Legislature(2005 - 2006)CAPITOL 120
04/27/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Board of Governors of the Alaska Bar | |
| SB140 | |
| HB269 | |
| HB268 | |
| HB276 | |
| SB36 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 269 | TELECONFERENCED | |
| += | SB 36 | TELECONFERENCED | |
| + | SB 140 | TELECONFERENCED | |
| + | SJR 12 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 268 | TELECONFERENCED | |
| += | HB 276 | TELECONFERENCED | |
HB 269 - HAZARDOUS SUBSTANCE RELEASE LIABILITY 1:45:57 PM REPRESENTATIVE ANDERSON announced that the next order of business would be HOUSE BILL NO. 269, "An Act relating to contribution actions relating to the release of a hazardous substance; and providing for an effective date." 1:46:22 PM REPRESENTATIVE JAY RAMRAS, Alaska State Legislature, sponsor, said that HB 269 deals with fixing the uncertainty caused by the U.S. Supreme Court's 2004 decision in the Cooper Industries, Inc. v. Aviall Services, Inc. case. He went on to paraphrase from his written opening remarks, which read in part [original punctuation provided along with some formatting changes]: The US Supreme Court found in the Aviall decision that a responsible party who cleans up contaminated property cannot bring a contribution action against another potentially responsible party until such time as the he or she has been sued by the state or federal government, or has entered into a formal administrative settlement of liability. Alaska's hazardous substance remediation statutes are modeled after the Federal Comprehensive Environmental Response Compensation & Liability Act of 1980 (CERCLA) and the Superfund Amendments and Reauthorization Act of 1986 (SARA). Alaska's environmental cleanup statutes are modeled after these federal laws. The Aviall decision puts into question the rights of Alaskan's who conduct voluntary cleanups on properties contaminated by hazardous substances to undergo contribution actions against other potentially responsible parties. Voluntary cleanups of contaminated sites form the vast majority of environmental cleanups conducted in the State of Alaska. These voluntary cleanups allow the state to focus its limited resources on monitoring responsible party cleanup actions, instead of undertaking costly administrative or judicial enforcement actions to force cleanups, or undertaking cleanups at public expense. The right to contribution actions against other potentially responsible parties creates an important incentive for voluntary remediations, by allowing responsible parties to undertake effective cleanups themselves, and then being able to recover some of those costs from other potentially responsible parties, who fail to voluntarily undertake or assist with the remediation. The purpose of HB 269 is in response to the Aviall decision. HB269 will clarify language in AS 46.03.822(j), thereby ensuring that responsible parties who conduct voluntary cleanups may bring contribution actions against other potentially responsible parties. HB 269 has the support of both the Department of Environmental Conservation and the Governor's office. This is an area of law where Alaska cannot afford to have the common law decisions of the court out pace our codified laws. REPRESENTATIVE RAMRAS concluded by urging the committee to support adopting HB 269 for the aforementioned reasons. 1:49:40 PM BENJAMIN BROWN, Legislative Liaison, Office of the Commissioner, Department of Environmental Conservation (DEC), relayed that the DEC supports HB 269. He remarked that although there is not a problem currently, there could be one in the future should the Alaska Supreme Court interpret Alaska's version of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) the way the federal statute was interpreted. He emphasized that the worst-case scenario would result in having to bring all individuals that were suspected of being the responsible party for environmental situations into court, in order for those parties to seek contribution from other potentially responsible parties. He opined that this could result in needlessly spending scarce resources, particularly given that currently most responsible parties are willing to start the cleanup process as early as possible. He reiterated that the Department of Environmental Conservation supports this legislation. 1:51:09 PM GEORGE R. LYLE, Attorney at Law, Guess & Rudd, PC, stated that he represents a number of private property owners who own contaminated property, contaminated by previous owners, and are now dealing with the [cleanup process]. He said that he and his clients support this legislation. Mr. Lyle relayed that notwithstanding Mr. Brown's view of this being a hypothetical problem in the future, he has one client that has had a significant settlement offer withdrawn as a result of the Aviall decision because the party that withdrew the offer believed that Mr. Lyle's client no longer had the right to bring a contribution action, since the client had already been cleaning up the site for a number of years. He added, "So this is a real issue with real consequences to ... my clients, the current property owners, who are the most easily targeted