akcode

Revisor’s notes. —

The provisions of this title were redrafted in 1987 to remove personal pronouns pursuant to § 4, ch. 58, SLA 1982 and in 1987, 1991, 1995, 2008, 2014, and 2016 to make other minor word changes.

Administrative Code. —

For environmental conservation, see 18 AAC.

Collateral references. —

Frank P. Grad, Treatise on Environmental Law (Matthew Bender).

Michael B. Gerard, Environmental Law Practice Guide: State and Federal Law (Matthew Bender).

Cooke and Davis, The Law of Hazardous Waste: Management, Cleanup, Liability, and Litigation (Matthew Bender).

Mitchell H. Lathrop, Insurance Coverage for Environmental Claims (Matthew Bender).

Berz and Spracker, Environmental Law in Real Estate and Business Transactions (Matthew Bender).

Chapter 03. Environmental Conservation.

Administrative Code. —

For environmental conservation, see 18 AAC.

For air quality control, see 18 AAC 50.

For solid waste management, see 18 AAC 60.

For hazardous waste, see 18 AAC 62.

For siting of hazardous waste management facilities, see 18 AAC 63.

Collateral references. —

Amount and characteristics of wastes as equitable factors in allocation of response costs pursuant to § 113(f)(1) of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9613(f)(1): multiple waste streams. 162 ALR Fed. 371.

Actions brought under Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) (33 U.S.C.A. §§ 1251 et seq.) — Supreme Court cases. 163 ALR Fed. 531.

Article 1. Declaration of Policy.

Sec. 46.03.010. Declaration of policy.

It is the policy of the state to conserve, improve, and protect its natural resources and environment and control water, land, and air pollution, in order to enhance the health, safety, and welfare of the people of the state and their overall economic and social well-being.
It is the policy of the state to improve and coordinate the environmental plans, functions, powers, and programs of the state, in cooperation with the federal government, regions, local governments, other public and private organizations, and concerned individuals, and to develop and manage the basic resources of water, land, and air to the end that the state may fulfill its responsibility as trustee of the environment for the present and future generations.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

For oxygenated gasoline requirements, see 18 AAC 53, art. 1.

For waste disposal permit, see 18 AAC 60, art. 2.

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For monofills, see 18 AAC 60, art. 4.

For land application of biosolids, see 18 AAC 60, art. 5.

For reserved, see 18 AAC 60, art. 6.

For monitoring and corrective action requirements, see 18 AAC 60, art. 7.

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For domestic wastewater system plan review, see 18 AAC 72, art. 2.

For nondomestic wastewater system plan review, see 18 AAC 72, art. 6.

For purpose, applicability, and term, see 18 AAC 83, art. 1.

For permit process, see 18 AAC 83, art. 2.

For permit application requirements, see 18 AAC 83, art. 4.

For permit conditions — general, see 18 AAC 83, art. 5.

For requirements and permit conditions specific to type of discharge, see 18 AAC 83, art. 6.

For purpose, applicability, prohibitions, and discharge notification, see 18 AAC 90, art. 1.

For pesticide registration, see 18 AAC 90, art. 2.

For certification requirements, see 18 AAC 90, art. 3.

For recordkeeping requirements, see 18 AAC 90, art. 4.

For permit requirements, see 18 AAC 90, art. 5.

For pesticide handling requirements, see 18 AAC 90, art. 6.

For inspection and enforcement, see 18 AAC 90, art. 7.

For forestry vegetation management, see 18 AAC 90, art. 8.

Notes to Decisions

This chapter is not void for vagueness under the Alaska and United States constitutions. Stock v. State, 526 P.2d 3 (Alaska 1974).

Owner of a trailer park charged with polluting a stream by channeling raw sewage from the trailer park into the stream failed to overcome the presumption of constitutionality of this section; while there may be instances in which the statute could be arbitrarily and capriciously enforced, there was not, on the basis of such mere hypothesis and in the absence of any history of actual arbitrary application, any ground upon which to invalidate the statute. Stock v. State, 526 P.2d 3 (Alaska 1974).

There can be no doubt of the general frame of operation of this chapter; no contention can be made that this chapter has a subterfugal purpose or effect of curtailing the exercise of protected political or individual rights to speech, association, privacy, and the like. Stock v. State, 526 P.2d 3 (Alaska 1974).

Adequacy of notice of what acts prohibited. —

A statute must give adequate notice to the ordinary citizen of what is prohibited. A statute may be subject to criticism for failure to give adequate notice as to all types of conduct that are punishable, but may still pass muster if there is no question that it applies to the particular offense involved, and the statute may be construed so that, in the future, the type of offenses coming within its purview may reasonably be understood. Stock v. State, 526 P.2d 3 (Alaska 1974).

State as trustee of air quality. —

Alaska Legislature has intimated that the State of Alaska acts as trustee with regard to the air just as it does with regard to other natural resources. Kanuk v. State, Dep't of Natural Res., 335 P.3d 1088 (Alaska 2014).

The concern indicated by this chapter is the protection of the environment from pollution. Stock v. State, 526 P.2d 3 (Alaska 1974).

Cited in

Kelso v. Rybachek, 912 P.2d 536 (Alaska 1996).

Collateral references. —

61B Am. Jur. 2d, Pollution Control, §§ 143-145.

39A C.J.S., Health and Environment, § 98 et seq.

Constitutionality of reforestation or forest conservation legislation. 13 ALR2d 1095.

Article 2. Department of Environmental Conservation.

Collateral references. —

61B Am. Jur. 2d, Pollution Control, § 4.

39A C.J.S., Health and Environment, § 98 et seq.

Constitutionality of reforestation or forest conservation legislation. 13 ALR2d 1095.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 ALR3d 665.

Sec. 46.03.020. Powers of the department.

The department may

enter into contracts and compliance agreements necessary or convenient to carry out the functions, powers, and duties of the department;
review and appraise programs and activities of state departments and agencies in light of the policy set out in AS 46.03.010 for the purpose of determining the extent to which the programs and activities are contributing to the achievement of that policy and to make recommendations to the departments and agencies, including environmental guidelines;
consult with and cooperate with
1. officials and representatives of any nonprofit corporation or organization in the state;
2. persons, organizations, and groups, public and private, using, served by, interested in, or concerned with the environment of the state;
appear and participate in proceedings before any state or federal regulatory agency involving or affecting the purposes of the department;
undertake studies, inquiries, surveys, or analyses it may consider essential to the accomplishment of the purposes of the department; these activities may be carried out by the personnel of the department or in cooperation with public or private agencies, including educational, civic, and research organizations, colleges, universities, institutes, and foundations;
at reasonable times, enter and inspect with the consent of the owner or occupier any property or premises to investigate either actual or suspected sources of pollution or contamination or to ascertain compliance or noncompliance with a regulation that may be adopted under AS 46.03.020 — 46.03.040 ; information relating to secret processes or methods of manufacture discovered during investigation is confidential;
conduct investigations and hold hearings and compel the attendance of witnesses and the production of accounts, books, and documents by the issuance of a subpoena;
advise and cooperate with municipal, regional, and other local agencies and officials in the state, to carry out the purposes of this chapter;
act as the official agency of the state in all matters affecting the purposes of the department under federal laws now or hereafter enacted;
adopt regulations necessary to carry out the purposes of this chapter, including regulations providing for
1. control, prevention, and abatement of air, water, or land or subsurface land pollution;
2. safeguard standards for petroleum and natural gas pipeline construction, operation, modification, or alteration;
3. protection of public water supplies by establishing minimum drinking water standards, and standards for the construction, improvement, and maintenance of public water supply systems;
4. collection and disposal of sewage and industrial waste;
5. collection and disposal of garbage, refuse, and other discarded solid materials from industrial, commercial, agricultural, and community activities or operations;
6. control of pesticides;
7. other purposes as may be required for the implementation of the policy declared in AS 46.03.010 ;
8. handling, transportation, treatment, storage, and disposal of hazardous wastes;
inspect the premises of sellers and suppliers of paint, vessels, and marine and boating supplies, and take other actions necessary to enforce AS 46.03.715 ;
notwithstanding any other provision of law, take all actions necessary to receive authorization from the administrator of the United States Environmental Protection Agency to administer and enforce a National Pollutant Discharge Elimination System program in accordance with 33 U.S.C. 1342 (sec. 402, Clean Water Act), 33 U.S.C. 1345 (sec. 405, Clean Water Act), 40 C.F.R. Part 123, and 40 C.F.R. Part 403, as amended;
require the owner or operator of a facility to undertake monitoring, sampling, and reporting activities described in 33 U.S.C. 1318 (sec. 308, Clean Water Act);
notwithstanding any other provision of law, take all actions necessary to receive federal authorization of a state program for the department and the Department of Natural Resources to administer and enforce a dredge and fill permitting program allowed under 33 U.S.C. 1344 (sec. 404, Clean Water Act) and to implement the program, if authorized.

History. (§ 3 ch 120 SLA 1971; am § 1 ch 220 SLA 1976; am § 2 ch 60 SLA 1977; am § 12 ch 172 SLA 1978; am § 8 ch 93 SLA 1981; am § 86 ch 138 SLA 1986; am § 1 ch 67 SLA 1987; am § 92 ch 36 SLA 1990; am § 30 ch 126 SLA 1994; am § 2 ch 94 SLA 1998; am § 4 ch 23 SLA 2003; am § 3 ch 143 SLA 2004; am § 2 ch 95 SLA 2005; am § 1 ch 17 SLA 2008; am § 3 ch 12 SLA 2013; am § 53 ch 22 SLA 2015)

Cross references. —

For status of certain enforcement and inspection employees of the department as peace officers, see AS 46.03.890(b) . For provisions relating to coordination of environmental permits and procedures, see AS 46.35.300 ; for fees for department services, see AS 44.46.025 .

For findings related to (14) of this section, see sec. 1, ch. 12, SLA 2013 in the 2013 Temporary and Special Acts.

For duties of the department and the Department of Natural Resources relating to assuming primacy of the dredge and fill permitting program allowed under 33 U.S.C. 1344 (sec. 404, Clean Water Act), see sec. 4, ch. 12, SLA 2013 in the 2013 Temporary and Special Acts.

Administrative Code. —

For coverage of chapter, see 18 AAC 15, art. 1.

For permit procedures, see 18 AAC 15, art. 2.

For adoption of npdes permits, see 18 AAC 15, art. 3.

For certification, see 18 AAC 15, art. 4.

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For ambient air quality management, see 18 AAC 50, art. 1.

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

For user fees, see 18 AAC 50, art. 4.

For conformity, see 18 AAC 50, art. 7.

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

For certification requirements, see 18 AAC 52, art. 4.

For certified station requirements, see 18 AAC 52, art. 5.

For oxygenated gasoline requirements, see 18 AAC 53, art. 1.

For waste disposal permit, see 18 AAC 60, art. 2.

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For monofills, see 18 AAC 60, art. 4.

For land application of biosolids, see 18 AAC 60, art. 5.

For reserved, see 18 AAC 60, art. 6.

For monitoring and corrective action requirements, see 18 AAC 60, art. 7.

For identification of hazardous waste, see 18 AAC 62, art. 1.

For standards applicable to a generator, see 18 AAC 62, art. 2.

For standards applicable to a transporter, see 18 AAC 62, art. 3.

For treatment, storage, and disposal, see 18 AAC 62, art. 4.

For standards applicable to specific hazardous wastes and facilities, see 18 AAC 62, art. 5.

For land disposal restrictions, see 18 AAC 62, art. 6.

For hazardous waste facility permit, see 18 AAC 62, art. 7.

For applicability and basic requirements, see 18 AAC 63, art. 1.

For requirements for hazardous waste or PCB incinerators, hazardous waste land facilities, chemical waste landfills, and hazardous waste underground injection wells, see 18 AAC 63, art. 2.

For review criteria, see 18 AAC 63, art. 3.

For litter receptacles, see 18 AAC 64.

For litter reduction and resource recovery grants, see 18 AAC 65.

For waste reduction and recycling awards for schools, see 18 AAC 66.

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For placer mining demonstration grants, see 18 AAC 71.

For domestic wastewater treatment and disposal, see 18 AAC 72, art. 1.

For domestic wastewater system plan review, see 18 AAC 72, art. 2.

For certified installer program, see 18 AAC 72, art. 4.

For nondomestic wastewater, see 18 AAC 72, art. 5.

For nondomestic wastewater system plan review, see 18 AAC 72, art. 6.

For construction grants, see 18 AAC 73.

For oil pollution prevention requirements, see 18 AAC 75, art. 1.

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For oil spill primary response action contractors and nontank vessel cleanup contractors, incident management teams, and response planning facilitators, see 18 AAC 75, art. 5.

For civil penalties for discharge of petroleum and petroleum products and byproducts, see 18 AAC 75, art. 6.

For surface oiling, see 18 AAC 75, art. 7.

For oil discharge for scientific purposes, see 18 AAC 75, art. 8.

For Alaska clean water fund, see 18 AAC 76, art. 1.

For Alaska drinking water fund, see 18 AAC 76, art. 2.

For underground storage tanks, see 18 AAC 78, art. 1.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For certification of underground storage tank workers, see 18 AAC 78, art. 4.

For storage tank assistance fund, see 18 AAC 78, art. 5.

For cleanup levels, see 18 AAC 78, art. 6.

For underground storage tank laboratory approval, see 18 AAC 78, art. 8.

For public water system review and approval requirements, see 18 AAC 80, art. 2.

For standards, monitoring, variances, and exemptions, see 18 AAC 80, art. 3.

For coliform bacteria requirements, see 18 AAC 80, art. 4.

For lead and copper requirements, see 18 AAC 80, art. 5.

For surface water treatment, see 18 AAC 80, art. 6.

For enhanced surface water treatment, see 18 AAC 80, art. 7.

For disinfection and disinfection by-products, see 18 AAC 80, art. 9.

For public notification requirements, see 18 AAC 80, art. 10.

For laboratory certification requirements, see 18 AAC 80, art. 11.

For administrative penalties, see 18 AAC 80, art. 12.

For purpose, applicability, and term, see 18 AAC 83, art. 1.

For permit process, see 18 AAC 83, art. 2.

For permit application requirements, see 18 AAC 83, art. 4.

For permit conditions — general, see 18 AAC 83, art. 5.

For requirements and permit conditions specific to type of discharge, see 18 AAC 83, art. 6.

For registration of ionizing radiation sources, see 18 AAC 85, art. 1.

For use of x-rays in the healing arts, see 18 AAC 85, art. 3.

For use of sealed radioactive sources in the healing arts, see 18 AAC 85, art. 4.

For industrial radiography protection requirements, see 18 AAC 85, art. 5.

For microwave radiation protection limits, see 18 AAC 85, art. 6.

For laser protection standards, see 18 AAC 85, art. 7.

For purpose, applicability, prohibitions, and discharge notification, see 18 AAC 90, art. 1.

For pesticide registration, see 18 AAC 90, art. 2.

For certification requirements, see 18 AAC 90, art. 3.

For recordkeeping requirements, see 18 AAC 90, art. 4.

For permit requirements, see 18 AAC 90, art. 5.

For pesticide handling requirements, see 18 AAC 90, art. 6.

For inspection and enforcement, see 18 AAC 90, art. 7.

For forestry vegetation management, see 18 AAC 90, art. 8.

For compliance orders, see 18 AAC 95, art. 1.

For definitions, see 18 AAC 95, art. 5.

Effect of amendments. —

The 2013 amendment, effective May 22, 2013, added (14), and made a related change.

The 2015 amendment, effective May 15, 2015, in the introductory language of (10), deleted “, by way of example and not limitation” preceding “regulations providing for”.

Legislative history reports. —

For governor’s transmittal letter for ch. 143, SLA 2004 (HB 546), amending this system to authorize the state to administer National Pollutant Discharge Elimination System (NPDES) permits for the timber industry, see 2004 House Journal 3084 — 3085.

For governor’s transmittal letter for ch. 95, SLA 2005 (SB 110), proposing state administration and enforcement of the National Pollutant Discharge Elimination System, as authorized by the 2005 amendment of paragraph (12) of this section, see 2005 Senate Journal 319 — 321.

For governor’s transmittal letter for ch. 12, SLA 2013 (SB 27), see 2013 Senate Journal 60 — 61.

Notes to Decisions

Approval of subdivision plans. —

Department of Environmental Conservation can validly require its approval of potential subdivision plans as a prerequisite to the recording and sale of any lots in the subdivision. State v. Anderson, 749 P.2d 1342 (Alaska 1988).

Cited in

Colville Envtl. Servs. v. North Slope Borough, 831 P.2d 341 (Alaska 1992).

Sec. 46.03.022. Dental radiological equipment.

This title does not authorize the department to register, inspect, test, or otherwise regulate dental radiological equipment or records relating to dental radiological equipment regulated by the Board of Dental Examiners under AS 08.36.075 .

History. (§ 6 ch 79 SLA 1998)

Sec. 46.03.024. Consideration in adopting pollution regulations.

Notwithstanding another provision of law to the contrary, when adopting a regulation relating to the control, prevention, and abatement of air, water, or land or subsurface land pollution, the department shall give special attention to public comments concerning the cost of compliance with the regulation and to alternate practical methods of complying with the statute being interpreted or implemented by the regulation.

History. (§ 10 ch 64 SLA 1995)

Revisor’s notes. —

Enacted as AS 46.03.020(b). Renumbered in 1995.

Notes to Decisions

Cited in

Kelso v. Rybachek, 912 P.2d 536 (Alaska 1996).

Sec. 46.03.025. Accounting and disposition of fees. [Repealed, § 92 ch 36 SLA 1990. For current provisions, see AS 37.05.142 — 37.05.146.]

Sec. 46.03.030. Water quality enhancement, water supply, sewage, and solid waste facilities grants.

[Repealed, § 19 ch 220 SLA 1976.]
The department may grant to a municipality, as funds are available, a grant for any of the following:
1. a water quality enhancement project;
2. a public water supply, treatment, or distribution system;
3. a wastewater collection, treatment, or discharge system;
4. a solid waste processing, disposal, or resource recovery system.
There is a water quality enhancement and water supply, wastewater, and solid waste systems program created in the department to carry out the purposes of this section.
The department shall, by regulation, identify those costs that are eligible costs for the purposes of this section. Eligible costs do not include interest and financing and right-of-way acquisition, or costs that are related to the operation, maintenance, or repair of a system.
A grant under this section to a municipality for a project funded by an appropriation made by the legislature
1. before July 1, 1994, may not exceed 50 percent of the eligible costs of the project;
2. after July 1, 1994, may not exceed
  1. 85 percent of the eligible costs for a municipality with a population of 1,000 persons or less;
  2. 70 percent of the eligible costs for a municipality with a population of 1,001 to 10,000 persons; and
  3. 60 percent of the eligible costs for a municipality with a population greater than 10,000 persons.
[Repealed, § 14 ch 106 SLA 1994.]
The match required for grants made under this section may include
1. federal funds; or
2. state funds, other than those funds received under this section or AS 37.06.
Construction of a project for which a grant is made under this section may commence only after the department has approved in writing the plans and specifications for the project.

History. (§ 3 ch 120 SLA 1971; am §§ 2, 19 ch 220 SLA 1976; am §§ 30, 31 ch 168 SLA 1978; am §§ 1 — 4 ch 163 SLA 1980; am §§ 1, 2 ch 90 SLA 1986; am §§ 1 — 3 ch 40 SLA 1987; am §§ 1 — 5, 14 ch 106 SLA 1994; am § 1 ch 44 SLA 1997; am § 1 ch 72 SLA 2008)

Administrative Code. —

For construction grants, see 18 AAC 73.

For oil spill primary response action contractors and nontank vessel cleanup contractors, incident management teams, and response planning facilitators, see 18 AAC 75, art. 5.

Sec. 46.03.032. Alaska clean water fund.

History. (§ 4 ch 40 SLA 1987; am §§ 1 — 3 ch 174 SLA 1990; am § 23 ch 90 SLA 1991; am §§ 6 — 10, 14 ch 106 SLA 1994; am § 31 ch 126 SLA 1994; am § 103 ch 21 SLA 1995; am §§ 3 — 12 ch 141 SLA 1996; am § 18 ch 61 SLA 2000)

Revisor’s notes. —

Subsection (o) was enacted as (p); relettered in 1996, at which time former subsection (o) was relettered as (p).

Administrative Code. —

For Alaska clean water fund, see 18 AAC 76, art. 1.

Sec. 46.03.034. Alaska clean water administrative fund.

The Alaska clean water administrative fund is established as a separate fund that is distinct from other money or funds in the treasury. The fund is composed of two accounts, the
1. Alaska clean water administrative operating account; and
2. Alaska clean water administrative income account.
The legislature may appropriate to the Alaska clean water administrative operating account the annual balance of the Alaska clean water administrative income account.
The department shall administer the Alaska clean water administrative fund.
The Alaska clean water administrative operating account may be used to pay for the department’s operational and administrative costs necessary to manage the Alaska clean water fund and the Alaska clean water administrative fund and for such other purposes permitted by federal law.
Money received in payment of fees charged by the department under the authority of AS 46.03.035 and earnings on the Alaska clean water administrative fund shall be deposited in the Alaska clean water administrative income account.

History. (§ 11 ch 106 SLA 1994; am § 19 ch 61 SLA 2000)

Administrative Code. —

For Alaska clean water fund, see 18 AAC 76, art. 1.

Sec. 46.03.035. Fees charged for loans made from the Alaska clean water fund.

The department may charge and collect reasonable fees in connection with making and servicing loans made by the department under the authority of AS 46.03.032 . The department shall by regulation specify the rates and amounts of the fees.

History. (§ 20 ch 61 SLA 2000)

Administrative Code. —

For Alaska clean water fund, see 18 AAC 76, art. 1.

Sec. 46.03.036. Alaska drinking water fund.

History. (§ 12 ch 106 SLA 1994; am § 21 ch 61 SLA 2000)

Administrative Code. —

For Alaska drinking water fund, see 18 AAC 76, art. 2.

Sec. 46.03.038. Alaska drinking water administrative fund.

The Alaska drinking water administrative fund is established as a separate fund that is distinct from other money or funds in the state treasury. The fund is composed of two accounts, the
1. Alaska drinking water administrative operating account; and
2. Alaska drinking water administrative income account.
The legislature may appropriate to the Alaska drinking water administrative operating account the annual balance of the Alaska drinking water administrative income account.
The department shall administer the Alaska drinking water administrative fund.
The Alaska drinking water administrative operating account may be used to pay for the department’s operational and administrative costs necessary to manage the Alaska drinking water fund and the Alaska drinking water administrative fund and for such other purposes permitted by federal law.
Money received in payment of fees charged by the department under the authority of AS 46.03.039 and earnings on the Alaska drinking water administrative fund shall be deposited in the Alaska drinking water administrative income account.

History. (§ 13 ch 106 SLA 1994; am § 22 ch 61 SLA 2000)

Administrative Code. —

For Alaska drinking water fund, see 18 AAC 76, art. 2.

Sec. 46.03.039. Fees charged for loans made from the Alaska drinking water fund.

The department may charge and collect reasonable fees in connection with making and servicing loans made by the department under the authority of AS 46.03.036 . The department shall by regulation specify the rates and amounts of such fees.

History. (§ 23 ch 61 SLA 2000)

Administrative Code. —

For Alaska drinking water fund, see 18 AAC 76, art. 2.

Sec. 46.03.040. Alaska environmental plan.

The department shall formulate and annually review and revise a statewide environmental plan for the management and protection of the quality of the environment and the natural resources of the state, in furtherance of the legislative policy and purposes expressed in this chapter.
The department shall submit the first plan to the governor on or before January 1, 1972, and thereafter submit periodic revisions of the plan to the governor. The plan is effective upon approval by the governor and shall serve thereafter as a guide to the public, the state government and the political subdivisions of the state in the development of the environment and natural resources of the state.
In formulating the plan and any revisions, the department may consult with persons, organizations, and groups, public or private, interested in or concerned with the environment of the state, and with a department, division, board, commission, or other agency of the state, with a political subdivision, or with any public authority as may be necessary to enable the department to carry out its responsibilities under this section.

History. (§ 3 ch 120 SLA 1971)

Sec. 46.03.045. Public recognition of pollution prevention efforts.

In addition to the school awards program under AS 46.11.070 , the department may identify, document, and publicly acknowledge exemplary pollution prevention achievements by individuals, businesses, or government agencies in the state.

History. (§ 2 ch 86 SLA 1991)

Article 3. Water Pollution Control and Waste Disposal.

Administrative Code. —

For solid waste management, see 18 AAC 60.

For waste disposal permit, see 18 AAC 60, art. 2.

For water quality standards, see 18 AAC 70.

For wastewater treatment and disposal, see 18 AAC 72.

For Alaska clean water and drinking water revolving loan funds, see 18 AAC 76.

For drinking water, see 18 AAC 80.

Legislative history reports. —

For governor’s transmittal letter for ch. 136, SLA 2004 (HB 524), amending provisions in this article relating to control of the treatment and disposal of waste, the waste disposal permitting process, and proof of financial responsibility for certain types of municipal solid waste and mining waste treatment and disposal facilities, see 2004 House Journal 2754 — 2756.

Collateral references. —

39A C.J.S., Health and Environment, § 98 et seq., 164

93 C.J.S. Waters, § 94 et seq.

Tenant’s remedy against stranger for wrongful pollution of waters. 12 ALR2d 1192.

Liability for pollution of stream by oil, water, or the like flowing from well. 19 ALR2d 1025.

Validity, construction, and effect of statute, ordinance, or other measure involving chemical treatment of public water supply. 43 ALR2d 453.

Measure and elements of damages for pollution of stream. 49 ALR2d 253.

Validity of prohibition of regulation of bathing, swimming, boating, fishing, or the like, to protect public water supply. 56 ALR2d 790.

Validity and construction of anti-water pollution statutes and ordinances. 32 ALR3d 215.

Landowner’s right to relief against pollution of his water supply by industrial or commercial waste. 39 ALR3d 910.

Validity and construction of statutes, ordinances, or regulations controlling discharge of industrial wastes into sewer system. 47 ALR3d 1224.

Private landowner’s disposal of solid waste on own property. 37 ALR4th 635.

Construction and application of pollution exclusion clause in liability insurance policy. 39 ALR4th 1047.

Measure and elements of damages for pollution of well or spring. 76 ALR4th 629.

Sec. 46.03.050. Authority.

The department has jurisdiction to prevent and abate the pollution of the waters of the state.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For domestic wastewater treatment and disposal, see 18 AAC 72, art. 1.

For domestic wastewater system plan review, see 18 AAC 72, art. 2.

For certified installer program, see 18 AAC 72, art. 4.

For nondomestic wastewater, see 18 AAC 72, art. 5.

For nondomestic wastewater system plan review, see 18 AAC 72, art. 6.

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For cleanup levels, see 18 AAC 78, art. 6.

For public water system review and approval requirements, see 18 AAC 80, art. 2.

For standards, monitoring, variances, and exemptions, see 18 AAC 80, art. 3.

For coliform bacteria requirements, see 18 AAC 80, art. 4.

For lead and copper requirements, see 18 AAC 80, art. 5.

For surface water treatment, see 18 AAC 80, art. 6.

For enhanced surface water treatment, see 18 AAC 80, art. 7.

For disinfection and disinfection by-products, see 18 AAC 80, art. 9.

For public notification requirements, see 18 AAC 80, art. 10.

For laboratory certification requirements, see 18 AAC 80, art. 11.

For purpose, applicability, and term, see 18 AAC 83, art. 1.

For permit process, see 18 AAC 83, art. 2.

For permit application requirements, see 18 AAC 83, art. 4.

For permit conditions — general, see 18 AAC 83, art. 5.

For requirements and permit conditions specific to type of discharge, see 18 AAC 83, art. 6.

Sec. 46.03.060. Water pollution control plan.

The department shall develop comprehensive plans for water pollution control in the state and conduct investigations it considers advisable and necessary for the discharge of its duties.

History. (§ 3 ch 120 SLA 1971)

Collateral references. —

Validity of prohibition or regulation of bathing, swimming, boating, fishing, etc., to protect public water supply. 56 ALR2d 790.

Sec. 46.03.070. Pollution standards.

After public hearing, the department may adopt standards and make them public and determine what qualities and properties of water indicate a polluted condition actually or potentially deleterious, harmful, detrimental, or injurious to the public health, safety, or welfare, to terrestrial and aquatic life or their growth and propagation, or to the use of waters for domestic, commercial, industrial, agricultural, recreational, or other reasonable purposes.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For informal and fee review procedures, see 18 AAC 15, art. 5.

For monofills, see 18 AAC 60, art. 4.

For monitoring and corrective action requirements, see 18 AAC 60, art. 7.

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For domestic wastewater treatment and disposal, see 18 AAC 72, art. 1.

For certified installer program, see 18 AAC 72, art. 4.

For public water system review and approval requirements, see 18 AAC 80, art. 2.

For standards, monitoring, variances, and exemptions, see 18 AAC 80, art. 3.

For coliform bacteria requirements, see 18 AAC 80, art. 4.

For lead and copper requirements, see 18 AAC 80, art. 5.

For surface water treatment, see 18 AAC 80, art. 6.

For enhanced surface water treatment, see 18 AAC 80, art. 7.

For disinfection and disinfection by-products, see 18 AAC 80, art. 9.

For public notification requirements, see 18 AAC 80, art. 10.

For laboratory certification requirements, see 18 AAC 80, art. 11.

Notes to Decisions

Cited in

Kelso v. Rybachek, 912 P.2d 536 (Alaska 1996).

Sec. 46.03.080. Quality and purity standards.

After study and public hearings held upon due notice, the department may establish standards of quality and purity or group the designated waters of the state into classes as to minimum quality and purity, or both. The department shall classify waters in accordance with considerations of best usage in the interest of the public. The department may alter and modify classifications after hearing.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For domestic wastewater treatment and disposal, see 18 AAC 72, art. 1.

For domestic wastewater system plan review, see 18 AAC 72, art. 2.

For certified installer program, see 18 AAC 72, art. 4.

Notes to Decisions

Cited in

Kelso v. Rybachek, 912 P.2d 536 (Alaska 1996).

Sec. 46.03.090. Plans for pollution disposal. [Repealed, § 12 ch 136 SLA 2004.]

Sec. 46.03.100. Waste management, disposal, and discharge authorization.

A person may not construct, modify, or operate a sewerage system or treatment works or take any action that results in the disposal or discharge of solid or liquid waste material or heated process or cooling water into the waters or onto the land of the state without prior authorization from the department.
Prior authorization may be provided by the department, in its discretion, through one or a combination of the following:
1. an individual permit issued for a specific facility or disposal activity;
2. a general permit issued on a statewide, regional, or other geographical basis for a category of disposal activities that the commissioner, using information available when the permit is developed, determines are similar in nature and will comply with applicable environmental quality standards established under this title;
3. regulations adopted by the department authorizing a category of disposal without requiring a permit and establishing specific siting or operational requirements, discharge limits, or best management practices for the disposal category;
4. designation and approval of a plan as described under (c) of this section;
5. an integrated waste management and disposal authorization as described in (d) of this section.
The department may require the submission of plans for review and written approval before construction, extension, installation, modification, or operation of a publicly or privately owned or operated sewerage system or treatment works. If the sewerage system or treatment works is designed to prevent disposal from the system or works outside of containment under normal operating conditions, the department may designate that the plan approval constitutes the authorization required under (a) of this section.
The department may issue an integrated waste management and disposal authorization covering multiple related or unrelated waste management or disposal activities to be conducted at a facility, including generation, treatment, storage, and disposal of solid or liquid waste. An integrated waste management and disposal authorization may include the authorizations in (b) and (c) of this section and a water-quality-related certification required by 33 U.S.C. 1341 for the discharge of dredged or fill materials or of pollutants to surface waters from point sources.
This section does not apply to
1. a person discharging only domestic sewage into a publicly owned treatment works;
2. disposals subject to regulation under AS 31.05.030(e)(2) ;
3. injection projects permitted under AS 31.05.030(h) ;
4. discharges of solid or liquid waste material or water discharges from the following activities if the discharge is incidental to the activity and the activity does not produce a discharge from a point source, as that term is defined in regulations adopted under this chapter, into any waters of the United States:
  1. mineral drilling, trenching, ditching, and similar activities;
  2. landscaping;
  3. water well drilling and geophysical drilling; or
  4. drilling, ditching, trenching, and similar activities associated with facility construction and maintenance or with road or other transportation facility construction and maintenance; however, the exemption provided by this subparagraph does not relieve a person from obtaining a prior authorization under this section if the drilling, ditching, trenching, or similar activity will involve the removal of the groundwater, stormwater, or wastewater runoff that has accumulated and is present at an excavation site for facility, road, or other transportation construction or maintenance and a prior authorization is otherwise required by this section;
5. bilge pumping, unless the bilge product pumped may be expected to yield an oily sludge, emulsion, or sheen on the surface of any water of the state;
6. cooling water discharges from a boat or vessel into any surface water of the state; or
7. the firing or other use of munitions in training activities conducted on active ranges, including active ranges operated by the United States Department of Defense or a United States military agency or service, unless otherwise regulated under 33 U.S.C. 1251 — 1376 (Federal Water Pollution Control Act), as amended.
A person who applies for an authorization to operate a solid waste disposal facility that accepts hazardous waste or a mining waste disposal facility for an operation that chemically processes ores or has the potential to generate acid shall furnish to the department proof of financial responsibility to manage and close the facility in a manner that the department finds will control or minimize the risk of the release of unauthorized levels of pollutants from the facility to waters. The department may require that a municipal solid waste disposal facility furnish proof of financial responsibility. Proof of financial responsibility may be demonstrated by self-insurance, insurance, surety bond, corporate guarantee, letter of credit, certificate of deposit, or other proof of financial responsibility approved by the department, under regulations adopted by the department. Regulations adopted under this subsection must set financial tests for the acceptance of corporate guarantees and other forms of financial responsibility that the department determines would be required for an independent showing of financial capability. For a mining waste disposal facility, the department may accept as adequate to satisfy the requirement of this subsection financial assurance for reclamation provided to a state or federal land management agency if it otherwise meets the requirements of this subsection. The department’s acceptance of proof of financial responsibility under this subsection expires
1. one year after its issuance for self-insurance, unless the department accepts a renewal of the same self-insurance demonstration after a financial review under regulations adopted by the department;
2. on the effective date of a change in the insurance agreement, surety bond, corporate guarantee, letter of credit, or certificate of deposit;
3. on the expiration or cancellation of the insurance agreement, surety bond, corporate guarantee, letter of credit, or certificate of deposit.
A person who applies for a solid waste disposal authorization under this section, except for an authorization under (b)(2) of this section or an authorization to dispose of municipal solid waste, shall demonstrate to the satisfaction of the department that the applicant has reasonably considered all solid waste management options and that the authorization would be consistent with the practices and priorities established under AS 46.06.021 .
The program developed to issue permits by the department to authorize discharge of pollutants into surface waters and submitted to the United States Environmental Protection Agency for approval under 33 U.S.C. 1342 (sec. 402, Clean Water Act) shall include the monitoring and reporting requirements included in the permits, limited to those requirements authorized by law, including 33 U.S.C. 1318 (sec. 308, Clean Water Act), and any legal settlements, and those necessary to ascertain compliance with the effluent limitations contained in the permit and with state water quality standards.
A person who applies for a permit under the program may review and provide comments and amendments to a draft permit and discuss the draft permit with the staff of the department before that draft permit undergoes public notice and comment under AS 46.03.110 .
A person who applies for a permit under the program has the opportunity to review a proposed final permit and discuss it with the staff of the department before the department issues the permit.
A permit issued under the program is not automatically stayed by the filing of a request for an adjudicatory hearing on the permit; a request to stay a permit issued under the program shall be decided by the commissioner or the commissioner’s designee.
Permits issued under this section shall be issued as expeditiously as possible.
For purposes of the permit program authorized by the United States Environmental Protection Agency under 33 U.S.C. 1342 (sec. 402, Clean Water Act), “waste material” includes pollutants, as defined in 33 U.S.C. 1362(6) (sec. 502(6), Clean Water Act).

