Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/26/2018 01:30 PM Senate JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s): Alaska Police Standards Council | |
| SB175 | |
| SB202 | |
| HB43 | |
| Confirmation Hearing(s): Alaska Police Standards Council | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 175 | TELECONFERENCED | |
| + | SB 202 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 43 | TELECONFERENCED | |
SB 202-NATIVE CORP. LIABILITY FOR CONTAMINATION
1:57:47 PM
CHAIR COGHILL announced the consideration of SB 202.
1:58:14 PM
MARIDON BOARIO, Staff, Senator Lyman Hoffman, Alaska State
Legislature, Juneau, Alaska, introduced SB 202 on behalf of the
sponsor speaking to the following sponsor statement:
Through the Alaska Native Claims Settlement Act
(ANSCA) the federal government conveyed land to Alaska
Native Corporations. During the 1990s concerns were
raised that contaminated land was conveyed during this
process. In 1998 a Department of Interior (DOI) report
to Congress on Hazardous Substance Contamination of
ANSCA Lands confirmed the concerns and identified more
than 650 contaminated sites requiring remediation.
These sites were contaminated under ownership and/or
responsibility of the federal government and then
transferred to Native ownership.
A 2016 Bureau of Land Management update to the DOI
report to Congress acknowledged that the agency had
not acted on much of its 1998 report recommendations.
The update identified the Department of Defense as the
single largest pre-transfer owner of contaminated
sites still requiring cleanup. The Alaska Native
Village Corporation Association testified on the
problem as recently as last summer before a
congressional committee, pushing for the federal
government to deal with the problem sites. The Alaska
Native Village Corporation Association's federal
legislative priority list includes protecting Alaska
Native corporations from liability claims over land
that was contaminated before it was transferred to a
Native corporation.
SB 202 amends Alaska state statute so that an Alaska
Native corporation is not liable for containment,
removal or remediation actions if the contamination
occurred on the land before it was transferred under
the Alaska Native Claims Settlement Act. Though this
change in state law would not solve the federal issues
of this problem, it is an important step toward
protecting Alaska Native corporations from liability
for actions by prior owners of the land.
MS. BOARIO stated that the 2016 BLM update identified 537 sites
that were contaminated at the time of the land transfer and
required remediation. Ninety-four of those sites are not in a
cleanup program and are classified by the BLM as orphan sites.
There are also over 100 sites that require further verification
and may be added to the orphan sites list. She noted that both
the 1998 and the 2016 reports were in the packets.
2:01:06 PM
SENATOR WIELECHOWSKI asked the scope of the problem and the type
of contamination that's been identified.
MS. BOARIO said much of the land was Department of Defense and
Federal Aviation Association property and the numerous
contaminants include mercury and petroleum products.
CHAIR COGHILL advised that Hallie Bissett with the Alaska Native
Village Corporation Association (ANVCA) was online.
SENATOR WIELECHOWSKI asked who would be responsible for the
cleanup should the bill pass.
MS. BOARIO replied the Native corporations are currently liable
and face threats of lawsuits because many of these sites are
close to existing villages and could contaminate drinking water
and adjacent land. SB 202 would relieve Native corporations of
liability if it is proven that the contamination existed at the
time of transfer. The primary goal is to pursue funding from the
federal government to clean up the contamination, but the
corporations would also need help in determining who was
responsible for the contamination prior to transfer.
2:04:00 PM
SENATOR COSTELLO observed that the bill does not specifically
assign liability to the federal government or any other entity.
MS. BOARIO agreed; the bill says that the Native corporations
are not liable if the contamination happened prior to the land
transfer.
SENATOR COSTELLO asked if the sponsor contemplated going a step
further and asking for a timetable
MR. BOARIO said not necessarily; the sponsor accepted the
language that the Alaska Native Village Corporation Association
suggested. It aligns with their efforts with the federal
government and links to the recent spending bill.
2:05:34 PM
SENATOR COSTELLO asked if there was a log of the contaminated
sites.
MS. BOARIO replied the Department of Environmental Conservation
(DEC) has a list of all the contaminated sites. She deferred to
Hallie Bissett to talk about whether a federal list exists.
CHAIR COGHILL noted that DEC was not online.
2:06:07 PM
SENATOR SHOWER said he'd like to see DEC's list and access to
historical knowledge about whether the land was contaminated
when it was transferred. "It could be a big liability on a
person from decades ago if we don't know, if we're not careful"
MS. BOARIO agreed to provide the information. She added that a
map in the packets from the DEC website shows where
contamination occurred and the sites that have been identified.
The orphan sites are also identified.
CHAIR COGHILL asked what causes a site to be classified as an
orphan site.
MS. BOARIO said she could read the definition from the BLM
report.
CHAIR COGHILL suggested Ms. Bissett give her testimony while Ms.
Boario located the specific text.
2:08:04 PM
HALLIE BISSETT, Executive Director, Alaska Native Village
Corporation Association (ANVCA), Anchorage, Alaska, said ANVCA
represents 176 Alaska Native Village Corporations that were
created under the 1971 Alaska Native Claims Settlement Act
(ANCSA). Land was transferred to these village corporations at
that time and many of those sites were contaminated.
She provided examples to illustrate the scope of the problem.
These included a glow in the dark fish and an unidentified gel-
like substance in fish. These sites are contaminated with PCBs,
they are White Alice sites, and they are old test sites for the
U.S. Department of Defense.
