CSHB 59(FIN): "An Act relating to the evaluation and cleanup of sites where certain controlled substances may have been manufactured or stored; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 59(FIN) 01 "An Act relating to the evaluation and cleanup of sites where certain controlled 02 substances may have been manufactured or stored; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 05 to read: 06 PURPOSE. The purpose of this Act is to provide a just, equitable, and practicable 07 method, to be cumulative with and in addition to any other remedy provided by law, whereby 08 property that endangers the life, safety, or welfare of the general public or occupants of the 09 property because of toxic chemical contamination that may result from illegal drug 10 manufacturing may be required to be decontaminated or vacated and secured against use. 11 * Sec. 2. AS 46.03 is amended by adding new sections to read: 12 Article 7A. Cleanup of Illegal Drug Sites. 13 Sec. 46.03.500. Notice of illegal drug manufacturing site. (a) When a law 14 enforcement officer or team of law enforcement officers, qualified under federal
01 regulations to investigate and dismantle illegal drug manufacturing sites, determines 02 that a site constitutes an illegal drug manufacturing site, the primary law enforcement 03 agency that conducted the investigation shall notify the owner of the property, the 04 occupants and users of the property, and the department that the determination has 05 been made. The owner of the property may appeal the determination to the superior 06 court for review of whether the determination was made in compliance with this 07 subsection. In the appeal, the burden of proving by a preponderance of the evidence 08 that the determination was made in compliance with this subsection is on the primary 09 law enforcement agency that conducted the investigation. 10 (b) The notice to the property owner required under (a) of this section shall be 11 given in a manner that is consistent with the Alaska Rules of Civil Procedure for the 12 service of process in a civil action in this state and must include the following 13 information: 14 (1) the parcel identification number and legal description of the 15 property where the site is located; 16 (2) a statement of the determination made by the primary law 17 enforcement agency that the site was an illegal drug manufacturing site and the 18 findings that formed the basis for the determination; 19 (3) a citation to, and short summary of, AS 46.03.510, which restricts 20 transfer and occupancy of the site until it is determined to be fit for use; and 21 (4) the following information, which shall be provided to the primary 22 law enforcement agency by the department: 23 (A) a copy of the standards contained in regulations adopted 24 under AS 46.03.530 that determine whether the property is fit for use; 25 (B) a copy of the sampling and testing procedures established 26 under AS 46.03.520(b) and a copy of the list of laboratories maintained under 27 AS 46.03.520(c) that must be used for determining whether the property is fit 28 for use; and 29 (C) a copy of the guidelines for decontamination established by 30 the department under AS 46.03.540(b). 31 (c) The notice to the department required under (a) of this section must
01 include 02 (1) the parcel identification number and legal description of the 03 property where the site is located; 04 (2) a statement of the determination made by the primary law 05 enforcement agency that the site was an illegal drug manufacturing site and the 06 findings that formed the basis for the determination; and 07 (3) the name and mailing address of the person who owns the property 08 where the site is located. 09 (d) The notice required under (a) of this section for the occupants and users of 10 the property shall be accomplished by immediate posting of the entryway of the 11 property with a notice that includes the location of the property, the information 12 described in (b)(2) and (3) of this section, and a statement that the property may pose a 13 substantial risk of physical harm to persons who occupy or use the property. 14 (e) If a person other than the owner, such as a property manager or rental 15 agency, is authorized to let others use or occupy property for which an owner has 16 received a notice under (a) of this section or is authorized to transfer, sell, lease, or 17 rent the property to others, the owner of the property shall communicate the substance 18 of the notice to that person within four days after receiving the notice. 19 Sec. 46.03.510. Restrictions on property. (a) Until determined to be fit for 20 use under AS 46.03.550, the property for which a notice has been issued under 21 AS 46.03.500(a) may not be transferred, sold, leased, or rented to another person 22 except as provided in (b) of this section, and a person may not use or occupy the 23 property at any time after the fourth day following the day on which the property was 24 posted with the notice required under AS 46.03.500(d), except as necessary for 25 sampling, testing, or decontamination under AS 46.03.520 and 46.03.540. An oral or 26 written contract that would transfer, sell, lease, rent, or otherwise allow the use of the 27 property in violation of this subsection is voidable between the parties at the option of 28 the purchaser, transferee, user, lessee, or renter. However, this subsection does not 29 (1) make voidable a promissory note or other evidence of indebtedness 30 or a mortgage, trust deed, or other security interest securing the promissory note or 31 evidence of indebtedness, if the note or evidence of indebtedness, mortgage, trust