History. (§ 3 ch 120 SLA 1971; am § 3 ch 220 SLA 1976; am § 9 ch 93 SLA 1981; am § 4 ch 91 SLA 1984; am § 3 ch 88 SLA 1990; am §§ 2, 3 ch 11 SLA 1995; am § 7 ch 140 SLA 1996; am § 1 ch 44 SLA 2002; am § 7 ch 49 SLA 2002; am §§ 1 — 3 ch 52 SLA 2002; am § 51 ch 49 SLA 2004; am § 3 ch 136 SLA 2004; am § 3 ch 95 SLA 2005; am §§ 2 — 6 ch 17 SLA 2008; am § 1 ch 5 SLA 2013)

Revisor’s notes. —

Subsections (b) and (c) were formerly (c) and (b), respectively. Relettered in 1987. Subsection (i) was enacted as (h) and relettered in 2002.

Cross references. —

For further requirements for persons submitting proof of financial ability under this section, see AS 46.03.833 .

Administrative Code. —

For coverage of chapter, see 18 AAC 15, art. 1.

For permit procedures, see 18 AAC 15, art. 2.

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For waste disposal permit, see 18 AAC 60, art. 2.

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For monofills, see 18 AAC 60, art. 4.

For land application of biosolids, see 18 AAC 60, art. 5.

For reserved, see 18 AAC 60, art. 6.

For monitoring and corrective action requirements, see 18 AAC 60, art. 7.

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For domestic wastewater treatment and disposal, see 18 AAC 72, art. 1.

For domestic wastewater system plan review, see 18 AAC 72, art. 2.

For certified installer program, see 18 AAC 72, art. 4.

For nondomestic wastewater, see 18 AAC 72, art. 5.

For nondomestic wastewater system plan review, see 18 AAC 72, art. 6.

For purpose, applicability, and term, see 18 AAC 83, art. 1.

For permit process, see 18 AAC 83, art. 2.

For permit application requirements, see 18 AAC 83, art. 4.

For permit conditions — general, see 18 AAC 83, art. 5.

For requirements and permit conditions specific to type of discharge, see 18 AAC 83, art. 6.

Effect of amendments. —

The 2013 amendment, effective July 8, 2013, in (e)(7), substituted “United States military agency or service, unless otherwise regulated under 33 U.S.C. 1251 — 1376 (Federal Water Pollution Control Act), as amended” for “United States military agency unless it results in a discharge into waters of the United States”.

Legislative history reports. —

For governor’s transmittal letter for ch. 95, SLA 2005 (SB 110), proposing state administration and enforcement of the National Pollutant Discharge Elimination System, as authorized by the 2005 addition of subsections (h) — (k) of this section, see 2005 Senate Journal 319 — 321.

For governor’s transmittal letter for ch. 17, SLA 2008 (HB 149) relating to amendments to this section applicable to the authority of the Department of Environmental Conservation for pollutant discharge activities into state water, described as “an essential component of the state’s efforts to receive primacy from the [Environmental Protection Agency]”, see 2007 House Journal 287 — 289.

Opinions of attorney general. —

This section confers upon the Department of Environmental Conservation permit authority over dredge or fill activities, including residential subdivisions, within wetlands, estuaries, and inland and coastal marshes periodically inundated by discernible bodies of fresh or salt water upland from the mean high tide line to the extent of the aquatic or salt water vegetation line. Nov. 13, 1975 Op. Att’y Gen.

Dredge or fill activities in coastal and fresh water wetlands shoreward to the aquatic vegetation line do result in the disposal of solid waste material into the waters of the state within the meaning of this section and thus, to the extent that these activities are of a commercial or industrial nature, do require a permit from the Department of Environmental Conservation. Nov. 13, 1975 Op. Att’y Gen.

The state has jurisdiction to require permits of government contractors discharging sewage from a federally-owned treatment plant. June 28, 1977 Op. Att’y Gen.

Sec. 46.03.110. Waste disposal permit procedure.

An application for a permit under AS 46.03.100(b)(1) or (2) or an authorization under AS 46.03.100(d) shall be made on forms prescribed by the department. Forms must contain the name and address of the applicant, a description of the applicant’s operations, the quantity and type of waste material sought to be disposed of, the proposed method of disposal, and any other information considered necessary by the department. The applicant may request that a general permit be issued, or the department may, on its own initiative, propose that an applicant be authorized under a general permit.
After receipt of a proper application for an individual or general permit or a determination by the department that a general permit should be proposed, the department shall publish notice of the application or proposal, or of the availability of a draft permit for comment, as applicable, in at least two publications of a newspaper of general circulation within the general area in which the disposal of waste material is proposed to be made. The notice shall also be posted on the Alaska Online Public Notice System maintained under AS 44.62.175 and may also be published in other appropriate information media. The notice must include a statement that a person who wants to present views to the department with regard to the application or proposal may do so in writing to the department within 30 days after the first publication of the notice. The written response entitles the writer to a copy of the application or draft permit, and, in the case of an application or proposal to issue a general permit, the application or proposal shall also be posted by the department on the Internet at the same time that notice is published under this subsection.
When the department receives an application or makes a proposal that a general permit be issued, the commissioner shall immediately send copies of the application or proposal to the commissioner of fish and game, the commissioner of natural resources, the commissioner of commerce, community, and economic development, and the commissioner of health and social services.
The department may specify in a permit or other authorization the terms and conditions under which waste material or water may be disposed of. The terms and conditions shall be directed to avoiding pollution and to otherwise carry out the policies of this chapter. The commissioner may provide, as a term of a general permit, that a person intending to dispose of waste material or water under the general permit shall first obtain specific authorization from the department. A general permit shall be posted on the Internet by the department; the posting must include the names of persons authorized to make disposals under the permit and the locations at which disposals may be made if those locations are specifically authorized under this subsection. A permit may not be issued for a term in excess of five years from the date of issuance. The department may prescribe in regulations the circumstances under which an expiring permit may be administratively continued.
If the department has certified a National Pollutant Discharge Elimination System permit under 33 U.S.C. 1341 (sec. 401, Federal Water Pollution Control Act Amendments of 1972), and the United States Environmental Protection Agency has issued that permit to a person, the department may waive the requirements of this section, and adopt the federal permit as the permit required under AS 46.03.100 .
The standards for determining waste material in AS 46.03.100(m) apply to this section.

History. (am § 6 ch 104 SLA 1971; § 3 ch 120 SLA 1971; am § 116 ch 218 SLA 1976; am §§ 4, 5 ch 220 SLA 1976; am §§ 4 — 7 ch 52 SLA 2002; am §§ 4 — 6 ch 136 SLA 2004; am §§ 4 — 6 ch 143 SLA 2004; am § 7 ch 17 SLA 2008)

Revisor’s notes. —

In 1999, in (c) of this section, “commissioner of commerce and economic development” was changed to “commissioner of community and economic development” in accordance with § 88, ch. 58, SLA 1999.

In 2004, in (c) of this section, “commissioner of community and economic development” was changed to “commissioner of commerce, community, and economic development”, in accordance with § 3, ch. 47, SLA 2004.

Administrative Code. —

For coverage of chapter, see 18 AAC 15, art. 1.

For permit procedures, see 18 AAC 15, art. 2.

For adoption of npdes permits, see 18 AAC 15, art. 3.

For certification, see 18 AAC 15, art. 4.

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For waste disposal permit, see 18 AAC 60, art. 2.

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For monofills, see 18 AAC 60, art. 4.

For land application of biosolids, see 18 AAC 60, art. 5.

For reserved, see 18 AAC 60, art. 6.

For monitoring and corrective action requirements, see 18 AAC 60, art. 7.

For applicability and basic requirements, see 18 AAC 63, art. 1.

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For purpose, applicability, and term, see 18 AAC 83, art. 1.

For permit process, see 18 AAC 83, art. 2.

For permit application requirements, see 18 AAC 83, art. 4.

For permit conditions — general, see 18 AAC 83, art. 5.

For requirements and permit conditions specific to type of discharge, see 18 AAC 83, art. 6.

Legislative history reports. —

For governor’s transmittal letter for ch. 143, SLA 2004 (HB 546), amending this section to authorize the state to administer National Pollutant Discharge Elimination System (NPDES) permits for the timber industry, see 2004 House Journal 3084 — 3085.

Opinions of attorney general. —

This section requires no more than that the Department of Environmental Conservation allow a 30-day public comment period, and that it fully and completely review those comments on receipt. June 11, 1975 Op. Att’y Gen.

The Department of Environmental Conservation cannot issue a waste disposal permit prior to expiration of the 30-day public comment period. June 11, 1975 Op. Att’y Gen.

If the Department of Environmental Conservation has reviewed and considered all public and agency comments prior to the expiration of the 60-day period, and has also completed the preparation of the permit itself within that period, it would be competent for the department to waive the remainder of the 60-day “pre-commencement” period, and issue the permit at that time. June 11, 1975 Op. Att’y Gen.

The public comments received pursuant to subsection (b) of this section function similarly to environmental impact statements for federal agencies contemplating major federal actions significantly affecting the quality of the environment. June 11, 1975 Op. Att’y Gen.

Sec. 46.03.120. Termination or modification of waste management and disposal authorization.

The department may terminate a permit or other authorization issued under AS 46.03.100 or may rescind a person’s authority to dispose of waste in accordance with regulations adopted under AS 46.03.100 (b)(3) upon 30 days’ written notice if the department finds
1. that the permit or other authorization was procured by misrepresentation of material fact or by failure of the applicant to disclose fully the facts relating to its issuance;
2. that there has been a violation of the conditions of the permit or other authorization;
3. that there has been a material change in the quantity or type of waste disposed of; or
4. for a permit issued under a federally approved program under 33 U.S.C. 1342 (sec. 402, Clean Water Act), that
  1. a change in any condition of the receiving environment or the quality of discharge requires either a temporary or permanent reduction of the authorization or elimination of the authorized discharge; or
  2. the permittee had made a material misrepresentation of fact to the department relevant to the authorized activity at any time.
The department may modify a permit or other authorization issued under AS 46.03.100 , or may rescind a person’s authority to dispose of waste in accordance with regulations adopted under AS 46.03.100 (b)(3),
1. for any of the causes for termination listed in (a) of this section;
2. if the department finds that a material change in the quality or classification of the waters of the state has occurred; or
3. in the case of a permit issued under a federally approved program under 33 U.S.C. 1342 (sec. 402, Clean Water Act), as provided in regulations adopted under AS 46.03.020 (12).
Nothing in this section limits the authority of the department to terminate or modify a permit or plan approval under other circumstances if requested to do so by the permittee or plan holder.

History. (§ 3 ch 120 SLA 1971; am §§ 7, 8 ch 136 SLA 2004; am § 7 ch 143 SLA 2004; am § 4 ch 95 SLA 2005)

Administrative Code. —

For waste disposal permit, see 18 AAC 60, art. 2.

For domestic wastewater system plan review, see 18 AAC 72, art. 2.

For permit process, see 18 AAC 83, art. 2.

Legislative history reports. —

Sec. 46.03.130. Compliance order. [Repealed, § 19 ch 220 SLA 1976. For current law, see AS 46.03.850.]

Secs. 46.03.140 — 46.03.230. Air pollution control. [Repealed, § 27 ch 74 SLA 1993. For current provisions, see AS 46.14.]

Sec. 46.03.240. Construction and implementation of AS 46.03.230. [Repealed, § 19 ch 220 SLA 1976.]

Sec. 46.03.245. Air pollution control. [Repealed, § 27 ch 74 SLA 1993.]

Article 4. Radiation and Hazardous Waste Protection.

Cross references. —

For radiation protection, see AS 18.60.475 — 18.60.545 ; for provisions on atomic energy, see AS 18.45.

Administrative Code. —

For solid waste management, see 18 AAC 60.

Collateral references. —

27A Am. Jur. 2d, Energy and Power Sources, § 404 et seq.

61C Am. Jur. 2d, Pollution Control, §§ 1052 et seq., 1469 et seq.

39A C.J.S., Health and Environment, § 161.

State regulation of nuclear power plants. 82 ALR3d 751.

Tort liability for nonmedical radiological harm. 73 ALR4th 582.

Sec. 46.03.250. Authority.

The department shall adopt regulations

establishing standards governing the discharge of low level radioactive materials to the air, water, land, and subsurface land of the state;
establishing safeguards for radioactive waste materials that do not constitute a threat to public health or safety and that may be stored or disposed of in the state; and
establishing procedures for the storage and disposal of radioactive materials used in medicine, education, instruments, industrial testing, or scientific research.

History. (§ 3 ch 120 SLA 1971; am § 3 ch 172 SLA 1978; am § 5 ch 93 SLA 1981)

Administrative Code. —

For registration of ionizing radiation sources, see 18 AAC 85, art. 1.

For industrial radiography protection requirements, see 18 AAC 85, art. 5.

Sec. 46.03.260. Use of radioactive materials.

A person who conducts an operation that results in the discharge of low level radioactive materials to the air, water, land, or subsurface land of the state shall obtain a permit from the department before commencing the discharge.

History. (§ 3 ch 120 SLA 1971; am § 5 ch 172 SLA 1978; am § 6 ch 93 SLA 1981)

Administrative Code. —

For registration of ionizing radiation sources, see 18 AAC 85, art. 1.

For use of x-rays in the healing arts, see 18 AAC 85, art. 3.

For use of sealed radioactive sources in the healing arts, see 18 AAC 85, art. 4.

For industrial radiography protection requirements, see 18 AAC 85, art. 5.

For microwave radiation protection limits, see 18 AAC 85, art. 6.

For laser protection standards, see 18 AAC 85, art. 7.

Secs. 46.03.270 — 46.03.280. Electronic product radiation; notification of violation and order of abatement. [Repealed, § 12 ch 172 SLA 1978. For radiation protection, see AS 18.60.475 — 18.60.545.]

Sec. 46.03.290. [Renumbered as AS 46.03.865.]

Sec. 46.03.296. Disposal of hazardous wastes.

It is unlawful to dispose of hazardous wastes in the state unless
1. the waste has been treated and disposed of in a manner that uses the maximum degree of reduction of the harmful qualities of a hazardous waste that is subject to this chapter and that the department, on a case-by-case basis, determines is achievable for the hazardous waste by application of production processes and available methods, systems, and techniques, taking into account energy, environmental, and economic impacts and other costs; and
2. the waste is disposed of in a manner that will ensure the protection of human health, livestock, wildlife, property, and the environment.
The department shall adopt regulations in accordance with AS 44.62 (Administrative Procedure Act) for the treatment, storage, and disposal of hazardous wastes to ensure the protection of human health, livestock, wildlife, property, and the environment.

History. (§ 10 ch 93 SLA 1981)

Administrative Code. —

For standards applicable to a generator, see 18 AAC 62, art. 2.

For treatment, storage, and disposal, see 18 AAC 62, art. 4.

For standards applicable to specific hazardous wastes and facilities, see 18 AAC 62, art. 5.

For land disposal restrictions, see 18 AAC 62, art. 6.

For hazardous waste facility permit, see 18 AAC 62, art. 7.

For applicability and basic requirements, see 18 AAC 63, art. 1.

For surface oiling, see 18 AAC 75, art. 7.

Sec. 46.03.299. Hazardous waste regulations.

The department shall adopt regulations under AS 44.62 (Administrative Procedure Act) for the identification and management of hazardous waste as defined by the Environmental Protection Agency and hazardous waste that exhibits the characteristic of toxicity, persistence, or carcinogenicity.
Regulations adopted under (a) of this section must exempt from their coverage mining waste and waste associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy until studies required under 42 U.S.C. 6982(f) and (m) are completed. The department, after considering the findings in the reports of these studies, may terminate or amend the exemptions.
The department shall take all actions necessary to receive authorization from the administrator of the Environmental Protection Agency to administer and enforce a hazardous waste program in accordance with 42 U.S.C. 6901 — 6987 (Resource Conservation and Recovery Act of 1976).
Regulations adopted under (a) of this section shall cover (1) hazardous waste, not otherwise exempted by law, that is generated in any month by a single generator in an amount of 220 pounds or more, and (2) acute hazardous wastes identified in 40 C.F.R. 261.33(e), not otherwise exempted by law, that are generated in any month by a single generator in an amount of 2.2 pounds or more. The department shall extend the regulations to manage smaller quantities of hazardous waste if the quantities specified in this subsection exceed the quantities regulated under the authority of 42 U.S.C. 6921 — 6934, as amended. The department may at any time extend coverage of regulations adopted under (a) of this section to small quantities of hazardous waste and acute hazardous waste.
[Repealed, § 61 ch 50 SLA 1989.]
[Repealed, § 4 ch 88 SLA 1990.]

History. (§ 10 ch 93 SLA 1981; am § 1 ch 77 SLA 1984; am §§ 55, 61 ch 50 SLA 1989; am § 2 ch 97 SLA 1989; am § 4 ch 88 SLA 1990)

Administrative Code. —

For identification of hazardous waste, see 18 AAC 62, art. 1.

For standards applicable to a generator, see 18 AAC 62, art. 2.

For standards applicable to a transporter, see 18 AAC 62, art. 3.

For treatment, storage, and disposal, see 18 AAC 62, art. 4.

For standards applicable to specific hazardous wastes and facilities, see 18 AAC 62, art. 5.

For land disposal restrictions, see 18 AAC 62, art. 6.

For hazardous waste facility permit, see 18 AAC 62, art. 7.

For applicability and basic requirements, see 18 AAC 63, art. 1.

For surface oiling, see 18 AAC 75, art. 7.

Opinions of attorney general. —

The state is empowered to adopt hazardous waste regulations that are the same as or broader than the federal regulations, but is prohibited from adopting a regulatory program less stringent than the federal equivalent. 1983 Alas. Op. Att'y Gen. No. 5.

Sec. 46.03.300. Exceptions. [Repealed, § 12 ch 172 SLA 1978.]

Sec. 46.03.302. Hazardous waste permit.

A person may not treat, transport, store, or dispose of a hazardous waste as defined by the department by regulation unless that person first secures a permit from the department and submits to the department any reports or manifests that the department may require for handling the hazardous wastes.
A person who generates hazardous waste is not required to obtain a permit under (a) of this section unless the person also treats, transports, stores, or disposes of the hazardous waste.

History. (§ 10 ch 93 SLA 1981)

Administrative Code. —

For treatment, storage, and disposal, see 18 AAC 62, art. 4.

For standards applicable to specific hazardous wastes and facilities, see 18 AAC 62, art. 5.

For land disposal restrictions, see 18 AAC 62, art. 6.

For hazardous waste facility permit, see 18 AAC 62, art. 7.

For applicability and basic requirements, see 18 AAC 63, art. 1.

Sec. 46.03.305. Hazardous waste reports and manifests.

A person who generates hazardous wastes shall submit to the department reports or manifests that the department may require for handling the hazardous wastes.

History. (§ 10 ch 93 SLA 1981)

Administrative Code. —

For standards applicable to a generator, see 18 AAC 62, art. 2.

For standards applicable to a transporter, see 18 AAC 62, art. 3.

Sec. 46.03.308. Transportation of hazardous waste.

Hazardous waste may not be transported in the state unless the waste is accompanied by the uniform hazardous waste manifest required under 42 U.S.C. 6922 — 6923 or other applicable federal law.
[Repealed, § 15 ch 71 SLA 1997.]

History. (§ 10 ch 93 SLA 1981; am § 2 ch 77 SLA 1984; am §§ 13, 15 ch 71 SLA 1997)

Administrative Code. —

For standards applicable to a transporter, see 18 AAC 62, art. 3.

Sec. 46.03.309. Temporary collection of hazardous waste.

The department shall provide for the temporary collection of hazardous waste to be prepared for shipment to a federally approved hazardous waste disposal site. The department shall establish four periods in each calendar year during which it shall collect hazardous waste. A collection point may accept hazardous waste only from small quantity generators and household generators as defined by the Environmental Protection Agency.

History. (§ 3 ch 77 SLA 1984)

Sec. 46.03.310. Conflicting laws. [Repealed, § 12 ch 172 SLA 1978.]

Sec. 46.03.311. Public records.

Permits, permit applications, records, reports, and information and documentation obtained under AS 46.03.302 — 46.03.308 are available to the public for inspection and copying. However, upon a showing satisfactory to the commissioner that a record, report, permit, application, or information would, if made public, divulge methods or processes entitled to protection as trade secrets, the commissioner shall treat the record, report, permit, application, or information as confidential.
Information that is confidential may be transmitted under a continuing restriction of confidentiality to other officers, employees, or authorized representatives of the state or of the United States if
1. the person responsible for furnishing the record, report, permit, application, or information to which the information pertains is informed at least two weeks before the transmittal; and
2. the information has been acquired by the department under the provisions of AS 46.03.296 — 46.03.311 .
This section does not limit the department’s authority to release confidential information during emergency situations.

History. (§ 10 ch 93 SLA 1981)

Administrative Code. —

For standards applicable to a generator, see 18 AAC 62, art. 2.

For standards applicable to a transporter, see 18 AAC 62, art. 3.

For treatment, storage, and disposal, see 18 AAC 62, art. 4.

For hazardous waste facility permit, see 18 AAC 62, art. 7.

Sec. 46.03.313. Hazardous waste management facilities and sites.

The department shall evaluate and select potential sites for hazardous waste management facilities in the state. In evaluating and selecting sites for management facilities, the department shall consider at least the following factors:
1. economic feasibility, including proximity to concentrations of generators of the types of hazardous waste likely to be proposed and permitted for management;
2. intrinsic suitability of the sites;
3. federal and state pollution control and environmental protection regulations;
4. the risk and effect for local residents, units of government, and the local public health, safety, and welfare, including such dangers as an accidental release of waste during transportation to a facility or at a facility, water, air, and land pollution, and fire or explosion;
5. the consistency of a facility with, and its effect on, existing and planned local land use and development; local laws, ordinances, and permits; and local public facilities and services; and
6. the adverse effects of a facility at the site on agriculture and natural resources and opportunities to mitigate or eliminate the adverse effects by stipulations, conditions, and requirements relating to the design and operation of a management facility at the proposed site.
The department shall adopt regulations that
1. interpret and clarify the factors listed in (a) of this section; and
2. establish procedures for processing, reviewing, and approving or disapproving applications for the siting and operation of privately owned hazardous waste management facilities.
The department may authorize the siting and operation of privately owned hazardous waste management facilities in accordance with factors and requirements established under this section.
The department shall hold public hearings in each house district in which a hazardous waste management facility site is proposed to be located. The department shall give reasonable public notice of the time, date, and place of each public hearing at least 30 days before the hearing. The public shall be afforded an opportunity at each hearing to submit written and oral testimony concerning a potential site.
In this section, “intrinsic suitability” of a site means that, based on existing data on the inherent and natural attributes, physical features, and location of the site, there is no known reason why a waste management facility that may be located in the site could not reasonably be expected to qualify for a permit under AS 46.03.302 .

History. (§ 4 ch 77 SLA 1984; am §§ 57, 58 ch 21 SLA 1991; am § 97 ch 21 SLA 2000)

Administrative Code. —

For applicability and basic requirements, see 18 AAC 63, art. 1.

For requirements for hazardous waste or PCB incinerators, hazardous waste land facilities, chemical waste landfills, and hazardous waste underground injection wells, see 18 AAC 63, art. 2.

For review criteria, see 18 AAC 63, art. 3.

Sec. 46.03.314. Reports on management sites and facilities. [Repealed, § 62 ch 21 SLA 1991.]

Sec. 46.03.316. Hazardous waste reduction and recycling program. [Repealed, § 4 ch 88 SLA 1990.]

Sec. 46.03.317. Hazardous waste reduction matching grants.

A hazardous waste reduction grant account is established in the general fund. It consists of appropriations made to it.
The department may issue matching grants from money in the account to businesses, local governments, industry trade associations, labor organizations, or nonprofit organizations for the purpose of feasibility analysis and evaluation of ways to implement hazardous waste reduction.
Grants under this section
1. must be matched on a dollar-for-dollar basis by the grantee in cash or in kind;
2. may not exceed $10,000 for any single proposal or project.
The department shall establish an advisory committee, consisting of five members, to assist the department in reviewing and evaluating grant applications under this section. The advisory committee must include
1. an officer or employee of the department;
2. a representative of the University of Alaska;
3. a professional civil or chemical engineer with experience in environmental engineering;
4. an owner or representative of a small business; and
5. a public member.

History. (§ 3 ch 97 SLA 1989)

Article 5. Pesticide Control.

Administrative Code. —

For pesticide control, see 18 AAC 90.

Collateral references. —

61C Am. Jur. 2d, Pollution Control, § 1633 et seq.

39A C.J.S., Health and Environment, § 156 et seq.

Constitutionality of statutes for protection of vegetation against disease or infection. 70 ALR2d 852.

Liability for injury caused by spraying or dusting of crops. 37 ALR3d 833.

Sec. 46.03.320. Regulation of pesticides and broadcast chemicals.

The department may
1. regulate the transportation, testing, inspection, packaging, labeling, handling, and advertising of pesticides and broadcast chemicals offered for sale or placed in commerce for use in the state;
2. regulate and supervise the distribution, application, or use of pesticides and broadcast chemicals in any state project or program or by a public agency under the jurisdiction of the state;
3. regulate or prohibit the use of pesticides and broadcast chemicals;
4. register pesticides and broadcast chemicals for sale or distribution.
The department may provide by regulation for the licensing of or temporary license waiver for private applicators of restricted-use pesticides, for persons engaged in the custom, commercial, or contract spraying or application of pesticides and broadcast chemicals, and for other persons engaged in the spraying or application of pesticides and broadcast chemicals in public places. A person engaged in the custom, commercial, or contract spraying or application of pesticides and broadcast chemicals may, by regulation, be required to secure a surety bond or liability insurance.
A person may not apply a pesticide or broadcast chemical in a public place unless licensed by the department or otherwise authorized under a regulation of the department. The department shall by regulation provide for reasonable public notification, including written notice posted on the application site, when pesticides and broadcast chemicals are applied in a public place. In this subsection, “public place” means (1) common areas of an apartment building or other multi-family dwelling; (2) that portion of a government office or facility to which access is not ordinarily restricted to employees; and (3) plazas, parks, and public sports fields.
In this section, “multi-family dwelling” means a building that includes more than four single-family dwellings.

History. (§ 3 ch 120 SLA 1971; am § 1 ch 26 SLA 1977; am §§ 5 — 7 ch 42 SLA 2005)

Administrative Code. —

For coverage of chapter, see 18 AAC 15, art. 1.

For permit procedures, see 18 AAC 15, art. 2.

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For purpose, applicability, prohibitions, and discharge notification, see 18 AAC 90, art. 1.

For pesticide registration, see 18 AAC 90, art. 2.

For certification requirements, see 18 AAC 90, art. 3.

For recordkeeping requirements, see 18 AAC 90, art. 4.

For permit requirements, see 18 AAC 90, art. 5.

For pesticide handling requirements, see 18 AAC 90, art. 6.

For inspection and enforcement, see 18 AAC 90, art. 7.

For forestry vegetation management, see 18 AAC 90, art. 8.

Sec. 46.03.330. Public pesticide programs.

An officer, agent, or employee of the state, or of a borough or city of any class, may not direct, carry out, or participate in the spraying or application of a pesticide or broadcast chemical in any program or project involving funds, materials, or equipment of the state, borough, or city, except in accordance with regulations adopted by the department under AS 46.03.320 .
Before a public project that would affect land owned separately by two or more persons is initiated, the person directing the program shall give public notice of the program in the manner required by regulations of the department. The department shall conduct a public hearing on the proposed program if a hearing is requested by the governing body of the affected borough or city, or by a petition signed by at least 50 residents. The requirement for public notice or public hearing may be waived if the commissioner determines that a public emergency exists.
The provisions of this section apply to home rule municipalities.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For coverage of chapter, see 18 AAC 15, art. 1.

For permit procedures, see 18 AAC 15, art. 2.

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For purpose, applicability, prohibitions, and discharge notification, see 18 AAC 90, art. 1.

For pesticide registration, see 18 AAC 90, art. 2.

For certification requirements, see 18 AAC 90, art. 3.

For recordkeeping requirements, see 18 AAC 90, art. 4.

For permit requirements, see 18 AAC 90, art. 5.

For pesticide handling requirements, see 18 AAC 90, art. 6.

For inspection and enforcement, see 18 AAC 90, art. 7.

For forestry vegetation management, see 18 AAC 90, art. 8.

Article 6. Underground Storage Tank Systems.

Cross references. —

For continuation of contracts, rights, liabilities, and obligations created by or under a law amended or repealed by ch. 102, SLA 2006, see § 4(b), ch. 102, SLA 2006 in the 2006 Temporary and Special Acts.

Administrative Code. —

For underground storage tanks, see 18 AAC 78.

Secs. 46.03.360, 46.03.363 Board of storage tank assistance; Reports. [Repealed, § 2 ch 102 SLA 2006.]

Sec. 46.03.365. Regulation of underground petroleum storage tank systems.

The department shall develop a program to abate and prevent pollution from underground petroleum storage tank systems through the adoption of regulations under AS 44.62 (Administrative Procedure Act). Consistent with other provisions in AS 46.03.365 — 46.03.450 , the regulations may govern
1. notification and registration;
2. inspection and record keeping;
3. construction, installation, and performance;
4. maintenance, operation, and repair;
5. technical standards, including standards for spill and overfill control, corrosion prevention, and release detection and reporting;
6. financial responsibility;
7. certification of underground petroleum storage tank system workers;
8. corrective action and cost recovery;
9. closure and abandonment;
10. enforcement of regulations; and
11. prevention of releases to protect the public health and environment.
In the regulations adopted under (a) of this section, the department may
1. distinguish among the sizes, types, classes, locations, and ages of underground petroleum storage tank systems;
2. provide for exemptions and deferrals determined to be necessary by the department; exemptions and deferrals under this paragraph must be consistent with those granted under federal laws and regulations.
When the regulations adopted under this section address areas governed by federal laws or regulations, the state regulations must be consistent with federal laws and regulations and may not be more stringent than the federal laws and regulations.
[Repealed, § 2 ch 102 SLA 2006.]

History. (§ 2 ch 96 SLA 1990; am § 4 ch 41 SLA 2002; am § 2 ch 102 SLA 2006)

Cross references. —

For transitional provision applicable to regulations adopted before August 5, 2006, see § 4(a), ch. 102, SLA 2006, in the 2006 Temporary and Special Acts.

Administrative Code. —

For underground storage tanks, see 18 AAC 78, art. 1.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For certification of underground storage tank workers, see 18 AAC 78, art. 4.

For cleanup levels, see 18 AAC 78, art. 6.

For underground storage tank laboratory approval, see 18 AAC 78, art. 8.

Sec. 46.03.370. Educational assistance.

The department shall provide

educational assistance to owners and operators of underground petroleum storage tank systems to help them comply with federal and state laws and regulations applicable to the tank systems, including the registration and notification requirements under AS 46.03.380 — 46.03.400 ;
the public with information to help the public understand the effects associated with the release of petroleum and chemical products into the environment, including releases from petroleum and chemical storage tank systems.

History. (§ 2 ch 96 SLA 1990)

Sec. 46.03.375. Certification of storage tank workers.

The department shall adopt regulations governing the certification of persons who install, test, close, repair, or significantly change the configuration of underground petroleum storage tanks and tank systems. The certification program shall be administered by the Department of Commerce, Community, and Economic Development. In consultation with the Department of Environmental Conservation, the Department of Commerce, Community, and Economic Development shall make every reasonable attempt to ensure that opportunities for obtaining certification under this section are available throughout the state. The Department of Commerce, Community, and Economic Development shall organize presentation of national training courses that are available in the state and assist residents of isolated communities who request assistance in becoming certified. The Department of Commerce, Community, and Economic Development may contract with the University of Alaska, a vocational technical school, or a regional nonprofit organization to provide the education and testing necessary for certification.
The Department of Commerce, Community, and Economic Development shall establish fees applicable to certification under this section in an amount necessary to cover the costs of the certification program. The fees shall be collected by the Department of Commerce, Community, and Economic Development.
Except as provided in (d) of this section, a person may not install, test, close, repair, or significantly change the configuration of an underground petroleum storage tank or tank system unless that person is certified for the appropriate activity under (a) of this section. A person who violates this subsection is guilty of a class B misdemeanor.
A person may install, test, close, repair, or significantly change the configuration of an underground petroleum storage tank or tank system without being certified under this section if
1. the person performs the work under the direct supervision of another who is certified for that work under this section;
2. the supervisor inspects the work performed; and
3. after inspection, the supervisor approves the work in writing.
AS 44.62 (Administrative Procedure Act) applies to regulations and certifications under this section.
The department shall develop and maintain lists of persons certified under this section to perform the various activities related to underground petroleum storage tanks and tank systems. The department shall provide the lists on request to interested persons.
In this section, “close” means to remove petroleum and sludges from the tanks in the tank system and either fill the tanks with inert solid material or remove, dismantle, and dispose of the tanks.

