Legislature(1999 - 2000)

05/11/1999 08:08 AM CRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
SB 110-HAZARDOUS SUBST. RELEASE: GOVT ENTITY                                                                                    
                                                                                                                                
CO-CHAIRMAN HALCRO announced that the next order of business before                                                             
the committee would be CS FOR SENATE BILL NO. 110(RLS) am, "An Act                                                              
relating to liability for the release of hazardous substances                                                                   
involving certain property acquired by a governmental entity;                                                                   
relating to making a determination as to when a hazardous substance                                                             
release has occurred; relating to liability of a party other than                                                               
the party responsible for the initial release of a hazardous                                                                    
substance; and providing for an effective date."                                                                                
                                                                                                                                
SENATOR WILKEN, Sponsor of SB 110, Alaska State Legislature,                                                                    
provided the committee with the following example in order to put                                                               
into perspective the reasoning behind SB 110.  The Fairbanks                                                                    
Northstar Borough currently, has 14 properties with taxes in                                                                    
arrears which total a little over $500,000 in past taxes.  Those                                                                
taxes are not being paid because the property owners realize that                                                               
the borough cannot take over those properties due to the perceived                                                              
or actual contamination on the property.  The borough is concerned                                                              
that if those properties are taken by the borough, the borough                                                                  
would be immediately liable for the contamination.  The borough                                                                 
would not be liable under federal law and the borough would be able                                                             
to foreclose on past taxes and determine what should be done with                                                               
the property.  This is not the case under state law.  Senator                                                                   
Wilken stated that SB 110 aligns state law with federal law.                                                                    
                                                                                                                                
SENATOR WILKEN read the following sponsor statement:                                                                            
                                                                                                                                
     This bill will assist municipalities in performing their                                                                   
     statutory duty to enforce liens for delinquent real                                                                        
     property taxes.  Tax foreclosure is a mandatory process                                                                    
     leading to the taking of a tax deed that places the title                                                                  
     to a tax delinquent property in the municipality's name.                                                                   
     Some properties with delinquent taxes are contaminated.                                                                    
     Municipalities are concerned that they may be held liable                                                                  
     for pre-existing contamination of foreclosed land with                                                                     
     significant environmental remediation costs.                                                                               
                                                                                                                                
     The federal Comprehensive Environmental Response,                                                                          
     Compensation, And Liability Act (CERCLA) exempts by                                                                        
     definition state and local governments who acquire                                                                         
     property through "bankruptcy, foreclosure, tax                                                                             
     delinquency, abandonment, or similar means."  However,                                                                     
     the state law which addresses liability for damage caused                                                                  
     by the release of hazardous substances, AS 46.03.822,                                                                      
     does not precisely mirror the federal law.  SB 110 will                                                                    
     amend AS 46.03.822 to ensure that the federal and state                                                                    
     laws are similar in this respect.  The municipality may                                                                    
     therefore have title to the contaminated property without                                                                  
     involuntary exposure to cleanup.                                                                                           
                                                                                                                                
     Changes in the Senate also recognized the need to extend                                                                   
     this courtesy to innocent third parties, which are not                                                                     
     directly responsible for contaminating the property they                                                                   
     have acquired.  Subsection (m) clarifies state law to say                                                                  
     that "a party, other than the party responsible for the                                                                    
     initial release, who had no reason to know that a                                                                          
     hazardous substance was disposed of on, in, or at the                                                                      
     facility and who has acted responsibly upon discovering                                                                    
     contamination...may not be held liable for the spread or                                                                   
     migration of the hazardous substance except by an action                                                                   
     of intentional misconduct or gross negligence."                                                                            
                                                                                                                                
Number 2711                                                                                                                     
                                                                                                                                
SENATOR WILKEN noted that the committee packet should contain                                                                   
letters of support from Anchorage, Kenai, Ketchikan, and the                                                                    
Fairbanks Northstar Borough.  He said that it is helpful to review                                                              
CSSB 110(RLS) am in two distinct sections.  The first section being                                                             
from page 1, line 7 to page 2, line 8 which addresses the personal                                                              
liability.  The second section is page 2, line 9 through to the end                                                             
of the bill which addresses the municipal liability.  The                                                                       
legislation began with a zero fiscal note, but through the process                                                              
a large fiscal note was added.  There were some language changes                                                                
which has resulted in an indeterminate fiscal note.  Senator Wilken                                                             
expressed his desire to report the bill from committee with the                                                                 
indeterminate fiscal note in order to refine the fiscal note.                                                                   
                                                                                                                                
