Legislature(2017 - 2018)GRUENBERG 120

05/07/2018 09:30 AM RULES

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09:30:09 AM Start
09:31:00 AM SB64
09:54:11 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to a Call of the Chair --
Moved HCS SB 64(RLS) Out of Committee
Scheduled but Not Heard
           SB 64-UNIFORM ENVIRONMENTAL COVENANTS ACT                                                                        
9:31:00 AM                                                                                                                    
CHAIR LEDOUX announced  that the only order of  business would be                                                               
SENATE BILL  NO. 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."                                                               
[Before the committee was HCS SB 64(L&C).]                                                                                      
9:31:09 AM                                                                                                                    
REPRESENTATIVE  CLAMAN   moved  to   adopt  the   proposed  House                                                               
committee  substitute  (HCS)  for  SB  64,  labeled  30-LS0446\T,                                                               
Bullard/Nauman, 5/5/18, as the working  document.  There being no                                                               
objection, Version T was before the committee.                                                                                  
9:31:44 AM                                                                                                                    
KRISTIN  RYAN,   Director,  Division  of  Spill   Prevention  and                                                               
Response,   Department  of   Environmental  Conservation   (DEC),                                                               
explained the  changes that would be  made under Version T.   She                                                               
explained that  the U.S. Department  of Defense (DoD)  had raised                                                               
concerns about  SB 64, and  DEC worked with the  various branches                                                               
of DoD to  find a compromise.  She explained  that the concern of                                                               
DoD  was in  regard to  one section  of the  proposed legislation                                                               
that addresses  notice of use  restriction.  She said  states are                                                               
not able to  put a covenant on federal property,  which is why SB
64 proposed a notice of use  restriction that would be applied in                                                               
areas where  a covenant could not  be used.  She  said DoD wanted                                                               
assurance that Alaska was not  interested in those properties and                                                               
would not be  restricting use of the property if  the state put a                                                               
notice of  use restriction on it.   She said in  legal terms that                                                               
is  called an  interest  in the  property.   She  said Version  T                                                               
clarifies that is  the case and DoD attorneys  are satisfied that                                                               
that is how the proposed legislation will be interpreted.                                                                       
9:33:34 AM                                                                                                                    
MS.  RYAN  answered a  string  of  questions from  Representative                                                               
Millett.  She said Version T  would not give additional powers to                                                               
DEC; it is  a disclosure law that would ensure  DEC is "recording                                                               
what's happening on  the record of the property."   She said this                                                               
would allow future  buyers of a property to  understand what they                                                               
are getting.  She clarified  that under the proposed legislation,                                                               
buyers would  be informed when  there is  remaining contamination                                                               
above DEC's "cleanup levels."   She said the proposed legislation                                                               
includes  language   for  removal  of  the   covenant,  which  is                                                               
voluntary, because  the opportunity  is always there  for cleanup                                                               
of contamination.  She said, "This  only comes into effect if you                                                               
leave  contamination above  the  cleanup level.    So, this  only                                                               
applies to ...  a portion of our sites, because  many are cleaned                                                               
up to  our cleanup  standards ...."   She  offered an  example as                                                               
     There  was a  location in  Anchorage -  a gas  station.                                                                    
     There was a  car wash.  ... When they  pulled the tanks                                                                    
     out  of ...  the  gas station,  there was  contaminated                                                                    
     dirt around  the tanks.   They removed as much  as they                                                                    
     could, but some  of it migrated over  to the foundation                                                                    
     of  the  building.    We  didn't  make  them  take  the                                                                    
     building out;  we try  to be  reasonable; and  in those                                                                    
     scenarios ...  you don't have  to rip the  building out                                                                    
     to get the rest of the  bad dirt; but when the building                                                                    
     is removed,  we do want  you to  deal with that  in the                                                                    
     right way.   The land  was transferred.   Somebody came                                                                    
     in,   ripped  the   building  out,   spread  the   dirt                                                                    
     everywhere,  without  knowing  that it  was  above  our                                                                    
     cleanup levels with petroleum, and  put a restaurant in                                                                    
     ..., and now  we have a problem, because  they have now                                                                    
     spread this dirt not only  in their property but [also]                                                                    
     their neighbor's  property.  So, that's  what this bill                                                                    
     was intended  to avoid.   ... If that person  had known                                                                    
     when they removed the building,  this would have been a                                                                    
     simple solution  to remove  that contaminated  dirt and                                                                    
     not spread it everywhere ....                                                                                              
MS.  RYAN  continued  her response  to  Representative  Millett's                                                               
questions.  Regarding the covenant,  she said, "The terms have to                                                               
be agreed  on by the  ... property  owner to negotiate  a process                                                               
with the  department."  She  said there  is an appeal  process to                                                               
change  the covenant.    She said  if  the contamination  remains                                                               