History. (§ 2 ch 96 SLA 1990; am § 24 ch 90 SLA 1991; am §§ 23 — 25 ch 14 SLA 2005)

Revisor’s notes. —

In 1999, in (a) of this section, “Department of Commerce and Economic Development” was changed to “Department of Community and Economic Development” in accordance with § 88, ch. 58, SLA 1999.

In 2004, in (a) of this section, “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

Cross references. —

For penalties for misdemeanors, see AS 12.55.035 and 12.55.135 .

Administrative Code. —

For underground storage tanks, see 18 AAC 78, art. 1.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For certification of underground storage tank workers, see 18 AAC 78, art. 4.

Sec. 46.03.380. Registration of tanks and tank systems.

A person, including a governmental entity or institution, or a public corporation, who intends to install, have installed, return to operation, or acquire ownership of an underground petroleum storage tank or tank system shall, before the installation or return to operation, or 30 days after acquisition, register the tank or tank system with the department on a form provided by the department and pay the tank registration fee required under AS 46.03.385 .
The owner or operator of an underground petroleum storage tank or tank system that was installed before and is still in use on September 5, 1990 shall register the tank or tank system with the department on a form provided by the department and pay the tank registration fee required under AS 46.03.385 . For each tank or tank system registered under this subsection that was installed before December 22, 1988, the owner or operator shall provide to the department at the time of registration
1. proof of plans for prompt site assessment or testing for tank tightness;
2. proof of tank tightness testing or site assessment that occurred within the previous 12 months and
  1. satisfactory performance of the tank or tank system during the test, proof of noncontamination if a site assessment was performed, and proof of compliance with applicable state financial responsibility requirements; or
  2. if the tank or tank system did not perform satisfactorily during the test, or the site assessment showed evidence of contamination, a summary of the upgrading, repair, containment, or cleanup efforts that have been or will be used for the tank, tank system, or site.

History. (§ 2 ch 96 SLA 1990; am § 14 ch 70 SLA 1999)

Revisor’s notes. —

Paragraph (b)(2) was enacted as (b)(3), and (b)(2)(B) was enacted as (b)(3)(B)(i). Renumbered in 1999 to reflect the 1999 repeal of former (b)(2) and former (b)(3)(B)(ii).

Administrative Code. —

For underground storage tanks, see 18 AAC 78, art. 1.

Sec. 46.03.385. Registration fee.

At the time of registration under AS 46.03.380 , and annually thereafter, the owner or operator shall pay to the department a registration fee for each tank registered unless the owner or operator has notified the department under AS 46.03.395 that the tank has been taken out of service. An underground storage tank that has leak detection, spill and overflow protection, and corrosion protection that meet requirements of the department is subject to a $50 annual registration fee, regardless of tank capacity. An underground storage tank system that lacks any or all of these features is subject to an annual registration fee of
1. $150 if the underground storage tank capacity is less than 1,000 gallons;
2. $300 if the underground storage tank capacity is 1,000 — 5,000 gallons;
3. $500 if the underground storage tank capacity is over 5,000 gallons.
An underground petroleum storage tank or tank system owned or operated by the federal or state government is exempt from the registration fee in (a) of this section.
A registration fee that is not paid within 30 days of when it is due shall be increased by a late payment fee equal to $10 per day until the day of payment.
The first annual fee under this section must be accompanied by the information required under AS 46.03.400 . Subsequent annual fees must be accompanied by the names and addresses of the owner and operator of the tank system, and the location and capacity of, and substance being stored in, the tanks for which the fee is being submitted.
[Repealed, § 2 ch 102 SLA 2006.]

History. (§ 2 ch 96 SLA 1990; am § 25 ch 90 SLA 1991; am § 5 ch 41 SLA 2002; am § 2 ch 102 SLA 2006)

Administrative Code. —

For underground storage tanks, see 18 AAC 78, art. 1.

Sec. 46.03.390. Notification of changes in tank systems.

An owner or operator who intends to significantly change the configuration of an underground petroleum storage tank system shall notify the department before beginning work on the change by completing and returning to the department a notification form obtained from the department.

History. (§ 2 ch 96 SLA 1990)

Administrative Code. —

For underground storage tanks, see 18 AAC 78, art. 1.

Sec. 46.03.395. Notification of tank system closure.

If an underground petroleum tank or storage tank system is taken out of operation, the owner or operator of the tank or tank system, or an agent on the owner’s or operator’s behalf, shall provide on forms obtained from the department

notification of that fact to the department at least 15 days, but not more than 60 days, before the date the tank or tank system will be taken out of operation unless the tank or tank system is taken out of operation because of an emergency; in emergency situations, the owner or operator shall provide notification as promptly as possible under the circumstances; and
evidence satisfactory to the department within 30 days after the tank or tank system is taken out of operation that the owner or operator has complied with applicable state and federal laws and regulations governing temporary or permanent tank closure.

History. (§ 2 ch 96 SLA 1990)

Administrative Code. —

For underground storage tanks, see 18 AAC 78, art. 1.

For certification of underground storage tank workers, see 18 AAC 78, art. 4.

Sec. 46.03.400. Registration forms.

The registration forms required under AS 46.03.380 — 46.03.395 must require information about the geographical location of a tank or tank system, the estimated age of the tanks and tank system, the total capacity, type of construction, internal and external protection, and piping of the tanks and tank system, and the substance currently or proposed to be stored in the tank system. If the tank or tank system is newly installed, the owner or operator shall certify that the owner or operator has complied with installation, release detection, corrosion protection, and financial responsibility requirements of state and federal law.

History. (§ 2 ch 96 SLA 1990)

Administrative Code. —

For underground storage tanks, see 18 AAC 78, art. 1.

Sec. 46.03.405. Prohibitions.

A person, including a governmental entity or institution or a public corporation, may not operate an underground petroleum storage tank or tank system unless

the tank and tank system are registered with the department as provided in AS 46.03.365 — 46.03.450 or other law; and
the person has provided to the department proof of financial responsibility to the extent required under regulations adopted under AS 46.03.365 or proof of application for arrangements that would satisfy state financial responsibility requirements.

History. (§ 2 ch 96 SLA 1990; am § 6 ch 41 SLA 2002)

Administrative Code. —

For underground storage tanks, see 18 AAC 78, art. 1.

Sec. 46.03.410. Underground storage tank revolving loan fund. [Repealed, § 2 ch 102 SLA 2006.]

Sec. 46.03.415. Tank tightness and site assessment incentive program. [Repealed, § 14 ch 70 SLA 1999.]

Sec. 46.03.420. Tank cleanup program. [Repealed, § 21 ch 41 SLA 2002.]

Sec. 46.03.422. Tank cleanup loan program. [Repealed, § 2 ch 102 SLA 2006.]

Sec. 46.03.430. Tank upgrading and closure program. [Repealed, § 20 ch 41 SLA 2002.]

Sec. 46.03.440. Confidentiality of financial records.

Financial records submitted to the department or to the former Board of Storage Tank Assistance by the owner or operator of an underground petroleum storage tank system are confidential and not subject to inspection or copying under AS 40.25.110 — 40.25.120 . The department, in consultation with the affected owner or operator, shall determine which information is confidential under this subsection.
The confidentiality conferred by (a) of this section does not apply to statistical information compiled by the department about the number, capacity, and location of underground petroleum storage tank systems in the state.

History. (§ 2 ch 96 SLA 1990; am § 1 ch 102 SLA 2006)

Revisor’s notes. —

In 2000, “AS 40.25.110 — 40.25.120 ” was substituted for “AS 09.25.110 — 09.25.120” to reflect the 2000 renumbering of AS 09.25.110 — 09.25.120.

Administrative Code. —

For storage tank assistance fund, see 18 AAC 78, art. 5.

Sec. 46.03.450. Definitions.

In AS 46.03.365 — 46.03.450 ,

“chemical” means any substance defined in 42 U.S.C. 9601(14) (sec. 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980), as amended, and any substance having the characteristics identified or listed under 42 U.S.C. 6921 (sec. 3001 of the Solid Waste Disposal Act), regardless of whether the substance is a solid waste;
“corrective action” means action necessary to stop the migration, determine the extent, and undertake recovery of petroleum after its unpermitted release; clean up affected soil and groundwater; and stabilize the site of the release to prevent or remove hazards to public health or the environment;
“farm” means a tract of land devoted to the production of crops or raising animals, including fish, and associated residences and improvements; “farm” includes fish hatcheries, rangelands, and nurseries with growing operations;
“petroleum” means crude oil or any fraction of crude oil that is liquid at 60 degrees Fahrenheit and pressure of 14.7 pounds per square inch absolute; “petroleum” includes petroleum-based substances comprised of a complex blend of hydrocarbons derived from crude oil through processes of separation, conversion, upgrading, and finishing, such as motor fuels, jet fuels, distillate fuel oils, residual fuel oils, lubricants, petroleum solvents, and used oils;
“release” has the meaning given in AS 46.08.900 ;
“site assessment” means investigation of suspected underground petroleum storage tank system leaks and source identification;
“tank system” means an underground petroleum storage tank system;
“underground storage tank” means one or a combination of stationary devices, including underground pipes connected to the devices, that is designed to contain an accumulation of petroleum, the volume of which, including the volume of underground pipes, is 10 percent or more beneath the surface of the ground, except that the term does not include a
1. farm or residential tank of 1,100 gallons or less capacity used for storing motor fuel for noncommercial purposes;
2. tank used for storing heating oil for consumptive use on the premises where stored;
3. septic tank;
4. pipeline facility, including gathering lines, regulated under 49 U.S.C. 60101 et seq. or that is an intrastate pipeline facility regulated under state laws comparable to the provisions of 49 U.S.C. 60101 et seq.;
5. surface impoundment, pit, pond, or lagoon;
6. storm water or waste water collection system;
7. flow-through process tank;
8. liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;
9. storage tank situated in an underground area such as a basement, cellar, mineworking, drift, shaft, or tunnel, if the storage tank is situated upon or above the surface of the floor;
10. tank with a capacity of 110 gallons or less;
11. tank containing hazardous wastes regulated under 42 U.S.C. 6921 — 6939b; or
12. tank system that the department has exempted by regulations adopted under AS 46.03.365 ;
“underground petroleum storage tank system” means an underground storage tank containing petroleum together with its underground ancillary equipment and related containment system, if any; in this paragraph, “ancillary equipment” means devices used to distribute, meter, or control the flow of petroleum to and from the system, including piping, fittings, flanges, valves, and pumps.

History. (§ 2 ch 96 SLA 1990; am § 12 ch 70 SLA 1999; am § 2 ch 102 SLA 2006; am § 62 ch 41 SLA 2009)

Revisor’s notes. —

Reorganized in 1999 and 2006 to retain alphabetical order.

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, rewrote (8)(D), removed the (i) through (iii) designations, substituted “49 U.S.C. 60101” for “49 U.S.C. 1671”, added a reference to “49 U.S.C. 60101 et seq.”, and deleted references to the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. 2001, and the Hazardous Liquid Pipeline Safety Act of 1979.

Article 7. Commercial Passenger Vessel Environmental Compliance Program.

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.460. Program established.

There is established the commercial passenger vessel environmental compliance program providing for
1. terms and conditions of vessel discharges;
2. independent verification of environmental compliance; and
3. allowing the department to monitor and supervise discharges from commercial passenger vessels through a registration system.
The department may adopt regulations to carry out the purposes of AS 46.03.460 — 46.03.490 . The department shall use negotiated regulation making under AS 44.62.710 — 44.62.800 , when appropriate, to develop those regulations.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.461. Registration requirements.

Except as provided in AS 46.03.487 , each calendar year in which the owner or operator of a commercial passenger vessel intends to operate, or cause or allow to be operated, the vessel in the marine waters of the state, the owner or operator of the vessel shall register with the department. The registration shall be completed before the time any commercial passenger vessel of the owner or operator enters the marine waters of the state in that calendar year. The registration must include the following information:
1. the vessel owner’s business name and, if different, the vessel operator’s business name for each commercial passenger vessel of the owner or operator that is scheduled to be in the marine waters of the state during the calendar year;
2. the postal address, electronic mail address, telephone number, and facsimile number for the principal place of each business identified under (1) of this subsection;
3. the name and address of an agent for service of process for each business identified under (1) of this subsection; the owner and operator shall continuously maintain a designated agent for service of process whenever a commercial passenger vessel of the owner or operator is in the marine waters of the state, and the agent must be an individual resident of this state, a domestic corporation, or a foreign corporation having a place of business in and authorized to do business in this state;
4. the name or call sign of and Port of Registry for each of the owner’s or operator’s vessels that is scheduled either to call upon a port in this state or otherwise to be in the marine waters of the state during the calendar year and after the date of registration; and
5. an agreement to comply with the terms and conditions of vessel discharges specified under AS 46.03.462 .
Registration under (a) of this section shall be executed under oath by the owner or operator.
Upon request of the department, the registrant shall submit registration information required under this section electronically.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.462. Terms and conditions of discharge permits.

An owner or operator may not discharge any treated sewage, graywater, or other wastewater from a commercial passenger vessel into the marine waters of the state unless the owner or operator
1. obtains a permit under AS 46.03.100 that complies with the terms and conditions of vessel discharge requirements specified in (b) of this section; or
2. has a plan approved under (k) of this section.
The minimum standard terms and conditions for all discharge permits authorized under (a)(1) of this section require that the owner or operator
1. may not discharge untreated sewage, treated sewage, graywater, or other wastewaters in a manner that violates any applicable state or federal law governing the disposal or discharge of solid or liquid waste material;
2. shall maintain records and provide the reports required under AS 46.03.465(a) ;
3. shall collect and test samples as required under AS 46.03.465(b) and (d) and provide the reports with respect to those samples required by AS 46.03.475(c) ;
4. shall report discharges in accordance with AS 46.03.475(a) ;
5. shall allow the department access to the vessel at the time samples are taken under AS 46.03.465 for purposes of taking the samples or for purposes of verifying the integrity of the sampling process; and
6. shall submit records, notices, and reports to the department in accordance with AS 46.03.475(b) , (d), and (e).
[Repealed, §§ 2, 9, and 13, ch. 56, SLA 2007]
[Repealed, § 5 ch 1 SLA 2013.]
When issuing, reissuing, renewing, or modifying a permit required under (a)(1) of this section, the department may only include the authorization of a mixing zone for a commercial passenger vessel that employs an advanced wastewater treatment system that falls within the class of systems identified by the department under (j) of this section or employs other means of pollution prevention, control, and treatment that the department finds can achieve a quality of effluent that is comparable to that of one or more vessels employing an advanced wastewater treatment system. If a commercial passenger vessel employs an advanced wastewater treatment system that satisfies the requirements of this subsection, the department shall find the commercial passenger vessel satisfies all state technology-based treatment requirements for authorization of a mixing zone.
[Repealed, § 5 ch 1 SLA 2013.]
[Repealed, § 5 ch 1 SLA 2013.]
Nothing in this section shall be construed to limit the authority of the department to
1. restrict the areas in which discharges permitted under this section may occur; or
2. impose additional terms and conditions on the manner in which discharges permitted under this section may be made in a specific area.
Notwithstanding any contrary provision of law, the department may administratively extend until December 15, 2015, the duration of the general permit that was issued in 2010 under AS 46.03.100 to regulate wastewater discharges from commercial passenger vessels. The department may modify the terms of the administratively extended general permit following the process provided for by law for modifying other permits issued by the department under AS 46.03.100 .
In this section, the department shall determine the systems that constitute the class of advanced wastewater treatment systems that may be approved by permit under (e) of this section considering factors deemed appropriate by the department. At a minimum, the department’s determination must find
1. that the system provides treatment of sewage and graywater on board commercial passenger vessels that achieves levels of biological treatment, solids removal, and disinfection higher than that achieved by traditional marine sanitation devices required by 33 C.F.R. 159; and
2. that effluent discharged from that system meets all requirements under P.L. 106-554, 33 U.S.C. 1901 note.
The owner or operator of a small commercial passenger vessel may submit a plan for alternative terms and conditions of vessel discharges. The alternative terms and conditions may include alternatives to the requirements under AS 46.03.465(a) - (d). The department shall approve the plan for a five-year period if the department finds that the alternative terms and conditions in the plan incorporate the best management practices for protecting the environment to the maximum extent feasible. The department shall adopt regulations to implement this subsection but may not require an owner or operator to retrofit a vessel solely for the purpose of waste treatment if the retrofitting requires additional stability testing or relicensing by the United States Coast Guard. In this subsection, “best management practices” means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of the marine waters of the state.

History. (§ 1 ch 1 FSSLA 2001; am §§ 2, 4, 6 ch 153 SLA 2004; am § 4, 2006 Primary Election Ballot Measure No. 2; am §§ 1, 3 ch 56 SLA 2007; am §§ 2 — 4 ch 53 SLA 2009; am §§ 1 — 5 ch 1 SLA 2013; am §§ 1 — 4 ch 21 SLA 2017)

Revisor’s notes. —

In 2006, in subsection (b), “this section” was substituted for “this provision” to conform 2006 Primary Election Ballot Measure No. 2 to the style of the Alaska Statutes.

In 2009, in (b)(3), “to” was inserted after “respect” to correct a manifest error.

Subsection (d) was repealed effective March 1, 2013 under secs. 5 and 7, ch. 1, SLA 2013, making redundant the delayed repeal on January 1, 2016, of subsection (d) by sec. 9, ch. 56, SLA 2007.

The delayed amendment of (b) by sec. 3, ch. 53, SLA 2009, and the delayed repeal of (e) and (f) under secs. 7 and 8, ch. 53, SLA 2009, which were to take effect December 31, 2015, were repealed by sec. 6, ch. 1, SLA 2013.

In 2016, in the first sentence of (e), “(a)” was substituted for “(a)(1)” to correct a manifest error.

Cross references. —

For statement of legislative intent applicable to the 2009 amendments of this section, see § 1, ch. 53, SLA 2009, in the 2009 Temporary and Special Acts.

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Effect of amendments. —

The 2009 amendment, effective July 10, 2009, in (b)(1) added “, except as provided in (e) of this section” at the end; added (e), (f), (g), and (h). These amendments are repealed effective December 31, 2015.

The 2013 amendment, effective March 1, 2013, in (b)(1), substituted “state or federal law governing the disposal or discharge of solid or liquid waste material” for “effluent limits or standards under state or federal law, including Alaska water quality standards governing pollution at the point of discharge, except as provided in (e) of this section”; in (c), deleted “if the keel of the vessel was laid before January 1, 2004” at the end of the first sentence, and substituted “The department shall approve the plan for a five-year period” for “Except as provided in (d) of this section, the department shall approve the plan for a three-year period” at the beginning of the third sentence; repealed (d); rewrote (e), which provided for a three-year reduced standard for effluent in certain circumstances; repealed (f) and (g); and added (i) and (j).

The 2017 amendment, effective August 11, 2017, added (a)(2), and made related and stylistic changes; in (b), inserted “(a)(1) of” following “authorized under”; in (e), substituted “under (a)(1)” for “under (a)” following “required under”; added (k).

Editor’s notes. —

Section 11, 2006 Primary Election Ballot Measure No. 2, part of the initiative that made the 2006 amendment of this section, provides that “[I]t is the intention of the people of Alaska that any portion of this legislation that is declared unlawful shall be stricken in a manner that preserves the remaining portion of the remaining legislation to the maximum extent possible.”

The 2006 amendment did not address the delayed amendments in ch. 153, SLA 2004 that were to take effect January 1, 2016. Those 2004 delayed amendments were repealed in §§ 10 and 12, ch. 56, SLA 2007.

Sec. 46.03.463. Prohibited discharges; limitations on discharges.

Except as provided in (h) of this section, a person may not discharge untreated sewage from a commercial passenger vessel into the marine waters of the state.
Except as provided in (h) of this section or under a plan for a small commercial passenger vessel approved under AS 46.03.462(k) , a person may not discharge sewage from a commercial passenger vessel into the marine waters of the state that has suspended solids greater than 150 milligrams per liter or a fecal coliform count greater than 200 colonies per 100 milliliters except that the department may by regulation adopt a protocol for retesting for fecal coliform, if this discharge limit for fecal coliform is exceeded, under which a discharger will be considered to be in compliance with the fecal coliform limit if the geometric mean of fecal coliform count in the samples considered under the protocol does not exceed 200 colonies per 100 milliliters.
Except as provided in (h) of this section or under a plan for a small commercial passenger vessel approved under AS 46.03.462(k) , a person may not discharge graywater or other wastewater from a commercial passenger vessel into the marine waters of the state that has suspended solids greater than 150 milligrams per liter or a fecal coliform count greater than 200 colonies per 100 milliliters except that the department may by regulation adopt a protocol for retesting for fecal coliform, if this discharge limit for fecal coliform is exceeded, under which a discharger will be considered to be in compliance with the fecal coliform limit if the geometric mean of fecal coliform count in the samples considered under the protocol does not exceed 200 colonies per 100 milliliters.
[Repealed, § 5, 2006 Primary Election Ballot Measure No. 2.]
An owner or operator may not discharge any treated sewage, graywater, or other wastewater from a large commercial passenger vessel into the marine waters of the state unless the owner or operator obtains a permit under AS 46.03.100 and 46.03.462 , and provided that the vessel is not in an area where the discharge of treated sewage, graywater, or other wastewaters is otherwise prohibited.
Except as provided in (h) of this section, a person may not discharge sewage from a small commercial passenger vessel unless the sewage has been processed through a properly operated and properly maintained marine sanitation device.
[Repealed, § 5, 2006 Primary Election Ballot Measure No. 2.]
The provisions of (a) — (f) of this section do not apply to discharges made for the purpose of securing the safety of the commercial passenger vessel or saving life at sea if all reasonable precautions have been taken for the purpose of preventing or minimizing the discharge.

History. (§ 1 ch 1 FSSLA 2001; am §§ 7, 9, 12 ch 153 SLA 2004; am § 5, 2006 Primary Election Ballot Measure No. 2; am §§ 4, 6 ch 56 SLA 2007; am §§ 5, 6 ch 21 SLA 2017)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Effect of amendments. —

The 2017 amendment, effective August 11, 2017, In (b) and (c), inserted “or under a plan for a small commercial passenger vessel approved under AS 46.03.462(k) ” following “(h) of this section”.

Editor’s notes. —

Section 11, 2006 Primary Election Ballot Measure No. 2, part of the initiative that made the 2006 amendment of (e) of this section and repealed (d) and (g) of this section, provides that “[I]t is the intention of the people of Alaska that any portion of this legislation that is declared unlawful shall be stricken in a manner that preserves the remaining portion of the remaining legislation to the maximum extent possible.”

The 2006 amendment did not address the delayed amendments to this section in ch. 153, SLA 2004 that were to take effect January 1, 2016. Those 2004 delayed amendments were repealed in §§ 10 and 12, ch. 56, SLA 2007.

Sec. 46.03.464. Advisory panel on wastewater treatment; commissioner’s reports to the legislature. [Repealed, § 5 ch 1 SLA 2013.]

Sec. 46.03.465. Information-gathering requirements; exemption.

The owner or operator of a commercial passenger vessel shall maintain daily records related to the period of operation while in the state, detailing the dates, times, and locations, and the volumes and flow rates of any discharges of sewage, graywater, or other wastewaters into the marine waters of the state, and provide electronic copies of those records on a monthly basis to the department not later than five days after each calendar month of operation in state waters.
While a commercial passenger vessel is present in the marine waters of the state, the owner or operator of the vessel shall provide an hourly report of the vessel’s location based on Global Positioning System technology and collect routine samples of the vessel’s treated sewage, graywater, and other wastewaters being discharged into marine waters of the state with a sampling technique approved by the department.
While a commercial passenger vessel is present in the marine waters of the state, the department, or an independent contractor retained by the department, may collect additional samples of the vessel’s treated sewage, graywater, and other wastewaters being discharged into the marine waters of the state.
The owner or operator of a vessel required to collect samples under (b) of this section shall ensure that all sampling techniques and frequency of sampling events are approved by the department in a manner sufficient to ensure demonstration of compliance with all discharge requirements under AS 46.03.462 .
The owner or operator of a commercial passenger vessel shall pay for all reporting, sampling, and testing of samples under this section.
If the owner or operator of a commercial passenger vessel has, when complying with another state or federal law that requires substantially equivalent information gathering, gathered the information required under (a), (b), or (d) of this section, the owner or operator shall be considered to be in compliance with that subsection so long as the information is also provided to the department.
[Repealed, § 9, ch. 56, SLA 2007]
On request, the owner or operator of a commercial passenger vessel discharging wastewater under AS 46.03.462(b) shall provide the department with information relating to wastewater treatment, pollution avoidance, and pollution reduction measures used on the vessel, including testing and evaluation procedures and economic and technical feasibility analyses.
The department may exempt from the requirements of (a) — (d) of this section the owner or operator of a small commercial passenger vessel who has a plan for alternative terms and conditions of vessel discharges approved under AS 46.03.462(k) .

History. (§ 1 ch 1 FSSLA 2001; am § 6, 2006 Primary Election Ballot Measure No. 2; am § 8 ch 56 SLA 2007; am §§ 50, 51 ch 40 SLA 2008; am § 6 ch 53 SLA 2009; am § 7 ch 21 SLA 2017)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Effect of amendments. —

The 2009 amendment, effective July 10, 2009, added (h).

The 2017 amendment, effective August 11, 2017, added (i).

Editor’s notes. —

Sec. 46.03.470. Record keeping requirements.

An owner or operator subject to AS 46.03.465 shall record the information required to be gathered under that section and shall maintain the records for three years after the date the information was gathered.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.475. Reporting requirements.

An owner or operator of a commercial passenger vessel who becomes aware of a discharge in violation of AS 46.03.463 shall immediately report that discharge to the department. There is no audit report privilege under AS 09.25.450 for this information.
If the owner or operator of a commercial passenger vessel operating in the marine waters of the state is required by the Administrator of the Environmental Protection Agency or the secretary of the federal department in which the United States Coast Guard is operating to collect samples and test sewage, graywater, or other wastewater and keep records of the sampling and testing, the owner or operator shall, within 21 days after the sewage, graywater, or other wastewater is tested, submit to the department a copy of the records.
Within 21 days after the testing required under AS 46.03.465(d) , the owner or operator shall submit a written report to the department that contains the measurements required under AS 46.03.465(d) and describes the sampling technique and analytical testing methods used. The information in the report required under this subsection may be provided by referring to, and including copies of, other reports that are required by substantially equivalent state or federal reporting requirements.
If the owner or operator of a commercial passenger vessel operating in the marine waters of the state is required by the laws of the United States or by the laws of Canada or of a province or territory of Canada to file a report or provide notice of a discharge or offloading of a hazardous waste, as defined in AS 46.03.900 , or of a hazardous substance, as defined in AS 46.03.826 , that was generated, discharged, or offloaded while the vessel was operating in the marine waters of the state, the owner or operator shall submit to the department a copy of the report or notice within 21 days after having provided the report or notice to an agency of the government of the United States or to an agency of the government of Canada or of a province or territory of Canada.
Before the operation of a commercial passenger vessel in the marine waters of the state, the owner or operator of the vessel shall provide to the department a plan that describes the vessel’s policies and procedures for
1. offloading in this state or disposing into the marine waters of the state of nonhazardous solid waste other than sewage; and
2. offloading of hazardous waste or a hazardous substance from the vessel while it is operating in the marine waters of the state to the extent that the offloading is not covered by (d) of this section.
Upon request of the department, the information required under this section shall be submitted electronically.
This section does not relieve the owner or operator of a commercial passenger vessel from other applicable reporting requirements of state or federal law.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.476. Ocean rangers.

An owner or operator of a large commercial passenger vessel entering the marine waters of the state is required to have an ocean ranger hired or retained by the department on board the vessel to act as an independent observer for the purpose of monitoring state and federal requirements pertaining to marine discharge and pollution requirements and to insure that passengers, crew, and residents at ports are protected from improper sanitation, health, and safety practices.
The ocean ranger shall monitor, observe, and record data and information related to the engineering, sanitation, and health related operations of the vessel, including but not limited to registration, reporting, record-keeping, and discharge functions required by state and federal law.
Any information recorded or gathered by the ocean ranger shall be promptly conveyed to the Alaska Department of Environmental Conservation and the United States Coast Guard on a form or in a manner approved by the commissioner of environmental conservation. The commissioner may share information gathered with other state and federal agencies.
In this section, “ocean ranger” means
1. a marine engineer licensed by the United States Coast Guard; or
2. a person who holds a degree in marine safety and environmental protection, or an equivalent course of study approved by the department, from an accredited maritime educational institution.

History. (§ 7, 2006 Primary Election Ballot Measure No. 2; am §§ 1, 2 ch 20 SLA 2009)

Effect of amendments. —

The 2009 amendment, effective May 22, 2009, substituted “ocean ranger” for “licensed marine engineer” or similar throughout the section; added subsection (d); and made related stylistic changes.

Effective dates. —

Enacted by 2006 Primary Election Ballot Measure No. 2 as approved by the voters at the primary election of August 22, 2006. The results of the primary election were certified by the director of the division of elections September 18, 2006. Under art. XI, sec. 6, Constitution of the State of Alaska, the initiative’s provisions take effect December 17, 2006.

Editor’s notes. —

Section 11, 2006 Primary Election Ballot Measure No. 2, part of the initiative that enacted this section, provides that “[I]t is the intention of the people of Alaska that any portion of this legislation that is declared unlawful shall be stricken in a manner that preserves the remaining portion of the remaining legislation to the maximum extent possible.”

Sec. 46.03.480. Fees.

There is imposed an environmental compliance fee on each commercial passenger vessel operating in the marine waters of the state.
The fee imposed by (a) of this section for all commercial passenger vessels, other than vessels operated by the state, is a separate fee for each voyage during which the commercial passenger vessel operates in the marine waters of the state. The fee shall range from $.70 to $1.75 per berth, based on the overnight accommodation capacity of the vessel, determined with reference to the number of lower berths, according to the following categories:
1. $75 for a commercial passenger vessel with overnight accommodations for at least 50 but not more than 99 passengers for hire;
2. $175 for a commercial passenger vessel with overnight accommodations for at least 100 but not more than 249 passengers for hire;
3. $375 for a commercial passenger vessel with overnight accommodations for at least 250 but not more than 499 passengers for hire;
4. $750 for a commercial passenger vessel with overnight accommodations for at least 500 but not more than 999 passengers for hire;
5. $1,250 for a commercial passenger vessel with overnight accommodations for at least 1,000 but not more than 1,499 passengers for hire;
6. $1,750 for a commercial passenger vessel with overnight accommodations for at least 1,500 but not more than 1,999 passengers for hire;
7. $2,250 for a commercial passenger vessel with overnight accommodations for at least 2,000 but not more than 2,499 passengers for hire;
8. $2,750 for a commercial passenger vessel with overnight accommodations for at least 2,500 but not more than 2,999 passengers for hire;
9. $3,250 for a commercial passenger vessel with overnight accommodations for at least 3,000 but not more than 3,499 passengers for hire;
10. $3,750 for each commercial passenger vessel with overnight accommodations for 3,500 or more passengers for hire.
The fee imposed by (a) of this section for a commercial passenger vessel that is operated by this state shall be determined by agreement between the commissioner of environmental conservation and the commissioner of transportation and public facilities.
An additional fee in the amount of $4 per berth is imposed on all large commercial passenger vessels, other than vessels operated by the state, for the purpose of operating the Ocean Ranger program established in AS 46.03.476 ; said program shall be subject to legislative appropriation.
A commercial passenger vessel operating in the marine waters of the state is liable for the fee imposed by this section. The fee is due and payable to the department in the manner and at the times required by the department by regulation.

History. (§ 1 ch 1 FSSLA 2001; am § 8, 2006 Primary Election Ballot Measure No. 2)

Revisor’s notes. —

In 2006, subsection (d) of this section was relettered as subsection (e) under an instruction given in § 8, 2006 Primary Election Ballot Measure No. 2.

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Editor’s notes. —

Section 11, 2006 Primary Election Ballot Measure No. 2, part of the initiative that made the 2006 addition of (d) of this section, provides that “[I]t is the intention of the people of Alaska that any portion of this legislation that is declared unlawful shall be stricken in a manner that preserves the remaining portion of the remaining legislation to the maximum extent possible.”

Sec. 46.03.481. Citizens’ suits.

Any citizen of the State of Alaska may commence a civil action (1) against an owner or operator of a large passenger vessel alleged to have violated any provision of this chapter, or (2) against the department where there is an alleged failure to perform any act or duty under this chapter which is not discretionary. No civil action may be commenced under this section, however, prior to 45 days after the plaintiff has provided written notice of the intent to sue to the Attorney General of Alaska.
Subject to appropriation, as necessary, up to 50 percent and not less than 25 percent of any fines, penalties, or other funds recovered as a result of enforcement of this chapter shall be paid to the person or entity, other than the defendant, providing information sufficient to commence an investigation and enforcement of this chapter under this provision.

History. (§ 7, 2006 Primary Election Ballot Measure No. 2)

Editor’s notes. —

Sec. 46.03.482. Commercial passenger vessel environmental compliance fund.

The commercial passenger vessel environmental compliance fund is created in the general fund.
The fund consists of the following, all of which shall be deposited in the fund upon receipt:
1. money received by the department in payment of fees under AS 46.03.480 ;
2. money received under AS 46.03.760(e) as a result of a violation related to AS 46.03.460 — 46.03.490 unless the money would otherwise be deposited in the oil and hazardous substance release prevention and response fund established by AS 46.08.010 ;
3. money appropriated to the fund by the legislature;
4. earnings on the fund.
The legislature may make appropriations from the fund to the department to pay for the department’s operational costs necessary to prepare reports that assess the information received by the department for the cruise ship seasons of 2000, 2001, 2002, and 2003 and for the department’s operational costs necessary to carry out activities under AS 46.03.460 — 46.03.490 relating to commercial passenger vessels.
The unexpended and unobligated balance of an appropriation made from the fund to the department for the purposes described in (c) of this section lapses into the fund on December 31 following the end of the period for which the appropriation was made.
Nothing in this section creates a dedicated fund.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.485. Recognition program.

