SB 64: "An Act adopting the Uniform Environmental Covenants Act; relating to environmental real property covenants and notices of activity and use limitation at contaminated sites to ensure the protection of human health, safety, and welfare, and the environment; and providing for an effective date."
00 SENATE BILL NO. 64 01 "An Act adopting the Uniform Environmental Covenants Act; relating to environmental 02 real property covenants and notices of activity and use limitation at contaminated sites 03 to ensure the protection of human health, safety, and welfare, and the environment; and 04 providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 46.04 is amended by adding new sections to read: 07 Article 2A. Uniform Environmental Covenants Act. 08 Sec. 46.04.300. Environmental covenant. (a) An environmental covenant is 09 required if the department makes a remedial decision as part of an environmental 10 response project and that environmental response project results in 11 (1) residual contamination remaining in the environment in 12 concentrations that are safe for some, but not all, uses; or 13 (2) an engineered feature or structure that requires monitoring, 14 maintenance, or operation, or that will not function as intended if disturbed.
01 (b) An environmental covenant may be held by one or more holders. A holder 02 may own an interest in the real property subject to an environmental covenant. The 03 interest of a holder is an interest in real property. 04 (c) A right of the department under AS 46.04.300 - 46.04.390 or under an 05 environmental covenant, other than a right as a holder, is not an interest in real 06 property. 07 (d) The department is bound by any obligation it specifically assumes in an 08 environmental covenant, but the department does not assume obligations merely by 09 signing an environmental covenant. A person other than the department that signs an 10 environmental covenant is bound by the obligations the person assumes in the 11 environmental covenant, but signing the environmental covenant does not change 12 obligations, rights, or protections granted or imposed under law other than under 13 AS 46.04.300 - 46.04.390 unless otherwise provided in the environmental covenant. 14 (e) The following apply to interests in real property in existence at the time an 15 environmental covenant is created or amended: 16 (1) an interest that has priority under other law is not affected by an 17 environmental covenant unless the person that owns the interest subordinates that 18 interest to the environmental covenant; 19 (2) AS 46.04.300 - 46.04.390 do not require a person that owns a prior 20 interest to subordinate that interest to an environmental covenant or to agree to be 21 bound by the environmental covenant; 22 (3) an environmental covenant may contain a subordination agreement, 23 or a subordination agreement may be contained in a separate record; 24 (4) the department may decide not to sign an environmental covenant 25 unless each person holding an interest in the land or any part of the land, including 26 each mortgagee, lessee, lienor, and encumbrancer, irrevocably subordinates the 27 interest to the environmental covenant; the department may waive the requirement in 28 this paragraph; 29 (5) an agreement by a person to subordinate a prior interest to an 30 environmental covenant affects the priority of that person's interest but does not by 31 itself impose any affirmative obligation on the person with respect to the
01 environmental covenant; 02 (6) if the environmental covenant covers commonly owned property in 03 a common interest community, the record may be signed by any person authorized by 04 the governing board of the owners' association. 05 Sec. 46.04.305. Contents of environmental covenant. (a) An environmental 06 covenant must 07 (1) state that the interest is an environmental covenant executed under 08 AS 46.04.300 - 46.04.390; 09 (2) contain a legally sufficient description of the real property subject 10 to the environmental covenant; 11 (3) describe the activity and use limitations on the real property; 12 (4) identify every holder; 13 (5) be signed by the commissioner of the department, every holder, 14 and, unless waived by the department, every owner of the fee simple of the real 15 property subject to the environmental covenant except that for an environmental 16 covenant affecting a land or mineral interest of the Department of Natural Resources, 17 the signature of the commissioner of natural resources may not be waived; and 18 (6) identify the name and location of any administrative record for the 19 environmental response project reflected in the environmental covenant. 