above DEC's cleanup  levels and the property owner  needs to have                                                               
that information  communicated on the title,  then the department                                                               
can put  the covenant  on the  property; however,  she emphasized                                                               
that department's  intent, which she  said she thinks  is clearly                                                               
stipulated in the proposed legislation,  is for the department to                                                               
work with the property owner in  a joint effort in which everyone                                                               
agrees "that this is the right path forward."                                                                                   
9:37:57 AM                                                                                                                    
REPRESENTATIVE  MILLETT  pointed  to  language in  Section  1  of                                                               
Version T, [on page 4, beginning  on line 11], which addresses AS                                                               
46.04.310.     The  language  she  highlighted   states  that  an                                                               
environmental covenant "is valid and  enforceable" even if "it is                                                               
not  of a  character that  has been  traditionally recognized  at                                                               
common law".  She asked for an explanation.                                                                                     
MS. RYAN  replied the intent is  for a covenant that  is violated                                                               
to  be  enforceable  as  is   the  department's  other  statutory                                                               
authorities.  She  gave the example that if someone  is told land                                                               
is  contaminated and  puts in  a well  anyway, then  DEC has  the                                                               
right  to tell  that  person he/she  cannot  provide that  unsafe                                                               
water to people.   She said, "That is existing law.   All this is                                                               
doing is communicating that restriction exists."                                                                                
9:38:59 AM                                                                                                                    
REPRESENTATIVE  MILLETT  offered  her  understanding  that  under                                                               
Version T,  AS 46.04.335, [on  page 9,  line 3], states  that the                                                               
department can bring civil action  if there is failure to comply.                                                               
She asked if DEC can do that now.                                                                                               
MS. RYAN answered yes.                                                                                                          
9:39:38 AM                                                                                                                    
REPRESENTATIVE  STUTES  noted  there  were  two  House  committee                                                               
substitutes  in  the  committee packet:    [30-LS0446\N,  Nauman,                                                               
5/4/18,  which  was  never  offered] and  Version  T,  which  the                                                               
committee  had  adopted as  a  working  document.   She  inquired                                                               
whether DoD was okay with Version T.                                                                                            
9:41:19 AM                                                                                                                    
The committee took an at-ease from 9:41 a.m. to 9:43 a.m.                                                                       
9:43:47 AM                                                                                                                    
MS. RYAN reiterated that DEC had  worked closely with DoD to come                                                               
up  with a  version of  SB 64  that DoD  approved, and  Version T                                                               
answers all of the concerns raised by DoD.                                                                                      
9:44:31 AM                                                                                                                    
ROBERT   SHIRLEY,   Regional  Environmental   Coordinator,   U.S.                                                               
Department  of  Defense  (DoD),  in  response  to  Representative                                                               
Stutes' question,  stated that  Version T meets  the intent  of a                                                               
letter from him dated May 4, 2018, concerning DoD consent.                                                                      
9:45:05 AM                                                                                                                    
CHAIR LEDOUX announced the committee would entertain amendments.                                                                
9:45:16 AM                                                                                                                    
REPRESENTATIVE MILLETT moved to adopt Amendment 1, labeled 30-                                                                  
LS0446\N.1, Bullard, 5/5/18, which read as follows:                                                                             
     Page 6, line 10:                                                                                                           
          Delete "(b) or (e)"                                                                                                   
          Insert "(b), (e), or (g)"                                                                                             
     Page 8, following line 1:                                                                                                  
     Insert a new subsection to read:                                                                                           
          "(g)  The department shall terminate an                                                                               
     environmental  covenant if  the environmental  covenant                                                                    
     was required  under AS 46.04.300 solely because  of the                                                                    
     level  or concentration  of  residual contamination  on                                                                    
     the property, and the  department determines that level                                                                    
     or  concentration of  residual  contamination does  not                                                                    
     endanger  human  health,  safety, or  welfare,  or  the                                                                    
     environment. The  department shall provide notice  of a                                                                    
     termination under  this subsection to each  person with                                                                    
     a  current  recorded  interest  in  the  real  property                                                                    
     subject  to the  environmental  covenant, each  holder,                                                                    
     all   other   persons   who   originally   signed   the                                                                    
     environmental   covenant,   or  their   successors   or                                                                    
     assigns,   and  any   other  person   with  rights   or                                                                    
     obligations under the environmental covenant."                                                                             
     Page 10, line 6, following "(e)":                                                                                          