The department may engage in efforts to encourage and recognize superior environmental protection efforts made by the owners or operators of commercial passenger vessels that exceed the requirements established by law.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.487. Exemption for vessels in innocent passage.

AS 46.03.460 — 46.03.490 do not apply to a commercial passenger vessel that operates in the marine waters of the state solely in innocent passage. For purposes of this section, a vessel is engaged in innocent passage if its operation in marine waters of the state, regardless of whether the vessel is a United States or foreign-flag vessel, would constitute innocent passage under the

Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, 15 U.S.T. 1606; or
United Nations Convention on the Law of the Sea 1982, December 10, 1982, United Nations Publication No. E.83.V.5, 21 I.L.M. 1261 (1982), were the vessel a foreign-flag vessel.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.488. Activities of the department.

The department may engage in the following activities relating to commercial passenger vessels operating in the marine waters of the state:

direct in-water monitoring of discharges or releases of sewage, graywater, and other wastewater and direct monitoring of the opacity of air emissions from those vessels;
monitoring and studying of direct or indirect environmental effects of those vessels; and
researching ways to reduce effects of the vessels on marine waters and other coastal resources.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Sec. 46.03.490. Definitions.

In AS 46.03.460 — 46.03.490 ,

“agent for service of process” means an agent upon whom process, notice, or demand required or permitted by law to be served upon the owner or operator may be served;
“commercial passenger vessel” means a vessel that carries passengers for hire except that “commercial passenger vessel” does not include a vessel
1. authorized to carry fewer than 50 passengers;
2. that does not provide overnight accommodations for at least 50 passengers for hire, determined with reference to the number of lower berths; or
3. operated by the United States or a foreign government;
“discharge” means any release, however caused, from a commercial passenger vessel, and includes any escape, disposal, spilling, leaking, pumping, emitting, or emptying;
“federal cruise ship legislation” means secs. 1401 — 1414 of H.R. 5666, as incorporated by reference into P.L. 106-554;
“fund” means the commercial passenger vessel environmental compliance fund established under AS 46.03.482 ;
“graywater” means galley, dishwasher, bath, and laundry waste water;
“large commercial passenger vessel” means a commercial passenger vessel that provides overnight accommodations for 250 or more passengers for hire, determined with reference to the number of lower berths;
“marine waters of the state” means all waters within the boundaries of the state together with all of the waters of the Alexander Archipelago even if not within the boundaries of the state;
“offloading” means the removal of a hazardous substance, hazardous waste, or nonhazardous solid waste from a commercial passenger vessel onto or into a controlled storage, processing, or disposal facility or treatment works;
“other wastewater” means graywater or sewage that is stored in or transferred to a ballast tank or other holding area on the vessel that may not be customarily used for storing graywater or sewage;
“passengers for hire” means vessel passengers for whom consideration is contributed as a condition of carriage on the vessel, whether directly or indirectly flowing to the owner, charterer, operator, agent, or any other person having an interest in the vessel;
“sewage” means human body wastes and the wastes from toilets and other receptacles intended to receive or retain human body waste;
“small commercial passenger vessel” means a commercial passenger vessel that provides overnight accommodations for 249 or fewer passengers for hire, determined with reference to the number of lower berths;
“treated sewage” means sewage that meets all applicable effluent limitation standards and processing requirements of 33 U.S.C. 1251 — 1376 (Federal Water Pollution Control Act), as amended, the federal cruise ship legislation, and regulations adopted under 33 U.S.C. 1251 — 1376 or under the federal cruise ship legislation;
“untreated sewage” means sewage that is not treated sewage;
“vessel” means any form or manner of watercraft, other than a seaplane on the water, whether or not capable of self-propulsion;
“voyage” means a vessel trip to or from one or more ports of call in the state with the majority of the passengers for hire completing the entire vessel trip; a vessel trip involving stops at more than one port of call is considered a single voyage so long as the majority of passengers for hire complete the entire trip;
“waters of the Alexander Archipelago” means all waters under the sovereignty of the United States within or near Southeast Alaska, beginning at a point 58 degrees 11 minutes 41 seconds North, 136 degrees 39 minutes 25 seconds West (near Cape Spencer Light), thence southeasterly along a line three nautical miles seaward of the baseline from which the breadth of the territorial sea is measured in the Pacific Ocean and the Dixon Entrance, except where this line intersects geodesics connecting the following five pairs of points: (A) 58 degrees 05 minutes 17 seconds North, 136 degrees 33 minutes 49 seconds West and 58 degrees 11 minutes 41 seconds North, 136 degrees 39 minutes 25 seconds West (Cross Sound); (B) 56 degrees 09 minutes 40 seconds North, 134 degrees 40 minutes 00 seconds West and 55 degrees 49 minutes 15 seconds North, 134 degrees 17 minutes 40 seconds West (Chatham Strait); (C) 55 degrees 49 minutes 15 seconds North, 134 degrees 17 minutes 40 seconds West and 55 degrees 50 minutes 30 seconds North, 133 degrees 54 minutes 15 seconds West (Sumner Strait); (D) 54 degrees 41 minutes 30 seconds North, 132 degrees 01 minutes 00 seconds West and 54 degrees 51 minutes 30 seconds North, 131 degrees 20 minutes 45 seconds West (Clarence Strait); (E) 54 degrees 51 minutes 30 seconds North, 131 degrees 20 minutes 45 seconds West and 54 degrees 46 minutes 15 seconds North, 130 degrees 52 minutes 00 seconds West (Revillagigedo Channel); the portion of each such geodesic situated beyond three nautical miles from the baseline from which the breadth of the territorial sea is measured forms the outer limit of the waters of the Alexander Archipelago in those five locations.

History. (§ 1 ch 1 FSSLA 2001)

Administrative Code. —

For commercial passenger vessel environmental compliance program, see 18 AAC 69.

Article 8. Cleanup of Illegal Drug Sites.

Sec. 46.03.500. Notice of illegal drug manufacturing site; Internet list.

When a law enforcement officer or team of law enforcement officers, qualified under federal regulations to investigate and dismantle illegal drug manufacturing sites, determines that a site constitutes an illegal drug manufacturing site, the primary law enforcement agency that conducted the investigation shall notify the owner of the property, the occupants and users of the property, and the department that the determination has been made. The owner of the property may appeal the determination to the superior court for review of whether the determination was made in compliance with this subsection. In the appeal, the burden of proving by a preponderance of the evidence that the determination was made in compliance with this subsection is on the primary law enforcement agency that conducted the investigation.
The notice to the property owner required under (a) of this section shall be given in a manner that is consistent with the Alaska Rules of Civil Procedure for the service of process in a civil action in this state and must include the following information:
1. the parcel identification number and legal description of the property where the site is located;
2. a statement of the determination made by the primary law enforcement agency that the site was an illegal drug manufacturing site and the findings that formed the basis for the determination;
3. a citation to, and short summary of, AS 46.03.510 , which restricts transfer and occupancy of the site until it is determined to be fit for use; and
4. the following information, which shall be provided to the primary law enforcement agency by the department:
  1. a copy of the standards contained in regulations adopted under AS 46.03.530 that determine whether the property is fit for use;
  2. a copy of the sampling and testing procedures established under AS 46.03.520(b) and a copy of the list of laboratories maintained under AS 46.03.520(c) that must be used for determining whether the property is fit for use; and
  3. a copy of the guidelines for decontamination established by the department under AS 46.03.540(b) .
The notice to the department required under (a) of this section must include
1. the parcel identification number and legal description of the property where the site is located;
2. a statement of the determination made by the primary law enforcement agency that the site was an illegal drug manufacturing site and the findings that formed the basis for the determination; and
3. the name and mailing address of the person who owns the property where the site is located.
The notice required under (a) of this section for the occupants and users of the property shall be accomplished by immediate posting of the property with a notice that includes the location of the property, the information described in (b)(2) and (3) of this section, and a statement that the property may pose a substantial risk of physical harm to persons who occupy or use the property. For purposes of posting of the notice to the occupants and users of the property required by this subsection, the posting shall be made, for property that is
1. a single family dwelling, at the main entryway of the property; and
2. other than a single family dwelling and for a hotel, motel, public inn, or similar place of public accommodation that provides lodging, at the door of the unit that is the site that constitutes the illegal drug manufacturing site.
If a person other than the owner, such as a property manager or rental agency, is authorized to let others use or occupy property for which an owner has received a notice under (a) of this section or is authorized to transfer, sell, lease, or rent the property to others, the owner of the property shall communicate the substance of the notice to that person within four days after receiving the notice.
The department shall maintain on its Internet website a list of all properties for which a notice has been issued under (a) of this section. For each of those properties, the list must contain the parcel identification number, legal description, and physical address and owner’s name at the time the notice was issued.

History. (§ 2 ch 142 SLA 2003; am § 19 ch 53 SLA 2006)

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Sec. 46.03.510. Restrictions on property.

Until determined to be fit for use under AS 46.03.550 , the property for which a notice has been issued under AS 46.03.500(a) may not be transferred, sold, leased, or rented to another person except as provided in (b) of this section, and a person may not use or occupy the property at any time after the fourth day following the day on which the property was posted with the notice required under AS 46.03.500(d) , except as necessary for sampling, testing, or decontamination under AS 46.03.520 and 46.03.540 . An oral or written contract that would transfer, sell, lease, rent, or otherwise allow the use of the property in violation of this subsection is voidable between the parties at the option of the purchaser, transferee, user, lessee, or renter. However, this subsection does not
1. make voidable a promissory note or other evidence of indebtedness or a mortgage, trust deed, or other security interest securing the promissory note or evidence of indebtedness, if the note or evidence of indebtedness, mortgage, trust deed, or other security interest was given to a person other than the person transferring, selling, using, leasing, or renting the property to induce the person to finance the transfer, sale, use, leasing, or rental of the property;
2. make voidable a lease or rental agreement between the property owner and the person who caused the property to be contaminated and determined unfit for use; or
3. impair obligations or duties required to be performed on termination of a contract, as required by the contract, such as payment of damages or return of refundable deposits.
Notwithstanding (a) of this section, property covered by (a) of this section may be transferred or sold if full written disclosure is made to the prospective transferee or purchaser that the property has been determined to be an illegal drug manufacturing site and the property has not been determined to be fit for use. The disclosure shall be attached to the earnest money receipt, if any, and shall accompany the transfer or sale document. The disclosure is not considered to be part of the transfer or sale document, however, and may not be recorded. The property shall continue to be subject to the restrictions in (a) of this section after transfer or sale under this subsection.
A person who knowingly transfers, sells, leases, or rents property to another, knowingly allows another to use or occupy property, or, being the owner of property, knowingly occupies or uses the property in violation of this section is guilty of a class A misdemeanor. In this subsection, “knowingly” has the meaning given in AS 11.81.900(a) .
It is an affirmative defense to a prosecution under (c) of this section for allowing another to use or occupy the property that the defendant or an agent of the defendant, within four days after receiving a notice under AS 46.03.500 , filed an appropriate civil action to remove the user or occupier from the property for which the notice was received.

History. (§ 2 ch 142 SLA 2003)

Cross references. —

For penalties for misdemeanors, see AS 12.55.035 and 12.55.135 .

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Sec. 46.03.520. Sampling and testing procedures.

If the owner of the property for which notice was received under AS 46.03.500(b) desires to determine if the property is fit for use, the owner shall cause the site to be sampled and tested for the substances covered in regulations adopted under AS 46.03.530 , using the procedures and laboratory services specified under (b) and (c) of this section. The property owner shall inform the laboratory used for sampling or testing under this subsection that the sampling and testing are related to property that has been determined to be an illegal drug manufacturing site.
The department shall establish procedures for sampling and testing property that may have been an illegal drug manufacturing site.
The department shall establish and maintain a list of laboratories in the state that have notified the department that they have the capacity to perform the sampling and testing procedures and that they wish to be on the list maintained under this subsection. A laboratory may not be included on the list unless the laboratory agrees to send the department a copy of test results related to properties whose owners have informed the laboratory that the test results are for property that has been determined to be an illegal drug manufacturing site.

History. (§ 2 ch 142 SLA 2003)

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Sec. 46.03.530. Standards for determining fitness.

Property for which a notice was received under AS 46.03.500(b) is not fit for use if sampling and testing of the property under AS 46.03.520 shows the presence of substances for which the department has set a limit under (b) of this section.
The Department of Public Safety shall annually submit a list of substances to the Department of Environmental Conservation. The department shall adopt regulations that set the limit for each substance specified by the Department of Public Safety for purposes of determining whether the property for which a notice was received under AS 46.03.500 is fit for use. The department may also determine whether there are other substances associated with illegal drug manufacturing sites that may pose a substantial risk of harm to persons who occupy or use the site or to public health and may adopt regulations that set limits for those substances for the purposes of determining whether the property for which notice was received under AS 46.03.500 is fit for use.

History. (§ 2 ch 142 SLA 2003)

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Sec. 46.03.540. Decontamination requirements.

If the owner desires to decontaminate the property for which a notice has been issued under AS 46.03.500 , the owner shall follow the guidelines established by the department under (b) of this section.
The department shall establish guidelines for decontamination of sites that are determined to be unfit for use under AS 46.03.530 . The department shall provide a copy of the guidelines to any person who requests a copy.

History. (§ 2 ch 142 SLA 2003)

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Sec. 46.03.550. Fitness for use.

Property for which a notice has been issued under AS 46.03.500 shall be determined by the department to be fit for use if the owner certifies to the department under penalty of unsworn falsification in the second degree that
1. based on sampling and testing procedures established by the department under AS 46.03.520 (b) and performed by laboratories that are on the list maintained by the department under AS 46.03.520(c) , the limits on substances specified in regulations adopted under AS 46.03.530 are not exceeded on the property;
2. if the property was ever sampled and tested under AS 46.03.520 and the test results showed the property to be unfit for use under AS 46.03.530 , decontamination procedures were performed in accordance with the guidelines established under AS 46.03.540(b) and the requirements of (1) of this subsection have been met; or
3. a court has held that the determination that the property was an illegal drug manufacturing site was not made in compliance with AS 46.03.500(a) .
The department shall maintain a list of properties for which the department has received notice under AS 46.03.500(c) . When the department determines under (a) of this section that a property on the list is fit for use, the department shall note on the list maintained on its Internet website under AS 46.03.500(f) , and on any other list or database it maintains related to illegal drug manufacturing sites, that the property is fit for use and shall notify the owner of the property that the property is fit for use. The property shall remain on the lists or databases for five years after it is determined that the property is fit for use and shall be removed from the lists or databases within three months after the five-year period has elapsed. On request, the department shall give a copy of the list maintained under this section to any person who requests the list.

History. (§ 2 ch 142 SLA 2003; am § 32 ch 42 SLA 2006; am § 20 ch 53 SLA 2006)

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Sec. 46.03.560. Securing the property.

The owner of property for which a notice was received under AS 46.03.500(b) shall ensure that the property is vacated and secured against use

within four days after receiving the notice if the owner does not test the property under AS 46.03.520 within four days after receiving the notice; or
within four days after receiving the test results if the owner tests the property within four days after receiving the notice, the test shows the presence of a substance that exceeds the limits set in regulations adopted under AS 46.03.530 , and the owner does not begin decontamination procedures under AS 46.03.540 within four days after receiving the test results.

History. (§ 2 ch 142 SLA 2003)

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Sec. 46.03.570. Duties of the department; regulations.

The department shall adopt regulations implementing AS 46.03.500 — 46.03.599 .

History. (§ 2 ch 142 SLA 2003)

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Sec. 46.03.599. Definitions.

In AS 46.03.500 — 46.03.599 ,

“illegal drug manufacturing site” means property on which there is reasonable cause to suspect contamination with chemicals associated with the manufacturing of a controlled substance and where
1. activity involving the unauthorized manufacture of a controlled substance listed on schedule I or II in AS 11.71 or a precursor chemical or necessary chemical for the substances has occurred; or
2. there are kept, stored, or located any of the devices, equipment, things, or substances used for the unauthorized manufacture of a controlled substance listed on schedule I or II in AS 11.71;
“site” means an illegal drug manufacturing site.

History. (§ 2 ch 142 SLA 2003)

Administrative Code. —

For illegal drug manufacturing sites, see 18 AAC 79.

Article 9. Prohibited Acts, Penalties, and Damages.

Collateral references. —

61B Am. Jur. 2d, Pollution Control, §§ 80-89.

39A C.J.S., Health and Environment, §§ 151-153.

Liability insurance coverage for violations of antipollution laws. 87 ALR4th 444.

Sec. 46.03.710. Pollution prohibited.

A person may not pollute or add to the pollution of the air, land, subsurface land, or water of the state.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For ambient air quality management, see 18 AAC 50, art. 1.

For program administration, see 18 AAC 50, art. 2.

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For domestic wastewater treatment and disposal, see 18 AAC 72, art. 1.

For nondomestic wastewater, see 18 AAC 72, art. 5.

For nondomestic wastewater system plan review, see 18 AAC 72, art. 6.

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For cleanup levels, see 18 AAC 78, art. 6.

For public water system review and approval requirements, see 18 AAC 80, art. 2.

For standards, monitoring, variances, and exemptions, see 18 AAC 80, art. 3.

For coliform bacteria requirements, see 18 AAC 80, art. 4.

For lead and copper requirements, see 18 AAC 80, art. 5.

For surface water treatment, see 18 AAC 80, art. 6.

For enhanced surface water treatment, see 18 AAC 80, art. 7.

For disinfection and disinfection by-products, see 18 AAC 80, art. 9.

For public notification requirements, see 18 AAC 80, art. 10.

For laboratory certification requirements, see 18 AAC 80, art. 11.

Notes to Decisions

This chapter is not void for vagueness under the Alaska and United States constitutions. Stock v. State, 526 P.2d 3 (Alaska 1974).

When the somewhat shadowy boundaries of the area of prohibited conduct were contrasted with the overall purpose of this chapter and the absence of any evidence of discriminatory application, the presumption of constitutionality of the statute was overcome. Stock v. State, 526 P.2d 3 (Alaska 1974).

First amendment rights not chilled. —

Where a case concerned a commercial activity, the disposal of sewage from a trailer court, it was not a case involving “overbreadth” and possible chilling of 1st amendment rights. Stock v. State, 526 P.2d 3 (Alaska 1974).

Purpose of this chapter is protection of the environment from pollution. Stock v. State, 526 P.2d 3 (Alaska 1974).

Prohibited acts of pollution. —

Whatever may be the outer boundaries of conduct prohibited by this section, as defined by former AS 46.03.900 (15) (now AS 46.03.900 (20)), it is beyond dispute that emptying a lagoon of raw sewage into a stream running through residential areas comes within the definition of the term “pollution”. Stock v. State, 526 P.2d 3 (Alaska 1974).

Contaminating creek with raw sewage. —

A defendant charged with having polluted the waters of the state by contaminating a creek with improperly treated sewage from a trailer court in a manner that made the creek a potential health and safety hazard in violation of this section may not complain of lack of adequate notice as to what acts are prohibited. Stock v. State, 526 P.2d 3 (Alaska 1974).

Whatever may be the outer boundaries of conduct prohibited by this section as defined by AS 46.03.900 (19) (now AS 46.03.900 (20)), it is beyond dispute that the emptying of a lagoon of raw sewage into a stream running through residential areas comes within the definition of the term “pollution.” Stock v. State, 526 P.2d 3 (Alaska 1974).

Definitional language of AS 46.03.900 (19) (now AS 46.03.900 (20)) incorporated in this section. —

See Stock v. State, 526 P.2d 3 (Alaska 1974).

Foreseeability requirement imposed. —

By use of the word “potentially” in AS 46.03.900 (19) (now AS 46.03.900 (20)) in prohibiting potentially harmful alterations of water, this chapter prohibits acts a reasonable person would foresee as creating a substantial risk of making water actually injurious to the statutorily protected interests. Stock v. State, 526 P.2d 3 (Alaska 1974).

In “potentiality” cases, the state must hereafter prove that the threatened injury was foreseeable to a reasonable man in the position of the defendant at the time of the act or omission. Stock v. State, 526 P.2d 3 (Alaska 1974).

The foreseeability requirement is no more than a narrowing construction. The supreme court imposes it only to give this chapter definite enough standards to survive on its face and in future cases. Stock v. State, 526 P.2d 3 (Alaska 1974).

Effect of foreseeability requirement. —

A foreseeability requirement assures that fair notice is given to the defendant that his conduct is within the ambit of the statute. Such an element added to the definition of the offense also criminalizes only that conduct which is serious enough to warrant enforcement and conviction, thus discouraging discriminatory enforcement. Stock v. State, 526 P.2d 3 (Alaska 1974).

Application of foreseeability requirement is prospective. —

There was no plain error in the district court’s failure to anticipate and apply to defendant the narrowing construction of AS 46.03.900 (19) (now AS 46.03.900 (20)) and this section which it ordered for future cases. Stock v. State, 526 P.2d 3 (Alaska 1974).

This section makes pollution a crime without mention of any administrative order. Stock v. State, 526 P.2d 3 (Alaska 1974).

This section and AS 46.03.760 contemplate direct prosecution of pollution violations. Stock v. State, 526 P.2d 3 (Alaska 1974).

The authorization for direct criminal prosecution is particularly clear since it constitutes an amendment of former law. Stock v. State, 526 P.2d 3 (Alaska 1974).

The department was not required to exhaust the compliance-order procedure before instituting prosecution for pollution. Stock v. State, 526 P.2d 3 (Alaska 1974).

Former statutes created no crime of pollution. Stock v. State, 526 P.2d 3 (Alaska 1974).

Evidence properly admitted. —

Trial court did not abuse its discretion in admitting evidence that the pesticide was a state and federally regulated pesticide as the testimony was relevant circumstantial evidence that it was a pesticide, established that the owner and the application company acted with criminal negligence and without prior authorization of the Alaska Department of Environmental Conservation, and provided relevant context to why the pesticide's use would have required prior authorization and whether the owner and company acted with criminal negligence in spreading it on a public right of way. Alleva v. State, 479 P.3d 405 (Alaska Ct. App. 2020).

Cited in

State v. ABC Towing, 954 P.2d 575 (Alaska Ct. App. 1998).

Sec. 46.03.715. Sale and use of TBT-based antifouling paint.

Except as otherwise provided in this section, a person may not sell or use TBT-based marine antifouling paint or coating in the state, nor may a person sell, rent, or lease in the state, or import into the state, or use in state water, a vessel, fishing gear, or other item intended to be partially or completely submerged in water, if the vessel, gear, or item has been painted or treated with TBT-based marine antifouling paint or coating.
TBT-based marine antifouling paint or coating need not be removed from fishing gear, or from a vessel or other item that was painted or treated before December 1, 1987, but the vessel, gear, or item may not be repainted or retreated with TBT-based marine antifouling paint or coating. Fish culture or capture nets treated with TBT-based marine antifouling coating before December 1, 1987, may not be used in state water on or after December 1, 1992.
Notwithstanding other provisions of this section, slow-leaching TBT-based marine antifouling paint may be imported into and sold in the state. A slow-leaching TBT-based marine antifouling paint may be applied in the state only to aluminum vessel hulls and lower outboard drive units. Aluminum vessel hulls and lower outboard drive units to which a slow-leaching TBT-based marine antifouling paint has been applied may be imported into and sold, rented, leased, or used in the state.
If a vessel of the United States government, a foreign vessel in state water fewer than 90 consecutive days, or a vessel of 4,000 gross tons or more was painted or treated with a TBT-based marine antifouling paint or coating before January 1, 2001, the paint or coating need not be removed, but the vessel may not be repainted or retreated with a TBT-based marine antifouling paint or coating.
In this section
1. “slow-leaching TBT-based marine antifouling paint” means a TBT-based marine antifouling paint, but not a coating or other treatment, that has a measured release rate equal to or less than the maximum release rate established for qualified antifouling paints containing organotin by the U.S. Environmental Protection Agency under 33 U.S.C. 2401 — 2410 (the Organotin Antifouling Paint Control Act of 1988);
2. “TBT-based marine antifouling paint or coating” means a paint, coating, or treatment that contains tributyltin, or a triorganotin compound used as a substitute for tributyltin, and that is intended to control fouling organisms in a fresh water or marine environment;
3. “vessel” means watercraft used or capable of being used as a means of transportation on water, including
  1. aircraft equipped to land on water; and
  2. barges.

History. (§ 2 ch 67 SLA 1987; am § 1 ch 36 SLA 1991; am § 1 ch 13 SLA 2000)

Sec. 46.03.720. Public water system plan review requirement.

[Repealed, § 12 ch 136 SLA 2004.]
A person may not construct, extend, install, or operate a public water supply system, or any part of a public water supply system, until plans for it are submitted to the department for review and the department approves them in writing.
The department may waive the requirements of this section.

History. (§ 3 ch 120 SLA 1971; am § 7 ch 220 SLA 1976; am § 12 ch 136 SLA 2004)

Administrative Code. —

For coverage of chapter, see 18 AAC 15, art. 1.

For permit procedures, see 18 AAC 15, art. 2.

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For statewide standards, see 18 AAC 70, art. 1.

For exceptions to statewide standards, see 18 AAC 70, art. 2.

For domestic wastewater treatment and disposal, see 18 AAC 72, art. 1.

For domestic wastewater system plan review, see 18 AAC 72, art. 2.

For certified installer program, see 18 AAC 72, art. 4.

For nondomestic wastewater system plan review, see 18 AAC 72, art. 6.

For construction grants, see 18 AAC 73.

For Alaska clean water fund, see 18 AAC 76, art. 1.

For Alaska drinking water fund, see 18 AAC 76, art. 2.

For public water system review and approval requirements, see 18 AAC 80, art. 2.

For standards, monitoring, variances, and exemptions, see 18 AAC 80, art. 3.

For coliform bacteria requirements, see 18 AAC 80, art. 4.

For lead and copper requirements, see 18 AAC 80, art. 5.

For surface water treatment, see 18 AAC 80, art. 6.

For enhanced surface water treatment, see 18 AAC 80, art. 7.

For disinfection and disinfection by-products, see 18 AAC 80, art. 9.

For public notification requirements, see 18 AAC 80, art. 10.

For laboratory certification requirements, see 18 AAC 80, art. 11.

Opinions of attorney general. —

The state has jurisdiction to require permits of government contractors discharging sewage from a federally-owned treatment plant. June 28, 1977 Op. Att’y Gen.

The Department of Environmental Conservation’s regulations concerning on-site water wells and wastewater disposal systems are a legitimate exercise of the department’s police power though the department lacks authority to adjudicate among conflicting future uses of land. The department also has authority under this section to regulate the construction of all (private and public) water wells drawn from a public water source. Sept. 5, 1985 Op. Att’y Gen.

Sec. 46.03.730. Pesticides.

A person may not spray or apply, or cause to be sprayed or applied dichloro-diphenyl-trichloro-ethane (DDT), dieldrin, or other pesticide or broadcast chemical in a manner that may cause damage to or endanger the health, welfare, or property of another person, or in a manner that is likely to pollute the air, soil, or water of the state without prior authorization of the department.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For coverage of chapter, see 18 AAC 15, art. 1.

For permit procedures, see 18 AAC 15, art. 2.

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For purpose, applicability, prohibitions, and discharge notification, see 18 AAC 90, art. 1.

For pesticide registration, see 18 AAC 90, art. 2.

For certification requirements, see 18 AAC 90, art. 3.

For recordkeeping requirements, see 18 AAC 90, art. 4.

For permit requirements, see 18 AAC 90, art. 5.

For pesticide handling requirements, see 18 AAC 90, art. 6.

For inspection and enforcement, see 18 AAC 90, art. 7.

For forestry vegetation management, see 18 AAC 90, art. 8.

Notes to Decisions

Evidence properly admitted. —

Sec. 46.03.740. Oil pollution.

A person may not discharge, cause to be discharged, or permit the discharge of petroleum, acid, coal or oil tar, lampblack, aniline, asphalt, bitumen, or a residuary product of petroleum, into, or upon the waters or land of the state except in quantities, and at times and locations or under circumstances and conditions as the department may by regulation permit or where permitted under art. IV of the International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as amended.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For oil pollution prevention requirements, see 18 AAC 75, art. 1.

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For surface oiling, see 18 AAC 75, art. 7.

For oil discharge for scientific purposes, see 18 AAC 75, art. 8.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For cleanup levels, see 18 AAC 78, art. 6.

Notes to Decisions

Contamination of groundwater as property damage. —

Contamination of groundwater qualifies as property damage and as such was covered under an oil refinery’s insurance policies. MAPCO Alaska Petro., Inc. v. Central Nat'l Ins. Co., 784 F. Supp. 1454 (D. Alaska 1991).

Prosecution not barred by immunity granted under federal law. —

Prosecution of an oil tanker captain for negligent discharge of oil was not barred by immunity provided for in the Federal Water Pollution Control Act, 33 U.S.C. § 1321. Hazelwood v. State, 912 P.2d 1266 (Alaska Ct. App. 1996), rev'd, 946 P.2d 875 (Alaska 1997).

Prosecution under inevitable discovery doctrine. —

Findings under the inevitable discovery doctrine were allowable in the prosecution of an oil tanker captain for negligent discharge of oil except for blood-alcohol evidence and defendant’s own statements. Hazelwood v. State, 912 P.2d 1266 (Alaska Ct. App. 1996), rev'd, 946 P.2d 875 (Alaska 1997).

Negligence standard. —

This section does not incorporate the criminal negligence mens rea standard. State v. Hazelwood, 946 P.2d 875 (Alaska 1997).

Sec. 46.03.742. Reckless operation of tank vessel.

A person commits the crime of reckless operation of a tank vessel when, by recklessly operating, navigating, or piloting a tank vessel, the person causes a release of a hazardous substance and the release causes serious physical injury to another person or damage to the property of another.
Reckless operation of a tank vessel is a class C felony.
In this section, “reckless” has the meaning given in AS 11.81.900 .

History. (§ 1 ch 141 SLA 1990)

Cross references. —

For fines and penalties for felonies, see AS 12.55.035 and 12.55.125 .

Sec. 46.03.743. Negligent operation of tank vessel.

A person commits the crime of negligent operation of a tank vessel when, by operating, navigating, or piloting a tank vessel with criminal negligence, the person creates an unjustifiable risk of a release of a hazardous substance or an unjustifiable risk of harm to a person or property.
Negligent operation of a tank vessel is a class A misdemeanor.
In this section, “criminal negligence” has the meaning given in AS 11.81.900 .

History. (§ 1 ch 141 SLA 1990)

Cross references. —

For fines and penalties for misdemeanors, see AS 12.55.035 and 12.55.135 .

Sec. 46.03.744. Definitions for AS 46.03.742 — 46.03.744.

In AS 46.03.742 — 46.03.744 ,

“hazardous substance” has the meaning given in AS 46.03.826 ;
“tank vessel” means
1. a vessel that is constructed or adapted to carry, or that carries, as a means of transportation by water, a hazardous substance in bulk as cargo or cargo residue;
2. the vessel that propels the tank vessel if the tank vessel is a barge or other vessel that is not self-propelled.

History. (§ 1 ch 141 SLA 1990)

Sec. 46.03.745. Hazardous substance release.

Except for a controlled release, the reporting of which is the subject of an agreement with the commissioner under AS 46.09.010(b) , a person may not cause or permit the release of a hazardous substance as defined in AS 46.09.900 .

History. (§ 8 ch 59 SLA 1986)

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For cleanup levels, see 18 AAC 78, art. 6.

Sec. 46.03.750. Ballast water discharge.

Except as provided in (b) of this section, a person may not cause or permit the discharge of ballast water from a cargo tank of a tank vessel into the waters of the state. A tank vessel may not take on petroleum or a petroleum product or by-product as cargo unless it arrives in ports in the state without having discharged ballast from cargo tanks into the waters of the state and the master of the vessel certifies that fact on forms provided by the department.
The master of a tank vessel may discharge ballast water from a cargo tank of a tank vessel if it is necessary for the safety of the tank vessel and no alternative action is feasible to ensure the safety of the tank vessel.

History. (§ 3 ch 120 SLA 1971; am § 19 ch 220 SLA 1976; am § 3 ch 266 SLA 1976; am § 3 ch 116 SLA 1980)

Cross references. —

For discharge of ballast into navigable waters, see AS 30.50.020 .

Administrative Code. —

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

Notes to Decisions

Alaska and Coast Guard regulations can be applied concurrently. —

The objectives of this section do not conflict with those of the Coast Guard regulations under the Ports and Waterways Safety Act of 1972, as amended by the Ports and Tanker Safety Act of 1978 (PWSA/PTSA); therefore, the Alaska and Coast Guard regulations can be applied concurrently in Alaska territorial waters. Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (9th Cir. Alaska 1984), cert. denied, 471 U.S. 1140, 105 S. Ct. 2686, 86 L. Ed. 2d 703 (U.S. 1985).

Sec. 46.03.755. Discharge reporting.

A person in charge of a facility, operation, or vessel, as soon as the person has knowledge of any discharge from the facility, operation, or vessel in violation of AS 46.03.740 or 46.03.750 , shall immediately notify the department of the discharge.
Notwithstanding (a) of this section, the department may enter into a written agreement with a person for the periodic reporting of minor discharges other than into the waters of the state.

History. (§ 8 ch 220 SLA 1976; am § 4 ch 266 SLA 1976; am § 4 ch 116 SLA 1980)

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

Opinions of attorney general. —

A purchaser of property who learns from the seller that the property has been contaminated by an underground storage tank leak has a duty to immediately report that fact to the Department of Environmental Conservation once he acquires the property. March 15, 1993, Op. Att’y Gen.

Sec. 46.03.758. Civil penalties for discharges of oil.

