Legislature(2017 - 2018)BUTROVICH 205

02/26/2018 03:30 PM Senate RESOURCES

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Audio Topic
03:30:09 PM Start
03:30:41 PM SB202
03:55:03 PM Confirmation Hearings: Big Game Commercial Services Board
04:15:19 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Consideration of Governor's Appointees TELECONFERENCED
Big Game Commercial Services Board:
- Ms. Michelle Heun, Palmer
- Mr. Cash Joyce, Wasilla
- Mr. Robert Beans, Palmer
-- Public Testimony on Appointees --
Moved SB 202 Out of Committee
-- Public Testimony --
+ Bills Previously Heard/Scheduled TELECONFERENCED
        SB 202-NATIVE CORP. LIABILITY FOR CONTAMINATION                                                                     
3:30:41 PM                                                                                                                    
CHAIR  GIESSEL announced  consideration of  SB 202.  She said  it                                                               
addresses  a   problem  that   Native  corporations   have  about                                                               
receiving  contaminated  lands  under the  Alaska  Native  Claims                                                               
Settlement Act (ANCSA).                                                                                                         
3:31:10 PM                                                                                                                    
SENATOR LYMAN HOFFMAN, Alaska  State Legislature, Juneau, Alaska,                                                               
sponsor of  SB 202, said  this legislation  came to him  from the                                                               
Alaska  Native   Village  Corporation  Association   that  formed                                                               
because  of  receiving  hazardous  substance  contaminated  lands                                                               
under ANSCA that need remediation.                                                                                              
He said concerns about this issue  were raised the 1990s, and the                                                               
1998 Department of Interior's (DOI)  report to Congress confirmed                                                               
them and  identified more than  650 contaminated  sites requiring                                                               
remediation.  These sites  were  contaminated  under the  federal                                                               
government's  watch and  then  transferred  to Native  ownership,                                                               
Senator  Hoffman said.  In 2016,  the Bureau  of Land  Management                                                               
(BLM)  updated the  DOI's report  to Congress  acknowledging that                                                               
the  agency   had  not   acted  on  much   of  the   1998  report                                                               
recommendations.  The update  identified  the DOD  as the  single                                                               
largest pre-transfer owner of  contaminated sites still requiring                                                               
SENATOR  HOFFMAN  said  the Alaska  Native  Villages  Corporation                                                               
Association  testified  before  Congressional committees  on  the                                                               
problem as  recently as  last summer and  pushed for  the federal                                                               
government  to deal  with the  problem  sites. The  association's                                                               
federal legislative priority list  includes protecting the Alaska                                                               
Native  Corporation  from  liability  claims  on  land  that  was                                                               
contaminated before it was transferred to them.                                                                                 
3:33:09 PM                                                                                                                    
He  said SB  202 amends  Alaska  statutes so  that Alaska  Native                                                               
Corporations are  not liable for  the contamination,  removal, or                                                               
remediation actions  of the contamination  before the  lands were                                                               
transferred to them under ANCSA.                                                                                                
He explained that  though this change in state  statute would not                                                               
solve  the federal  issues of  this problem,  it is  an important                                                               
step  toward  protection  of   Alaska  Native  corporations  from                                                               
liability for actions of prior owners.                                                                                          
CHAIR  GIESSEL noted  the map  of Alaska  with red  dots denoting                                                               
contaminated sites.                                                                                                             
SENATOR HOFFMAN  explained that  the red  dots are  orphan sites;                                                               
yellow  dots  are  in  clean-up   programs,  the  blue  dots  are                                                               
informational, and  green dots denote that  clean-up is completed                                                               
or about to be completed.                                                                                                       
3:34:47 PM                                                                                                                    
SENATOR MEYER joined the committee.                                                                                             
3:34:56 PM                                                                                                                    
MARIDON   BOARIO,  staff   to  Senator   Hoffman,  Alaska   State                                                               
Legislature,  Juneau,  Alaska,  explained that  these  sites  are                                                               
called "orphan"  because they have  not been put into  a clean-up                                                               
program and the responsible parties have not been identified.                                                                   
SENATOR  HOFFMAN  said these  sites  are  spread all  across  the                                                               