CO-CHAIRMAN HALCRO noted that there are two proposed amendments,                                                                
one prepared by Co-Chairman Halcro and one prepared by the                                                                      
Department of Environmental Conservation (DEC), which may address                                                               
subsection (m).  He asked if Senator Wilken had an opinion on those                                                             
amendments.                                                                                                                     
                                                                                                                                
SENATOR WILKEN said that he had not seen Co-Chairman Halcro's                                                                   
proposed amendment.  With regard to DEC's amendment, Senator Wilken                                                             
pointed out that DEC's amendment would require a title change.                                                                  
Co-Chairman Halcro's amendment would delete subsection (m) entirely                                                             
returning the bill to its original form which would be difficult.                                                               
Therefore, Senator Wilken opposed both amendments.                                                                              
                                                                                                                                
CO-CHAIRMAN HARRIS asked if this legislation made anyone immune                                                                 
from intentional contamination to property when that person                                                                     
abandons that property.                                                                                                         
                                                                                                                                
SENATOR WILKEN replied no.                                                                                                      
                                                                                                                                
Number 2518                                                                                                                     
                                                                                                                                
PAUL COSTELLO, Land Management Director, Fairbanks Northstar                                                                    
Borough, testified via teleconference from Fairbanks.  He informed                                                              
the committee that there is a mandatory process under state                                                                     
statute.  This legislation attempts to make state statute mirror                                                                
federal statute in order to take these contaminated properties and                                                              
proceed through the tax foreclosure process to sale if necessary to                                                             
recoup the taxes.  He echoed Senator Wilken's estimate that the                                                                 
Fairbanks Northstar Borough would be looking at approximately                                                                   
$500,000 in past due taxes, penalties, and interest.                                                                            
                                                                                                                                
TIM ROGERS, Legislative Program Coordinator, Municipality of                                                                    
Anchorage, testified via teleconference from Anchorage.  He                                                                     
informed the committee of the Municipality of Anchorage's support                                                               
of this legislation.                                                                                                            
                                                                                                                                
REPRESENTATIVE MURKOWSKI assumed that the support indicated by Mr.                                                              
Rogers was in reference to the CSSB 110(RLS) am.                                                                                
                                                                                                                                
MR. ROGERS stated, "We support the original bill that was                                                                       
introduced."  There is no desire to limit the municipality's                                                                    
liability when it acquires property.  The main concern is with the                                                              
mandatory tax foreclosures.                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI noted that the amendments before the                                                                   
committee would eliminate subsection (m) or substantially change                                                                
subsection (m).  She asked if Mr. Rogers had any comment on                                                                     
subsection (m).                                                                                                                 
                                                                                                                                
MR. ROGERS said that he had no objection to the elimination of                                                                  
subsection (m).                                                                                                                 
                                                                                                                                
CO-CHAIRMAN HARRIS noted that Anchorage is the largest municipality                                                             
in Alaska.  He inquired as to how many situations of abandonment of                                                             
property with contamination the municipality faces.                                                                             
                                                                                                                                
MR. ROGERS estimated that at any given time there could be 10 to 12                                                             
such properties.  He offered to provide the committee with                                                                      
specifics.  In further response to Co-Chairman Harris, Anchorage                                                                
bears the cost.  For example, there has been a case which has been                                                              
going on for the last four or five years which has cost in excess                                                               
of $50 million.  He agreed with Co-Chairman Harris that the local                                                               
tax payers basically bear the burden.                                                                                           
                                                                                                                                
Number 2282                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked if the Municipality of Anchorage had                                                             
a problem with leaving subsection (m) in the legislation.                                                                       
                                                                                                                                
MR. ROGERS said, "No, I don't believe we do."                                                                                   
                                                                                                                                
CO-CHAIRMAN HALCRO asked if there is a foreclosure on contaminated                                                              
property, would the cost of remediation be passed on to the owner                                                               
or does the city assume complete responsibility and liability.                                                                  
                                                                                                                                
MR. ROGERS stated that the municipality would attempt to collect                                                                
that cost from the previous owner of the property, but that is not                                                              
always possible which would result in the municipality acquiring                                                                
the total remediation bill.                                                                                                     
                                                                                                                                