The legislature finds that
1. recent information discloses that the discharge of oil may cause significant short and long-term damage to the state’s environment; even minute quantities of oil released to the environment may cause high mortalities among larval and juvenile forms of important commercial species, may affect salmon migration patterns, and may otherwise degrade and diminish the renewable resources of the state;
2. the exact nature and extent of oil pollution can be neither documented with certainty nor precisely quantified on a spill-by-spill basis; however, in light of the magnitude of harm which may be caused by oil discharges, and the vital importance of commercial, sport, and subsistence fishing, tourism, and the state’s natural abundance and beauty to the economic future of the state and its quality of life, it is the judgment of the legislature that substantial civil penalties should be imposed for the discharge of oil in order to provide a meaningful incentive for the safe handling of oil and to insure that the public does not bear substantial losses from oil pollution for which, because of its subtle, long-term, or unquantifiable nature, compensation would not otherwise be received; and
3. the handling of oil in large quantities is a hazardous undertaking that poses a significant threat to the economy and environment of the state, which can be substantially reduced only by the taking of rigorous safety precautions involving considerable expense; conversely, persons handling oil in smaller amounts pose a correspondingly lower risk to the economy and environment of the state, and are capable of safe oil handling practices at correspondingly lower costs; in order to provide an incentive that is effective, but not punitive, it is necessary and appropriate that the assessment of civil penalties for discharges of small quantities of oil be left for case-by-case judicial determination, while ensuring, through the penalty provisions of this section, that the handling of oil in large quantities occurs in a manner that will not impair the renewable resources of the state.
No later than the 10th day after the convening of the Second Session of the Tenth Alaska Legislature, the department shall submit to the legislature regulations establishing the following schedule of fixed penalties for discharges of oil:
1. subject to (2) of this subsection, the penalties for the following categories of receiving environments may not exceed
  1. $10 per gallon of oil which enters an anadromous stream or other freshwater environment with significant aquatic resources;
  2. $2.50 per gallon of oil which enters an estuarine, intertidal or confined saltwater environment; and
  3. $1 per gallon of oil which enters an unconfined saltwater environment, public land or freshwater environment without significant aquatic resources;
2. for discharges of oil that are caused by the gross negligence or intentional act of the discharger, or when the court finds that the discharger did not take reasonable measures to contain and clean up the discharged oil, the penalty shall be determined by multiplying the penalty established under (1) of this subsection by a factor of five.
Regulations adopted under (b) of this section shall become effective 60 days after submission to the legislature, unless disapproved by a special concurrent resolution introduced in either house, and concurred in by a majority of the members in joint session within 60 days of the submission of the regulations. The department may periodically revise regulations adopted under (b) of this section. Revised regulations shall be submitted to the legislature no later than 10 days after the convening of the appropriate regular session of the legislature, and are subject to disapproval as specified in this subsection.
The schedule shall vary according to the toxicity, degradability and dispersal characteristics of the oil. The schedule shall also vary according to the sensitivity and productivity of the receiving environment. Variations under this subsection may be by subcategories of receiving environments, specific receiving environments, or both. The maximum penalties established in (b) of this section shall apply to discharges in the most sensitive and productive of receiving environments within each category of receiving environment, and the penalty shall decrease for less productive or sensitive receiving environments.
If a discharge of oil in excess of 18,000 gallons not permitted under applicable state and federal law occurs within the territorial jurisdiction of the state, or into or upon the adjacent outer continental shelf of the state, the following persons, in addition to the person causing or permitting the discharge, are jointly and severally liable to the state, in a civil action, for the full amount of penalties established in the regulations adopted under this section:
1. if the discharge occurs from any commercial or industrial facility other than a vessel or offshore platform, the owner, lessee or permittee, and operator of the facility;
2. if the discharge occurs from a vessel,
  1. the owner and operator of the vessel; and
  2. the owner of the oil carried as cargo on the vessel at the time the vessel was loaded, if the loading occurred within the territorial jurisdiction of the state, or at a deep-water port or other offshore storage facility adjacent to the state; however, if the owner of the oil temporarily transfers ownership of the oil to another person, and the transfer has the purpose or effect of evading the vicarious liability imposed by this section, the transferor shall be considered the owner of the oil for the purposes of this subsection; and
3. if the discharge occurs from an offshore platform, the lessee or permittee of the tract or acreage upon which the platform is situated, and the operator of the platform.
The court shall deduct from the penalties for which the person charged is liable under (e) of this section that amount of oil which was removed from the environment as a result of a cleanup operation undertaken in conformity with applicable state and federal law, unless the oil was removed by an agency of state, local or federal government. The dispersal of oil through the use of chemical agents or other means is not considered removal for the purposes of this subsection. The court may estimate the amount of oil removed.
Except as provided in (f) and (j) of this section, the entire penalty specified in the regulations shall be imposed, except that a person who discharges oil into a receiving environment may demonstrate, by a preponderance of evidence, that mitigating circumstances relating to the effects of the discharge would make imposition of the full penalty inappropriate. In determining whether mitigating circumstances exist, the court shall recognize that scientific knowledge pertaining to oil spills is very limited and if there is insufficient knowledge either to predict a base case or to show mitigating circumstances varying from that base case, the administratively established schedule of penalties shall apply. If mitigating circumstances are proven by a preponderance of the evidence, the court may reduce or totally eliminate the penalty, in accordance with the purposes of this section.
A person otherwise liable for penalties under (e) of this section is not liable if the person demonstrates, by a preponderance of the evidence, that the discharge occurred solely as a result of
1. an act of God;
2. an act of a third person with intent to cause a discharge, unless the third person is a person with whom the person charged is made jointly and severally liable under (e)(1) — (3) of this section;
3. a negligent or intentional act of this state or the United States; or
4. an act of war.
Notwithstanding AS 46.03.875 , a person liable under this section is not also liable for the discharge of oil under AS 46.03.760(a) . A person causing or permitting a discharge of oil of 18,000 gallons or less not permitted under applicable state or federal law is liable for that discharge under the penalty provisions of AS 46.03.760(a) ; however, the court may impose a penalty of less than $500 for the discharge.
The court may reduce the penalty imposed under this section if the person charged demonstrates, by a preponderance of the evidence, that the discharge was caused solely by a negligent act of a third person, unless the third person is a person with whom the person charged is made jointly and severally liable under (e)(1) — (3) of this section.
[Repealed, § 19 ch 59 SLA 1986.]
In this section,
1. “adjacent outer continental shelf” means that portion of the outer continental shelf that would be within the territorial jurisdiction of the state if its boundaries were extended seaward to the outer margin of the outer continental shelf;
2. “confined saltwater environment” means a bay, sound, or other partially enclosed saltwater body in which flushing through tidal or current action is significantly restricted;
3. “discharge of oil” means the entry of oil into or upon the water or public land of the state, except oil discharges into an enclosed and impervious oil spill containment area, regardless of causation;
4. “intertidal” means the ocean area between highest high water and lowest low water of tidal action;
5. “offshore platform” means an offshore structure, whether floating or temporarily or permanently secured to the floor of the ocean or other water body, which is used primarily for the exploration for or production of oil or natural gas;
6. “oil” means petroleum and any substance refined from petroleum, except crude oil;
7. “operator” means the person who, through contract, lease, sublease, or otherwise, exerts general supervision and control of activities at the facility; the term includes, by way of example and not limitation, a prime or general contractor, the master of a vessel and the master’s employer, or any other person who, personally or through an agent or contractor, undertakes the general functioning of the facility;
8. “vessel” means any form or manner of watercraft, whether or not capable of self-propulsion, except offshore platforms.

History. (§ 1 ch 129 SLA 1977; am §§ 1 — 3 ch 128 SLA 1978; am § 110 ch 59 SLA 1982; am § 19 ch 59 SLA 1986; am §§ 1, 2 ch 41 SLA 1989)

Revisor’s notes. —

In 1987, a reference in paragraph (b)(1) to “(3) of this subsection” was changed to “(2) of this subsection” to correct a manifest error.

Cross references. —

For provision that actions brought under this section may be brought directly against insurers or other persons providing evidence of financial responsibility, see AS 46.04.040(e) ; for schedule of civil penalties under (b) of this section, see 18 AAC 75.605 — 18 AAC 75.670.

Administrative Code. —

For civil penalties for discharge of petroleum and petroleum products and byproducts, see 18 AAC 75, art. 6.

Notes to Decisions

Disapproval of regulation by special concurrent resolution. —

Statute providing that legislature, by concurrent resolution adopted by vote of both houses, could annul a regulation of an agency or department violated state constitutional provisions defining the mechanics of legislation. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).

Contamination of groundwater as property damage. —

Sec. 46.03.759. Civil penalties for discharges of crude oil.

A person who is found to be liable under any other state law for an unpermitted discharge of crude oil in excess of 18,000 gallons is, in addition to liability for any other penalties or for damages or the cost of containment and cleanup, liable to the state in a civil action for a civil penalty, up to a maximum of $500,000,000, in the amount of
1. $8 per gallon of crude oil discharged for the first 420,000 gallons discharged; and
2. $12.50 per gallon of crude oil discharged for amounts discharged in excess of 420,000 gallons.
In determining how many gallons of crude oil have been discharged for purposes of assessing a penalty under (a) of this section, the court shall deduct the number of discharged gallons of crude oil that the defendant proves were removed by the defendant from the environment within the first 36 hours after the discharge as a result of a cleanup operation undertaken in conformity with applicable state and federal law. The dispersal of oil through burning, the use of chemical agents, biological additives, or sinking agents, or other means is not considered removal for the purposes of this subsection.
Subject to the $500,000,000 maximum set under (a) of this section the court shall assess four times the penalty set out in (a) of this section if the court finds
1. the discharge was caused by the gross negligence or intentional act of the defendant;
2. the defendant did not take reasonable measures to contain and clean up the discharged oil; or
3. the defendant did not act or respond in accordance with an approved oil discharge prevention and contingency plan.
Notwithstanding AS 46.03.875 , a person liable for civil penalties under this section is not also liable for the discharge of the crude oil under AS 46.03.760(a) . A person causing or permitting a discharge of crude oil of 18,000 gallons or less not permitted under applicable state or federal law is liable for that discharge under the penalty provisions of AS 46.03.760(a) ; however, the court may impose a penalty of less than $500 for the discharge.
The court may reduce the penalty imposed under this section if the defendant demonstrates, by a preponderance of the evidence, that the discharge was caused solely by a negligent act of a third person unless the third person is a person with whom the defendant was found jointly and severally liable for the discharge under other state law.
A person otherwise liable for penalties under this section is not liable if the person demonstrates, by a preponderance of the evidence, that the discharge occurred solely as a result of
1. an act of God;
2. a negligent or intentional act of the State of Alaska or the United States; or
3. an act of war.
In this section, “discharge” means entry of crude oil into or upon the water or public land of the state, regardless of causation, except discharges into an enclosed and impervious oil spill containment area.

History. (§ 3 ch 41 SLA 1989; am § 2 ch 191 SLA 1990)

Revisor’s notes. —

The introductory language of (c) of this section was reorganized in 1989 to conform to the style of the Alaska Statutes.

Sec. 46.03.760. Civil action for pollution; damages.

History. (§ 3 ch 120 SLA 1971; am § 9 ch 220 SLA 1976; am § 5 ch 266 SLA 1976; am §§ 5, 6 ch 116 SLA 1980; am §§ 5 — 7 ch 77 SLA 1984; am § 9 ch 59 SLA 1986; am § 8 ch 83 SLA 1991; am § 16 ch 74 SLA 1993; am § 3 ch 1 FSSLA 2001; am § 14 ch 20 SLA 2002; am § 8 ch 143 SLA 2004; am § 9, 2006 Primary Election Ballot Measure No. 2)

Revisor’s notes. —

In 1995, former (d) of this section was relettered as (f); former subsections (e) and (f) were relettered as (d) and (e), respectively; “(e)(4)” was substituted for “(f)(4)” in subsection (b); and “(a)-(c)” was substituted for “(a)-(d)” in subsection (d).

In 2006, former subsection (f) was relettered as subsection (g) under an instruction given in § 9, 2006 Primary Election Ballot Measure No. 2. In 2006, in subsection (f), “ AS 43.52.295 ” was substituted for “ AS 43.52.095,” to reflect the 2006 renumbering of that section. The reference to AS 46.03.314 in subsection (f) appears because it was in sec. 9 of 2006 Primary Ballot Measure No. 2, despite the fact that AS 46.03.314 was repealed in 1991.

Cross references. —

For oil pollution control, see AS 46.04; for provision that actions brought under (a) and (d) of this section may be brought directly against insurers or other persons providing evidence of financial security, see AS 46.04.040(e) .

Administrative Code. —

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

For pesticide registration, see 18 AAC 90, art. 2.

Editor’s notes. —

Section 23, ch. 83, SLA 1991 provides that the amendment to subsection (e) made by § 8, ch. 83, SLA 1991 does “not apply to a release of oil or a hazardous substance and resultant cleanup activities or to efforts to respond to or abate that release if the release occurred before June 28, 1991.”

Section 11, 2006 Primary Election Ballot Measure No. 2, part of the initiative that made the 2006 addition of (f) of this section, provides that “[I]t is the intention of the people of Alaska that any portion of this legislation that is declared unlawful shall be stricken in a manner that preserves the remaining portion of the remaining legislation to the maximum extent possible.”

Notes to Decisions

This section and AS 46.03.790 held not unconstitutional. —

Where defendant was never issued an administrative order and no administrative hearing was held, there were no simultaneous prosecutions of civil and criminal remedies, and defendant’s rights to due process of law were not violated. Stock v. State, 526 P.2d 3 (Alaska 1974) (Decided prior to the 1976 amendment of those sections)

Administrative penalty not required. —

The Clean Water Act does not require that state officials have authority to impose an administrative penalty, and since Alaska law enables the State to sue permit violators, there was no reason to find inadequate enforcement remedies; native community’s challenge to Environmental Protection Agency’s approval of Alaska’s National Pollutant Discharge Elimination System failed. Akiak Native Cmty. v. United States EPA, 625 F.3d 1162 (9th Cir. 2010).

Quoted in

State v. Alaska Int'l Air, 562 P.2d 1064 (Alaska 1977).

Collateral references. —

Tenant’s remedy against stranger for wrongful pollution of waters. 12 ALR2d 1192.

Measure and elements of damages for pollution of stream. 49 ALR2d 253.

Landowner’s right to relief against pollution of his water supply by industrial or commercial waste. 39 ALR3d 910.

Maintainability in state court of class action for relief against air and water pollution. 47 ALR3d 769.

Preliminary mandatory injunction to prevent, correct, or reduce effects of polluting practices. 49 ALR3d 1239.

Liability of water supplier for damages resulting from furnishing impure water. 54 ALR3d 936.

Validity of state statutory provision permitting administrative agency to impose monetary penalties for violation of environmental pollution statute. 81 ALR3d 1258.

Recovery in trespass for injury to land caused by airborne pollutants. 2 ALR4th 1054.

Standing to sue for violation of state environmental regulatory statute. 66 A.L.R.4th 685.

Measure and elements of damages for pollution of well or spring. 76 ALR4th 629.

Sec. 46.03.761. Administrative penalties.

The department may assess an administrative penalty against an entity that violates or causes or permits to be violated a provision of AS 46.03.720(b) or a term or condition of a regulation, order, permit, approval, or certificate of the department issued or adopted under AS 46.03.720(b) .
Before assessing an administrative penalty under this section, the department shall
1. communicate about the alleged noncompliance with the entity and the governing body of the community or municipality whose residents are served by the public water system; communication under this paragraph must be in language designed to be easily understood by the entity and governing body and must clearly describe the nature of the alleged noncompliance;
2. offer technical assistance to aid in correcting the alleged noncompliance when the department has reason to believe that the entity may lack the resources or expertise to get technical assistance from other sources; and
3. unless the alleged noncompliance poses an immediate threat to the public health, give the entity a reasonable amount of time to correct the alleged noncompliance after the department has complied with (1) and (2) of this subsection.
If, after complying with (b) of this section, the department determines that noncompliance still exists and the violation is subject to a penalty under this section, the department may make a preliminary determination to assess the penalty. The department shall provide notice to the entity of its preliminary determination. The entity may, within 10 days after receiving the notice, request the department to reconsider its decision. If a timely request for reconsideration is made, the department shall reconsider its preliminary determination and may affirm or modify the determination. The department shall notify the entity of the decision. If a timely request for reconsideration is not received or if, after reconsideration, the department determines that a penalty should be assessed, the department may assess the penalty. The department shall provide notice of the assessment and instructions for contesting and appealing the assessment to the entity by personal service or by certified mail, return receipt requested. The notice must inform the entity of the amount of the proposed penalty and that the entity has 45 days within which to file a notice with the department contesting the proposed penalty. If, within 45 days after receiving the notification issued by the department, the entity fails to file a notice contesting the proposed penalty, the proposed penalty is considered a final order. The department may extend the time periods specified in this subsection for good cause.
If an entity sends notice to the department contesting a proposed penalty under (c) of this section, the department shall afford an opportunity for a hearing in accordance with its adjudicatory hearing procedures. After an opportunity for a hearing, the department shall issue an order, based upon findings of fact, affirming, modifying, or rescinding the administrative penalty. The order must include notice that the entity may appeal the order to the superior court and the address of the appropriate superior court. The order is the final agency action on the penalty.
An entity against whom an administrative penalty is assessed under this section may obtain judicial review of the administrative penalty by filing a notice of appeal in the superior court as provided by the Alaska Rules of Appellate Procedure. An order of the department under (d) of this section becomes final and is not subject to review by a court if a notice of appeal is not filed with the superior court within the period provided for by the Alaska Rules of Appellate Procedure.
Unless the notice of appeal is incomplete or otherwise not in conformance with court rules, a notice of appeal under (e) of this section is considered to be filed with the superior court on the day the entity delivers the appropriate documents and fee to the appropriate superior court. Determining whether the notice of appeal is complete and otherwise in conformance with court rules is the responsibility of the superior court.
An administrative penalty assessed under this section may not exceed (1) $1,000 a day for each violation if the affected public water supply system serves a population of more than 10,000 persons; (2) $250 a day for each violation if the affected public water supply system serves a population of 10,000 or fewer persons but more than 1,000 persons; and (3) $100 a day for each violation if the public water supply system serves 1,000 or fewer persons. Each provision, term, or condition violated is a separate and distinct violation. If a violation of a provision, term, or condition continues from day to day, each day is a separate violation.
In determining the amount of a penalty assessed under this section, the department shall consider
1. the effect of the violation on the public health or the environment;
2. reasonable costs incurred by the state in the detection, investigation, and attempted correction of the violation;
3. the economic savings realized by the entity by not complying with the requirement for which a violation is charged;
4. any previous history of compliance or noncompliance by the entity with this chapter, AS 46.04, AS 46.09, and AS 46.14;
5. the need to deter future violations;
6. the extent and seriousness of the violation, including the potential for the violation to threaten public health or the environment;
7. whether the entity achieved compliance with the requirement violated within the shortest feasible time; and
8. other factors considered relevant to the assessment that are adopted by the department in regulation.
If an entity fails to pay an administrative penalty assessed under this section after the penalty becomes final, the department may bring an action to collect the penalty. The amount of the penalty is not subject to review by the court in such an action.
In a collection action under (i) of this section, the court shall award the prevailing party full reasonable attorney fees and costs incurred in the collection action.
Action under this section by the department does not limit or otherwise affect the authority of the department to otherwise enforce this chapter, AS 46.04, AS 46.08, AS 46.09, AS 46.14, or regulations adopted under those statutes, or to recover damages, restoration expenses, investigation costs, court costs, attorney fees, or other necessary expenses. The court shall set off against a judicial civil assessment subsequently awarded under AS 46.03.760 an amount ordered to be paid under this section by the same entity for the same violation.
In this section, “entity” means the owner or operator of a public water system.

History. (§ 3 ch 94 SLA 1998)

Administrative Code. —

For public water system review and approval requirements, see 18 AAC 80, art. 2.

For administrative penalties, see 18 AAC 80, art. 12.

Sec. 46.03.763. Attorney fees and costs.

In an action to impose civil penalties under AS 46.03.758 , 46.03.759 , or 46.03.760 for a discharge of oil, the state may recover full reasonable attorney fees and costs incurred by the state in maintaining the action.

History. (§ 4 ch 41 SLA 1989)

Sec. 46.03.765. Injunctions.

The superior court has jurisdiction to enjoin a violation of this chapter, AS 46.04, AS 46.09, AS 46.14, or of a regulation, a lawful order of the department, or permit, approval, or acceptance, or term or condition of a permit, approval, or acceptance issued under this chapter, AS 46.04, AS 46.09, or AS 46.14. In actions brought under this section, temporary or preliminary relief may be obtained upon a showing of an imminent threat of continued violation, and probable success on the merits, without the necessity of demonstrating physical irreparable harm. The balance of equities in actions under this section may affect the timing of compliance, but not the necessity of compliance within a reasonable period of time.

History. (§ 10 ch 220 SLA 1976; am § 6 ch 266 SLA 1976; am § 7 ch 116 SLA 1980; am § 10 ch 59 SLA 1986; am § 17 ch 74 SLA 1993)

Sec. 46.03.770. Detention of vessel without warrant as security for damages.

A vessel that is used in or in aid of a violation of AS 46.03.740 — 46.03.750 may be detained after a valid search by the department, an agent of the department, a peace officer of the state, or an authorized protection officer of the Department of Fish and Game. Upon judgment of the court having jurisdiction that the vessel was used in, or was the cause of, a violation of AS 46.03.740 — 46.03.750 with knowledge of its owner or under circumstances indicating that the owner should reasonably have had this knowledge, the vessel may be held as security for payment to the state of the amount of damages assessed by the court under AS 46.03.758 , 46.03.759 , 46.03.760 , 46.03.822 , and AS 46.04.030(g) . If the damages assessed are not paid within 30 days after judgment or final determination of an appeal, the vessel shall be sold at public auction, or as otherwise directed by the court, and the damages paid from the proceeds. The balance, if any, shall be paid by the court to the owner of the vessel. The court shall permit the release of the vessel upon posting of a bond set by the court in an amount not to exceed the maximum amount of damages available under AS 46.03.758 , 46.03.759 , 46.03.760 , 46.03.822 , and AS 46.04.030(g) . The damages received under this section shall be transmitted to the proper state officer for deposit in the general fund. A vessel seized under this section shall be returned or the bond exonerated if no damages are assessed under AS 46.03.758, 46.03.759, 46.03.760, 46.03.822, or AS 46.04.030(g).

History. (§ 3 ch 120 SLA 1971; am § 1 ch 7 SLA 1986; am § 5 ch 41 SLA 1989)

Opinions of attorney general. —

Letters of undertaking should be accepted only in lieu of security under this section. Aug. 28, 1986 Op. Att’y Gen.

A properly drawn-up protection and indemnity club letter of undertaking is an adequate substitute for a formal bond to allow release of a vessel under this section. Aug. 28, 1986 Op. Att’y Gen.

Sec. 46.03.780. Liability for restoration.

A person who violates a provision of this chapter, AS 46.04, AS 46.09, or AS 46.14, or who fails to perform a duty imposed by this chapter, AS 46.04, AS 46.09, or AS 46.14, or violates or disregards an order, permit, or other determination of the department made under the provisions of this chapter, AS 46.04, AS 46.09, or AS 46.14, respectively, and thereby causes the death of fish, animals, or vegetation or otherwise injures or degrades the environment of the state is liable to the state for damages.
Liability for damages under (a) of this section includes an amount equal to the sum of money required to restock injured land or waters, to replenish a damaged or degraded resource, or to otherwise restore the environment of the state to its condition before the injury.
Damages under (a) of this section shall be recovered by the attorney general on behalf of the state.

History. (§ 3 ch 120 SLA 1971; am § 7 ch 266 SLA 1976; am § 111 ch 59 SLA 1982; am § 11 ch 59 SLA 1986; am § 18 ch 74 SLA 1993)

Revisor’s notes. —

In 1982, three references in (a) of this section were changed from “AS 43.04” to “AS 46.04” to correct a manifest error.

Sec. 46.03.790. Criminal penalties.

History. (§ 3 ch 120 SLA 1971; am § 11 ch 220 SLA 1976; am § 8 ch 266 SLA 1976; am §§ 8, 9 ch 116 SLA 1980; am §§ 11, 12 ch 93 SLA 1981; am § 112 ch 59 SLA 1982; am § 8 ch 77 SLA 1984; am §§ 12 — 14 ch 59 SLA 1986; am §§ 2 — 5 ch 141 SLA 1990; am § 62 ch 21 SLA 1991; am §§ 19, 20 ch 74 SLA 1993; am § 4 ch 1 FSSLA 2001; am §§ 9, 10 ch 143 SLA 2004; am § 8 ch 17 SLA 2008)

Revisor’s notes. —

Subsection (h) was enacted as (i); relettered in 2008, at which time subsection (h) was relettered as (g) and subsection (g) was relettered as (i).

Cross references. —

For fines for misdemeanors and felonies, see AS 12.55.035 ; for imprisonment for felonies, see AS 12.55.125 , and for misdemeanors, see AS 12.55.135 .

Administrative Code. —

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

Opinions of attorney general. —

Proposed regulation establishing compliance with management practice under AS 41.17 and regulations as an affirmative defense to prosecution for alleged water quality violations for the forestry industry alone would cause an equal protection problem; executive agency cannot, by regulation, create an affirmative defense to what the legislature has determined should be prosecuted. 1980 Alas. Op. Att'y Gen. No. 10.

Notes to Decisions

This section and AS 46.03.760 held not unconstitutional. —

Prosecution for oil pollution not barred by immunity granted under federal law. —

Prosecution for oil pollution under inevitable discovery doctrine. —

Evidence properly admitted. —

Sentence. —

Upon conviction of defendant for negligent discharge of oil under this section, the trial court had authority to impose both a fine and imprisonment and could impose 1000 hours of community work service in lieu thereof. Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998).

Collateral references. —

Necessity of showing scienter, knowledge, or intent, in prosecution for violation of air pollution or smoke control statute or ordinance. 46 ALR3d 758.

Sec. 46.03.800. Water nuisances.

A person is guilty of creating or maintaining a nuisance if the person puts a dead animal carcass, or part of one, excrement, or a putrid, nauseous, noisome, decaying, deleterious, or offensive substance into, or in any other manner befouls, pollutes, or impairs the quality of, a spring, brook, creek, branch, well, or pond of water that is or may be used for domestic purposes.
A person who neglects or refuses to abate the nuisance upon order of the department is guilty of a misdemeanor and is punishable as provided in AS 46.03.790 . In addition to this punishment, the court shall assess damages against the defendant for the expenses of abating the nuisance.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For waste disposal permit, see 18 AAC 60, art. 2.

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For monofills, see 18 AAC 60, art. 4.

For land application of biosolids, see 18 AAC 60, art. 5.

For monitoring and corrective action requirements, see 18 AAC 60, art. 7.

Collateral references. —

Balance of convenience or social utility: modern status of rules as to balance of convenience or social utility as affecting relief from nuisance. 40 ALR3d 601.

Pollution control agency: right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 ALR3d 665.

Sec. 46.03.810. Air and land nuisances.

A person is guilty of creating or maintaining a nuisance if the person
1. places or deposits upon a lot, street, beach, or premises, or upon or anywhere within 200 feet of a public highway, any garbage, offal, dead animals, or any other matter or thing that would be obnoxious or cause the spread of disease or in any way endanger the health of the community;
2. allows to be placed or deposited upon any premises owned by the person or under the person’s control garbage, offal, dead animals, or any other matter or thing that would be obnoxious or offensive to the public or that would produce, aggravate, or cause the spread of disease or in any way endanger the health of the community.
A person who neglects or refuses to abate the nuisance upon order of an officer of the Department of Environmental Conservation is guilty of a misdemeanor and is punishable as provided in AS 46.03.790 . In addition to this punishment, the court shall assess damages against the defendant for the expenses of abating the nuisance.

History. (§ 3 ch 120 SLA 1971; am § 12 ch 220 SLA 1976)

Administrative Code. —

For waste disposal permit, see 18 AAC 60, art. 2.

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For monofills, see 18 AAC 60, art. 4.

For land application of biosolids, see 18 AAC 60, art. 5.

For monitoring and corrective action requirements, see 18 AAC 60, art. 7.

Collateral references. —

Modern status of rules as to balance of convenience or social utility as affecting relief from nuisance. 40 ALR3d 601.

Operation of incinerator as nuisance. 41 ALR3d 1009.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 ALR3d 665.

Sec. 46.03.820. Emergency powers.

When the department finds, after investigation, that a person is causing, engaging in, or maintaining a condition or activity that, in the judgment of its commissioner presents an imminent or present danger to the health or welfare of the people of the state or would result in or be likely to result in irreversible or irreparable damage to the natural resources or environment, and it appears to be prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided, the department may, without prior hearing, order that person by notice to discontinue, abate, or alleviate the condition or activity. The proscribed condition or activity shall be immediately discontinued, abated, or alleviated.
Upon receipt of an order of the department made under (a) of this section, the person affected has the right to be heard and to present proof to the department that the condition or activity does not constitute an actual or potential source of irreversible or irreparable damage to the natural resources or environment of the state, or that the order may constitute a substantial private hardship.
In the commissioner’s discretion or upon application made by the recipient of an order within 15 days of receipt of the order, the department shall schedule a hearing at the earliest possible time. The hearing shall be scheduled within five days of the receipt of the application. The submission of an application or the scheduling of a hearing does not stay the operation of the department’s order issued under (a) of this section.
After a hearing the department may affirm, modify, or set aside the order. An order affirmed, modified, or set aside after hearing is subject to judicial review as provided in AS 44.62.560 . The order is not stayed pending judicial review unless the commissioner so directs. If an order is not immediately complied with, the attorney general, upon request of the commissioner, shall seek enforcement of the order.
The department may adopt additional regulations prescribing the procedure to be followed in the issuance of emergency orders.

History. (§ 3 ch 120 SLA 1971)

Administrative Code. —

For waste disposal permit, see 18 AAC 60, art. 2.

Sec. 46.03.822. Liability for the release of hazardous substances.

Notwithstanding any other provision or rule of law and subject only to the defenses set out in (b) of this section, the exceptions set out in (i) and (m) of this section, the exception set out in AS 09.65.240 , and the limitation on liability provided under AS 46.03.825 , the following persons are strictly liable, jointly and severally, for damages, for the costs of response, containment, removal, or remedial action incurred by the state, a municipality, or a village, and for the additional costs of a function or service, including administrative expenses for the incremental costs of providing the function or service, that are incurred by the state, a municipality, or a village, and the costs of projects or activities that are delayed or lost because of the efforts of the state, the municipality, or the village, resulting from an unpermitted release of a hazardous substance or, with respect to response costs, the substantial threat of an unpermitted release of a hazardous substance:
1. the owner of, and the person having control over, the hazardous substance at the time of the release or threatened release; this paragraph does not apply to a consumer product in consumer use;
2. the owner and the operator of a vessel or facility, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance;
3. any person who, at the time of disposal of any hazardous substance, owned or operated any facility or vessel at which the hazardous substances were disposed of, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance;
4. any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by the person, other than domestic sewage, or by any other party or entity, at any facility or vessel owned or operated by another party or entity and containing hazardous substances, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance;
5. any person who accepts or accepted any hazardous substances, other than refined oil, for transport to disposal or treatment facilities, vessels or sites selected by the person, from which there is a release, or a threatened release that causes the incurrence of response costs, of a hazardous substance.
In an action to recover damages or costs, a person otherwise liable under this section is relieved from liability under this section if the person proves
1. that the release or threatened release of the hazardous substance to which the damages relate occurred solely as a result of
  1. an act of war;
  2. except as provided under AS 46.03.823(c) and 46.03.825(d) , an intentional or negligent act or omission of a third party, other than a party or its agents in privity of contract with, or employed by, the person, and that the person
    1. exercised due care with respect to the hazardous substance; and
    2. took reasonable precautions against the act or omission of the third party and against the consequences of the act or omission; or
  3. an act of God; and
2. in relation to (1)(B) or (C) of this subsection, that the person, within a reasonable period of time after the act occurred,
  1. discovered the release or threatened release of the hazardous substance; and
  2. began operations to contain and clean up the hazardous substance.
For purposes of (b)(1)(B) of this section, a third party or an agent of a third party is in privity of contract with the person who is otherwise liable, if the third party or its agent and the person are parties to a land contract, deed, or other instrument transferring title or possession of the real property on which the facility in question is located, unless that property was acquired by the person after the disposal or placement of the hazardous substance on, in, or at the facility, and the person establishes that the person has satisfied the requirements of (b)(1)(B) of this section and establishes that
1. at the time the person acquired the facility the person did not know and had no reason to know that a hazardous substance that is the subject of the release or threatened release was disposed of on, in, or at the facility;
2. the person is a governmental entity that acquired the facility by escheat, or through another involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation;
3. [Repealed, § 4 ch 112 SLA 2018.]
4. the person acquired the facility by inheritance or bequest; or
5. the person is a state governmental entity and the state acquired the facility under Public Law 85-508 (Alaska Statehood Act).
To establish that a person had no reason to know that the hazardous substance was disposed of on, in, or at the facility, as provided in (c)(1) and (l) of this section, the person must have undertaken, at the time of voluntary acquisition, all reasonable inquiries into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability. For purposes of this subsection a court shall take into account all relevant facts, including
1. any specialized knowledge or experience the person has;
2. the relationship of the purchase price to the value of the property if it were uncontaminated;
3. commonly known or reasonably ascertainable information about the property;
4. the obviousness of the presence or likely presence of contamination at the property; and
5. the ability to detect contamination by appropriate inspection.
This section does not diminish the liability of a person who previously owned or operated a facility or vessel and who would otherwise be liable. If the person obtained actual knowledge of the release or threatened release of a hazardous substance at the facility or vessel and subsequently transferred ownership to another without disclosing that knowledge, the person is liable under (a)(2) of this section, and a defense under (b)(1)(B) of this section is not available to the person.
This section does not diminish the liability of a person who, by an act or omission, caused or contributed to the release or threatened release of a hazardous substance that is the subject of the action relating to the facility or vessel.
An indemnification, hold harmless, or similar agreement, or conveyance of any nature is not effective to transfer liability under this section from the owner or operator of a facility or vessel or from a person who might be liable for a release or substantial threat of a release under this section. This subsection does not bar an agreement to insure, hold harmless, or indemnify a party to the agreement for liability under this section. This subsection does not bar a cause of action that an owner, operator, or other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against another person.
The state, a municipality, a village, a person who acts as a volunteer and is engaged in a response action under the direction of the federal or state on-scene coordinator, and a vessel of opportunity engaged in a response action under the direction of the federal or state on-scene coordinator are not liable under this section for costs or damages as a result of actions taken in response to an emergency created by a release or threatened release of a hazardous substance generated by or from a facility or vessel owned by another person unless the actions taken by the state, the municipality, the village, the volunteer, or the vessel constitute gross negligence or intentional misconduct.
In an action to recover damages and costs, a person otherwise jointly and severally liable under this section is relieved of joint liability and is liable severally for damages and costs attributable to that person if the person proves that
1. the harm caused by the release or threatened release is divisible; and
2. there is a reasonable basis for apportionment of costs and damages to that person.
A person may seek contribution from any other person who is liable under (a) of this section during or after a civil action under (a) of this section or after the issuance of a potential liability determination by the department. Actions under this subsection shall be brought under the Alaska Rules of Civil Procedure and are governed by state law. In resolving claims for contribution under this section, the court may allocate damages and costs among liable parties using equitable factors determined to be appropriate by the court. This subsection does not diminish the right of a person to bring an action for contribution in the absence of a civil action under (a) of this section.
A unit of state or local government that acquired ownership or control of a vessel or facility through bankruptcy, foreclosure, deed in lieu of foreclosure, tax delinquency proceeding, abandonment, escheat, the exercise of eminent domain authority by purchase or condemnation, or circumstances in which the governmental unit involuntarily acquired title by virtue of its function as a sovereign is not liable as an owner or operator under this section unless the governmental unit has caused or contributed to the release or threatened release of a hazardous substance at or from the facility or vessel, in which case, the governmental unit is subject to liability under this section in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity. A hazardous substance release shall be determined to have occurred as provided in this section. For purposes of this subsection, “caused or contributed to the release or threatened release of a hazardous substance”
1. does not include the failure to prevent the passive leaching or migration at or from a facility or vessel of a hazardous substance in the air, land, or water that had first been released to the environment by a person other than the governmental unit that acquired the facility or vessel;
2. does not include the exercise or failure to exercise regulatory or enforcement authority;
3. after the ownership or control of the facility or vessel has been acquired by the governmental unit, includes
  1. the spilling, leaking, pumping, pouring, emptying, injecting, escaping, or dumping of a hazardous substance from barrels, tanks, containers, or other closed receptacles; or
  2. the abandonment or discarding of barrels, tanks, containers, or other closed receptacles containing a hazardous substance.
For purposes of determining liability in an action to recover damages or costs under this section, a person who acquires a facility and who, upon discovering a release or threatened release on, in, or at the facility that occurred before acquisition of the facility, who had no reason to know that a hazardous substance was disposed of on, in, or at the facility, and who, upon discovering the release or threatened release, acted in accordance with (b)(2) of this section to begin operations to contain and clean up the hazardous substance, may not be held liable under this section unless the person has caused or contributed to the release or threatened release of the hazardous substance, in which case, the person is subject to liability under this section in the same manner as any other person. For purposes of this subsection, “caused or contributed to the release or threatened release of the hazardous substance”
1. does not include the failure to prevent the passive leaching or migration at or from a facility of a hazardous substance in the air, land, or water that had first been released into the environment by a person other than the person that acquired the facility;
2. after the ownership or control of the facility has been acquired by the person includes
  1. the spilling, leaking, pumping, pouring, emptying, injecting, escaping, or dumping of a hazardous substance from barrels, tanks, containers, or other closed receptacles; or
  2. the abandonment or discarding of barrels, tanks, containers, or other closed receptacles containing a hazardous substance.
A Native corporation that acquired land under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act) is not liable under this section for a release or threatened release of a hazardous substance on the land unless the Native corporation, by an act or omission, caused or contributed to the release or threatened release of the hazardous substance.
In this section,
1. “damages” has the meaning given in AS 46.03.824 and includes damage to persons or to public or private property, damage to the natural resources of the state or a municipality, and damage caused by acts or omissions of a response action contractor for which the response action contractor is not liable under AS 46.03.823 or 46.03.825 ;
2. “Native corporation” has the meaning given in 43 U.S.C. 1602(m);
3. “potential liability determination” means an administrative determination issued by the department notifying a person of the person’s potential liability under (a) of this section as the result of the release or threatened release of hazardous substances and includes a
  1. letter notifying the person that the person is a potentially responsible party;
  2. notice to a person of state interest in a release or threatened release of a hazardous substance;
  3. request to the person for site characterization or cleanup;
  4. notice of violation; and
  5. similar notification by the department of a person’s potential liability under this section.