CHAIR GIESSEL asked for a sectional analysis of SB 202.                                                                         
3:35:28 PM                                                                                                                    
MS. BOARIO provided the analysis as follows:                                                                                    
Section  1 amends  AS 46.03.822(a)  to add  subsection (n)  which                                                               
relieves  Native  corporations  from   liability  if  the  Native                                                               
corporation  can  prove  the  hazardous  materials  were  already                                                               
present  on the  land  before  the land  was  transferred to  the                                                               
Native corporation under the Alaska  Native Claims Settlement Act                                                               
(43 U.S.C 1601 et seq.)                                                                                                         
Section  2 amends  AS 46.03.822(m)  to add  a new  paragraph that                                                               
defines  Native  Corporation  to  have the  same  meaning  as  in                                                               
federal  law under  U.S.C 1602(m)  (ANCSA statutes),  which says,                                                               
Native Corporation  means "any regional corporation,  any village                                                               
corporation, any urban corporation, and any group corporation."                                                                 
3:36:18 PM                                                                                                                    
Section 3  amends AS 46.03.822 to  add a new subsection  (n) that                                                               
relieves  Native  corporations  from   liability  if  the  Native                                                               
corporation  can  prove  the  hazardous  materials  were  already                                                               
present  on the  land  before  the land  was  transferred to  the                                                               
Native corporation under the Alaska  Native Claims Settlement Act                                                               
(43 U.S.C 1601 et seq.)                                                                                                         
3:36:33 PM                                                                                                                    
Section  4  repeals AS  46.03.822  (c)(3),  which is  a  narrower                                                               
exemption  for  Native  corporations  currently  in  statute  and                                                               
replaces it with the exemption in AS 46.06.822.                                                                                 
SENATOR COGHILL asked for an  explanation of what is narrower and                                                               
if it is primarily the definition of corporations.                                                                              
MS. BOARIO answered that was her understanding.                                                                                 
3:37:31 PM                                                                                                                    
SENATOR BISHOP asked if there  is a federal definition of "orphan                                                               
MS. BOARIO answered yes.                                                                                                        
SENATOR  BISHOP asked  if the  military was  responsible for  the                                                               
contamination, because that could be researched.                                                                                
SENATOR HOFFMAN said page 23  of the report - Hazardous Substance                                                               
Contamination  of Alaska  Native Claims  Settlement Act  lands in                                                               
Alaska  -  provides  a  list  of some  of  the  94  orphan  sites                                                               
identified on September  9, 2015; 41 of those are  owned by ANCSA                                                               
corporations. Others could potentially  be on private, municipal,                                                               
or DOD land.                                                                                                                    
CHAIR  GIESSEL   noted  that  the  report   Senator  Hoffman  was                                                               
referring  to  was  very  extensive   and  contained  other  very                                                               
interesting materials.                                                                                                          
SENATOR VON IMHOF  asked what has to change to  get the sites off                                                               
orphan status?                                                                                                                  
MS.  BOARIO said  the  definition  is on  page  20  of that  same                                                               
report. A  site is  considered to be  an orphan  if contamination                                                               
was  present at  the  time  of conveyance  and  the  site is  not                                                               
currently within a clean-up program.                                                                                            
SENATOR HOFFMAN said although corporations  are trying to get the                                                               
federal  government  to  clean up  the  sites,  this  legislation                                                               
doesn't deal with  that. It is trying to deal  with the liability                                                               
issue that  is hovering over  the corporations from  actions that                                                               
were not of their making.                                                                                                       
SENATOR VON IMHOF asked if the  feds could supersede this bill in                                                               
any way, making it irrelevant.                                                                                                  
SENATOR HOFFMAN said he didn't  think so. Congress could probably                                                               