Number 2183                                                                                                                     
                                                                                                                                
LARRY DIETRICK, Program Manager, Division of Spill Prevention &                                                                 
Response, Department of Environmental Conservation (DEC), informed                                                              
the committee that the department has worked with the sponsor on                                                                
this legislation.  He said that the department is not opposed to                                                                
the innocent landowner provision, although he noted there is                                                                    
currently such a provision in law.  Mr. Dietrick emphasized,                                                                    
"Language changes to this statute are, in our view, are very                                                                    
important, are very critical because they have the effect of                                                                    
shifting the underlying liability for costs of the cleanup and                                                                  
damages from the spiller to the state."  He explained that the                                                                  
fiscal note is indeterminate because some of the ambiguous language                                                             
in subsection (m) which may change the fundamental scheme for the                                                               
spiller pays principle.                                                                                                         
                                                                                                                                
MR. DIETRICK stated that the language of concern is on page 3, line                                                             
5, subsection (m) which reads, "first introduced into the                                                                       
environment."  The other language of concern is on page 3, line 6,                                                              
subsection (m) which reads, "party responsible for the initial                                                                  
release" .  Both are undefined terms which determine who is liable                                                              
and who caused the spill.  Frequently, there are underground spills                                                             
which leach into a water supply years after the initial spill.  In                                                              
such a situation, the argument that such a situation is not an                                                                  
initial release is utilized.  Such an argument creates legal                                                                    
difficulties.  He informed the committee of the "Mylos Reefer"                                                                  
(ph), a vessel which has been aground for about 10 years now.  The                                                              
initial release containment, control, and cleanup was completed.                                                                
Yet, this past summer some of the washings from the fuel tanks were                                                             
released.  He asked if that would be an "initial release", a "new                                                               
spill", or an "old spill."  He asked if the owners of the "Mylos                                                                
Reefer" (ph) should be relieved of responding to this subsequent                                                                
release.                                                                                                                        
                                                                                                                                
MR. DIETRICK stated that the goal is to achieve clarity in the                                                                  
language in order to avoid the ambiguity for the spiller in                                                                     
subsection (m).                                                                                                                 
                                                                                                                                
REPRESENTATIVE MURKOWSKI agreed that the language, "first                                                                       
introduced" is problematic.  The proposed amendment does not                                                                    
contain that language.  Is there a definition for "initial release"                                                             
in existing statute?                                                                                                            
                                                                                                                                
MR. DIETRICK replied no.  He reiterated that the language, "initial                                                             
release" and "first introduced" are both concerning.                                                                            
                                                                                                                                
CO-CHAIRMAN HALCRO clarified, in response to Representative                                                                     
Murkowski, that the amendment with lines drawn through the text of                                                              
subsection (m) and new language is from DEC.  That amendment                                                                    
attempts to address the indeterminate fiscal note.                                                                              
                                                                                                                                
MR. DIETRICK confirmed that the department has worked with the                                                                  
Department of Law on this amendment.                                                                                            
                                                                                                                                
Number 1844                                                                                                                     
                                                                                                                                
CRAIG TILLERY, Assistant Attorney General, Environmental Section,                                                               
Civil Section, Department of Law, testified via teleconference from                                                             
Anchorage.  In response to Representative Murkowski, Mr. Tillery                                                                
explained that the language "initial release" is not liked due to                                                               
the lack of a definition.  However in the context of the second                                                                 
sentence, the language does not create the problem it does in the                                                               
first sentence which is essentially a definition of the term                                                                    
"release."  The language "first introduced into the environment"                                                                
appears to be a temporal definition for release which is utilized                                                               
for the purpose of determining liability.  If one returns to                                                                    
subsection (a), there is an argument that liability, which is only                                                              
for damages resulting from a release, could be defined as only                                                                  
being liable for the first introduction into the environment.                                                                   
Therefore, once introduced into the environment any subsequent                                                                  
migration of a contaminant through forces of nature would not be                                                                
compensable.  Mr. Tillery believed that to be a very serious                                                                    
problem with the first sentence.                                                                                                
                                                                                                                                
