Legislature(2005 - 2006)BUTROVICH 205

02/15/2006 08:30 AM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 240 DRUG OFFENSES: NEIGHBORS AS CRIME VICTIMS TELECONFERENCED
Moved SB 240 Out of Committee
*+ SB 249 REPORTING BAIL AND RELEASE INFORMATION TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= HB 269 HAZARDOUS SUBSTANCE RELEASE LIABILITY
Moved SCS CSHB 269(JUD) Out of Committee
= HB 107 HUNTING/FISHING INTERFERENCE
Moved SCS CSHB 107(JUD) Out of Committee
          HB 269-HAZARDOUS SUBSTANCE RELEASE LIABILITY                                                                      
                                                                                                                                
8:41:05 AM                                                                                                                    
CHAIR RALPH SEEKINS announced HB 269 to be up for consideration.                                                                
                                                                                                                                
JANE PIERSON, Staff to Representative  Jay Ramras, introduced the                                                               
bill. She  explained that  HB 269  is meant  to address  a United                                                               
States Supreme  Court decision in  the case of  Cooper Industries                                                               
v.  Aviall   Services.  The  US   Supreme  Court  found   that  a                                                               
responsible party who cleans up  a contaminated property couldn't                                                               
bring  a contribution  action against  another responsible  party                                                               
until  such time  as it  has been  sued by  the state  or federal                                                               
government   or  has   entered  into   a  formal   administrative                                                               
settlement of liability.                                                                                                        
                                                                                                                                
The Aviall  decision puts  into question  the rights  of Alaskans                                                               
who conduct  voluntary cleanups on contaminated  property against                                                               
other  potentially responsible  parties. Voluntary  cleanups form                                                               
the majority of environmental cleanups  and relieve a substantial                                                               
burden from the state.                                                                                                          
                                                                                                                                
8:42:49 AM                                                                                                                    
MS.  PIERSON   summarized  the  right  to   contribution  actions                                                               
provides incentives  for voluntary  cleanups by  allowing parties                                                               
to recover some of the  costs from other responsible parties that                                                               
fail to  assist with remediation.  HB 269 would  clarify language                                                               
in  AS 46.03.822(j)  thereby  ensuring  that responsible  parties                                                               
that conduct  voluntary cleanups may bring  contributions actions                                                               
against other responsible parties.                                                                                              
                                                                                                                                
8:43:51 AM                                                                                                                    
SENATOR  GENE  THERRIAULT  asked  Ms. Pierson  to  summarize  the                                                               
written decision of the US Supreme Court.                                                                                       
                                                                                                                                
MS. PIERSON  explained the decision  stated that it was  a timing                                                               
issue of  when contribution  claims could  be started.  The Court                                                               
said they  couldn't be started  until such  time as the  state or                                                               
federal  government  had  formally  sued.  The  problem  is  that                                                               
instead  of  bringing  other  responsible  parties  in  from  the                                                               
beginning, it is now uncertain when  they can be brought into the                                                               
action.                                                                                                                         
                                                                                                                                
SENATOR THERRIAULT asked whether  other responsible parties could                                                               
be brought in voluntarily before a suit occurred.                                                                               
                                                                                                                                
MS.  PIERSON said  yes.  The  owner would  pay  to  clean up  the                                                               
property and  the courts would get  involved only if there  was a                                                               
disagreement.                                                                                                                   
                                                                                                                                
8:45:33 AM                                                                                                                    
SENATOR  HOLLIS FRENCH  said  he  read several  pages  of the  US                                                               
Supreme  Court opinion  in the  Aviall case.  It was  a statutory                                                               
cause  of  action and  because  the  statute didn't  authorize  a                                                               
contribution action  before there  was a lawsuit,  there couldn't                                                               
be  a contribution  action unless  there was  a lawsuit  and that                                                               
means there  is no such thing  as a voluntary agreement  to clean                                                               
up a  spill. It  was a  very narrow and  legalistic view  of what                                                               
Congress had  done and because  Congress didn't specify  that two                                                               
parties  could voluntarily  get together  and do  the cleanup,  a                                                               
party cannot sue to bring in another party, he explained.                                                                       
                                                                                                                                
SENATOR  THERRIAULT  asked  for  a  definition  of  "contribution                                                               
action."                                                                                                                        
                                                                                                                                