20 (b) In addition to the information required under (a) of this section, an 21 environmental covenant may contain other information, restrictions, and requirements 22 agreed to by the persons who signed it or required by the department, including 23 (1) requirements for notice following transfer of a specified interest in, 24 or concerning proposed changes in use of, applications for building permits for, or 25 proposals for any site work affecting the contamination on, the property subject to the 26 environmental covenant; 27 (2) requirements for periodic reporting describing compliance with the 28 environmental covenant; 29 (3) rights of access to the property granted in connection with 30 implementation or enforcement of the environmental covenant; 31 (4) a brief narrative description of the contamination and remedy,
01 including the contaminants of concern, the pathways of exposure, limits on exposure, 02 and the location and extent of the contamination; 03 (5) a limitation on the amendment or termination of the environmental 04 covenant that is in addition to the limitations contained in AS 46.04.300 - 46.04.390; 05 and 06 (6) rights of the holder in addition to the right of the holder to enforce 07 the environmental covenant under AS 46.04.335. 08 (c) In addition to other conditions for the department's approval of an 09 environmental covenant, the department may require a specified person who has an 10 interest in the real property that is the subject of the environmental covenant to sign 11 the environmental covenant. 12 Sec. 46.04.310. Validity of environmental covenant; effect on other 13 instruments. (a) An environmental covenant entered into in accordance with 14 AS 46.04.300 - 46.04.390 runs with the land. 15 (b) An environmental covenant is valid and enforceable even if 16 (1) it is not appurtenant to an interest in real property; 17 (2) it can be or has been assigned to a person other than the original 18 holder; 19 (3) it is not of a character that has been traditionally recognized at 20 common law; 21 (4) it imposes a negative burden; 22 (5) it imposes an affirmative obligation on a person having an interest 23 in the real property or on the holder; 24 (6) the benefit or burden does not touch or concern real property; 25 (7) there is no privity of estate or contract; 26 (8) the holder dies, ceases to exist, resigns, or is replaced; or 27 (9) the owner of an interest subject to the environmental covenant and 28 the holder are the same person. 29 (c) An instrument that creates restrictions or obligations with respect to real 30 property that would qualify as activity and use limitations except for the fact that the 31 instrument was recorded before the effective date of AS 46.04.300 - 46.04.390 is not
01 invalid or unenforceable because of any of the limitations on enforcement of interests 02 described in (b) of this section or because it was identified as an easement, servitude, 03 deed restriction, or other interest. Except as provided in this section, AS 46.04.300 - 04 46.04.390 do not apply to an instrument described in this subsection. 05 (d) AS 46.04.300 - 46.04.390 do not invalidate or render unenforceable any 06 interest, whether designated as an environmental covenant or other interest, that is 07 otherwise enforceable under the law of this state. 08 Sec. 46.04.315. Notice of environmental covenant. (a) A copy of the 09 environmental covenant shall be provided by the persons and in the manner required 10 by the department to 11 (1) each person that signed the environmental covenant; 12 (2) each person holding a recorded interest in the real property subject 13 to the environmental covenant; 14 (3) each person in possession of the real property subject to the 15 environmental covenant; 16 (4) each municipality or other unit of local government in which real 17 property subject to the environmental covenant is located; and 18 (5) any other person the department requires. 19 (b) The validity of an environmental covenant is not affected by failure to 20 provide a copy of the environmental covenant as required under this section. 21 Sec. 46.04.320. Recording of environmental covenant. (a) An environmental 22 covenant and an amendment or termination of the environmental covenant must be 23 recorded in every recording district in which any portion of the real property subject to 24 the environmental covenant is located. For purposes of indexing, a holder shall be 25 treated as a grantee. 26 (b) An owner of land may not record an environmental covenant unless the 27 owner simultaneously records any subordination documentation required under 28 AS 46.04.300(e). 29 (c) Except as otherwise provided in AS 46.04.325(f), an environmental 30 covenant is subject to state law governing recording and priority of interests in real 31 property.