party for the clean ups. 1:52:41 PM BRECK TOSTEVIN, Assistant Attorney General, Environmental Section, Civil Division (Anchorage), Department of Law (DOL), said that he has represented the State of Alaska in connection with oil and hazardous substance cleanups for the past 15 years. He relayed that the Department of Law (DOL) supports HB 269, and pointed out that the bill ensures that Alaska's system for conducting environmental cleanups will continue as it has in the past, but without unnecessary additional cost, enforcement actions, or lawsuits. The bill does this, he said, by clarifying the ability of persons who conduct voluntary cleanups to recover their costs from other responsible parties, adding that this right to recover cost from other responsible parties is known as the right to contribution. MR. TOSTEVIN said that HB 269 ensures that the right to contribution exists even if the person conducting the cleanup hasn't been sued by the state or by persons thus forcing cleanup or the collection of damages. The bill would remove the uncertainty and confusion that has been caused by the U.S. Supreme Court's recent decision in Aviall wherein the U.S. Supreme Court found that under the CERCLA, which is the federal statute upon which Alaska's cleanup statute is patterned, a responsible party could not bring a contribution action unless it had been sued by a state government or the federal government or entered into a formal administrative settlement with either one. MR. TOSTEVIN said that this requirement of being involved in a lawsuit or formal settlement with the state, before a responsible party can bring a contribution action, is not consistent with what the Alaska Supreme Court has interpreted with respect to Alaska's version of the CERCLA. In the 2001 Federal Deposit Insurance Corporation v. Laidlaw Transit, Inc. case, the Alaska Supreme Court recognized that responsible parties could bring a contribution action under [AS 46.03.8.22(j)] in the absence of a lawsuit by the state. The court reasoned that the legislature didn't intend that there be a requirement of a lawsuit before parties could bring a contribution action. MR. TOSTEVIN relayed that HB 269 would affirm the result in the Laidlaw case, by allowing a contribution action after the issuance of a potential liability determination by the DEC. Furthermore, on page 3, lines 6-16, the bill defines what a "potential liability determination" is in Section 3, and it does that in terms of the DEC's existing practice. The determinations would include, for example, a letter notifying the person that he/she is a potentially responsible party. Under current practice this is called a PRP (Potential Responsible Party) letter and it is issued by the DEC's Contaminated Sites Program. Another example would involve providing notice of state interest to a person regarding a release or threatened release; the DEC's Prevention & Emergency Response Program issues these kinds of letters in catastrophic spill situations pertaining to vessels and large land spills. Another example of notice involves a request for site characterization or cleanup, and these are also issued by the DEC's Contaminated Sites Program. MR. TOSTEVIN explained that upon receiving a potential liability determination, if the person conducts a voluntary cleanup, then that person would have contribution rights under [proposed AS 46.03.8.22(j)] against other persons who were liable under the statute for that incident. In summary, HB 269 would clarify these rights, and would encourage voluntary cleanups in the future. To do otherwise, would really punish those who have already cleaned up property in the past and would reward recalcitrant parties who have failed to take action while others have incurred the costs. Again, the Aviall decision has caused great uncertainty and confusion and has resulted in situations where people are afraid to step up and do a voluntary cleanup. He relayed that he has had people asking the State to sue them, and that's just a needless exercise when there are people who - if they know they have the right to seek contribution against others - are willing to voluntarily step up and proceed with the cleanup process. 1:57:33 PM REPRESENTATIVE GARA asked whether the bill might make it harder for somebody to recover from a responsible party. MR. TOSTEVIN indicated that it would not, and stated that HB 269 merely clarifies the right of contribution and recognizes what the Alaska Supreme Court has already opined. REPRESENTATIVE GARA surmised, then, that the intent of this bill is to prevent the possible rescinding of the Alaska Supreme Court's decision in light of what the U.S. Supreme Court did in Aviall. MR. TOSTEVIN concurred, reiterating that the concern is that the Alaska Supreme Court might revisit it's ruling in light of Aviall. He pointed out that by addressing this issue via legislation ahead of time, that potential uncertainty is prevented. 1:59:55 PM REPRESENTATIVE DAHLSTROM moved to report HB 269 out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, HB 269 was reported from the House Judiciary Standing Committee.
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