SENATOR FRENCH  posed a hypothetical  situation of a  gas station                                                               
owner  who has  a leaky  tank  and sells  the business  to a  new                                                               
owner. The  new owner is  aware of the  leaky tank and  two years                                                               
later gets sued  to clean it up. A "contribution  action" is when                                                               
the new  owner forces the  help of the  previous owner to  do the                                                               
cleanup.  The statute  wouldn't allow  the new  owner to  sue the                                                               
previous owner unless the new  owner had been sued first. Because                                                               
the statute does  not authorize it, the statute must  be fixed to                                                               
allow for a voluntary contribution claim.                                                                                       
                                                                                                                                
CHAIR SEEKINS  said he understood it  to be that a  private party                                                               
that  has not  been  sued under  the Comprehensive  Environmental                                                               
Response Compensation  and Liability Act (CERCLA)  may not obtain                                                               
contribution from other liable parties.                                                                                         
                                                                                                                                
8:51:24 AM                                                                                                                    
SENATOR HUGGINS asked Ms. Pierson  how the sponsor discovered the                                                               
need for the bill.                                                                                                              
                                                                                                                                
MS. PIERSON advised the committee that  it came as a request from                                                               
the attorney general's office.                                                                                                  
                                                                                                                                
BRECK TOSTAVIN, Senior Assistant  Attorney General, Department of                                                               
Law (DOL),  informed the committee  that their  interpretation of                                                               
the Aviall decision  was correct. The concern  with that decision                                                               
in regard  to state law is  that AS 46.03.822 is  patterned after                                                               
CERCLA.  That  decision creates  an  uncertainty  of whether  the                                                               
Alaska Supreme Court would interpret a  case in the same way that                                                               
the  US  Supreme  Court  did.  The concern  is  that  they  could                                                               
interpret it to  require the state to actually  sue a responsible                                                               
party to  allow that responsible party  to bring in others  for a                                                               
contribution action.                                                                                                            
                                                                                                                                
The  voluntary cleanup  process  in Alaska  occurs  in a  forward                                                               
process.  When   contamination  is   found,  the   Department  of                                                               
Environmental Conservation  (DEC) sends out notifications  to the                                                               
responsible parties who  hire consultants and then  engage in the                                                               
voluntary cleanup.  They then  seek to  recover costs  from other                                                               
responsible parties.  HB 269  would keep  the current  process in                                                               
place. The  Aviall decision conflicts  with the  Laidlaw decision                                                               
[Federal Deposit Insurance Corporation  v. Laidlaw Transit] where                                                               
the Alaska  Supreme Court  said that a  lawsuit was  not required                                                               
for   a   contribution   action.   The  Court   said   a   formal                                                               
administrative action initiated by the  DEC was enough to trigger                                                               
rights  to a  contribution action.  The bill  clarifies that  the                                                               
timing of  the contribution right  is triggered by  the potential                                                               
liability determination by the DEC.                                                                                             
                                                                                                                                
8:55:02 AM                                                                                                                    
CHAIR   SEEKINS  reiterated   that   a  person   could  bring   a                                                               
contribution  action  once  that  person  receives  a  notice  of                                                               
potential    liability   determination    from   the    DEC.   An                                                               
administrative  action   gives  the  authority  to   go  after  a                                                               
contribution action on another potentially responsible party.                                                                   
                                                                                                                                
MR.  TOSTAVIN  agreed. Once  a  party  receives notification  and                                                               
begins to incur  expenses associated with the  cleanup, they have                                                               
the contribution action right.                                                                                                  
                                                                                                                                
CHAIR SEEKINS  noted there was no  one else signed up  to testify                                                               
and so he closed public testimony.                                                                                              
                                                                                                                                
SENATOR FRENCH expressed support for the bill.                                                                                  
                                                                                                                                
8:57:15 AM                                                                                                                    
SENATOR HUGGINS moved to adopt  version G as the working document                                                               
before the committee. Hearing no objections, the motion carried.                                                                
                                                                                                                                
SENATOR  HUGGINS moved  to adopt  the  Senate Judiciary  Standing                                                               
Committee  letter of  intent. Hearing  no objections,  the motion                                                               
carried.                                                                                                                        
                                                                                                                                
SENATOR  THERRIAULT moved  SCS HB  269(JUD)  from committee  with                                                               
individual recommendations and the  attached fiscal notes and the                                                               
letter of intent. Hearing no objections, the motion carried.                                                                    

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