Legislature(2017 - 2018)BUTROVICH 205
02/26/2018 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB202 | |
| Confirmation Hearings: Big Game Commercial Services Board | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | SB 202 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 202-NATIVE CORP. LIABILITY FOR CONTAMINATION
3:30:41 PM
CHAIR GIESSEL announced consideration of SB 202. She said it
addresses a problem that Native corporations have about
receiving contaminated lands under the Alaska Native Claims
Settlement Act (ANCSA).
3:31:10 PM
SENATOR LYMAN HOFFMAN, Alaska State Legislature, Juneau, Alaska,
sponsor of SB 202, said this legislation came to him from the
Alaska Native Village Corporation Association that formed
because of receiving hazardous substance contaminated lands
under ANSCA that need remediation.
He said concerns about this issue were raised the 1990s, and the
1998 Department of Interior's (DOI) report to Congress confirmed
them and identified more than 650 contaminated sites requiring
remediation. These sites were contaminated under the federal
government's watch and then transferred to Native ownership,
Senator Hoffman said. In 2016, the Bureau of Land Management
(BLM) updated the DOI's report to Congress acknowledging that
the agency had not acted on much of the 1998 report
recommendations. The update identified the DOD as the single
largest pre-transfer owner of contaminated sites still requiring
clean-up.
SENATOR HOFFMAN said the Alaska Native Villages Corporation
Association testified before Congressional committees on the
problem as recently as last summer and pushed for the federal
government to deal with the problem sites. The association's
federal legislative priority list includes protecting the Alaska
Native Corporation from liability claims on land that was
contaminated before it was transferred to them.
3:33:09 PM
He said SB 202 amends Alaska statutes so that Alaska Native
Corporations are not liable for the contamination, removal, or
remediation actions of the contamination before the lands were
transferred to them under ANCSA.
He explained that though this change in state statute would not
solve the federal issues of this problem, it is an important
step toward protection of Alaska Native corporations from
liability for actions of prior owners.
CHAIR GIESSEL noted the map of Alaska with red dots denoting
contaminated sites.
SENATOR HOFFMAN explained that the red dots are orphan sites;
yellow dots are in clean-up programs, the blue dots are
informational, and green dots denote that clean-up is completed
or about to be completed.
3:34:47 PM
SENATOR MEYER joined the committee.
3:34:56 PM
MARIDON BOARIO, staff to Senator Hoffman, Alaska State
Legislature, Juneau, Alaska, explained that these sites are
called "orphan" because they have not been put into a clean-up
program and the responsible parties have not been identified.
SENATOR HOFFMAN said these sites are spread all across the
state.
CHAIR GIESSEL asked for a sectional analysis of SB 202.
3:35:28 PM
MS. BOARIO provided the analysis as follows:
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) (ANCSA statutes), which says,
Native Corporation means "any regional corporation, any village
corporation, any urban corporation, and any group corporation."
3:36:18 PM
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.)
3:36:33 PM
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.
SENATOR COGHILL asked for an explanation of what is narrower and
if it is primarily the definition of corporations.
MS. BOARIO answered that was her understanding.
3:37:31 PM
SENATOR BISHOP asked if there is a federal definition of "orphan
site."
MS. BOARIO answered yes.
SENATOR BISHOP asked if the military was responsible for the
contamination, because that could be researched.
SENATOR HOFFMAN said page 23 of the report - Hazardous Substance
Contamination of Alaska Native Claims Settlement Act lands in
Alaska - provides a list of some of the 94 orphan sites
identified on September 9, 2015; 41 of those are owned by ANCSA
corporations. Others could potentially be on private, municipal,
or DOD land.
CHAIR GIESSEL noted that the report Senator Hoffman was
referring to was very extensive and contained other very
interesting materials.
SENATOR VON IMHOF asked what has to change to get the sites off
orphan status?
MS. BOARIO said the definition is on page 20 of that same
report. A site is considered to be an orphan if contamination
was present at the time of conveyance and the site is not
currently within a clean-up program.
SENATOR HOFFMAN said although corporations are trying to get the
federal government to clean up the sites, this legislation
doesn't deal with that. It is trying to deal with the liability
issue that is hovering over the corporations from actions that
were not of their making.
SENATOR VON IMHOF asked if the feds could supersede this bill in
any way, making it irrelevant.
SENATOR HOFFMAN said he didn't think so. Congress could probably
pass legislative action saying that the lands they conveyed were
transferred as contaminated, but it was the understanding of the
corporations that they were receiving lands that were
uncontaminated.