          Insert "or (m)"                                                                                                       
     Page 11, following line 24:                                                                                                
     Insert a new subsection to read:                                                                                           
     "(m)    The  department  shall terminate  a  notice  of                                                                    
     activity and  use limitation for  real property  if the                                                                    
     notice  of activity  and  use  limitation was  required                                                                    
     solely  because  of  the   level  or  concentration  of                                                                    
     residual  contamination   on  the  property,   and  the                                                                    
     department  determines that  level or  concentration of                                                                    
     residual contamination does  not endanger human health,                                                                    
     safety, or welfare, or  the environment. The department                                                                    
     shall  provide  notice  of  a  termination  under  this                                                                    
     subsection  to  all  persons  holding  an  interest  of                                                                    
     record in  the real property  subject to the  notice of                                                                    
     activity and  use limitation, all persons  known to the                                                                    
     department  to  have  an  unrecorded  interest  in  the                                                                    
     property,  and all  affected persons  in possession  of                                                                    
     the property."                                                                                                             
9:45:19 AM                                                                                                                    
REPRESENTATIVE CLAMAN objected for the purpose of discussion.                                                                   
9:45:22 AM                                                                                                                    
REPRESENTATIVE MILLETT spoke to Amendment  1.  She explained that                                                               
if there  is a  change in  status regarding  a contaminant  - for                                                               
example, if DEC lowers it - then the covenant would be removed.                                                                 
9:46:13 AM                                                                                                                    
MS. RYAN  said that is  the intent  of Version T;  therefore, the                                                               
department sees Amendment 1 as consistent with Version T.                                                                       
9:46:43 AM                                                                                                                    
REPRESENTATIVE  EASTMAN  asked if  this  is  what the  department                                                               
already does or if Amendment 1 is needed as a technical fix.                                                                    
9:47:05 AM                                                                                                                    
MS. RYAN  answered that Amendment 1  is not a technical  fix that                                                               
is required and would not change Version T in any way.                                                                          
9:47:16 AM                                                                                                                    
REPRESENTATIVE  CLAMAN noted  that Amendment  1 had  been written                                                               
for  Version  N  [a  proposed House  committee  substitute  never                                                               
offered], and he  questioned where Amendment 1  fits into Version                                                               
T.      He  further   questioned   whether   Amendment  1   would                                                               
significantly  change  Version  T  or if  Legislative  Legal  and                                                               
Research Services would be allowed to make conforming changes.                                                                  
9:47:45 AM                                                                                                                    
EMILY  NAUMAN, Attorney,  Legislative Legal  Counsel, Legislative                                                               
Legal   and  Research   Services,  Legislative   Affairs  Agency,                                                               
suggested it may be helpful to  adopt Amendment 1 as a conceptual                                                               
amendment,  since  it  was originally  written  for  a  different                                                               
version.   That said, she  noted that  the changes between  the N                                                               
and T  Versions were  relatively minor;  therefore, she  said she                                                               
would be surprised if Amendment 1  would not function as is.  She                                                               
said she did not have time  to check the page and line reference,                                                               
which  may be  the only  changes that  would need  to be  made to                                                               
conform to Version T.                                                                                                           
9:48:30 AM                                                                                                                    
CHAIR  LEDOUX   announced  she  would  grant   Legislative  Legal                                                               
Services the  right to make  technical and conforming  changes to                                                               
any amendments that are adopted.                                                                                                
9:48:49 AM                                                                                                                    
REPRESENTATIVE  CLAMAN  removed  his objection  to  Amendment  1.                                                               
There being no further objection, Amendment 1 was adopted.                                                                      
9:49:04 AM                                                                                                                    
CHAIR LEDOUX  indicated there was  an Amendment 2 that  she would                                                               
like to save for discussion at another time.                                                                                    
9:49:22 AM                                                                                                                    
REPRESENTATIVE  CLAMAN moved  to report  HCS SB  64, Version  30-                                                               
LS0446\T, Bullard/Nauman,  5/5/18, as  amended, out  of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.   There being  no objection, HCS  SB 64(RLS)  was reported                                                               
out of the House Rules Standing Committee.                                                                                      

Document Name Date/Time Subjects
HCS SB64 ver N.pdf HRLS 5/7/2018 9:30:00 AM
SB 64
HCS SB64 ver N Explanation of Changes.pdf HRLS 5/7/2018 9:30:00 AM
SB 64
HCS SB64 ver T.pdf HRLS 5/7/2018 9:30:00 AM
SB 64
HCS SB64 ver T Explanation of Changes.pdf HRLS 5/7/2018 9:30:00 AM
SB 64
HCS SB64 DOD Letter.pdf HRLS 5/7/2018 9:30:00 AM
SB 64
HCS SB64 DOD Email.pdf HRLS 5/7/2018 9:30:00 AM
SB 64
HCS SB64 Amendments.pdf HRLS 5/7/2018 9:30:00 AM
SB 64
HCS SB64 Amendment Legal Memo.pdf HRLS 5/7/2018 9:30:00 AM
SB 64
HCS SB81 Version U.pdf HRLS 5/7/2018 9:30:00 AM
SB 81
HCS SB81 ver U Explanation of Changes.pdf HRLS 5/7/2018 9:30:00 AM
SB 81
HCS SB81 Amendment.pdf HRLS 5/7/2018 9:30:00 AM
SB 81