History. (§ 1 ch 122 SLA 1972; am § 13 ch 220 SLA 1976; am § 2 ch 39 SLA 1989; am §§ 9, 10 ch 83 SLA 1991; am §§ 1, 3 ch 92 SLA 1991; am §§ 2 — 5 ch 83 SLA 1992; am § 14 ch 71 SLA 1997; am §§ 1, 2 ch 91 SLA 1999; am § 62 ch 56 SLA 2005; am §§ 1, 2 ch 15 SLA 2006; am §§ 1 — 4 ch 112 SLA 2018)

Revisor’s notes. —

In 1995, in (b)(1)(B) of this section, “AS 46.03.825 (d)” was substituted for “46.03.825(e)”, to reflect the 1992 reorganization of AS 46.03.825 .

The subsections of this section have been relettered to conform to the style of the Alaska Statutes; in 1999, subsections (k) and ( l ) were enacted as ( l ) and (m) and an internal reference conformed; in 2018, (m)(2) was enacted as (n)(3); other subsections and paragraphs were also renumbered or relettered at those times.

Cross references. —

For provision that actions brought under this section may be brought directly against insurers or other persons providing evidence of financial responsibility, see AS 46.04.040(e) ; for detention of vessel as security of payment of damages, see AS 46.03.770 .

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For cleanup levels, see 18 AAC 78, art. 6.

Effect of amendments. —

The 2018 amendment, effective on January 15, 2019, in (a), substituted “the exceptions set out in (i) and (n)” for “the exception set out in (i)” preceding “of this section”; repealed (c)(3); added (m)(3) [now (n)(3)]; added (n) [now (m)].

Editor’s notes. —

Section 3, ch. 91, SLA 1999 provides that subsection (k) “applies to a vessel or facility acquired by a governmental entity on or after July 2, 1999,” and that for purposes of § 3, ch. 91, SLA 1999, “when foreclosure by a municipality is involved, the property is acquired on the date it is deeded to the municipality under AS 29.45.450 .”

Section 3, ch. 15, SLA 2006, provides that the 2006 amendments of (j) and (m) of this section apply “to liability for the release or threatened release of a hazardous substance that occurred (1) before April 27, 2006 and for which a final judgment regarding liability was not entered before April 27, 2006; or (2) on or after April 27, 2006.”

Amendments effective January 15, 2019, amending subsection (a), and repealing paragraph (c)(3) have been implemented.

Opinions of attorney general. —

Subsection (g) does not bar a hold harmless agreement between a rural community and the state. However, such a hold harmless agreement probably would not adequately protect the state from liability under subsection (a). Mar. 22, 1991 Op. Att’y Gen.

The Department of Natural Resources may require an environmental property audit as a prerequisite to acceptance of an interagency land transfer. Mar. 22, 1991 Op. Att’y Gen.

Where liquefied natural gas (LNG) company proposed to construct a pipeline roughly parallel to the oil line previously constructed, the LNG could use construction camp pads built by the oil company. Contamination occurring prior to any use by the LNG company was the responsibility of the oil company and the state of Alaska. However, if the LNG company used the camp pads without an environmental audit or other precautionary measure, it would become jointly, severally, and strictly liable for all contamination unless it could prove, by a preponderance of the evidence, that its contribution to the problem was divisible. Sept. 5, 1991 Op. Att’y Gen.

The “innocent landowner” defense, both in federal law and in this section, applies to one who would otherwise be an owner potentially responsible party (PRP) who has not caused, could not have foreseen and prevented contamination, or was not aware of the contamination at the time of acquisition, and who does not have a contractual relationship with a party who did cause the contamination. To use the defense the PRP must act responsibly once it comes to know or should know of the contamination. Dec. 1, 1993 Op. Att’y Gen.

Notes to Decisions

Intent. —

Division (b)(1)(B)(ii) does not impose a duty to exercise reasonable care to prevent the negligent acts of third parties, but provides a defensive escape hatch for otherwise liable parties. Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657 (Alaska 2000).

Subsection (a)(4) is intended to be more inclusive than the federal counterpart, 42 U.S.C.S. § 9607(a)(3), and any person actually involved in a decision to dispose of, or a decision on how to dispose of, a hazardous substance may be liable. Berg v. Popham, 113 P.3d 604 (Alaska 2005).

Federal maritime law. —

In allowing recovery for purely economic damages, the state’s hazardous substances statutes do not unduly interfere with the harmony or uniformity of federal maritime law. Kodiak Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).

Control over product. —

Under the doctrine of ejusdem generis, the appellate court interpreted the general definition of “having control” in AS 46.03.826 (4) in light of the more specific language found in paragraph (a)(1) of this section. Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657 (Alaska 2000).

“Useful product” exception limited. —

Although there is a “useful product” exception to arranger liability under this section, this exception does not provide protection from arranger liability under subsection (a)(4) for an entity manufacturing, selling, and installing a useful product that is intended to direct a hazardous substance into a city sewer system. Berg v. Popham, 113 P.3d 604 (Alaska 2005).

“Owner.” —

Because title to, and thus ownership of, fuel transferred to the service station when the supplier deposited it into the station’s tanks, the supplier was not an “owner” at the time of a fuel leak from the station’s tanks. Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657 (Alaska 2000).

Where a property owner sued his neighbors for starting a fire that destroyed his dog boarding business, testing revealed elevated levels of lead and the Environmental Protection Agency recommended cleanup procedures; the seller of the property where the fire occurred could not be held strictly liable as an “owner” under this section. A pre-fire bill of sale transferred title such that the seller could not be held jointly and severally liable for damages caused by the fire, because she had no ownership interest in the property when the fire occurred. Maddox v. Hardy, 187 P.3d 486 (Alaska 2008).

Ownership for the purposes of this section transfers upon execution of a bill of sale. Maddox v. Hardy, 187 P.3d 486 (Alaska 2008).

“Operator.” —

Because a showing that the potentially liable party exercised actual control over the facility is required to establish strict liability upon the “operator” of that facility, where a fuel supplier did not oversee, control, or manage a service station, and its only interaction with the station’s tanks involved refilling them as requested by the station owner, the supplier was not an “operator” within the meaning of paragraph (a)(2). Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657 (Alaska 2000).

Governmental services. —

The breadth of the language in AS 46.03.824 and this section’s specific provision for recovery of costs incurred by “the state, a municipality, or a village,” strongly suggest a legislative intent to permit compensation for governmental services, including those services rendered non-compensable at common law by the free public service doctrine. Kodiak Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).

Disposal of hazardous substances. —

Where a seller allegedly (1) recommended that the purchasers use percholoroethylene (PCE) in dry-cleaning equipment as part of the equipment, (2) designed the layout of the equipment, and (3) installed the equipment and a water and PCE separator system that facilitated spillage, leakage, and direction of PCE into the city sewer system, the purchasers sufficiently stated a claim for arranger liability against the seller’s successor under paragraph (a)(4) of this section. Berg v. Popham, 412 F.3d 1122 (9th Cir. Alaska 2005).

Negligence not resulting in physical harm. —

The maritime law rule providing that in those situations where negligence does not result in any physical harm, thereby providing no basis for an independent tort, and only pecuniary loss is suffered, a plaintiff may not recover for the loss of the financial benefits of a contract or prospective trade, applies to limit the damages recoverable under this section in excess of $100 million, which is the amount recoverable under the federal Trans-Alaska Pipeline Authorization Act, which also provides for strict liability for oil spills. In re Exxon Valdez, 767 F. Supp. 1509 (D. Alaska 1991).

Statute gives private plaintiffs cause of action. —

This section provides private plaintiffs with a cause of action for joint and several strict liability, not just for contribution, and suits under the statute, both direct and for contribution, are governed by a statute of limitations. FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001), overruled in part, Buntin v. Schlumberger Tech. Corp., 487 P.3d 595 (Alaska 2021).

Statute of limitations defense. —

A statute of limitations defense is available for a direct cause of action under AS 46.03.822(a) . FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001), overruled in part, Buntin v. Schlumberger Tech. Corp., 487 P.3d 595 (Alaska 2021).

When a buyer of a refinery brought strict liability and contribution claims against the seller for the land's contamination, the claims were time-barred as to damage to the land on which the refinery was located because the two-year statute of limitations in AS 09.10.070(a) applied, as no trespassory claim was involved. Flint Hills Res. Alaska, LLC v. Williams Alaska Petro., Inc., 377 P.3d 959 (Alaska 2016).

When a buyer of a refinery brought strict liability and contribution claims against the seller for the land's contamination, the claims were not time-barred as to damage to land outside the land on which the refinery was located because the six-year statute of limitations applied, since a trespass claim under AS 09.10.050 was involved. Flint Hills Res. Alaska, LLC v. Williams Alaska Petro., Inc., 377 P.3d 959 (Alaska 2016).

Contribution actions during pendency of direct actions. —

A cause of action for contribution under subsection (j) may be brought during the pendency of a direct action under subsection (a), but does not accrue for purposes of the statute of limitations until the direct action concludes. FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001), overruled in part, Buntin v. Schlumberger Tech. Corp., 487 P.3d 595 (Alaska 2021).

Insurance claims. —

In an action arising in relation to the release of toxic dry cleaning chemicals, the property sellers’ insurers were entitled to summary judgment on the property purchasers’ bad faith claim where the insurers did not unreasonably fail to settle claims against their insureds; uncertainties existed as to the amount and extent of insurance coverage and as to liability and damages. Hinkle v. Crum & Forster Holding, Inc., 746 F. Supp. 2d 1047 (D. Alaska), dismissed, 747 F. Supp. 2d 1132 (D. Alaska 2010).

Contribution award. —

When damages were caused to one owner’s property by a leased wood chipper’s leak of diesel fuel, the superior court properly ordered contribution as to the owner of the wood chipper and another property owner because the jury’s finding of avoidable consequences was not an apportionment, the court properly relied on the jury’s finding that the property owner could have avoided some of the damages, and the court made equitable findings independent of the jury findings to support its allocation of damages. Oakly Enters., LLC v. NPI, LLC, 354 P.3d 1073 (Alaska 2015).

Allowable damages. —

Both the progressive expansion of compensable harms covered by the post-spill amendments to this statute and the comprehensive nature of the damages provisions strongly suggest that the legislature acted not to narrow compensation or limit liability but to clarify and confirm the broad scope of the original provisions by describing concrete examples of allowable damages. Kodiak Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).

Municipal damages. —

While the specific costs listed in subsection (a) of this section provide useful examples of harms that the legislature clearly considered compensable, they cannot properly be construed to define the outer limits of the right of municipalities to assert their diverted services claims. Kodiak Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).

Standing. —

By defining damages to include costs incurred “by a state, a municipality, or a village,” this section itself vests injured municipalities with standing to sue. Kodiak Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).

Applied in

In re Glacier Bay, 865 F. Supp. 629 (D. Alaska 1991).

Cited in

Tope v. Christianson, 959 P.2d 1240 (Alaska 1998); Kinn v. Alaska Sales & Serv., 144 P.3d 474 (Alaska 2006).

Sec. 46.03.823. Hazardous substance response action contractors.

A person who is a response action contractor with respect to a release or threatened release of a hazardous substance other than oil whose acts or omissions are not contrary to a response plan or order by a state or federal agency having jurisdiction over the release or threatened release is not civilly liable for injuries, costs, damages, expenses, or other liability that results from the release or threatened release unless the release or threatened release is caused by an act or omission of the response action contractor that is negligent or grossly negligent or constitutes intentional misconduct. To show negligence by a response action contractor, a claimant must show that the acts or omissions of the contractor under the response action contract were not in accordance with generally accepted professional standards and practices at the time the response action services were performed.
The liability limitation under (a) of this section
1. does not apply to a response action contractor who would otherwise be liable for the release or threatened release under state or federal law even if that person had not carried out a response action with respect to the release or threatened release; and
2. does apply only to releases for which notification to the department was provided and received in the manner prescribed under state law.
The defense provided in AS 46.03.822(b)(1)(B) is not available to a potentially liable person with respect to costs or damages caused by an act or omission of a response action contractor.
Except as provided in (c) of this section, this section does not affect the liability under this chapter or under any other state law of a person other than a response action contractor.
This section does not affect the liability of a response action contractor that may arise from the response action contractor’s failure to comply with the terms or conditions of a
1. response action contract or a remedial action plan if one has been approved by the department; or
2. contingency plan approved by the department where the response action contractor is the plan holder.
This section does not affect the liability of an employer who is a response action contractor with respect to an employee of the employer under any provision of law, including a law related to workers’ compensation.
In this section, “response action” means an action taken in connection with the mitigation or cleanup of a release or threatened release of a hazardous substance other than oil, including investigation, evaluation, plan development, mapping and surveying, engineering, design and construction, removal, and equipment provision.

History. (§ 3 ch 39 SLA 1989; am §§ 3 — 7 ch 191 SLA 1990; am §§ 4, 6 ch 92 SLA 1991)

Notes to Decisions

Stated in

FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001).

Sec. 46.03.824. Damages.

Damages include but are not limited to injury to or loss of persons or property, real or personal, loss of income, loss of the means of producing income, or the loss of an economic benefit.

History. (§ 1 ch 122 SLA 1972)

Notes to Decisions

Absence of evidence of physical harm. —

Provable economic loss is recoverable by both fishermen and nonfishermen without evidence of physical harm. In re Glacier Bay, 746 F. Supp. 1379 (D. Alaska 1990).

Governmental services. —

The breadth of the language in this section and the specific provision for recovery of costs incurred by “the state, a municipality, or a village,” in AS 46.03.822 , strongly suggest a legislative intent to permit compensation for governmental services, including those services rendered non-compensable at common law by the free public service doctrine. Kodiak Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).

Allowable damages. —

Both the progressive expansion of compensable harms covered by the post-spill amendments to AS 46.03.822 and the comprehensive nature of the damages provisions strongly suggest that the legislature acted not to narrow compensation or limit liability but to clarify and confirm the broad scope of the original provisions by describing concrete examples of allowable damages. Kodiak Island Borough v. Exxon Corp., 991 P.2d 757 (Alaska 1999).

Quoted in

FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001); Oakly Enters., LLC v. NPI, LLC, 354 P.3d 1073 (Alaska 2015).

Sec. 46.03.825. Oil spill response action contractors.

History. (§ 8 ch 92 SLA 1991; am §§ 6 — 9 ch 83 SLA 1992; am § 18 ch 9 SLA 1994; am §§ 2 — 5 ch 8 SLA 2001)

Revisor’s notes. —

Subsections (d)-(f) enacted as (e)-(g). Subsection (g) was formerly (d). Relettered in 1992.

Administrative Code. —

For oil spill primary response action contractors and nontank vessel cleanup contractors, incident management teams, and response planning facilitators, see 18 AAC 75, art. 5.

Notes to Decisions

Cited in

FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001).

Sec. 46.03.826. Definitions for AS 46.03.822 — 46.03.828.

In AS 46.03.822 — 46.03.828 ,

“act of God” means an act of nature which is unforeseeable in kind or degree;
“economic benefit” means a benefit measurable in economic terms, including but not limited to the gathering, catching, or killing of food or other items utilized in a subsistence economy and their replacement cost;
“facility”
1. includes a
  1. building, structure, installation, equipment, well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, aircraft, or pipe or pipeline, including a pipe into a sewer or publicly-owned treatment works;
  2. site or area at which a hazardous substance has been deposited, stored, disposed of, placed, or otherwise located;
2. does not include any consumer product in consumer use;
“having control over a hazardous substance” means producing, handling, storing, transporting, or refining a hazardous substance for commercial purposes immediately before entry of the hazardous substance into the atmosphere or in or upon the water, surface, or subsurface land of the state, and specifically includes bailees and carriers of a hazardous substance;
“hazardous substance” means
1. an element or compound which, when it enters into the atmosphere or in or upon the water or surface or subsurface land of the state, presents an imminent and substantial danger to the public health or welfare, including but not limited to fish, animals, vegetation, or any part of the natural habitat in which they are found;
2. oil; or
3. a substance defined as a hazardous substance under 42 U.S.C. 9601(14);
“natural resources” means land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the state or a municipality;
“oil” means a derivative of a liquid hydrocarbon and includes crude oil, lubricating oil, sludge, oil refuse or another petroleum-related product or by-product;
“owner” and “operator”
1. mean
  1. in the case of a vessel, any person owning, operating, or chartering by demise, a vessel;
  2. in the case of facility, any person owning or operating the facility;
  3. in the case of an abandoned facility or vessel, any person who owned, operated, or otherwise controlled activities at the facility or vessel immediately before the abandonment; and
  4. in the case of a facility or vessel, title or control of which was conveyed due to bankruptcy, foreclosure, tax delinquency, abandonment, or similar means to a unit of the state or a political subdivision of the state, any person who owned, operated, or otherwise controlled the facility or vessel immediately beforehand;
2. do not include a person who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect that person’s security interest in the vessel or facility;
“release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance, but excluding
1. any release that results in exposure to persons solely within a workplace, with respect to a claim that those persons may assert against the persons’ employer; and
2. emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, or vessel;
“response action contract” means a written contract or agreement to provide response action with respect to a release or threatened release of a hazardous substance entered into by a person with
1. the department;
2. another person who has entered into an agreement with the department that provides for response action subject to the department’s oversight and control;
3. a federal agency with jurisdiction over the release or threatened release; or
4. another person potentially liable for the release or threatened release under state or federal law;
“response action contractor” means
1. a person who enters into a response action contract with respect to a release or threatened release of a hazardous substance and who is carrying out the contract, including a cooperative organization formed to maintain and supply response equipment and materials that enters into a response action contract relating to a release or threatened release;
2. a person who is retained or hired by and is under the control of a person described in (A) of this paragraph to provide services related to the response action contract; and
3. a person who acts as a volunteer and is engaged in a response action;
“subsistence economy” means an economy which utilizes on a regular basis an item which is owned in common by the people of the state, or the United States, including but not limited to fish, game, fur bearing animals, birds, timber or any part of the natural habitat for noncommercial purposes;
“transport” means the movement of a hazardous substance by any mode, including pipeline; in the case of a hazardous substance that has been accepted for transportation by a common or contract carrier, “transport” includes any stoppage in transit that is temporary, incidental to the transportation movement, and at the ordinary operating convenience of a common or contract carrier, and any stoppage of this type shall be considered as a continuity of movement and not as the storage of a hazardous substance;
“vessel” means every description of watercraft or other artificial contrivance that is used, or is capable of being used, as a means of transportation on water, or that carries hazardous substances for the purpose of incineration of the hazardous substances;
“water, surface or subsurface land of the state” means all water, surface or subsurface land within the territorial limits of the State of Alaska.

History. (§ 1 ch 122 SLA 1972; am § 2 ch 7 SLA 1986; am §§ 4 — 6 ch 39 SLA 1989; am § 9 ch 92 SLA 1991)

Revisor’s notes. —

Reorganized in 1986 to alphabetize the defined terms and in 1989 and 1991 to maintain alphabetical order.

Notes to Decisions

Control over product. —

Where a fuel supplier had no operational or maintenance rights or responsibility at a service station, and owned neither the fuel nor the tanks in which the fuel was pumped, the supplier’s control over the product terminated upon the transfer of fuel into the station’s storage tanks. Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657 (Alaska 2000).

Under the doctrine of ejusdem generis, the appellate court interpreted the general definition of “having control” in paragraph (4) of this section in light of the more specific language found in AS 46.03.822(a)(1) . Parks Hiway Enters., LLC v. CEM Leasing, Inc., 995 P.2d 657 (Alaska 2000).

Applied in

Maddox v. Hardy, 187 P.3d 486 (Alaska 2008).

Quoted in

In re Glacier Bay, 746 F. Supp. 1379 (D. Alaska 1990).

Stated in

FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001); Oakly Enters., LLC v. NPI, LLC, 354 P.3d 1073 (Alaska 2015).

Sec. 46.03.828. Other rights of action not affected.

The provisions of AS 46.03.822 — 46.03.828 do not abridge or alter a right of action or remedy under another statute, in equity, or at common law. However, an award of damages to a person or the state on a cause of action for an injury under AS 46.03.822 bars recovery in an action by another person or the state on the same cause of action for the same injury.

History. (§ 1 ch 122 SLA 1972)

Notes to Decisions

Cited in

Berg v. Popham, 113 P.3d 604 (Alaska 2005).

Collateral references. —

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 ALR3d 665.

Recovery in trespass for injury to land caused by airborne pollutants. 2 ALR4th 1054.

Sec. 46.03.830. Proof of financial responsibility required for petrochemical facility or hazardous waste disposal site operation.

A person may not operate a petrochemical facility or a hazardous waste disposal site unless the person has furnished proof to the commissioner of financial ability to control a hazardous waste that will be used in, produced by, or disposed of at the facility or the site. Proof of financial responsibility shall include responsibility for the hazardous waste after the facility or site is closed, and may be demonstrated by self-insurance, insurance, surety, or guarantee, under regulations adopted by the department.
Acceptance of proof of financial responsibility under this section expires
1. one year from its issuance for self-insurance;
2. on the effective date of a change in the surety bond, guarantee, or insurance agreement; or
3. on the expiration or cancellation of the surety bond, guarantee, or insurance agreement.

History. (§ 13 ch 93 SLA 1981)

Administrative Code. —

For waste disposal permit, see 18 AAC 60, art. 2.

Sec. 46.03.833. Compliance with financial responsibility requirements.

A person whose proof of financial responsibility is accepted by the department under AS 46.03.830 or 46.03.100(f) shall notify the department at least 90 days before the effective date of a change in, or expiration or cancellation of, the proof of financial responsibility. Application for renewal of acceptance of proof of financial responsibility under AS 46.03.830 or 46.03.100(f) must be filed at least 90 days before the date of expiration.
The department, after notice and hearing, may revoke acceptance of proof of financial responsibility if it determines that
1. acceptance was procured by fraud or misrepresentation; or
2. a change of circumstance has occurred that warrants revocation under regulations adopted by the department.

History. (§ 13 ch 93 SLA 1981; am § 9 ch 136 SLA 2004)

Administrative Code. —

For treatment, storage, and disposal, see 18 AAC 62, art. 4.

For standards applicable to specific hazardous wastes and facilities, see 18 AAC 62, art. 5.

Sec. 46.03.840. Radiation penalties. [Repealed, § 12 ch 172 SLA 1978. For current provisions, see AS 18.60.475 — 18.60.545.]

Sec. 46.03.850. Compliance order.

When, in the opinion of the department, a person is violating or is about to violate a provision of this chapter, AS 46.04, or AS 46.14, or a regulation or lawful order of the department, or a permit or certificate, or a term or condition of a permit or certificate issued by the department under this chapter, AS 46.04, AS 46.14, the department may notify the person of its determination by personal service or certified mail. The determination and notice do not constitute an order under AS 46.03.820 .
The recipient of the determination shall file with the department, within the time period specified in the notice, a report stating what measures have been and are being taken, or are proposed to be taken, to correct or control the conditions outlined in the notice.
After the report is filed under (b) of this section or the time period specified for it has elapsed, the department may issue a compliance order in conformity with the authority of the department and the public policy declared in AS 46.03.010 . A copy of the compliance order shall be served personally or sent by certified mail to the person affected. A compliance order is effective upon receipt.
Within 30 days after receipt the recipient may request a hearing to review the compliance order. Failure to request a hearing within 30 days after the receipt of a compliance order constitutes a waiver of the recipient’s right of review.
The department shall hold a hearing within 20 days after receipt of a request for one under (d) of this section. After the hearing the department may rescind, modify, or affirm the compliance order.
The attorney general shall seek enforcement of a compliance order.

History. (§ 14 ch 220 SLA 1976; am § 9 ch 266 SLA 1976; am § 113 ch 59 SLA 1982; am § 21 ch 74 SLA 1993)

Administrative Code. —

For major stationary source permits, see 18 AAC 50, art. 3.

For waste disposal permit, see 18 AAC 60, art. 2.

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

For administrative penalties, see 18 AAC 80, art. 12.

For compliance orders, see 18 AAC 95, art. 1.

For definitions, see 18 AAC 95, art. 5.

Collateral references. —

Modern status of rules as to balance of convenience or social utility as affecting relief from nuisance. 40 ALR3d 601.

Sufficiency of evidence of violation in administrative proceeding terminating in abatement order. 48 ALR3d 795.

Article 10. General Provisions.

Collateral references. —

39A C.J.S., Health and Environment, § 120 et seq.

Sec. 46.03.860. Inspection warrant.

The department may seek search warrants for the purpose of investigating actual or suspected sources of pollution or contamination or to ascertain compliance or noncompliance with AS 46.14 or this chapter or a regulation adopted under AS 46.14 or this chapter.

History. (§ 3 ch 120 SLA 1971; am § 22 ch 74 SLA 1993)

Sec. 46.03.865. Authority of department in cases of emergency.

When the department finds that an actual or imminent discharge of oil, a hazardous substance, or low level radioactive materials to the air, water, land, or subsurface land of the state poses an immediate threat to the public health or welfare or the environment of the state, it may issue an order declaring an emergency and directing a person or persons to take action the department believes necessary to meet the emergency, and protect the public health, welfare, or environment. If there is an incident command system established under AS 26.23 or AS 46.04.200 — 46.04.210 that is applicable to the situation for which the department issues an order under this subsection, the department’s exercise of authority under this subsection shall be guided by the relevant provisions of the incident command system.
A person to whom an order is directed shall comply with it immediately, but on application to the department shall be given a hearing under AS 44.62 (Administrative Procedure Act). Thereafter the department may affirm, revoke, or modify the order.
During a period of emergency declared under (a) of this section, each state agency shall take whatever action the department finds necessary to meet the emergency and to protect the public health, welfare, or environment, consistent with the responsibilities assigned to them under an incident command system established under AS 26.23 or AS 46.04.200 — 46.04.210 if one is applicable to the situation.

History. (§ 3 ch 120 SLA 1971; am § 5 ch 172 SLA 1978; am § 109 ch 59 SLA 1982; am E.O. No. 58, § 24 (1984); am § 7 ch 59 SLA 1986; am §§ 8, 9 ch 190 SLA 1990; am §§ 17, 18 ch 32 SLA 1994)

Revisor’s notes. —

Formerly AS 46.03.290 . Renumbered in 1987.

Cross references. —

For declarations of a disaster emergency under AS 26.23, see AS 46.04.080 and AS 46.09.030 ; for state master contingency plan, see AS 46.04.200 .

Sec. 46.03.870. Actionable rights.

Except as specified in AS 46.03.822 — 46.03.828 , the bases for proceedings or actions resulting from violations of this chapter or a regulation adopted under this chapter inure solely to and are for the benefit of the state, and are not intended to in any way create new or enlarge existing rights of persons or groups of persons in the state.
Except as specified in AS 46.03.822 — 46.03.828 , a determination or order of the department does not create a presumption of law or finding of fact inuring to or for the benefit of persons other than the state.
This chapter does not estop the state, persons, or political subdivisions of the state in the exercise of their rights to suppress nuisances, to seek damages, or to otherwise abate or recover for the effects of pollution or other environmental degradation.

History. (§ 3 ch 120 SLA 1971; am § 2 ch 122 SLA 1972)

Notes to Decisions

Neighbor terminating water supply arrangement. —

Landowner whose neighbor terminated an arrangement to supply water to him had no private cause of action for damages under this chapter. Doyle v. Peabody, 781 P.2d 957 (Alaska 1989).

Quoted in

FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001).

Sec. 46.03.875. Remedies cumulative.

All remedies provided by this chapter, AS 46.04, or AS 46.14 are cumulative, and the securing of relief, whether injunctive, civil, or criminal, under a section of this chapter, AS 46.04, or AS 46.14 does not stop the state from obtaining relief under any other section of this chapter, AS 46.04, or AS 46.14.

History. (§ 15 ch 220 SLA 1976; am § 10 ch 266 SLA 1976; am § 114 ch 59 SLA 1982; am § 23 ch 74 SLA 1993)

Sec. 46.03.880. Applicability of the Administrative Procedure Act.

Except as otherwise specifically provided in this chapter, AS 44.62 (Administrative Procedure Act) governs the activities and the proceedings of the department.
Notwithstanding AS 44.62.330(a)(25) , adjudicatory hearing procedures to review permit decisions under this chapter need not conform to AS 44.62.330 — 44.62.630 (Administrative Procedure Act).

History. (§ 3 ch 120 SLA 1971; am § 2 ch 23 SLA 2003)

Revisor’s notes. —

In 2008 and 2018, in subsection (b), the reference to a specific paragraph in AS 44.62.330(a) was corrected to reflect the renumbering of paragraphs in that subsection.

Sec. 46.03.890. Enforcement authority.

The following persons are authorized to enforce this chapter:
1. a state employee authorized by the commissioner;
2. a police officer of the state.
Inspection and enforcement employees of the department designated by the commissioner are peace officers in the performance of their duties under this chapter, AS 46.04, AS 46.09, and AS 46.14.

History. (§ 3 ch 120 SLA 1971; § 2 ch 116 SLA 1980; am § 16 ch 59 SLA 1986; am § 24 ch 74 SLA 1993)

Revisor’s notes. —

Subsection (b) was formerly AS 46.04.090(b). Renumbered in 1991.

Sec. 46.03.900. Definitions.