MR. TILLERY expressed concern with the word "responsible" which is                                                              
subject to at least two definitions.  One definition refers to a                                                                
legal responsibility which would really mean liability, although                                                                
that is not specified.  He indicated that it could be interpreted                                                               
as a fault-based word.  If that interpretation is the case, the                                                                 
liability would be limited to only an individual who was                                                                        
responsible per the language of the second sentence.  That is of                                                                
concern because a person may transport a contaminant, but is not                                                                
the owner of the contaminant.  This would be the difference between                                                             
an oil company and a shipper.  He posed the scenario of a major oil                                                             
spill in which the shipper has limited assets and the oil company                                                               
is not responsible.  Therefore, that entity may be released from                                                                
any liability with this language.  Mr. Tillery noted that the word                                                              
"party" is not defined and that the word "person" is utilized                                                                   
everywhere else in statute.  He said that "person" would be                                                                     
preferable.                                                                                                                     
                                                                                                                                
                                                                                                                                
Number 1677                                                                                                                     
                                                                                                                                
REPRESENTATIVE KOOKESH asked if there is a statutory definition of                                                              
"a governmental entity."  The sponsor statement only speaks to                                                                  
municipalities.                                                                                                                 
                                                                                                                                
MR. DIETRICK stated that the statutory definition of "governmental                                                              
entity" is not included in AS 46.03.826.                                                                                        
                                                                                                                                
MR. TILLERY noted that "governmental entity" is not defined in this                                                             
section.  However, it is defined in AS 46.03.822 (c)(2).                                                                        
                                                                                                                                
CO-CHAIRMAN HALCRO referred to page 2, line 10, which reads, "A                                                                 
unit of state or local government" that seems to be fairly broad.                                                               
                                                                                                                                
REPRESENTATIVE KOOKESH commented that the language "governmental                                                                
entity" should be defined.                                                                                                      
                                                                                                                                
Number 1520                                                                                                                     
                                                                                                                                
BETH HAGEVIG, Legislative Administrative Assistant for Senator                                                                  
Wilken, Alaska State Legislature, said that she did not have the                                                                
definition for "governmental entity" either.  As Senator Wilken                                                                 
stated early, he intended to sponsor this legislation on behalf of                                                              
the Fairbanks Northstar Borough.  The bill originally was intended                                                              
to cover municipalities as well as other agencies such as the                                                                   
Department of Transportation.                                                                                                   
                                                                                                                                
CO-CHAIRMAN HARRIS asked if SB 110 received a House Judiciary                                                                   
Committee referral.                                                                                                             
                                                                                                                                
MS. HAGEVIG informed the committee that there were two Senate                                                                   
Judiciary Committee meetings.  She also acknowledged that the bill                                                              
has received a House Judiciary Committee referral.                                                                              
                                                                                                                                
CO-CHAIRMAN HARRIS noted that the bill sponsor requested that there                                                             
be no House Judiciary Committee referral.                                                                                       
                                                                                                                                
REPRESENTATIVE MURKOWSKI pointed out that the title of SB 110                                                                   
utilizes the word "party" as does subsection (m), but the remainder                                                             
of the bill utilizes the word "person."                                                                                         
                                                                                                                                
CO-CHAIRMAN HALCRO asked if Ms. Hagevig had reviewed the amendment                                                              
from DEC.                                                                                                                       
                                                                                                                                
MS. HAGEVIG replied yes.  In further response to Co-Chairman                                                                    
Halcro, she said that she was not familiar enough with the law to                                                               
comment.  The focus had been on the municipality side.  She                                                                     
indicated that Ms. Lynch, Attorney for the Municipality of                                                                      
Anchorage, may be able to comment.                                                                                              
                                                                                                                                
MR. DIETRICK expressed concern that these terms are ambiguous and                                                               
therefore, open to interpretation.  This possibly insulates a                                                                   
legitimate spiller who is liable to pay.  The possible argument for                                                             
the spiller would shift the costs for the event to the state.                                                                   
Therefore, he agreed with Co-Chairman Halcro that those concerns                                                                
were the reason for the indeterminate fiscal note.  In any given                                                                
year, at least one such situation costs in the millions of dollars.                                                             
Mr. Dietrick explained that the state finances these costs from the                                                             
response account.  If such a situation occurs and the burden is                                                                 
shifted to the state, the response account would be lowered below                                                               
$50 million which triggers the two cent tax.  Such a cycle would                                                                
continue for each such case.                                                                                                    
                                                                                                                                
REPRESENTATIVE MURKOWSKI inquired as to what the original bill                                                                  
included.                                                                                                                       
                                                                                                                                