01 (d) A holder shall provide a copy of the final recorded environmental 02 covenant, an amendment made to the environmental covenant, termination 03 documentation, and documentation of other matters related to the environmental 04 covenant to the department. 05 Sec. 46.04.325. Duration; modification or termination of environmental 06 covenant by administrative or court action. (a) An environmental covenant is 07 perpetual unless it is 08 (1) by its terms, limited to a specific duration or terminated by the 09 occurrence of a specific event; 10 (2) terminated by consent under AS 46.04.330; 11 (3) terminated under (b) or (e) of this section; 12 (4) terminated by foreclosure of an interest that has priority over the 13 environmental covenant; or 14 (5) terminated or modified in an eminent domain proceeding, but only 15 if 16 (A) the department is a party to the proceeding; 17 (B) every person whose consent is required under 18 AS 46.04.330(a) is given notice of the pendency of the proceeding; and 19 (C) the court determines, after hearing, that the activity and use 20 limitations subject to termination or modification are no longer required to 21 protect human health, safety, or welfare, or the environment. 22 (b) The department may terminate or reduce the burden on the real property of 23 an environmental covenant if the department finds that some or all of the activity and 24 use limitations under the environmental covenant are no longer required to protect 25 human health, safety, or welfare, or the environment, or modify the environmental 26 covenant if the department determines that modification is required adequately to 27 protect human health, safety, or welfare, or the environment. 28 (c) The department shall provide notice of any proposed action under (b) of 29 this section to each person with a current recorded interest in the real property subject 30 to the environmental covenant, each holder, all other persons who originally signed 31 the environmental covenant, or their successors or assigns, and any other person with
01 rights or obligations under the environmental covenant. The department shall provide 02 60 days for comment on the proposed action by parties entitled to notice. A 03 determination by the department under this subsection is a final agency decision. Any 04 person entitled to notice under this subsection may request an adjudicatory hearing 05 under the procedures established by the department under AS 46.04.890. 06 (d) A person entitled to notice under (c) of this section may apply in writing to 07 the department for a determination under (b) of this section that an existing 08 environmental covenant be terminated, that the burden of an environmental covenant 09 be reduced, or that an environmental covenant be modified. The application must 10 specify the determination sought by the applicant, the reasons why the department 11 should make the determination, and the information that would support it. If the 12 department fails to begin a proceeding under (b) of this section within 90 days after 13 receiving the application, the applicant may bring a civil action in superior court for 14 termination, reduction of burden, or modification of the environmental covenant under 15 (e) of this section. 16 (e) The superior court for a recording district in which the real property 17 subject to an environmental covenant is located may, in a de novo action, under the 18 doctrine of changed circumstances, terminate an environmental covenant, reduce an 19 environmental covenant's burden on the real property, or modify the terms of an 20 environmental covenant if the department fails to begin a proceeding within 90 days as 21 provided under (d) of this section. The applicant under (d) of this section, a holder of 22 the environmental covenant, or another person identified in (c) of this section may 23 begin an action under this subsection. The person beginning the action shall serve 24 notice of the action on the department and any person entitled to notice under (c) of 25 this section. The person bringing the action shall make the department a party to the 26 action. The court shall terminate, reduce the burden of, or modify an environmental 27 covenant if the court determines that the person bringing the action shows that some or 28 all of the activity and use limitations under the environmental covenant do not or are 29 no longer required to protect human health, safety, or welfare, or the environment. 30 (f) An environmental covenant may not be extinguished, limited, or impaired 31 through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine
01 of adverse possession, prescription, abandonment, waiver, lack of enforcement, 02 acquiescence, or a similar doctrine. 03 Sec. 46.04.330. Amendment or termination of environmental covenant by 04 consent. (a) An environmental covenant may be amended or terminated if the 05 amendment or termination is consented to and signed 06 (1) by the department; 07 (2) unless waived by the department, by the current owner of the fee 08 simple of the real property subject to the environmental covenant; 09 (3) by each person that originally signed the environmental covenant, 10 unless the person 11 (A) waived the right to consent to termination or modification 12 in the environmental covenant or in another signed and acknowledged 13 instrument recorded with the recording district; 14 (B) fails to object to the amendment or termination within 60 15 days after a party to the covenant mails, by certified mail, return receipt 16 requested, to the person's last known address, a notice requesting the person's 17 consent to amendment or termination and the return receipt is signed by the 18 person; or 19 (C) cannot be found, as determined by a court, because the 20 person no longer exists or cannot be located or identified with the exercise of 21 reasonable diligence; and 22 (4) except as otherwise provided in (d)(2) of this section, by the holder. 23 (b) If an interest in real property is subject to an environmental covenant, the 24 interest is not affected by an amendment of the environmental covenant unless the 25 current owner of the interest consents to the amendment or has waived in a signed 26 record the right to consent to amendments. 27 (c) Except for an assignment undertaken under a governmental reorganization, 28 assignment of an environmental covenant to a new holder is an amendment. 29 (d) Except as otherwise provided in an environmental covenant, 30 (1) a holder may not assign its interest without consent of the other 31 parties specified in (a) of this section;
01 (2) a holder may be removed and replaced by agreement of the other 02 parties specified in (a) of this section; and 03 (3) a court of competent jurisdiction may fill a vacant holder position. 04 Sec. 46.04.335. Enforcement of environmental covenant. (a) The department 05 is the administrating agency for AS 46.04.300 - 46.04.390 and is empowered to 06 administer and enforce AS 46.04.300 - 46.04.390 using the civil or administrative 07 authority granted to it in AS 46.03. However, the department may, but is not required 08 to, assume any administration or enforcement functions other than those directly 09 related to the environmental covenant. 10 (b) A civil action for injunctive or other equitable relief for violation of an 11 environmental covenant may be maintained by 12 (1) a party to the environmental covenant; 13 (2) the department; 14 (3) a person that the environmental covenant expressly grants the 15 power to enforce the environmental covenant; 16 (4) a person whose interest in the real property or whose collateral or 17 liability may be affected by the alleged violation of the environmental covenant; or 18 (5) a municipality or other unit of government that governs the real 19 property subject to the environmental covenant. 20 (c) AS 46.04.300 - 46.04.390 do not limit the regulatory authority of the 21 department in an environmental response project. 22 (d) A person is not responsible for or subject to liability for environmental 23 remediation solely because the person has the right to enforce an environmental 24 covenant. 25 Sec. 46.04.340. Notice of activity and use limitation. (a) If a legal 26 impediment prevents an environmental covenant from being entered into, an owner of 27 real property shall, after receiving authorization from the department, record a notice 28 of an activity and use limitation into the appropriate public land records. Failure to 29 record a notice of an activity and use limitation may result in disapproval of the 30 environmental response project. 31 (b) Once the owner or other person assumes an obligation under a notice of
01 activity and use limitation, that owner or person shall comply with those obligations in 02 accordance with AS 46.04.300 - 46.04.390. 03 (c) The enactment, modification, or termination of a notice of activity and use 04 limitation is not valid until it is approved by the department. A notice of activity and 05 use limitation is an agency action based on the state's police power. 06 (d) A notice of activity and use limitation is binding on current and subsequent 07 owners of the affected land and any person using or possessing an interest in the land. 08 (e) A person who proposes to create, modify, or terminate a notice of activity 09 and use limitation shall provide written notice of the person's intention to the 10 department, to all persons holding an interest of record in the real property that will be 11 subject to the notice of activity and use limitation, to all persons known to the person 12 to have an unrecorded interest in the property, and to all affected persons in possession 13 of the property before the creation, modification, or termination, and shall provide the 14 department with 15 (1) a copy of the notice provided; 16 (2) a list of the persons to whom notice was given and the address or 17 other location to which the notice was directed; and 18 (3) title information required by the department. 19 (f) Before unilaterally issuing a notice of activity and use limitation, the 20 department shall provide a copy of the proposed notice of activity and use limitation to 21 all persons holding an interest of record in the real property subject to the notice of 22 activity and use limitation, all persons known to the department to have an unrecorded 23 interest in the property, and all affected persons in possession of the property, and 24 shall offer the persons a minimum of 30 days to comment on the proposed notice of 25 activity and use limitation, unless notice has already been provided under (e) of this 26 section. In determining whether to issue the notice of activity and use limitation 27 unilaterally, the department shall consider any comments received. For a notice of 28 activity and use limitation affecting a land or mineral interest of the Department of 29 Natural Resources, concurrence from the Department of Natural Resources is 30 required. 31 (g) The department shall review and make a determination regarding all