pass legislative action saying that  the lands they conveyed were                                                               
transferred as contaminated, but it  was the understanding of the                                                               
corporations   that  they   were   receiving   lands  that   were                                                               
3:41:20 PM                                                                                                                    
EMILY NAUMAN, Attorney, Legislative  Affairs Agency, Alaska State                                                               
Legislature, answered  that SB 202 specifically  deals with state                                                               
liability and  the question is  whether future federal  law could                                                               
supersede  this law.  The  answer is  both yes  and  no, and  she                                                               
explained that  there is a  whole secondary structure  of federal                                                               
liability   in   the    Comprehensive   Environmental   Response,                                                               
Compensation, and  Liability Act  (CERCLA) that could  also cause                                                               
liability to run to a Native  corporation, but she didn't know of                                                               
any specific provision  that allow or disallow  that. However, it                                                               
is always possible  that the federal government  could enact such                                                               
a large piece  of legislation - it being so  comprehensive - that                                                               
the  state  could be  crowded  out  of  this particular  area  of                                                               
environmental regulation, but that would be extremely unlikely.                                                                 
SENATOR  COGHILL said  he wanted  to know  the difference  in the                                                               
definitions for  "corporation" in  U.S. Code  1601 that  is being                                                               
replaced with 1602(m) and he wanted to know the difference.                                                                     
MS. NAUMAN  answered the definitions are  substantially the same.                                                               
However, the reference to "narrowing"  the waiver of liability is                                                               
based on  the fact  that the  current waiver  of liability  in AS                                                               
46.03.822(c)(3), which is  repealed in section 4  and only waives                                                               
liability if  the Native corporation  could prove that  the spill                                                               
or threat of  a spill was caused by negligence  or an intentional                                                               
act  or  omission   of  a  third  party,  and   that  the  Native                                                               
corporation didn't  know or didn't  have reason to know  that the                                                               
hazardous substance was spilled or  threatened to spill, and that                                                               
the  Native corporation  took action  to clean  up the  hazardous                                                               
substance  if it  did spill.  The new  exemption provided  in the                                                               
bill doesn't  require a finding  of any  of those facts  before a                                                               
Native corporation's liability is waived.  Under SB 202, a Native                                                               
corporation's liability just simply wouldn't exist.                                                                             
3:45:55 PM                                                                                                                    
SENATOR COGHILL  said he  understood from  the sponsor  that they                                                               
just  have  to  prove  the   land  was  contaminated  before  the                                                               
MS. NAUMAN and SENATOR HOFFMAN said that was correct.                                                                           
3:46:15 PM                                                                                                                    
CHAIR GIESSEL opened public testimony.                                                                                          
HALLIE  BISSETT,   Executive  Director,  Alaska   Native  Village                                                               
Corporation Association, Anchorage,  Alaska, said the association                                                               
was  created  in  2008  by  founding  members  of  the  Kuskokwim                                                               
Corporation  that   consists  of   both  full-paid   members  and                                                               
affiliate-level members of the  Alaska Native Village Corporation                                                               
created under  the ANCSA of  1971. While  over 220 or  so village                                                               
corporations  were created  under that  act, only  about 176  are                                                               
left.  That  is  because  of  mergers  and  companies  that  have                                                               
dissolved or  gone out of  business. The association has  a nine-                                                               
member board of  directors. In order to serve on  it, you have to                                                               
be a CEO,  a chair, or a  COO. Their focus has been  on the issue                                                               
of ANCSA-contaminated lands since 2012.                                                                                         
MS.  BISSETT said  they are  very grateful  for the  past support                                                               
they have  received from  the legislature in  their quest  to get                                                               
some resolution  to this issue  at the federal level  by amending                                                               
CERCLA, the federal law that  makes ANCSA corporations liable for                                                               
cleanup  of  these lands.  In  the  past  couple of  years,  they                                                               