MS. HAGEVIG specified that the language on page 2, line 9 through                                                               
page 3, line 2 would be the closest to the original bill.                                                                       
                                                                                                                                
CO-CHAIRMAN HALCRO inquired as to the reasoning behind inserting                                                                
subsection (m) in the Senate.                                                                                                   
                                                                                                                                
MS. HAGEVIG explained that there were concerns in the Senate                                                                    
Judiciary Committee and the Senate floor.  The concern was that the                                                             
legislation provided an exemption from liability to governmental                                                                
entities, without extending the same privilege to innocent                                                                      
landowners under similar obligations.                                                                                           
                                                                                                                                
REPRESENTATIVE KOOKESH reiterated his concern with the lack of a                                                                
definition for "governmental entity".  He stressed, for the record,                                                             
that the language on page 2, line 10, "A unity of state or local                                                                
government" does not exclude tribal governments or associations.                                                                
                                                                                                                                
Number 1050                                                                                                                     
                                                                                                                                
JONATHON LACK, Legislative Assistant for Representative Halcro,                                                                 
Alaska State Legislature, informed the committee that he discussed                                                              
the definition of a "governmental entity" on another matter with                                                                
Tam Cook, Director, Legal and Research Services.  He explained that                                                             
Ms. Cook indicated that the language "governmental entity" is                                                                   
usually utilized in titles for the legislation to be broad.  The                                                                
language utilized in statute is "municipality" which is defined in                                                              
AS 01.10.060(4) as "'municipality' means a political subdivision                                                                
incorporated under the laws of the state that is a home rule or                                                                 
general law city, a home rule or general law borough, or a unified                                                              
municipality."                                                                                                                  
                                                                                                                                
REPRESENTATIVE KOOKESH reiterated his concerns regarding the lack                                                               
of a definition of "governmental entity."  He also reiterated his                                                               
comment that a "governmental entity" does not exclude tribal                                                                    
governments and associations.                                                                                                   
                                                                                                                                
REPRESENTATIVE MURKOWSKI referred to AS 46.03.822 which speaks to                                                               
remedial action regarding liability for the release of hazardous                                                                
substances.  That statute refers to "the state, a municipality, or                                                              
a village" which seems to be used throughout this section of                                                                    
statute which subsection (m) of SB 110 would fall under.                                                                        
Representative Murkowski surmised then that "governmental entities"                                                             
are construed to be "the state, a municipality, or a village."                                                                  
                                                                                                                                
Number 0860                                                                                                                     
                                                                                                                                
VIRGIL NORTON, testifying via teleconference from Kenai, informed                                                               
the committee that he was testifying as a citizen.  He noted that                                                               
he is a project manager for a contaminated site on the Kenai                                                                    
Peninsula.  The remediation for this contaminated site was done by                                                              
the Environmental Protection Agency last year.  The site is                                                                     
expected to be closed this season.                                                                                              
                                                                                                                                
MR. NORTON pointed out that he has had much experience with this                                                                
statute.  He expressed concern with the innocent land owners.  He                                                               
noted that he helped craft some of the language which was adopted                                                               
in the Senate Judiciary Committee.  The idea with the Senate                                                                    
Judiciary Committee's amendment was to always place liability on                                                                
the person who pollutes or contaminates land.  Initially, Mr.                                                                   
Norton was concerned with regard to who would ultimately bear the                                                               
costs of a contaminated property that was acquired by a borough or                                                              
municipality if the emphasis is not always placed on the person who                                                             
does the pollution.  He was also concerned with the original                                                                    
language which had a way of coloring the existing statute to deny                                                               
a person the innocent land owner defense.  He believed that his                                                                 
client was a test case for this statute.  Mr. Norton did not object                                                             
to changing the language "party" to "person."  The idea behind                                                                  
subsection (m) is that the polluter should bear all the liability                                                               
and an innocent land owner, who acts responsibly, does not bear the                                                             
liability.  He stressed the need to preserve the innocent land                                                                  
owner defense in AS 46.03.822.  He said that he accepted the                                                                    
language referring to the due diligence of the land owner in                                                                    
checking out the property.                                                                                                      
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked how Mr. Norton would interpret the                                                               
term "responsibly" in reference to the innocent land owner defense.                                                             
                                                                                                                                