01 requests to create, modify, or terminate a notice of activity and use limitation within 02 90 days after receiving a request that includes all the information described in (a) of 03 this section. 04 (h) Upon issuance or approval of a notice of activity and use limitation, the 05 department shall record the notice in every recording district in which a portion of the 06 real property subject to the activity and use limitation is located. For approved notices, 07 the department may allow the owner of the property to record the notice. A person 08 may not record a notice without the department's written approval. 09 (i) The department may authorize any notice of activity and use limitation 10 created in accordance with this section to be replaced by an environmental covenant. 11 The department may condition its authorization and approval of the termination of the 12 notice of activity and use limitation on the terms of the notice of activity and use 13 limitation, department approval and acceptance, and the effective recording of the 14 environmental covenant. 15 (j) Modification or termination of a notice of activity and use limitation shall 16 be recorded as provided in (h) of this section. A person may not record a modification 17 or termination of a notice of activity and use limitation without the department's 18 written approval. 19 (k) A determination by the department to issue, approve, modify, or terminate 20 a notice of activity and use limitation is subject to appeal under the procedures 21 described in AS 46.04.890. 22 Sec. 46.04.345. Relationship to other land-use law. AS 46.04.300 - 23 46.04.390 do not authorize a use of real property that is otherwise prohibited under 24 AS 29.40 or AS 38.05.037, by law other than AS 46.04.300 - 46.04.390 regulating use 25 of real property, or by a recorded instrument that has priority over the environmental 26 covenant or a notice of activity and use limitation. An environmental covenant or a 27 notice of activity and use limitation may prohibit or restrict uses of real property that 28 are authorized by zoning or by law other than AS 46.04.300 - 46.04.390. 29 Sec. 46.04.350. Registry. (a) The department may maintain a registry that 30 contains all environmental covenants and notices of activity and use limitation and any 31 amendment or termination of those instruments. The registry may also contain any
01 other information concerning environmental covenants and notices of activity and use 02 limitation and the real property subject to them that the department considers 03 appropriate. 04 Sec. 46.04.355. Uniformity of application and construction. In applying and 05 construing AS 46.04.300 - 46.04.390, consideration must be given to the need to 06 promote uniformity of the law with respect to its subject matter among states that 07 enact similar provisions. 08 Sec. 46.04.390. Definitions. In AS 46.04.300 - 46.04.390, 09 (1) "common interest community" means a condominium, cooperative, 10 or other real property with respect to which a person, by virtue of the person's 11 ownership of a parcel of real property, is obligated to pay property taxes or insurance 12 premiums, or pay for maintenance, or improvement of other real property described in 13 a recorded environmental covenant that creates the common interest community; 14 (2) "environmental covenant" means a servitude arising under an 15 environmental response project that imposes activity and use limitations; 16 (3) "environmental response project" means a plan or work performed 17 or maintenance of work performed under a federal or state program 18 (A) including this chapter, AS 46.03, AS 46.09, 42 U.S.C. 19 9601 - 9675 (Comprehensive Environmental Response, Compensation and 20 Liability Act), as amended, and 42 U.S.C. 6901 - 6992k (Resource 21 Conservation and Recovery Act), as amended, governing environmental 22 remediation and management of contaminated real property; or 23 (B) governing maintenance, closure, or corrective action of a 24 solid waste disposal facility or hazardous waste management unit; 25 (4) "holder" means the grantee of an environmental covenant as 26 specified in AS 46.04.300(b); 27 (5) "notice of activity and use limitation" means a restriction or 28 obligation created under AS 46.04.300 - 46.04.390 with respect to real property; 29 (6) "record" has the meaning given in AS 40.17.900. 30 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 TRANSITION: REGULATIONS. The Department of Environmental Conservation 02 and the Department of Natural Resources may adopt regulations necessary to implement this 03 Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not 04 before the effective date of the law implemented by the regulation. 05 * Sec. 3. Section 2 of this Act takes effect immediately under AS 01.10.070(c).