01 deed, or other security interest was given to a person other than the person 02 transferring, selling, using, leasing, or renting the property to induce the person to 03 finance the transfer, sale, use, leasing, or rental of the property; 04 (2) make voidable a lease or rental agreement between the property 05 owner and the person who caused the property to be contaminated and determined 06 unfit for use; or 07 (3) impair obligations or duties required to be performed on 08 termination of a contract, as required by the contract, such as payment of damages or 09 return of refundable deposits. 10 (b) Notwithstanding (a) of this section, property covered by (a) of this section 11 may be transferred or sold if full written disclosure is made to the prospective 12 transferee or purchaser that the property has been determined to be an illegal drug 13 manufacturing site and the property has not been determined to be fit for use. The 14 disclosure shall be attached to the earnest money receipt, if any, and shall accompany 15 the transfer or sale document. The disclosure is not considered to be part of the 16 transfer or sale document, however, and may not be recorded. The property shall 17 continue to be subject to the restrictions in (a) of this section after transfer or sale 18 under this subsection. 19 (c) A person who knowingly transfers, sells, leases, or rents property to 20 another, knowingly allows another to use or occupy property, or, being the owner of 21 property, knowingly occupies or uses the property, in violation of this section is guilty 22 of a class A misdemeanor. In this subsection, "knowingly" has the meaning given in 23 AS 11.81.900(a). 24 (d) It is an affirmative defense to a prosecution under (c) of this section for 25 allowing another to use or occupy the property that the defendant or an agent of the 26 defendant, within four days after receiving a notice under AS 46.03.500, filed an 27 appropriate civil action to remove the user or occupier from the property for which the 28 notice was received. 29 Sec. 46.03.520. Sampling and testing procedures. (a) If the owner of the 30 property for which notice was received under AS 46.03.500(b) desires to determine if 31 the property is fit for use, the owner shall cause the site to be sampled and tested for
01 the substances covered in regulations adopted under AS 46.03.530, using the 02 procedures and laboratory services specified under (b) and (c) of this section. The 03 property owner shall inform the laboratory used for sampling or testing under this 04 subsection that the sampling and testing are related to property that has been 05 determined to be an illegal drug manufacturing site. 06 (b) The department shall establish procedures for sampling and testing 07 property that may have been an illegal drug manufacturing site. 08 (c) The department shall establish and maintain a list of laboratories in the 09 state that have notified the department that they have the capacity to perform the 10 sampling and testing procedures and that they wish to be on the list maintained under 11 this subsection. A laboratory may not be included on the list unless the laboratory 12 agrees to send the department a copy of test results related to properties whose owners 13 have informed the laboratory that the test results are for property that has been 14 determined to be an illegal drug manufacturing site. 15 Sec. 46.03.530. Standards for determining fitness. (a) Property for which a 16 notice was received under AS 46.03.500(b) is not fit for use if sampling and testing of 17 the property under AS 46.03.520 shows the presence of substances for which the 18 department has set a limit under (b) of this section. 19 (b) The Department of Public Safety shall annually submit a list of substances 20 to the Department of Environmental Conservation. The department shall adopt 21 regulations that set the limit for each substance specified by the Department of Public 22 Safety for purposes of determining whether the property for which a notice was 23 received under AS 46.03.500 is fit for use. The department may also determine 24 whether there are other substances associated with illegal drug manufacturing sites 25 that may pose a substantial risk of harm to persons who occupy or use the site or to 26 public health and may adopt regulations that set limits for those substances for the 27 purposes of determining whether the property for which notice was received under 28 AS 46.03.500 is fit for use. 29 Sec. 46.03.540. Decontamination requirements. (a) If the owner desires to 30 decontaminate the property for which a notice has been issued under AS 46.03.500, 31 the owner shall follow the guidelines established by the department under (b) of this