MR. NORTON explained that "acting responsibly", per the existing                                                                
statute, is that land owner attempting to remediate, contain and                                                                
prevent leaching of contamination that the land owner has                                                                       
discovered.  An innocent land owner could incur an enormous                                                                     
expense.  For example, Mr. Norton's father-in-law incurred over $1                                                              
million in expenses.  This is a liability issue; who will                                                                       
ultimately pay.                                                                                                                 
                                                                                                                                
REPRESENTATIVE MURKOWSKI indicated the possible need to clarify                                                                 
what "acting responsibly" would mean through a list to be placed in                                                             
statute.                                                                                                                        
                                                                                                                                
MR. NORTON noted that one using the innocent land owner defense                                                                 
would have to obey all the current federal environmental                                                                        
regulations encompassed in Title 46 and the DEC's regulations.                                                                  
                                                                                                                                
MS. HAGEVIG pointed out that "acting responsibly" is discussed in                                                               
AS 46.03.822(b)(2) which reads:                                                                                                 
                                                                                                                                
     "in relation to (1)(B) or (C) of this subsection, that                                                                     
     the person, within a reasonable period of time after the                                                                   
     act occurred,                                                                                                              
     (A) discovered the release or threatened release of the                                                                    
     hazardous substance; and                                                                                                   
     (B) began operations to contain and clean up the                                                                           
     hazardous substance."                                                                                                      
                                                                                                                                
CO-CHAIRMAN HALCRO requested that Ms. Krietzer comment on some of                                                               
the concerns raised.                                                                                                            
                                                                                                                                
Number 0232                                                                                                                     
                                                                                                                                
ANNETTE KRIETZER, Legislative Assistant for Senator Leman, Alaska                                                               
State Legislature, said that she did not doubt that Mr. Tillery had                                                             
concerns regarding, "first introduced into the environment."  Ms.                                                               
Krietzer said, "I will quote from the state's attorney general's                                                                
opinion regarding CERCLA, 'Courts have complained about the in                                                                  
artful, confusing, and ambiguous language and the absence of useful                                                             
legislative history in interpreting CERCLA.  It is not a model of                                                               
legislative draftsmanship and the statute is riddled with                                                                       
inconsistencies and redundancies.'"  She assumed that Mr. Tillery                                                               
assisted in the development of the fiscal note and the language                                                                 
explaining that note.  The explanation of the fiscal note says that                                                             
the language is unclear, ambiguous and causes uncertainty which Ms.                                                             
Krietzer indicated was the case because state language parallels                                                                
CERCLA.  With regard to Mr. Tillery's example of a ship on the                                                                  
rocks, subsection (m) refers to a facility which per the statutory                                                              
definition would not include a marine vessel.  She said that some                                                               
of DEC's arguments are "somewhat specious."  Nothing in the statute                                                             
nor this bill relieves a party from "acting responsibly."  It                                                                   
merely extends the liability protection given to municipalities to                                                              
an innocent land owner which CERCLA allows.  In statute the problem                                                             
is that the state...                                                                                                            
                                                                                                                                
TAPE 99-33, SIDE A                                                                                                              
                                                                                                                                
MS. KRIETZER explained that subsection (m) is trying to make it                                                                 
very explicit as to what the innocent land owner defense is.                                                                    
                                                                                                                                
REPRESENTATIVE MURKOWSKI referred to subsection (m) which includes                                                              
language indicating that an unknowing party not responsible for an                                                              
initial release "may not be held liable for the spread or migration                                                             
of the hazardous substance except by an act or intentional                                                                      
misconduct or gross negligence."  She inquired as to how "acting                                                                
responsibly" would tie in with "intentional misconduct or gross                                                                 
negligence."                                                                                                                    
                                                                                                                                
Number 0136                                                                                                                     
                                                                                                                                
MR. TILLERY expressed concern with the last phrase in subsection                                                                
(m).  That phrase would imply that if a person were at fault that                                                               
person may not be held liable, which he understood earlier                                                                      
testimony to indicate was not the intent.  Furthermore, the last                                                                
phrase would seem to be exculpatory for all forms of liability not                                                              
just that liability in AS 46.03.822 which is different than the                                                                 
municipality's bill.  The municipality specifically limits the                                                                  
nonliability phrase to under this section.  Therefore, Mr. Tillery                                                              
felt that the last few lines of subsection (m) are too broad.                                                                   
                                                                                                                                