3:41:20 PM
EMILY NAUMAN, Attorney, Legislative Affairs Agency, Alaska State
Legislature, answered that SB 202 specifically deals with state
liability and the question is whether future federal law could
supersede this law. The answer is both yes and no, and she
explained that there is a whole secondary structure of federal
liability in the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) that could also cause
liability to run to a Native corporation, but she didn't know of
any specific provision that allow or disallow that. However, it
is always possible that the federal government could enact such
a large piece of legislation - it being so comprehensive - that
the state could be crowded out of this particular area of
environmental regulation, but that would be extremely unlikely.
SENATOR COGHILL said he wanted to know the difference in the
definitions for "corporation" in U.S. Code 1601 that is being
replaced with 1602(m) and he wanted to know the difference.
MS. NAUMAN answered the definitions are substantially the same.
However, the reference to "narrowing" the waiver of liability is
based on the fact that the current waiver of liability in AS
46.03.822(c)(3), which is repealed in section 4 and only waives
liability if the Native corporation could prove that the spill
or threat of a spill was caused by negligence or an intentional
act or omission of a third party, and that the Native
corporation didn't know or didn't have reason to know that the
hazardous substance was spilled or threatened to spill, and that
the Native corporation took action to clean up the hazardous
substance if it did spill. The new exemption provided in the
bill doesn't require a finding of any of those facts before a
Native corporation's liability is waived. Under SB 202, a Native
corporation's liability just simply wouldn't exist.
3:45:55 PM
SENATOR COGHILL said he understood from the sponsor that they
just have to prove the land was contaminated before the
transfer.
MS. NAUMAN and SENATOR HOFFMAN said that was correct.
3:46:15 PM
CHAIR GIESSEL opened public testimony.
HALLIE BISSETT, Executive Director, Alaska Native Village
Corporation Association, Anchorage, Alaska, said the association
was created in 2008 by founding members of the Kuskokwim
Corporation that consists of both full-paid members and
affiliate-level members of the Alaska Native Village Corporation
created under the ANCSA of 1971. While over 220 or so village
corporations were created under that act, only about 176 are
left. That is because of mergers and companies that have
dissolved or gone out of business. The association has a nine-
member board of directors. In order to serve on it, you have to
be a CEO, a chair, or a COO. Their focus has been on the issue
of ANCSA-contaminated lands since 2012.
MS. BISSETT said they are very grateful for the past support
they have received from the legislature in their quest to get
some resolution to this issue at the federal level by amending
CERCLA, the federal law that makes ANCSA corporations liable for
cleanup of these lands. In the past couple of years, they
discovered through legal analysis that a change is needed at the
state level, as well, because it is very similar to the federal
CERCLA law.
She pointed out a couple of things that she had heard: that the
94 orphan sites are not even in any kind of program to be
cleaned up, and 98 percent of them are within two miles of a
village. Since she has been working on this project she has met
people from one side the river and everybody is dying of a
specific kind of cancer and on the other side they are not.
People of Unalakleet have asked her if she knows about the glow-
in-the-dark fish and are pretty sure that PCP contamination that
is causing everyone in the region to have Parkinson's disease.
MS. BISSETT said this problem is real and these sites need to be
cleaned up. All the other sites are in institutional control and
are "allegedly cleaned up" according to the federal government.
But the fact that they got any contaminated lands at all is a
true injustice. The corporations gave up 88 percent of their
traditional lands in exchange for contaminated lands, and that's
just unacceptable. It's been 45-plus years and the land is still
sitting out there contaminated.
MS. BISSET said they are asking the federal government every
year for these changes. Senator Sullivan was very successful in
getting them in front of the Senate Environmental Public Works
Committee in March 2017 and in August the committee came to
Alaska and were shown some of these sites. They were successful
in getting language introduced at the federal level on SB 822 to
amend CERCLA, which will also give them the same liability
shield that SB 202 gives them at the state level. That would
allow them to access more federal funds for cleanup. She is
talking specifically about using Brown Field grants to clean up
the sites and getting them back to their original use (including
subsistence use) or to develop them into a commercial property.
She explained the reason they cannot get those grants now is
because the corporation is identified as a potential responsible
party (PRP). The BLM had no resources to survey when the lands
were transferred, and they were not given the documentation that
they would have needed to know that there was contamination on
these sites. She concluded that while the road before them is
long, this is a good step in the right direction.
3:52:23 PM
CHAIR GIESSEL, finding no further comments, closed public
testimony and found no questions from members.
SENATOR COGHILL moved to report SB 202, version A, from
committee with individual recommendations and attached zero
fiscal note(s). There were no objections and it was so ordered.