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