact Sheet 1.25.2018.pdf |
HRES 2/9/2018 1:00:00 PM HRES 2/23/2018 1:00:00 PM HRES 2/26/2018 1:00:00 PM |
HB 305 |
| HB 367 Fiscal Note.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| HRES ANVCA Contaminated Lands Presentation 2.12.18.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| House Bill 367 Sectional Analysis.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| House Bill 367 Sponsor Statement.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| House Bill 367 Supporting Docs 2016 Report to Congress ANSCA Contaminated Lands.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| House Bill 367 Supporting Docs ANCSA-CONTAMINATED-LAND_Congress.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| House Bill 367 Supporting Docs October 2016 ATCEM ANCSA.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| House Bill 367 V. A.PDF |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| House Bill 367 Supporting Docs 1998 Report to Congress ANSCA Contaminated Lands.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| HB367 Supporting Documents - Contaminated_Lands_Inventory_of_ANCSA_Conveyed_Lands.pdf |
HRES 2/26/2018 1:00:00 PM HRES 2/28/2018 6:00:00 PM |
HB 367 |
| Amendment 1, Rep. Lincoln.pdf |
HRES 2/26/2018 1:00:00 PM |