In this chapter,

“air contaminant” means dust, fumes, mist, smoke, other particulate matter, vapor, gas, odorous substances or a combination of these;
“air pollution” means the presence in the outdoor atmosphere of one or more air contaminants in quantities and duration that tend to be injurious to human health or welfare, animal or plant life or property or would unreasonably interfere with the enjoyment of life or property;
“broadcast chemicals” means chemical substances which are released into the air or onto land or water for the purpose of preventing, destroying, repelling, stimulating, or retarding plant or animal life, or chemical substances released for meteorological control, oil spill control, or fire control;
“commissioner” means the commissioner of environmental conservation;
“compliance agreement” means a mutual understanding and voluntary, enforceable agreement on a course of action for a specific set of circumstances entered into by the department and a person to control, prevent, or abate air, water, land, or subsurface land pollution;
“department” means the Department of Environmental Conservation;
“dispose” has the meaning given “disposal” in 42 U.S.C. 6903(3);
“facility” means any offshore or onshore structure, improvement, vessel, vehicle, land, enterprise, or endeavor;
“hazardous waste” means a waste or combination of wastes that because of quantity, concentration, or physical, chemical, or infectious characteristics may
1. cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or
2. pose a substantial present or potential hazard to human health or the environment when improperly managed, treated, stored, transported, or disposed of;
“hazardous waste reduction” means decreasing, avoiding, or eliminating wastes that are hazardous to human health or the environment through source reduction or recycling; the term does not include hazardous waste treatment or hazardous waste disposal;
“industrial waste” means a liquid, gaseous, solid, or other waste substance or a combination of them resulting from process of industry, manufacturing trade or business, or from the development of natural resources; however, gravel, sand, mud, or earth taken from its original situs and put through sluice boxes, dredges, or other devices for the washing and recovery of the precious metal contained in them and redeposited in the same watershed from which it came is not industrial waste;
“low level radioactive materials” means a radioactive waste other than
1. used nuclear reactor fuel;
2. waste produced during the reprocessing of used nuclear reactor fuel; and
3. elements having an atomic number greater than 92 and containing 10 or more nanocuries per gram;
“manifest” means the form used for identifying the quantity, composition, origin, routing, and destination of a hazardous waste when the hazardous waste is transported;
“mining waste” means solid waste from the extraction, beneficiation, and processing of ores and minerals, including coal, and including phosphate rock and overburden from the mining of uranium ore;
“motor vehicle” has the meaning given in AS 28.90.990 ;
“municipal solid waste” means waste material
1. generated by a household, including a single-family or multi-family residence, and collected and disposed of as part of municipal solid waste collection services; or
2. generated by a commercial, industrial, or institutional entity, to the extent that the waste material
  1. is essentially the same as waste normally generated by a household;
  2. is collected and disposed of with other municipal solid waste as part of normal municipal solid waste collection services; and
  3. contains a relative quantity of hazardous substances not greater than the relative quantity of hazardous substances contained in waste material generated by a typical single-family household;
“other wastes” means garbage, refuse, decayed wood, sawdust, shavings, bark, trimmings from logging operations, sand, lime cinders, ashes, offal, oil, tar, dyestuffs, acids, chemicals, heat from cooling or other operations, and other substances not sewage or industrial waste which may cause or tend to cause pollution of the waters of the state;
“person” means any individual, public or private corporation, political subdivision, government agency, municipality, industry, copartnership, association, firm, trust, estate, or any other entity whatsoever;
“pesticide” means any chemical or biological agent intended for preventing, destroying, repelling, or mitigating plant or animal life and any substance intended for use as a plant regulator, defoliant or desiccant, including but not limited to insecticides, fungicides, rodenticides, herbicides, nematocides, and biocides;
“pollution” means the contamination or altering of waters, land, or subsurface land of the state in a manner which creates a nuisance or makes waters, land, or subsurface land unclean, or noxious, or impure, or unfit so that they are actually or potentially harmful or detrimental or injurious to public health, safety, or welfare, to domestic, commercial, industrial, or recreational use, or to livestock, wild animals, bird, fish, or other aquatic life;
“resource recovery” means the recovery of materials or energy from solid wastes for industrial use, agriculture, heat production, power production, or other processes or purposes and includes the reuse of materials or products to conserve natural resources;
“restricted-use pesticides” means pesticides that are classified for restricted use under 7 U.S.C. 136a(d)(1)(C) (sec. 3(d)(1)(C), Federal Insecticide, Fungicide, and Rodenticide Act), as amended;
“service” means a function performed or service provided by the state or by a municipality under a duty or power authorized by AS 29 or other provision of law authorizing a municipality to perform functions or provide services, or a comparable function performed or service provided by a village; “service” includes functions not previously performed and services not previously provided;
“sewage” means the water-carried human or animal wastes from residences, buildings, industrial establishments, or other places, together with ground water infiltration and surface water as may be present; the admixture with sewage of industrial wastes or other wastes is “sewage”;
“sewerage system” means pipelines or conduits, pumping stations, and force mains, and all other appurtenant constructions, devices, and appliances used for conducting sewage, industrial waste, or other wastes to a point of ultimate disposal;
“solid waste” means garbage, refuse, abandoned, or other discarded solid or semi-solid material, regardless of whether subject to decomposition, originating from any source;
“solid waste disposal facility” means a facility for the discharge, deposit, injection, consolidation, or placement of solid waste into or onto the land and includes transfer stations and sanitary landfills;
“solid waste processing” means extraction of materials from solid waste, volume reduction, conversion to energy, or other separation and preparation of solid waste for reuse or disposal and includes processing by incinerators, shredders, balers, and transfer stations;
“standard” means the measure of purity or quality for air, water, and land in relation to their reasonable and necessary use as established by the department;
“storage” means the containment of hazardous waste, either on a temporary basis or for a period of years, in a manner that does not constitute disposal of the hazardous waste;
[Repealed, § 61 ch 22 SLA 2015.]
“treat” has the meaning given “treatment” in 42 U.S.C. 6903(34);
“treatment works” means a plant, disposal field, lagoon, pumping station, constructed drainage ditch or surface water intercepting ditch, incinerator, area devoted to sanitary landfills, or other works installed for the purpose of treating, neutralizing, stabilizing, or disposing of sewage, industrial waste, or other wastes;
“village” means a place within the unorganized borough or within a borough as to a power, function, or service that is not exercised or provided by the borough on an areawide or nonareawide basis that
1. has irrevocably waived, in a form approved by the Department of Law, any claim of sovereign immunity that might arise under this chapter; and
2. has
  1. a council organized under 25 U.S.C. 476 (sec. 16 of the Indian Reorganization Act);
  2. a traditional village council recognized by the United States as eligible for federal aid to Indians; or
  3. a council recognized by the commissioner of commerce, community, and economic development under regulations adopted by the Department of Commerce, Community, and Economic Development to determine and give official recognition of village entities under AS 44.33.755(b) ;
“waste associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy” means (A) waste, including drilling muds, cuttings, hydrocarbons, brine, acid, sand, and emulsions or mixtures of fluids produced from and unique to the operation or maintenance of a well, whether naturally occurring or added for the operation or productivity of the well; and (B) waste that is derived intrinsically from primary field operations; “waste associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy” does not include spent solvents and oils from equipment maintenance activities, discarded chemical products, or fuels;
“waste derived intrinsically from primary field operations” means waste produced from a well, and removed
1. at the drill site; or
2. at crude oil production facilities by crude oil or wastewater treatment process before custody transfer of the crude oil;
“waters” includes lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, straits, passages, canals, the Pacific Ocean, Gulf of Alaska, Bering Sea, and Arctic Ocean, in the territorial limits of the state, and all other bodies of surface or underground water, natural or artificial, public or private, inland or coastal, fresh or salt, which are wholly or partially in or bordering the state or under the jurisdiction of the state.

History. (§ 3 ch 120 SLA 1971; am §§ 16, 17 ch 220 SLA 1976; am § 2 ch 26 SLA 1977; am § 2 ch 129 SLA 1977; am §§ 7, 12 ch 172 SLA 1978; am § 5 ch 163 SLA 1980; am §§ 7, 14 ch 93 SLA 1981; am §§ 115, 116 ch 59 SLA 1982; am § 9 ch 77 SLA 1984; am § 4 ch 97 SLA 1989; am § 62 ch 21 SLA 1991; am § 11 ch 83 SLA 1991; am § 53 ch 30 SLA 1996; am § 11 ch 40 SLA 1998; am § 4 ch 94 SLA 1998; am § 68 ch 58 SLA 1999; am §§ 10, 11 ch 136 SLA 2004; am §§ 54, 55, 61 ch 22 SLA 2015)

Revisor’s notes. —

Reorganized in 1984, 1989, 1991, 1998, and 2004 to alphabetize the defined terms and to maintain alphabetical order. Paragraph (16) was enacted as (37) and renumbered in 2004.

In 2004, “commissioner of community and economic development” was changed to “commissioner of commerce, community, and economic development” and “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

In 2006, in (15) of this section, “AS 28.90.990 ” was substituted for “AS 28.40.100 ” to reflect the 2006 renumbering of AS 28.40.100 .

Cross references. —

For additional definitions applicable to AS 46.03.822 — 46.03.828 , see AS 46.03.826 .

Administrative Code. —

For nondomestic wastewater, see 18 AAC 72, art. 5.

Effect of amendments. —

The 2015 amendment, effective May 15, 2015, in (25), deleted “ ‘sewer system’ or” at the beginning; in (28), substituted “ ‘solid waste processing’ means extraction” for “ ‘solid waste processing facility’ means a facility for the extraction”; repealed (31).

Opinions of attorney general. —

“Waters,” within the meaning of paragraph (33) (now paragraph (37)) of this section, clearly encompasses environments that are components of the marine ecosystem, but are not themselves subject to continuous inundation. Nov. 13, 1975 Op. Att’y Gen.

Notes to Decisions

This chapter is not void for vagueness under the Alaska and United States constitutions. Stock v. State, 526 P.2d 3 (Alaska 1974).

The purpose of this chapter is protection of the environment from pollution. Stock v. State, 526 P.2d 3 (Alaska 1974).

Allowable damages. —

Definitional language of paragraph (19) (now (20)) incorporated in AS 46.03.710 . Stock v. State, 526 P.2d 3 (Alaska 1974).

For waters to be polluted, there must first be a contamination or alteration. Stock v. State, 526 P.2d 3 (Alaska 1974).

The alteration must create a nuisance. Stock v. State, 526 P.2d 3 (Alaska 1974).

Or it must make the waters unclean, or noxious, or impure, or unfit so that they are actually or potentially harmful or detrimental or injurious (a) to public health, safety or welfare, (b) to domestic, commercial, industrial or recreational use, or (c) to livestock, wild animals, bird, fish or other aquatic life. Stock v. State, 526 P.2d 3 (Alaska 1974).

The term “alteration” is broader than contamination, as waters may be altered by purifying as well as befouling. Stock v. State, 526 P.2d 3 (Alaska 1974).

And means “change”. —

Commonly understood, the word “alteration” means “change,” and as here used could encompass any change in the waters whether by taking away or adding substances. Stock v. State, 526 P.2d 3 (Alaska 1974).

Definition of “intended for”. —

Statutory phrase “intended for” in AS 46.03.900 (19) refers to the manufacturer's stated intent, rather than the subjective intent of individual users or the speculative intent of some unknown and unknowable third party. Alleva v. State, 479 P.3d 405 (Alaska Ct. App. 2020).

The term “nuisance” has a well established meaning at common law. Stock v. State, 526 P.2d 3 (Alaska 1974).

Definition of pesticide is not unconstitutionally vague. —

Definition of pesticide in AS 46.03.900 (19) was not unconstitutionally vague where the phrase “intended for” referred to the manufacturer's stated intent, and from the warning labels, an ordinary person would have undoubtedly known that the product used was pesticide under Alaska law. Alleva v. State, 479 P.3d 405 (Alaska Ct. App. 2020).

The definition of “pollution” as applied to creating conditions that are “actually,” as opposed to “potentially,” harmful while admittedly broad in scope, appears to have sufficient clarity in all but de minimis situations. Stock v. State, 526 P.2d 3 (Alaska 1974).

Foreseeability requirement imposed in cases of potentially harmful alterations of water. —

By use of the word “potentially” in paragraph (19) (now (20)) in prohibiting potentially harmful alterations of water, this chapter prohibits acts which a reasonable person would foresee as creating a substantial risk of making water actually injurious to the statutorily protected interests. Stock v. State, 526 P.2d 3 (Alaska 1974).

The foreseeability requirement is no more than a narrowing construction. —

The supreme court imposes it only to give this chapter definite enough standards to survive on its face and in future cases. Stock v. State, 526 P.2d 3 (Alaska 1974).

Effect of foreseeability requirement. —

Application of foreseeability requirement is prospective. —

The supreme court could not find plain error in the district court’s failure to anticipate and apply to defendant the narrowing construction of paragraph (19) (now (20)) and AS 46.03.710 which it orders for future cases. Stock v. State, 526 P.2d 3 (Alaska 1974).

Emptying lagoon of raw sewage into stream. —

Whatever may be the outer boundaries of conduct prohibited by AS 46.03.710 as defined by paragraph (19) (now (20)), it is beyond dispute that the emptying of a lagoon of raw sewage into a stream running through residential areas comes within the definition of the term “pollution.” Stock v. State, 526 P.2d 3 (Alaska 1974).

Evidence properly admitted. —

Chapter 04. Oil and Hazardous Substance Pollution Control.

Cross references. —

For other provisions related to violations of this chapter, see AS 46.03; for other provisions related to oil pollution control, see AS 46.08 (Oil and Hazardous Substance Releases).

Administrative Code. —

For oil and other hazardous substances pollution control, see 18 AAC 75.

Collateral references. —

61C Am. Jur. 2d, Pollution Control, §§ 950-1031.

39A C.J.S., Health and Environment, § 160 et seq.

Duty and liability as to plugging oil or gas well abandoned or taken out of production. 50 ALR3d 240.

Liability of oil and gas lessee or operator for injuries to or death of livestock. 51 ALR3d 304.

Article 1. Oil Pollution Control.

Administrative Code. —

For oil pollution prevention requirements, see 18 AAC 75, art. 1.

Sec. 46.04.010. Reimbursement for cleanup expenses.

The department shall promptly seek reimbursement under AS 46.03.760(d) , AS 46.08.070 , or from an applicable federal fund, for the expenses it incurs in cleaning up or containing a discharge of oil. If the department obtains reimbursement for a portion of its expenses from a federal fund, the remainder of the expenses incurred may be recovered under AS 46.03.760(d) or AS 46.08.070 . Money received by the department under this section shall be deposited in the general fund and credited to

the oil and hazardous substance release response mitigation account established under AS 46.08.025(b) ; the amount required to be deposited under this paragraph shall represent the proportion of the expenses recovered that were originally paid for from the oil and hazardous substance release account established under AS 46.08.010(a)(2) ; or
the oil and hazardous substance release prevention mitigation account established under AS 46.08.020(b) ; the amount required to be deposited under this paragraph is the amount of money recovered that exceeds the amount payable to the response mitigation account under (1) of this section.

History. (§ 2 ch 116 SLA 1980; am § 15 ch 59 SLA 1986; am § 19 ch 128 SLA 1994)

Revisor’s notes. —

In 1995, “AS 46.03.760(d) ” was substituted for “AS 46.03.760 (e) in two places to reflect the 1995 reorganization of AS 46.03.760 .

Sec. 46.04.020. Removal of oil discharges.

A person causing or permitting the discharge of oil shall immediately contain and clean up the discharge. The department may waive this requirement
1. if it determines, in consultation with the United States Coast Guard or the United States Environmental Protection Agency, as appropriate, that containment or cleanup is technically not feasible; or
2. if the cleanup or containment activities would result in greater environmental damage than the discharge itself.
The containment and cleanup of discharged oil shall be carried out in a manner approved by the department. Wastes generated as a result of containment or cleanup activities shall be disposed of in a manner approved by the department. The requirement of this subsection for approval of containment and cleanup activities does not apply to the United States Coast Guard or United States Environmental Protection Agency acting under the authority of § 311(c) or (d) of the Clean Water Act.
If the department determines that containment or cleanup activities are not adequate, it may direct the person engaged in the activities to cease and may undertake the activities itself through contract or its own resources, or both. The department may not direct the cessation of containment or cleanup activities undertaken by the United States Coast Guard or United States Environmental Protection Agency under § 311 of the Clean Water Act. However, the department may undertake, direct, or authorize supplemental cleanup or containment efforts.
The department shall provide for the immediate containment or cleanup of an oil discharge of unexplained origin unless
1. the department determines, in consultation with the United States Coast Guard or the United States Environmental Protection Agency that containment or cleanup of the oil discharge is technically not feasible; or
2. the containment or cleanup activities would result in greater environmental damage than the discharge itself.
The department shall enter into negotiations for memoranda of understanding or cooperative agreements with the United States Coast Guard, the United States Environmental Protection Agency, and other persons in order to
1. facilitate coordinated and effective oil discharge prevention and response in the state, including agreements relating to development and enforcement of vessel traffic control and monitoring systems for tank vessels and oil barges operating in or near the waters of the state;
2. provide for cooperative review of oil discharge prevention and contingency plans submitted to the department under AS 46.04.030 ;
3. provide for cooperative inspections of oil terminal facilities by the department and the United States Coast Guard or United States Environmental Protection Agency; and
4. provide for cooperative oil discharge notification procedures.
In fulfilling its responsibilities under (e) of this section, the department shall consult with the governing bodies of municipalities and villages.
In addition to existing obligations under state and federal law, and the provisions of the state and federal Trans Alaska Pipeline System right-of-way agreements, the common operating agent for the holder and lessees of the right-of-way agreement for the trans Alaska pipeline shall (1) immediately contain and clean up a discharge or threatened discharge of oil transported by or due to the operation of the Trans Alaska Pipeline System or due to related activities, including activities related to a vessel en route to, berthed at, or transiting from the Trans Alaska Pipeline System marine terminal or traveling on waters within Prince William Sound; and (2) provide services required in a response action under contract terms as provided under AS 46.04.030(q) . The obligations imposed under this subsection do not affect the response action duties of another person or the liability of another person for a discharge or threatened discharge. Upon the request of the person required to respond to a discharge or threatened discharge under this subsection, the obligation imposed by this subsection may be transferred to another person required by law to respond to the discharge or threatened discharge if the transfer is approved by the federal and state on-scene coordinators. In this subsection, “Prince William Sound” has the meaning given in AS 46.04.030(q) .
A charge, contract term, or financial responsibility requirement imposed by the holders and lessees of the right-of-way agreement for the Trans Alaska Pipeline System, the holders and lessees’ common operating agent, or the agent or representative of either the holders and lessees, or their common operating agent, on or for a vessel traveling from a marine terminal and related to containing and cleaning up a discharge or threatened discharge of oil or the obligations imposed under (g) of this section
1. must be fair, reasonable, and nondiscriminatory; and
2. with respect to a financial responsibility requirement in excess of $10,000,000, must
  1. not exceed the potential cost of containment and cleanup as provided in the applicable contingency plan under AS 46.04.030 that the agent may reasonably be expected to incur from a discharge or threatened discharge of oil from that vessel before the transfer of cleanup and containment management and control to the responsible party; in establishing the financial responsibility requirement, the common operating agent shall assume that transfer of management and control will occur at the earliest practicable time following the discharge or threat of discharge; and
  2. vary among each vessel in proportion to the volume of oil carried by each vessel per voyage from a marine terminal; for purposes of this subparagraph, the volume of oil carried by the vessel must be reduced by the percentage of spill reduction credits granted that vessel under regulations adopted by the department.
The superior court and, with respect to intrastate voyages, the Regulatory Commission of Alaska under AS 42.05.361 — 42.05.431 , have concurrent jurisdiction to review and enjoin a charge, contract term, or financial responsibility requirement described under (h) of this section at the request of a vessel owner, operator, or charterer. Except as provided in this subsection, nothing in this section affects the jurisdiction of the Regulatory Commission of Alaska.

History. (§ 2 ch 116 SLA 1980; am § 8 ch 191 SLA 1990; am § 12 ch 83 SLA 1991; am § 10 ch 83 SLA 1992; am § 23 ch 25 SLA 1999)

Revisor’s notes. —

In 1995, in subsection (g), “AS 46.04.030 (q)” was substituted for “AS 46.04.030 (r)” in two places to reflect the 1995 reorganization of AS 46.04.030.

Cross references. —

For civil penalties for discharges of oil, see AS 46.03.758 ; for civil actions for pollution, see AS 46.03.760 ; for provisions imposing strict liability for discharge of hazardous substances, see AS 46.03.822 .

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For cleanup levels, see 18 AAC 78, art. 6.

Editor’s notes. —

Section 311 of the Clean Water Act, referred to in subsections (b) and (c), may be found in 33 U.S.C. § 1321.

Sec. 46.04.025. Confidential information.

The department may maintain the confidentiality of a manufacturer’s proprietary technical information relating to chemical and biological agents used to control or mitigate the effects of an oil discharge. The department may refuse to release the information unless the manufacturer authorizes its release or unless a court orders its release. The department may provide the information to the Department of Fish and Game and other state and federal agencies if the department or other agency requesting the information agrees to maintain its confidentiality.

History. (§ 2 ch 116 SLA 1980)

Sec. 46.04.030. Oil discharge prevention and contingency plans.

History. (§ 2 ch 116 SLA 1980; am §§ 1, 2 ch 140 SLA 1988; am § 6 ch 41 SLA 1989; am §§ 9, 10 ch 191 SLA 1990; am § 59 ch 21 SLA 1991; am §§ 11, 12 ch 83 SLA 1992; am § 1 ch 16 SLA 1993; am § 8 ch 140 SLA 1996; am § 2 ch 9 SLA 2002; am § 2 ch 12 SLA 2003; am § 7 ch 45 SLA 2003; am § 52 ch 49 SLA 2004; am § 2 ch 79 SLA 2005)

Revisor’s notes. —

In 1995, former subsection (r) was relettered as (q) and former (q) was relettered as (r). In 2008, in (q) of this section, “Montague” was substituted for “Montigue” to correct a manifest error in ch. 83, SLA 1992.

Cross references. —

For detention of vessel as security for payment of damages, see AS 46.03.770 .

Administrative Code. —

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For oil pollution prevention requirements, see 18 AAC 75, art. 1.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For oil spill primary response action contractors and nontank vessel cleanup contractors, incident management teams, and response planning facilitators, see 18 AAC 75, art. 5.

Notes to Decisions

Statutory construction. —

Because they stand as separate subsections in the same statute, mandatory response planning standards in AS 46.04.030(k) and the best available technology requirement in AS 46.04.030(e) evince an intent to impose two separate requirements: under subsection (k), all contingency plan holders must demonstrate their ability to comply with applicable standards, and under subsection (e), all applicants must also provide that they will achieve this compliance, which is required as part of their plans, by using the best technology that was available at the time the contingency plan was submitted or renewed. Lakosh v. Alaska Dep't of Envtl. Conservation, 49 P.3d 1111 (Alaska 2002).

Administrative proceedings. —

Residents who had a strong interest in the issue at hand challenged plans of the Alaska Department of Environmental Conservation (DEC) for various shipping entities with respect to oil discharge. DEC violated the residents’ due process rights under Alaska Const. art. I, § 7 by predicating their request for relevant records on completion of those records by the agency, and by dismissing them from the appeal when they did not pay preparation costs for the agency’s record. Copeland v. Ballard, 210 P.3d 1197 (Alaska 2009).

Sec. 46.04.035. Registration of oil spill response action contractors.

A person may apply to the department for registration as an oil spill primary response action contractor. The department shall adopt regulations governing the registration and approval of oil spill primary response action contractors. Regulations adopted by the department under this section must include
1. minimum training standards for personnel;
2. verification requirements that ensure the existence of resources, including personnel, equipment, services, and an adequate deployment plan necessary to a response action or as required by a contingency plan in which the contractor has agreed in writing to be listed and is listed;
3. minimum professional response action standards and practices; and
4. minimum planning standards for oil spill primary response action contractors listed in an oil spill contingency plan approved under AS 46.04.030 .
Notwithstanding (a) of this section, the department may substitute a primary response action contractor approval program, and a subsequent process to approve primary response action contractors who agree to be listed in a contingency plan approved under AS 46.04.030 , for regulations required under (a)(1) — (3) of this section if the approval program and subsequent process are developed by the United States Coast Guard.
The department shall establish fees applicable to registration under this section in an amount necessary to cover the costs of the registration program. The fees shall be collected by the department.
AS 44.62 (Administrative Procedure Act) applies to regulations and registrations under this section.
The department shall develop and maintain a list of oil spill primary response action contractors registered under this section. The department shall provide the list on request to interested persons.
A primary response action contractor registered under this section shall annually provide to the department a list of all contingency plans approved under AS 46.04.030 in which the primary response action contractor has agreed in writing to be listed as a responder.
Nothing in this section is intended to amend AS 46.04.030(l) or to create a cleanup or performance standard that must be met by a holder of a contingency plan or a response action contractor.
In this section,
1. “oil” has the meaning given in AS 46.03.826 ;
2. “primary response action contractor” means a person who enters into a response action contract with respect to a release or threatened release of oil and who is carrying out the contract, including a cooperative organization formed to maintain and supply response equipment and materials that enters into a response action contract relating to a release or threatened release of oil.

History. (§ 13 ch 83 SLA 1992)

Administrative Code. —

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For oil spill primary response action contractors and nontank vessel cleanup contractors, incident management teams, and response planning facilitators, see 18 AAC 75, art. 5.

Sec. 46.04.040. Proof of financial responsibility.

A person may not cause or permit the operation of an oil terminal facility in the state unless the person has furnished to the department, and the department has approved, proof of financial ability to respond in damages. Proof of financial responsibility required for a crude oil terminal is $50,000,000 per incident. Proof of financial responsibility required for a noncrude oil terminal is $25, per incident, for each barrel of total noncrude oil storage capacity at the terminal or $1,000,000, whichever is greater, subject to a maximum of $50,000,000. For purposes of this subsection, an oil terminal facility that stores both crude oil and noncrude oil is subject to the financial responsibility requirements applicable to the type of facility that corresponds to the type of oil storage that predominates at the facility. However, if the facility stores more noncrude oil than crude oil, the $25 per incident, per barrel requirement of this subsection applies to each barrel of oil storage capacity at the facility.
A person may not cause or permit the operation of a pipeline or an exploration or production facility in the state unless the person has furnished to the department, and the department has approved, proof of financial ability to respond in damages. Proof of financial responsibility required for
1. a pipeline or an offshore exploration or production facility is $50,000,000 per incident;
2. an onshore production facility is
  1. $20,000,000 per incident if the facility produces over 10,000 barrels per day of oil;
  2. $10,000,000 per incident if the facility produces over 5,000 barrels per day but not more than 10,000 barrels per day of oil;
  3. $5,000,000 per incident if the facility produces over 2,500 barrels per day but not more than 5,000 barrels per day of oil;
  4. $1,000,000 per incident if the facility produces 2,500 barrels per day or less of oil;
3. an onshore exploration facility is $1,000,000 per incident.
Except as provided in (m) of this section, a person may not operate a tank vessel or an oil barge within the waters of the state, or cause or permit the transfer of oil to or from a tank vessel or an oil barge, unless the person operating the tank vessel or oil barge has furnished to the department, and the department has approved, proof of financial ability to respond in damages. Proof of financial responsibility required under this subsection is
1. $300, per incident, for each barrel of storage capacity or $100,000,000, whichever is greater, for a tank vessel or barge carrying crude oil;
2. $100, per incident, for each barrel of storage capacity or $1,000,000, whichever is greater, subject to a maximum of $35,000,000, for a tank vessel or barge carrying noncrude oil.
Except as provided in (k) of this section, it is not a defense to an action brought for violation of (a) — (c) of this section that the person charged believed in good faith that proof of financial ability to respond in damages had been furnished to, and approved by, the department.
Financial responsibility may be demonstrated by (1) self-insurance, (2) insurance, (3) surety, (4) guarantee, (5) letter of credit approved by the department, or (6) other proof of financial responsibility approved by the department, including proof of financial responsibility provided by a group of insureds who have agreed to cover pollution risks of members of the group under terms the department may prescribe. An action brought under AS 46.03.758 , 46.03.759 , 46.03.760(a) or (d), 46.03.822 , or AS 46.04.030(g) may be brought in a state court directly against the insurer, the group, or another person providing evidence of financial responsibility; however, the liability under this section of a third-party insurer is limited to the type of risk assumed and the amount of coverage specified in the proof of financial responsibility furnished to and approved by the department. The applicant, and an insurer, surety, guarantor, person furnishing an approved letter of credit, or other group or person providing proof of financial responsibility approved by the department shall appoint an agent for service of process in the state. For purposes of this subsection, an insurer, other than a group of insureds whose agreement has been approved by the department, must either be authorized by the Department of Commerce, Community, and Economic Development to sell insurance in the state or be an unauthorized insurer listed by the Department of Commerce, Community, and Economic Development as not disapproved for use in the state. In this subsection, “third-party insurer” means a third-party insurer, surety, guarantor, person furnishing a letter of credit, or other group or person providing proof of financial responsibility on behalf of an applicant under this section; “third-party insurer” does not include the applicant.
Acceptance of proof of financial responsibility expires
1. one year from its issuance for self-insurance;
2. on the effective date of a change in the surety bond, guarantee, insurance agreement, letter of credit, or other proof of financial responsibility; or
3. on the expiration or cancellation of the surety bond, guarantee, insurance agreement, letter of credit, or other proof of financial responsibility.
The person whose proof of financial responsibility is accepted by the department under this section shall notify the department at least 30 days before the effective date of a change, expiration or cancellation in the surety bond, guarantee, insurance agreement, letter of credit, or other proof of financial responsibility. Application for renewal of acceptance of proof of financial responsibility under this section must be filed at least 30 days before the date of expiration.
The department, after notice and hearing, may revoke acceptance of proof of financial responsibility if it determines that
1. acceptance was procured by fraud or misrepresentation; or
2. a change of circumstance has occurred other than a change specified in (f)(1) — (3) of this section, which would have warranted denial of the application.
Financial responsibility under this section extends to a loss compensable under AS 46.03.760(d) or 46.03.822 and an assessment under AS 46.03.758 , 46.03.759 , 46.03.760(a) , or AS 46.04.030(g) .
Upon acceptance and approval of proof of financial responsibility under this section, the department shall issue to the applicant a certificate stating that the state’s financial responsibility requirements have been satisfied. The certificate must include the name of the facility, pipeline, tank vessel, or oil barge for which it is issued and the expiration date of the certificate.
It is a defense to an action brought for violation of (a) — (c) of this section that the person charged relied on a certificate of approval issued under (j) of this section unless the person knew or had reason to know at the time of the alleged violation that the approval had been revoked or was expired.
Notwithstanding the requirements of (e) of this section, the applicant may provide evidence of financial responsibility provided by an insurer or other person who does not agree to be subject to direct action in state courts or to appoint an agent for service of process if
1. the department is satisfied that the insurance or other form of financial responsibility covers judgments under the statutes listed in (e) of this section;
2. the applicant provides proof of $50,000,000, or the amount required by (a) — (c) of this section, whichever is less, in insurance or other form of financial responsibility that meets the requirements of (e) of this section; and
3. the applicant provides a sworn statement or affidavit that insurance or other form of financial responsibility that meets the requirements of (e) of this section is not available in greater amounts.
A tank vessel or oil barge that is conducting, or is available only for conducting, oil discharge response operations is exempt from the requirements of (c) of this section if the tank vessel or oil barge has received prior approval of the department. The department may approve an exemption under this subsection upon application and presentation of information required by the department.

History. (§ 2 ch 116 SLA 1980; am §§ 117, 118 ch 59 SLA 1982; am §§ 7, 8 ch 41 SLA 1989; am §§ 11 — 18 ch 191 SLA 1990; am § 60 ch 21 SLA 1991; am § 1 ch 102 SLA 1992; am § 1 ch 12 SLA 1994; am § 9 ch 140 SLA 1996; am § 8 ch 49 SLA 2002; am § 53 ch 49 SLA 2004; am § 3 ch 79 SLA 2005)

Revisor’s notes. —

Under AS 46.04.045 , the dollar amounts in (a) and (c) of this section have been changed by regulation. In 1995, in (e) and (i) of this section “AS 46.03.760 (a) and (d)” was substituted for “AS 46.03.760 (a) and (e)” to reflect the 1995 reorganization of AS 46.03.760.

In 1999, in (e) of this section, “Department of Commerce and Economic Development” was changed to “Department of Community and Economic Development” in accordance with § 88, ch. 58, SLA 1999.

In 2004, in (e) of this section, “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

Cross references. —

For civil penalties for discharges of oil, see AS 46.03.758 . For civil actions for pollution, see AS 46.03.760 ; for provisions imposing strict liability for discharge of hazardous substances, see AS 46.03.822 ; for revised dollar amounts, see 18 AAC 75.235.

Administrative Code. —

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

Opinions of attorney general. —

Letters of undertaking are not adequate for proof of financial responsibility under this section. Aug. 28, 1986 Op. Att’y Gen.

Sec. 46.04.045. Adjustment of dollar amounts.

The dollar amounts in AS 46.04.040 change, as provided in this section, according to and to the extent of changes in the Consumer Price Index for all urban consumers for the Anchorage metropolitan area compiled by the Bureau of Labor Statistics, United States Department of Labor (the index). The index for January 1990 is the reference base index.
The dollar amounts change on October 1 of each third year according to the percentage change between the index for January of that year and the most recent index used to determine whether to change the dollar amounts. After calculation of the new amounts, the resulting amounts shall be rounded to the nearest cent.
If the index is revised, the percentage of change is calculated on the basis of the revised index. If a revision of the index changes the reference base index, a revised reference base index is determined by multiplying the reference base index applicable by the rebasing factor furnished by the United States Bureau of Labor Statistics. If the index is superseded, the index referred to in this section is the one represented by the Bureau of Labor Statistics as reflecting most accurately changes in the purchasing power of the dollar for Alaskan consumers.
The department shall adopt a regulation announcing
1. on or before June 30 of each third year, the changes in dollar amounts required by (b) of this section; and
2. promptly after the changes occur, changes in the index required by (c) of this section, including, if applicable, the numerical equivalent of the reference base index under a revised reference base index and the designation or title of any index superseding the index.
The department shall also provide notification of a change in dollar amounts required under (b) of this section to the clerks of court in each judicial district of the state.

History. (§ 19 ch 191 SLA 1990)

Administrative Code. —

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

Sec. 46.04.047. Noncrude oil operations.

Notwithstanding AS 46.04.040 , the department may, with respect to noncrude oil operations, approve proof of financial responsibility by a person, other than the applicant, who does not agree to be subject to a direct action in the state or to appoint an agent for service of process if the applicant

provides proof of financial responsibility in the form and amounts otherwise required under AS 46.04.040 ;
provides a sworn statement that
1. is acceptable to the department;
2. attests that the applicant has diligently attempted to obtain a form of proof of financial responsibility that would provide for a direct action and appointment of an agent for service of process;
3. describes the steps the applicant has taken to obtain a form of proof of financial responsibility that would provide for a direct action and appointment of an agent for service of process;
4. states that a form of proof of financial responsibility that would provide for a direct action and appointment of an agent for service of process is unavailable to the applicant;
continues diligent efforts to obtain a form of proof of financial responsibility that would provide for a direct action and appointment of an agent for service of process and provides a sworn statement every six months that is acceptable to the department, containing the information required in (2) of this section.

