Legislature(2017 - 2018)BUTROVICH 205
02/26/2018 03:30 PM RESOURCES
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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 clean-up. 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 state. 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 site." 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 uncontaminated. 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 transfer. 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.