MS. BISSETT agreed with Ms. Boario that the bill does not assign
blame. The hope is to clean up the sites, but the corporations
needs the legal liability shield because there are probably more
sites that haven't been quantified. Over 600 sites have been
identified and some are in a remediation program. Ninety-four
sites have been classified as orphan sites, which means there is
no intention to clean them up. Almost all of those are within
two miles of a village. This is a large problem for Native
corporations and they would like to compel the federal
government or other responsible party to clean them up in
partnership with an Alaska Native workforce.
2:11:30 PM
CHAIR COGHILL asked her to submit her testimony in writing. The
connection was poor, and the committee missed some of the
details.
MS. BISSETT agreed.
CHAIR COGHILL asked Ms. Boario how many sites have been
identified as the state's responsibility for cleanup.
MS. BOARIO said she would follow up with the information.
CHAIR COGHILL stated his intention to move the bill on
Wednesday.
2:15:43 PM
MS. BOARIO paraphrased the following sectional analysis for SB
202:
Section 1 Amends AS 46.03.822(a) to add subsection (n)
which relieves Native corporations from liability if
the Native corporation can prove the hazardous
materials were already present on the land before the
land was transferred to the Native corporation under
the Alaska Native Claims Settlement Act (43 U.S.C 1601
et seq.).
Section 2 Amends AS 46.03.822(m) to add a new
paragraph that defines Native Corporation to have the
same meaning as in federal law under U.S.C 1602(m).
She read the following definition: Native corporation
means any regional corporation, any village
corporation, any urban corporation, and any group
corporation.]
Section 3 Amends AS 46.03.822 to add a new subsection
(n) that relieves Native corporations from liability
if the Native corporation can prove the hazardous
materials were already present on the land before the
land was transferred to the Native corporation under
the Alaska Native Claims Settlement Act (43 U.S.C 1601
et seq.).
Section 4 Repeals AS 46.03.822(c)(3) which is a
narrower exemption for Native corporations currently
in statute and replaces it with the exemption in AS
46.06.822.
MS. BOARIO read excerpts of the legislative legal memo that
details the repealed section and clarifies that the exemption
proposed in the bill waives liability in a broader set of
circumstances than current statute.
2:18:43 PM
SENATOR WIELECHOWSKI referenced Section 1 and asked if this was
a waiver of strict liability or negligence.
MS. BOARIO deferred to Ms. Nauman.
2:19:22 PM
EMILY NAUMAN, Legislative Counsel, Legislative Legal Services,
Alaska State Legislature, Juneau, Alaska, replied it was a
waiver of strict liability.
SENATOR WIELECHOWSKI asked if Section 3 would apply to a
negligence lawsuit or a strict liability lawsuit.
MS. NAUMAN said there were alternate legal methods through which
a Native corporation could be found liable for costs related to
spills on corporation land and negligence was one possibility.
SENATOR WIELECHOWSKI observed that under current law the Native
corporation would be strictly liable if contaminants on their
land leaked into a neighboring well. Under the bill the
corporation would not be strictly liable if they could prove
that the land was contaminated when the land was transferred to
the corporation under ANCSA. He asked if that was correct.
MS. NAUMAN agreed in part and pointed out that the current law
provides an exception if the Native corporation has taken
certain steps to clean up and monitor the situation. However,
there are other ways through which a Native corporation could be
found liable even if this bill becomes law.
SENATOR WIELECHOWSKI asked for confirmation that a Native
corporation would not be exempt from a nuisance claim, a
trespass claim, or a negligence claim.
MS. NAUMAN said that's correct.
SENATOR WIELECHOWSKI said he assumes that the owner of non-
Native corporation land would be strictly responsible if there
was contamination prior to conveyance at statehood.
MS. NAUMAN said AS 46.03.822(a) places the burden of
responsibility on a series of different parties.
2:23:20 PM
SENATOR WIELECHOWSKI asked who would be liable for contamination
on Native corporation land, should SB 202 pass.
MS. NAUMAN said she believes that would be a highly fact
dependent action because it's difficult to say without knowing
how the hazardous substance ended up on the land and who was
responsible for its release.
SENATOR WIELECHOWSKI asked if the language in Section 3 would
place the liability on the federal government.
MS. NAUMAN said she didn't believe the bill changed the federal
government's liability; it only changes the liability with
respect to a Native corporation.
CHAIR COGHILL said his expectation is that the state could be
liable for land it selected at Statehood but was conveyed to
Native corporations under ANILCA. There would be a question of
who the landowner was at the time of contamination.
MS. NAUMAN said that was her understanding.
SENATOR WIELECHOWSKI asked if the state would be obligated to
clean up sites once the Native corporation was exempt from
responsibility.
MS. NAUMAN deferred the question to Kristen Ryan with DEC.
CHAIR COGHILL asked Senator Wielechowski to bring that question
up on Wednesday.
MS. BOARIO clarified that the Native corporations want
contamination on their lands to be mediated and either have the
federal government pay or be able to qualify for funding for the
cleanup.
CHAIR COGHILL said that's clear; we're trying to figure out who
bears the ultimate responsibility.
SENATOR WIELECHOWSKI asked if a Native corporation would be more
likely to qualify for funding if they were not the party
responsible for the contamination.
MS. BOARIO said she believes so, but she would look into it
further.
2:27:49 PM
CHAIR COGHILL held SB 202 in committee awaiting answers to the
questions brought forward today.