discovered through legal analysis that  a change is needed at the                                                               
state level, as  well, because it is very similar  to the federal                                                               
CERCLA law.                                                                                                                     
She pointed out  a couple of things that she  had heard: that the                                                               
94  orphan sites  are  not even  in  any kind  of  program to  be                                                               
cleaned up,  and 98  percent of  them are within  two miles  of a                                                               
village. Since she  has been working on this project  she has met                                                               
people  from one  side  the river  and everybody  is  dying of  a                                                               
specific  kind of  cancer and  on the  other side  they are  not.                                                               
People of Unalakleet have asked her if she knows about the glow-                                                                
in-the-dark fish and are pretty  sure that PCP contamination that                                                               
is causing everyone in the region to have Parkinson's disease.                                                                  
MS. BISSETT said this problem is  real and these sites need to be                                                               
cleaned up. All the other  sites are in institutional control and                                                               
are "allegedly  cleaned up" according to  the federal government.                                                               
But the  fact that they  got any contaminated  lands at all  is a                                                               
true  injustice. The  corporations gave  up 88  percent of  their                                                               
traditional lands in exchange for  contaminated lands, and that's                                                               
just unacceptable. It's been 45-plus  years and the land is still                                                               
sitting out there contaminated.                                                                                                 
MS.  BISSET said  they are  asking the  federal government  every                                                               
year for these  changes. Senator Sullivan was  very successful in                                                               
getting them  in front of  the Senate Environmental  Public Works                                                               
Committee  in March  2017 and  in  August the  committee came  to                                                               
Alaska and were  shown some of these sites.  They were successful                                                               
in getting language introduced at the  federal level on SB 822 to                                                               
amend  CERCLA,  which will  also  give  them the  same  liability                                                               
shield that  SB 202  gives them  at the  state level.  That would                                                               
allow  them to  access more  federal  funds for  cleanup. She  is                                                               
talking specifically about  using Brown Field grants  to clean up                                                               
the sites and getting them  back to their original use (including                                                               
subsistence use) or to develop them into a commercial property.                                                                 
She  explained the  reason they  cannot get  those grants  now is                                                               
because the corporation is identified  as a potential responsible                                                               
party (PRP).  The BLM had no  resources to survey when  the lands                                                               
were transferred, and they were  not given the documentation that                                                               
they would  have needed to  know that there was  contamination on                                                               
these sites.  She concluded  that while the  road before  them is                                                               
long, this is a good step in the right direction.                                                                               
3:52:23 PM                                                                                                                    
CHAIR  GIESSEL,  finding  no   further  comments,  closed  public                                                               
testimony and found no questions from members.                                                                                  
SENATOR  COGHILL  moved  to  report   SB  202,  version  A,  from                                                               
committee  with  individual  recommendations  and  attached  zero                                                               
fiscal note(s). There were no objections and it was so ordered.                                                                 

Document Name Date/Time Subjects
Senate Resources Agenda - 2 - 26 - 2018.pdf SRES 2/26/2018 3:30:00 PM
SB202 - Version A.PDF SRES 2/26/2018 3:30:00 PM
SB 202
SB202 - Sponsor Statement.pdf SRES 2/26/2018 3:30:00 PM
SB 202
SB202 - Supporting Document - AK Native Village Corporation Publication.pdf SRES 2/26/2018 3:30:00 PM
SB 202
SB 202 - Supporting Document - 2016 Dept Interior Report.pdf SRES 2/26/2018 3:30:00 PM
SB 202
SB202 - Supporting Document - 1998 Dept. Interior Report.pdf SRES 2/26/2018 3:30:00 PM
SB 202
SB 202 Supporting Documents - Contaminated_Lands_Inventory_of_ANCSA_Conveyed_Lands.pdf SRES 2/26/2018 3:30:00 PM
SB 202
Big Game Comm Serv Board - Fact Sheet - 2 - 26 - 2018.pdf SRES 2/26/2018 3:30:00 PM
Big Game Commercial Services Board
Big Game Comm Serv Board - Resume - Michell Heun - 2 - 26 - 2018.pdf SRES 2/26/2018 3:30:00 PM
Big Game Commercial Services Board
Big Game Comm Serv Board - Resume - Robert Beans - 2 - 26 - 2018.pdf SRES 2/26/2018 3:30:00 PM
Big Game Commercial Services Board
Big Game Comm Serv Board - Resume - Cash Joyce - 2 - 26 - 2018.pdf SRES 2/26/2018 3:30:00 PM
Big Game Commercial Services Board
SB202 - Sectional Analysis.pdf SRES 2/26/2018 3:30:00 PM
SB 202
SB202 - Fiscal Note - Dept Environmental Conservation - 2 - 26 - 2018.pdf SRES 2/26/2018 3:30:00 PM
SB 202
SB164 - Comments AK Wild Sheep Found - 2 - 23 - 2018.pdf SRES 2/26/2018 3:30:00 PM
SB 164