01 section. 02 (b) The department shall establish guidelines for decontamination of sites that 03 are determined to be unfit for use under AS 46.03.530. The department shall provide 04 a copy of the guidelines to any person who requests a copy. 05 Sec. 46.03.550. Fitness for use. (a) Property for which a notice has been 06 issued under AS 46.03.500 shall be determined by the department to be fit for use if 07 the owner certifies to the department under penalty of unsworn falsification that 08 (1) based on sampling and testing procedures established by the 09 department under AS 46.03.520(b) and performed by laboratories that are on the list 10 maintained by the department under AS 46.03.520(c), the limits on substances 11 specified in regulations adopted under AS 46.03.530 are not exceeded on the property; 12 (2) if the property was ever sampled and tested under AS 46.03.520 13 and the test results showed the property to be unfit for use under AS 46.03.530, 14 decontamination procedures were performed in accordance with the guidelines 15 established under AS 46.03.540(b) and the requirements of (1) of this subsection have 16 been met; or 17 (3) a court has held that the determination that the property was an 18 illegal drug manufacturing site was not made in compliance with AS 46.03.500(a). 19 (b) The department shall maintain a list of properties for which the department 20 has received notice under AS 46.03.500(c). When the department determines under 21 (a) of this section that a property on the list is fit for use, the department shall remove 22 the property from the list and notify the owner of the property that the property is fit 23 for use. On request, the department shall give a copy of the list maintained under this 24 section to any person who requests the list. 25 Sec. 46.03.560. Securing the property. The owner of property for which a 26 notice was received under AS 46.03.500(b) shall ensure that the property is vacated 27 and secured against use 28 (1) within four days after receiving the notice if the owner does not test 29 the property under AS 46.03.520 within four days after receiving the notice; or 30 (2) within four days after receiving the test results if the owner tests 31 the property within four days after receiving the notice, the test shows the presence of
01 a substance that exceeds the limits set in regulations adopted under AS 46.03.530, and 02 the owner does not begin decontamination procedures under AS 46.03.540 within four 03 days after receiving the test results. 04 Sec. 46.03.570. Duties of the department; regulations. (a) The department 05 shall adopt regulations implementing AS 46.03.500 - 46.03.599. 06 (b) The department shall periodically review information related to 07 decontamination of illegal drug manufacturing sites to determine whether substances 08 should be added to or deleted from the list of substances specifically named in 09 AS 46.03.530(a). The department shall report written findings to the governor if the 10 department determines that a change should be made to the list of specific substances 11 in AS 46.03.530(a). The governor shall notify the legislature when written findings 12 have been made under this subsection and provide a copy of the findings to a legislator 13 on request. 14 Sec. 46.03.599. Definitions. In AS 46.03.500 - 46.03.599, 15 (1) "illegal drug manufacturing site" means property on which there is 16 reasonable cause to suspect contamination with chemicals associated with the 17 manufacturing of a controlled substance and where 18 (A) activity involving the unauthorized manufacture of a 19 controlled substance listed on schedule I or II in AS 11.71 or a precursor 20 chemical or necessary chemical for the substances has occurred; or 21 (B) there are kept, stored, or located any of the devices, 22 equipment, things, or substances used for the unauthorized manufacture of a 23 controlled substance listed on schedule I or II in AS 11.71; 24 (2) "site" means an illegal drug manufacturing site. 25 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 REGULATIONS. The Department of Environmental Conservation may immediately 28 begin to develop and adopt regulations to implement this Act. The regulations take effect 29 under AS 44.62 (Administrative Procedure Act). 30 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 CERTIFICATION OF EFFECTIVE DATE OF REGULATIONS. The lieutenant 02 governor shall certify to the revisor of statutes the effective date of the initial regulations 03 adopted by the Department of Environmental Conservation under sec. 3 of this Act. 04 * Sec. 5. Sections 1 and 2 of this Act take effect on the effective date of the initial 05 regulations adopted by the Department of Environmental Conservation under sec. 3 of this 06 Act. 07 * Sec. 6. Sections 3 and 4 of this Act take effect immediately under AS 01.10.070(c).