MR. TILLERY clarified that his earlier comment regarding liability                                                              
spoke to the first sentence which seems to be an independent                                                                    
thought from the second sentence.  The second sentence is limited                                                               
to a facility which does not include a vessel.  The first sentence                                                              
does not have a limitation and would include a vessel.                                                                          
                                                                                                                                
MS. KRIETZER asked if the language on page 3, line 4 which reads,                                                               
"a release shall be considered to have occurred when a hazardous                                                                
substance is first introduced into the environment" relieved Mr.                                                                
Tillery's concerns.                                                                                                             
                                                                                                                                
MR. TILLERY indicated that it eliminates a few of his concerns.  He                                                             
said, "It still leaves open the situation when you have a large                                                                 
storage tank or any kind of a tank or any kind of a release, and                                                                
that release falls and hits the environment.  At that point, there                                                              
is now a definition.  That is a release.  That is the event for                                                                 
which someone is liable.  When that contaminant now begins to                                                                   
migrate, as a result of gravity, of ground water flow, as a result                                                              
of pressures or whatever it begins to migrate.  Now there is an                                                                 
argument that once it gets beyond that initial contact with the                                                                 
environment, then no liability exists.  So, it helps to get rid of                                                              
vessels, but it does not solve the problem.  The problem is that in                                                             
that first sentence, you are essentially defining a fundamental                                                                 
term of the statute which is the term release.  When you do that,                                                               
it--there is a tendency for these things to have ramifications that                                                             
go far beyond the intent of the drafter.  And I believe that is                                                                 
what has happened in this case."                                                                                                
                                                                                                                                
CO-CHAIRMAN HALCRO noted that SB 110 has a House Judiciary                                                                      
Committee referral.  He suggested that the committee report the                                                                 
bill from committee.  He asked if there was anyone wishing to                                                                   
testify on SB 110.  There being no one, the public testimony on                                                                 
SB 110 was closed.                                                                                                              
                                                                                                                                
Number 0532                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI commented that she was not satisfied with                                                              
the legislation as it currently exists.  Many issues have been                                                                  
raised and many questions remain unanswered.  She said, "I'm not                                                                
entirely certain if this is something that needs to move through                                                                
quickly, whether we have more time to consider it here.  It                                                                     
certainly needs work in the Judiciary Committee. ... If we had time                                                             
for another hearing on the matter it probably wouldn't hurt us                                                                  
either."                                                                                                                        
                                                                                                                                
CO-CHAIRMAN HALCRO noted that the bill sponsor expressed the desire                                                             
to move the bill forward.  Co-Chairman Halcro expressed concern                                                                 
with the indeterminate fiscal note.  In the long run, Co-Chairman                                                               
Halcro was concerned with what the state would have to absorb                                                                   
because of that.  He noted that there is the argument that the                                                                  
proposed amendments would require a title change which would be                                                                 
suitable for the House Judiciary Committee to review.                                                                           
                                                                                                                                
REPRESENTATIVE DYSON suggested, "Maybe we pass this out, it's not                                                               
going to get through the process, I don't think, this year and if                                                               
we ask...Representative Murkowski, that if in the Judiciary                                                                     
process, ..., things come up that are back to being a community                                                                 
concern that you let this committee know and we can request to get                                                              
it back."                                                                                                                       
                                                                                                                                
Number 0759                                                                                                                     
                                                                                                                                
REPRESENTATIVE DYSON moved to report CSSB 110 (RLS) am out of                                                                   
committee with individual recommendations and the accompanying                                                                  
fiscal note.                                                                                                                    
                                                                                                                                
CO-CHAIRMAN HALCRO objected for discussion purposes.  He asked if                                                               
Representative Murkowski had any problems with that.                                                                            
                                                                                                                                
REPRESENTATIVE MURKOWSKI said that she would be happy to report                                                                 
back to the committee and let the committee know if she felt it                                                                 
appropriate for the bill to return to the House Community &                                                                     
Regional Affairs Committee.                                                                                                     
                                                                                                                                
CO-CHAIRMAN HALCRO removed his objection.                                                                                       
                                                                                                                                
There being no objection, CSSB 100(RLS) am was reported from                                                                    
committee.                                                                                                                      
                                                                                                                                
CO-CHAIRMAN HALCRO apologized to those present to testify on HB 24.                                                             
Due to time constraints it would have to be rescheduled.                                                                        
                                                                                                                                

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