History. (§ 2 ch 102 SLA 1992)

Revisor’s notes. —

Originally enacted as temporary law, to be repealed June 1, 1994. The repealer was repealed by § 2, ch. 12, SLA 1994, and the section was codified.

Sec. 46.04.050. Exemptions.

The provisions of AS 46.04.030 , 46.04.040 , and 46.04.060 do not apply to an oil terminal facility that has an effective storage capacity of less than 5,000 barrels of crude oil or less than 10,000 barrels of noncrude oil.
The provisions of AS 46.04.030 and 46.04.040 do not apply to a natural gas production facility and a natural gas terminal facility; for purposes of this subsection, “natural gas production facility” and “natural gas terminal facility” mean a platform, facility, or structure that, except for storage of refined petroleum products in a quantity that does not exceed 10,000 barrels, is used solely for the production, compression, storage, or transport of natural gas.
The provisions of AS 46.04.030 and 46.04.040 do not apply to a natural gas exploration facility if the Alaska Oil and Gas Conservation Commission has determined under AS 31.05.030(l) that evidence obtained through evaluation demonstrates with reasonable certainty that all of the wells at a natural gas exploration facility will not penetrate a formation capable of flowing oil to the ground surface. If the drilling of a well at an exploration facility exempted under this subsection does penetrate a formation capable of flowing oil to the surface, the owner or operator shall submit an oil discharge prevention and contingency plan and proof of financial responsibility to the department to meet the requirements of AS 46.04.030 and 46.04.040 . For purposes of this subsection, “natural gas exploration facility” means a platform, facility, or structure that, except for storage of refined petroleum products in a quantity that does not exceed 10,000 barrels, is used solely for the exploration for natural gas.

History. (§ 2 ch 116 SLA 1980; am § 20 ch 191 SLA 1990; am § 1 ch 39 SLA 1992; am §§ 4, 5 ch 79 SLA 2005)

Administrative Code. —

For oil pollution prevention requirements, see 18 AAC 75, art. 1.

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

Opinions of attorney general. —

Subsection (b) exempts liquefied natural gas tankers from the contingency planning and financial responsibility requirements of AS 46.04.030 and 46.04.040 . Apr. 2, 1993 Op. Att’y Gen. (Issued before 2005 amendment.)

Notes to Decisions

Evidence sufficient. —

Substantial evidence supported the decision of the Alaska Oil and Gas Conservation Commission not to classify a well as a gas facility because the well’s producer repeatedly represented that the producer planned to drill for oil. Alaskan Crude Corp. v. State, 309 P.3d 1249 (Alaska 2013).

Classification of well. —

Alaska Oil and Gas Conservation Commission has the implicit authority to classify a well as an oil or gas facility because AS 31.05.030 ( l ) and this section expressly grant it the authority to decide if a well meets standards to be exempt from oil discharge prevention requirements. Alaskan Crude Corp. v. State, 309 P.3d 1249 (Alaska 2013).

Sec. 46.04.055. Nontank vessels and railroad tank cars.

A person may not operate a nontank vessel within the waters of the state or cause or permit the transfer of oil to or from a nontank vessel unless the person has furnished to the department and the department has approved proof of financial ability to respond to damages meeting the requirements of AS 46.04.040 . Proof of financial responsibility required under this subsection is subject to adjustment of dollar amounts under AS 46.04.045 and is established, for a nontank vessel that carries
1. predominantly persistent product, at $300 per incident for each barrel of oil storage capacity on the vessel or $5,000,000, whichever is greater; and
2. predominantly nonpersistent product, at $100 per incident for each barrel of oil storage capacity on the vessel or $1,000,000, whichever is greater.
A person may not transport oil by railroad tank car or cause or permit the transfer of oil to or from a railroad tank car unless the person has furnished to the department and the department has approved proof of financial ability to respond to damages meeting the requirements of AS 46.04.040 . Proof of financial responsibility required under this subsection is subject to adjustment of dollar amounts under AS 46.04.045 and is established at
1. $300 per incident for each barrel of persistent product based on the maximum amount of persistent product storage capacity of any train on the railroad; and
2. $100 per incident for each barrel of nonpersistent product based upon the maximum amount of nonpersistent product storage capacity of any train on the railroad or $1,000,000, whichever is greater.
For purposes of AS 46.04.030(k) , response planning standards apply to nontank vessels and railroad tank cars as follows:
1. for a nontank vessel,
  1. containment and control of 15 percent of the maximum oil capacity of the nontank vessel within 48 hours; and
  2. cleanup of the discharge within the shortest possible time consistent with minimizing damage to the environment; and
2. for a railroad tank car,
  1. containment and control of 15 percent of the maximum oil capacity of a train on the railroad within 48 hours; and
  2. cleanup of the discharge within the shortest possible time consistent with minimizing damage to the environment.
Notwithstanding the requirements of AS 46.04.040(e) and (l) and 46.04.047 , for purposes of (a) of this section, an applicant may provide evidence of financial responsibility by proof of entry of the nontank vessel in a protection and indemnity association or proof of coverage with another insurer that
1. is financially solvent and has a favorable history of claim handling;
2. provides coverage against pollution risks in at least the amount of the financial responsibility required under (a) of this section without any requirement for a special endorsement;
3. does not agree to be subject to direct action in court or to appointment of an agent for service of process; and
4. in the case of a protection and indemnity association or group of insureds, is not authorized by the Department of Commerce, Community, and Economic Development to sell insurance in the state so long as it is not listed by the Department of Commerce, Community, and Economic Development as being disapproved for use in the state.
The requirements of this section do not apply to a nontank vessel operating in the waters of the state if the nontank vessel
1. is engaged in innocent passage; for purposes of this paragraph, a nontank vessel is engaged in innocent passage if its operation in state waters, irrespective of whether it is a United States or foreign-flag vessel, would constitute innocent passage under the Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, 15 U.S.T. 1606, or the United Nations Convention on the Law of the Sea 1982, December 10, 1982, U.N. Publication No. E 83.V.5, 21 I.L.M. 1261 (1982), were the vessel a foreign-flag vessel;
2. enters state waters because of imminent danger to the crew, or in an effort to prevent an oil spill or other harm to public safety or the environment, and are inapplicable only until the vessel is able to leave state waters as soon as it may do so without imminent risk of harm to the crew, public safety, or the environment; or
3. enters state waters after the United States Coast Guard has determined that the vessel is in distress, and are inapplicable only until the vessel is able to leave state waters as soon as it may do so without imminent risk of harm to the crew, public safety, or the environment.
On and after May 26, 2003, a person may not operate a nontank vessel within the waters of the state or cause or permit the transfer of oil to or from a nontank vessel unless the department has approved an oil discharge prevention and contingency plan covering that nontank vessel and the person is in compliance with the plan.
The oil discharge prevention and contingency plan for a nontank vessel required by (f) of this section must include
1. vessel-specific information;
2. a response plan consisting of
  1. initial notification procedures;
  2. a certification that the applicant for the nontank vessel contingency plan is a member of, or has a contract with, an oil spill response organization that is an oil spill primary response action contractor with a response action plan approved by the department as meeting the response planning standards of (c)(1) of this section for the maximum oil capacity of the nontank vessel; and
  3. a certification that the applicant for the nontank vessel contingency plan has contracted with an oil spill primary response action contractor providing incident management team services; and
3. a prevention plan certification stating that the nontank vessel for which contingency plan approval is made complies with applicable federal and International Maritime Organization requirements.
In lieu of the requirements
1. of (g)(2)(B) of this section, a person may comply with the requirement of (g)(2)(B) of this section by demonstrating, to the satisfaction of the department, that the person is maintaining an oil spill response plan and equivalent equipment, personnel, and resources to enable the person to meet the requirements of this section; and
2. of (g)(2)(C) of this section, a person may comply with the requirement of (g)(2)(C) of this section by demonstrating, to the satisfaction of the department, that the person is maintaining an incident management team in order to implement a planned response to a release or threatened release of oil from its nontank vessel.
The provisions of AS 46.04.030(d) — (l), (n), (o), and (r) apply to a nontank vessel, to a nontank vessel contingency plan required by this section, and to a person applying for and holding an approved nontank vessel contingency plan.
On and after June 12, 2003, a person may not transport oil by railroad tank car or cause or permit the transfer of oil to or from a railroad tank car unless the department has approved an oil discharge prevention and contingency plan covering the transportation of oil by railroad tank cars by the railroad and the person is in compliance with the plan.
The provisions of AS 46.04.030(d) — (l), (n), (o), and (r) apply to a railroad tank car, to a railroad tank car contingency plan required by this section, and to a person applying for and holding an approved railroad tank car contingency plan.
The department shall adopt regulations under AS 46.04.070 to implement
1. the requirements of response planning standards under (c) of this section;
2. the requirements of (f) — (i) of this section as applicable to nontank vessels; and
3. the requirements of (j) and (k) of this section as applicable to railroad tank cars.

History. (§ 1 ch 128 SLA 2000; am §§ 6 — 8 ch 8 SLA 2001)

Revisor’s notes. —

In 2004, in (d) of this section, “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

Administrative Code. —

For oil pollution prevention requirements, see 18 AAC 75, art. 1.

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For oil spill primary response action contractors and nontank vessel cleanup contractors, incident management teams, and response planning facilitators, see 18 AAC 75, art. 5.

Notes to Decisions

Vessel captain found guilty of operating without oil spill plan. —

Vessel captain violated subsection (f) by leaving an Alaska port without complying with the statute’s requirement that the vessel have an oil spill contingency plan on file, despite knowledge that his vessel was not compliant and despite a direct order to turn the vessel and return to port. State v. Greenpeace, Inc., 187 P.3d 499 (Alaska Ct. App. 2008).

Sec. 46.04.060. Inspections.

In addition to other rights of access or inspection conferred upon the department by law or otherwise, the department may at reasonable times and in a safe manner enter and inspect oil terminal facilities, pipelines, exploration and production facilities, tank vessels, and oil barges in order to
1. ensure compliance with the provisions of this chapter; or
2. participate in an examination of the structural integrity and the operating and mechanical systems of those vessels, barges, pipelines, and facilities by federal and state agencies with jurisdiction.
When the department determines that no federal or state agencies with jurisdiction are performing timely and adequate inspections of an oil terminal facility, pipeline, exploration or production facility, tank vessel, or oil barge, it may perform its own inspection of the structural integrity and operating and mechanical systems of a facility, pipeline, tank vessel, or oil barge by using personnel with qualifications in the areas being inspected.

History. (§ 2 ch 116 SLA 1980; am §§ 21, 22 ch 191 SLA 1990)

Administrative Code. —

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

Sec. 46.04.065. Compliance verification for nontank vessels and for trains and related facilities and operations.

In addition to other rights of access or examination conferred upon the department by law or otherwise, to ensure compliance with the provisions of this chapter relating to oil pollution control, the department may at reasonable times and in a safe manner enter and examine

nontank vessels; and
trains, railroad tracks, associated facilities, and railroad operations.

History. (§ 9 ch 8 SLA 2001)

Administrative Code. —

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

Sec. 46.04.070. Scope of regulations.

The department shall adopt regulations that are necessary to carry out the purposes of this chapter and that do not conflict with and are not preempted by federal law or regulations.

History. (§ 2 ch 116 SLA 1980)

Administrative Code. —

For oil pollution prevention requirements, see 18 AAC 75, art. 1.

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For oil spill primary response action contractors and nontank vessel cleanup contractors, incident management teams, and response planning facilitators, see 18 AAC 75, art. 5.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For cleanup levels, see 18 AAC 78, art. 6.

Sec. 46.04.080. Catastrophic oil discharges.

The commissioner or the adjutant general of the Department of Military and Veterans’ Affairs may request the governor to determine that an actual or imminent occurrence of a catastrophic oil discharge constitutes a disaster emergency under AS 26.23. The commissioner and the adjutant general of the Department of Military and Veterans’ Affairs shall respond appropriately in the relief of the actual or imminent discharge under the relevant provisions of the applicable incident command system.
The department shall promptly, under AS 46.04.010 , seek reimbursement of oil discharge cleanup or containment expenses incurred as a result of an actual or imminent catastrophic oil discharge under AS 26.23.050 .

History. (§ 2 ch 116 SLA 1980; am § 10 ch 190 SLA 1990; am § 1 ch 11 SLA 1993; am § 47 ch 30 SLA 1996; am § 56 ch 22 SLA 2015)

Cross references. —

For state master contingency plan, see AS 46.04.200 .

Effect of amendments. —

The 2015 amendment, effective May 15, 2015, in (a), twice substituted “commissioner” for “commissioner of environmental conservation”.

Sec. 46.04.090. Oil discharge cleanup personnel, equipment, expenses.

The department, when feasible, shall enter into contracts with persons or private organizations to provide the personnel, equipment, or other services or supplies that may be required to carry out this chapter. Contracts under this section are governed by AS 36.30 (State Procurement Code). When private contracting is not feasible, the department may establish and maintain at ports, harbors, or other locations in the state, the cleanup personnel, equipment, and supplies that, in its judgment, are necessary to carry out this chapter. When exercising its authority under this subsection, the department shall coordinate with the Department of Military and Veterans’ Affairs to avoid duplication of efforts.

History. (§ 2 ch 116 SLA 1980; am § 54 ch 106 SLA 1986; am § 11 ch 190 SLA 1990)

Revisor’s notes. —

Former subsection (b) was renumbered as AS 46.03.890(b) in 1991, at which time the subsection designation of former (a) was deleted.

Sec. 46.04.100. Compacts authorized.

The governor may execute supplementary agreements, reciprocal arrangements, or compacts with any other state or country, subject to the approval, if required by the United States Constitution, of the Congress of the United States, for the purpose of implementing this chapter.

History. (§ 2 ch 116 SLA 1980)

Sec. 46.04.110. Municipal powers limited.

If a conflict occurs between a provision of this chapter, or a regulation, order, decision, or other determination of the department under this chapter, and a charter, ordinance, permit, regulation, franchise, decision, or other determination of a municipality, the provisions of this chapter or the regulation, order, decision, or other determination of the department prevail. However, nothing in this chapter precludes a municipality, by ordinance or regulation, from exercising its police powers in the area regulated by this chapter.

History. (§ 2 ch 116 SLA 1980)

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For cleanup levels, see 18 AAC 78, art. 6.

Sec. 46.04.120. [Renumbered as AS 46.04.900.]

Article 2. Oil and Hazardous Substance Discharge and Prevention Contingency Plans.

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

For oil spill primary response action contractors, etc., see 18 AAC 75, art. 5.

Editor’s notes. —

Section 5, ch. 90, SLA 1989 provides that chapter 90, which enacted AS 46.04.200 — 46.04.210 , “does not relieve a person responsible for an oil terminal facility, offshore exploration or production facility, or a vessel that transports crude oil, or a person who has control of a hazardous substance, from the responsibility for containing and cleaning up a discharge of oil or the hazardous substance as required by law.”

Sec. 46.04.200. State master plan.

The department shall prepare, annually review, and revise as necessary a statewide master oil and hazardous substance discharge prevention and contingency plan.
The state master plan prepared under this section must
1. take into consideration the elements of an oil discharge prevention and contingency plan approved or submitted for approval under AS 46.04.030 ;
2. include incident command systems that clarify and specify the respective responsibilities of each of the following in the assessment, containment, and cleanup of various types and sizes of discharges of oil or a hazardous substance into the environment of the state:
  1. the Department of Environmental Conservation, the division of homeland security and emergency management in the Department of Military and Veterans’ Affairs, and other agencies of the state; responsibilities assigned to each agency must be consistent with its statutory authority;
  2. municipalities of the state;
  3. appropriate federal agencies;
  4. operators of facilities;
  5. private parties whose land and other property may be affected by the oil or hazardous substance discharge; and
  6. other parties identified by the commission as having an interest in or the resources to assist in the containment and cleanup of an oil or hazardous substance discharge;
3. include incident command systems that specify the respective responsibilities of parties identified in (2) of this subsection in an emergency response under AS 26.23, AS 46.03.865 , AS 46.04.080 , or AS 46.09.030 ; responsibilities assigned to each state agency must be consistent with its statutory authority; and
4. identify actions necessary to reduce the likelihood of discharges of oil or hazardous substances.
If the commissioner determines that the state master plan should be revised, the commissioner shall
1. consult with municipal, community, and local emergency planning committee officials, and with representatives of affected regional organizations;
2. submit the draft plan with revisions to the public for review and comment;
3. submit to the legislature for review, not later than the 10th day following the convening of each regular session, any revision of the plan; and
4. submit any revision of the plan to the Alaska State Emergency Response Commission for its review under AS 26.23.077 .
In order to determine whether the state master plan should be revised, or at any other time the commissioner determines it necessary, the commissioner shall require or schedule unannounced oil spill drills to test the sufficiency of an oil discharge prevention and contingency plan approved under AS 46.04.030 or of the cleanup plans of a party identified under (b)(2) of this section.

History. (§ 2 ch 90 SLA 1989; am §§ 12, 13 ch 190 SLA 1990; am § 23 ch 191 SLA 1990; am §§ 19, 20 ch 32 SLA 1994)

Revisor’s notes. —

In 2004, in (b) of this section, “division of emergency services” was changed to “division of homeland security and emergency management” in accordance with § 26(b), ch. 179, SLA 2004.

Sec. 46.04.210. Regional master plan.

For any region of the state, the boundaries of which are determined by the commissioner by regulation, in which the department is required to review and approve an oil discharge prevention and contingency plan submitted by a person under AS 46.04.030 , the department shall prepare, annually review, and revise as necessary a regional master oil and hazardous substance discharge prevention and contingency plan.
The provisions of AS 46.04.200(b) and (c) apply to preparation and review of a regional master plan under this section.
In setting boundaries under (a) of this section, the department shall, when possible, group together communities that are likely to require coordination of their efforts to respond effectively to a discharge.

History. (§ 2 ch 90 SLA 1989; am § 24 ch 191 SLA 1990; am §§ 21, 22 ch 32 SLA 1994)

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

Article 3. Uniform Environmental Covenants Act.

History. (§ 1 ch 106 SLA 2018)

Sec. 46.04.300. Environmental covenant.

An environmental covenant is required if the department makes a remedial decision as part of an environmental response project and that environmental response project results in
1. residual contamination remaining in the environment in concentrations that are safe for some, but not all, uses; or
2. an engineered feature or structure that requires monitoring, maintenance, or operation, or that will not function as intended if disturbed.
An environmental covenant may be held by one or more holders. A holder may own an interest in the real property subject to an environmental covenant. The interest of a holder is an interest in real property.
A right of the department under AS 46.04.300 — 46.04.390 or under an environmental covenant, other than a right as a holder, is not an interest in real property.
The department is bound by any obligation it specifically assumes in an environmental covenant, but the department does not assume obligations merely by signing an environmental covenant. A person other than the department that signs an environmental covenant is bound by the obligations the person assumes in the environmental covenant, but signing the environmental covenant does not change obligations, rights, or protections granted or imposed under law other than under AS 46.04.300 — 46.04.390 unless otherwise provided in the environmental covenant.
The following apply to interests in real property in existence at the time an environmental covenant is created or amended:
1. an interest that has priority under other law is not affected by an environmental covenant unless the person that owns the interest subordinates that interest to the environmental covenant;
2. AS 46.04.300 — 46.04.390 do not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the environmental covenant;
3. an environmental covenant may contain a subordination agreement, or a subordination agreement may be contained in a separate record;
4. the department may decide not to sign an environmental covenant unless each person holding an interest in the land or any part of the land, including each mortgagee, lessee, lienor, and encumbrancer, irrevocably subordinates the interest to the environmental covenant; the department may waive the requirement in this paragraph;
5. an agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that person’s interest but does not by itself impose any affirmative obligation on the person with respect to the environmental covenant;
6. if the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners’ association.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.305. Contents of environmental covenant.

An environmental covenant must
1. state that the interest is an environmental covenant executed under AS 46.04.300 — 46.04.390 ;
2. contain a legally sufficient description of the real property subject to the environmental covenant;
3. describe the activity and use limitations on the real property;
4. identify every holder;
5. be signed by the commissioner of the department, every holder, and, unless waived by the department, every owner of the fee simple of the real property subject to the environmental covenant except that for an environmental covenant affecting a land or mineral interest of the Department of Natural Resources, the signature of the commissioner of natural resources may not be waived; and
6. identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant.
In addition to the information required under (a) of this section, an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it or required by the department, including
1. requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the environmental covenant;
2. requirements for periodic reporting describing compliance with the environmental covenant;
3. rights of access to the property granted in connection with implementation or enforcement of the environmental covenant;
4. a brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination;
5. a limitation on the amendment or termination of the environmental covenant that is in addition to the limitations contained in AS 46.04.300 — 46.04.390 ; and
6. rights of the holder in addition to the right of the holder to enforce the environmental covenant under AS 46.04.335 .
In addition to other conditions for the department’s approval of an environmental covenant, the department may require a specified person who has an interest in the real property that is the subject of the environmental covenant to sign the environmental covenant.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.310. Validity of environmental covenant; effect on other instruments.

An environmental covenant entered into in accordance with AS 46.04.300 — 46.04.390 runs with the land.
An environmental covenant is valid and enforceable even if
1. it is not appurtenant to an interest in real property;
2. it can be or has been assigned to a person other than the original holder;
3. it is not of a character that has been traditionally recognized at common law;
4. it imposes a negative burden;
5. it imposes an affirmative obligation on a person having an interest in the real property or on the holder;
6. the benefit or burden does not touch or concern real property;
7. there is no privity of estate or contract;
8. the holder dies, ceases to exist, resigns, or is replaced; or
9. the owner of an interest subject to the environmental covenant and the holder are the same person.
An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before the effective date of AS 46.04.300 — 46.04.390 is not invalid or unenforceable because of any of the limitations on enforcement of interests described in (b) of this section or because it was identified as an easement, servitude, deed restriction, or other interest. Except as provided in this section, AS 46.04.300 — 46.04.390 do not apply to an instrument described in this subsection.
AS 46.04.300 — 46.04.390 do not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law of this state.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.315. Notice of environmental covenant.

A copy of the environmental covenant shall be provided by the persons and in the manner required by the department to
1. each person that signed the environmental covenant;
2. each person holding a recorded interest in the real property subject to the environmental covenant;
3. each person in possession of the real property subject to the environmental covenant;
4. each municipality or other unit of local government in which real property subject to the environmental covenant is located; and
5. any other person the department requires.
The validity of an environmental covenant is not affected by failure to provide a copy of the environmental covenant as required under this section.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.320. Recording of environmental covenant.

An environmental covenant and an amendment or termination of the environmental covenant must be recorded in every recording district in which any portion of the real property subject to the environmental covenant is located. For purposes of indexing, a holder shall be treated as a grantee.
An owner of land may not record an environmental covenant unless the owner simultaneously records any subordination documentation required under AS 46.04.300(e) .
Except as otherwise provided in AS 46.04.325(f) , an environmental covenant is subject to state law governing recording and priority of interests in real property.
A holder shall provide a copy of the final recorded environmental covenant, an amendment made to the environmental covenant, termination documentation, and documentation of other matters related to the environmental covenant to the department.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.325. Duration; modification or termination of environmental covenant by administrative or court action.

An environmental covenant is perpetual unless it is
1. by its terms, limited to a specific duration or terminated by the occurrence of a specific event;
2. terminated by consent under AS 46.04.330 ;
3. terminated under (b), (e), or (g) of this section;
4. terminated by foreclosure of an interest that has priority over the environmental covenant; or
5. terminated or modified in an eminent domain proceeding, but only if
  1. the department is a party to the proceeding;
  2. every person whose consent is required under AS 46.04.330(a) is given notice of the pendency of the proceeding; and
  3. the court determines, after hearing, that the activity and use limitations subject to termination or modification are no longer required to protect human health, safety, or welfare, or the environment.
The department may terminate or reduce the burden on the real property of an environmental covenant if the department finds that some or all of the activity and use limitations under the environmental covenant are no longer required to protect human health, safety, or welfare, or the environment, or modify the environmental covenant if the department determines that modification is required adequately to protect human health, safety, or welfare, or the environment.
The department shall provide notice of any proposed action under (b) of this section 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. The department shall provide 60 days for comment on the proposed action by parties entitled to notice. A determination by the department under this subsection is a final agency decision. Any person entitled to notice under this subsection may request an adjudicatory hearing under the procedures established by the department under AS 46.04.890 .
A person entitled to notice under (c) of this section may apply in writing to the department for a determination under (b) of this section that an existing environmental covenant be terminated, that the burden of an environmental covenant be reduced, or that an environmental covenant be modified. The application must specify the determination sought by the applicant, the reasons why the department should make the determination, and the information that would support it. If the department fails to begin a proceeding under (b) of this section within 90 days after receiving the application, the applicant may bring a civil action in superior court for termination, reduction of burden, or modification of the environmental covenant under (e) of this section.
The superior court for a recording district in which the real property subject to an environmental covenant is located may, in a de novo action, under the doctrine of changed circumstances, terminate an environmental covenant, reduce an environmental covenant’s burden on the real property, or modify the terms of an environmental covenant if the department fails to begin a proceeding within 90 days as provided under (d) of this section. The applicant under (d) of this section, a holder of the environmental covenant, or another person identified in (c) of this section may begin an action under this subsection. The person beginning the action shall serve notice of the action on the department and any person entitled to notice under (c) of this section. The person bringing the action shall make the department a party to the action. The court shall terminate, reduce the burden of, or modify an environmental covenant if the court determines that the person bringing the action shows that some or all of the activity and use limitations under the environmental covenant do not, or are no longer required to, protect human health, safety, or welfare, or the environment.
An environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, acquiescence, or a similar doctrine.
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.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.330. Amendment or termination of environmental covenant by consent.

An environmental covenant may be amended or terminated if the amendment or termination is consented to and signed
1. by the department;
2. unless waived by the department, by the current owner of the fee simple of the real property subject to the environmental covenant;
3. by each person that originally signed the environmental covenant, unless the person
  1. waived the right to consent to termination or modification in the environmental covenant or in another signed and acknowledged instrument recorded with the recording district;
  2. fails to object to the amendment or termination within 60 days after a party to the covenant mails, by certified mail, return receipt requested, to the person’s last known address, a notice requesting the person’s consent to amendment or termination and the return receipt is signed by the person; or
  3. cannot be found, as determined by a court, because the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; and
4. except as otherwise provided in (d)(2) of this section, by the holder.
If an interest in real property is subject to an environmental covenant, the interest is not affected by an amendment of the environmental covenant unless the current owner of the interest consents to the amendment or has waived in a signed record the right to consent to amendments.
Except for an assignment undertaken under a governmental reorganization, assignment of an environmental covenant to a new holder is an amendment.
Except as otherwise provided in an environmental covenant,
1. a holder may not assign its interest without consent of the other parties specified in (a) of this section;
2. a holder may be removed and replaced by agreement of the other parties specified in (a) of this section; and
3. a court of competent jurisdiction may fill a vacant holder position.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.335. Enforcement of environmental covenant.

The department is the administrating agency for AS 46.04.300 — 46.04.390 and is empowered to administer and enforce AS 46.04.300 — 46.04.390 using the civil or administrative authority granted to it in AS 46.03. However, the department may, but is not required to, assume any administration or enforcement functions other than those directly related to the environmental covenant.
A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by
1. a party to the environmental covenant;
2. the department;
3. a person that the environmental covenant expressly grants the power to enforce the environmental covenant;
4. a person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the environmental covenant; or
5. a municipality or other unit of government that governs the real property subject to the environmental covenant.
AS 46.04.300 — 46.04.390 do not limit the regulatory authority of the department in an environmental response project.
A person is not responsible for or subject to liability for environmental remediation solely because the person has the right to enforce an environmental covenant.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.340. Notice of activity and use limitation.

If a legal impediment prevents an environmental covenant from being entered into, an owner of real property shall, after receiving authorization from the department, record a notice of an activity and use limitation into the appropriate public land records. Failure to record a notice of an activity and use limitation may result in disapproval of the environmental response project.
Once the owner or other person assumes an obligation under a notice of activity and use limitation, that owner or person shall comply with those obligations in accordance with AS 46.04.300 — 46.04.390 .
The enactment, modification, or termination of a notice of activity and use limitation is not valid until it is approved by the department.
A notice of activity and use limitation must remain in place for current and subsequent landowners unless it is terminated under (e) or (m) of this section.
A person who proposes to create, modify, or terminate a notice of activity and use limitation shall provide written notice of the person’s intention to the department, to all persons holding an interest of record in the real property that will be subject to the notice of activity and use limitation, to all persons known to the person to have an unrecorded interest in the property, and to all affected persons in possession of the property before the creation, modification, or termination, and shall provide the department with
1. a copy of the notice provided;
2. a list of the persons to whom notice was given and the address or other location to which the notice was directed; and
3. title information required by the department.
Before unilaterally issuing a notice of activity and use limitation, the department shall provide a copy of the proposed notice of activity and use limitation 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, and shall offer the persons a minimum of 30 days to comment on the proposed notice of activity and use limitation, unless notice has already been provided under (e) of this section. In determining whether to issue the notice of activity and use limitation unilaterally, the department shall consider any comments received. For a notice of activity and use limitation affecting a land or mineral interest of the Department of Natural Resources, concurrence from the Department of Natural Resources is required.
The department shall review and make a determination regarding all requests to create, modify, or terminate a notice of activity and use limitation within 90 days after receiving a request that includes all the information described in (a) of this section.
Upon issuance or approval of a notice of activity and use limitation, the department shall record the notice in every recording district in which a portion of the real property that is subject to the activity and use limitation is located. For approved notices, the department may allow the owner of the property to record the notice. A person may not record a notice without the department’s written approval.
Unless there is a legal impediment that prevents entering into an environmental covenant, the department may authorize that any notice of activity and use limitation created in accordance with this section be replaced by an environmental covenant on the property that is subject to the notice of activity and use limitation. The department may condition its authorization and approval of the termination of the notice of activity and use limitation on the terms of the notice of activity and use limitation, department approval and acceptance, and the effective recording of the environmental covenant.
Modification or termination of a notice of activity and use limitation shall be recorded as provided in (h) of this section. A person may not record a modification or termination of a notice of activity and use limitation without the department’s written approval.
A determination by the department to issue, approve, modify, or terminate a notice of activity and use limitation is subject to appeal under the procedures described in AS 46.04.890 .
A notice of activity and use limitation, whether recorded or unrecorded, is not
1. a servitude arising from an environmental response project; or
2. an interest in real property.
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.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.345. Relationship to other land-use law.

AS 46.04.300 — 46.04.390 do not authorize a use of real property that is otherwise prohibited under AS 29.40 or AS 38.05.037 , by law other than AS 46.04.300 — 46.04.390 regulating use of real property, or by a recorded instrument that has priority over the environmental covenant or a notice of activity and use limitation. An environmental covenant or a notice of activity and use limitation may prohibit or restrict uses of real property that are authorized by zoning or by law other than AS 46.04.300 — 46.04.390.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.350. Registry.

The department shall maintain a registry that contains all environmental covenants and notices of activity and use limitation and any amendment or termination of those instruments. The registry may also contain any other information concerning environmental covenants and notices of activity and use limitation and the real property subject to them that the department considers appropriate.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.355. Uniformity of application and construction.

In applying and construing AS 46.04.300 — 46.04.390 , consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact similar provisions.

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Sec. 46.04.390. Definitions.

In AS 46.04.300 — 46.04.390 ,

“common interest community” means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person’s ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or pay for maintenance, or improvement of other real property described in a recorded environmental covenant that creates the common interest community;
“environmental covenant” means a servitude arising under an environmental response project that imposes activity and use limitations;
“environmental response project” means a plan or work performed or maintenance of work performed under a federal or state program
1. including this chapter, AS 46.03, AS 46.09, 42 U.S.C. 9601 — 9675 (Comprehensive Environmental Response, Compensation and Liability Act of 1980), as amended, and 42 U.S.C. 6901 — 6992k (Resource Conservation and Recovery Act of 1976), as amended, governing environmental remediation and management of contaminated real property; or
2. governing maintenance, closure, or corrective action of a solid waste disposal facility or hazardous waste management unit;
“holder” means the grantee of an environmental covenant as specified in AS 46.04.300(b) ;
“notice of activity and use limitation” means a notice of a restriction on or obligation concerning an activity on or use of real property, in accordance with AS 46.04.300 — 46.04.390 ;
“record” has the meaning given in AS 40.17.900 .

History. (§ 1 ch 106 SLA 2018)

Effective dates. —

Section 1, ch. 106, SLA 2018, which enacted this section, took effect on December 14, 2018.

Article 4. General Provisions.

Sec. 46.04.890. Applicability of Administrative Procedure Act.

Notwithstanding AS 44.62.330(a)(28) , adjudicatory hearing procedures to review permit decisions under this chapter need not conform to AS 44.62.330 — 44.62.630 (Administrative Procedure Act).

History. (§ 3 ch 23 SLA 2003)

Revisor’s notes. —

In 2008, “AS 44.62.330(a)(28) ” was substituted for “AS 44.62.330(a)(44) ” to reflect the 2004 renumbering of paragraphs in AS 44.62.330(a) .

Sec. 46.04.900. Definitions.

In this chapter, unless the context requires otherwise,

“barrel” is a measure of capacity equal to the space occupied by 42 U.S. gallons at 60 degrees Fahrenheit;
“catastrophic oil discharge” means an oil discharge in excess of 100,000 barrels, or any other discharge which the governor determines presents a grave and substantial threat to the economy or environment of the state;
“Clean Water Act” means the Federal Water Pollution Control Act of 1972 (P.L. 92-500), as amended by the Clean Water Act of 1977 (P.L. 95-217), as amended (33 U.S.C. 1251 — 1376);
“commissioner” means the commissioner of environmental conservation;
“containment and cleanup” includes all direct and indirect efforts associated with the prevention, abatement, containment, or removal of a pollutant, and the restoration of the environment to its former state; when applied to expenses, the term includes the additional costs of providing a reasonable and appropriate function or service incurred in response to the discharge of a pollutant, including administrative expenses for the incremental costs of providing the function or service;
“department” means the Department of Environmental Conservation;
“discharge” means spilling, leaking, pumping, pouring, emitting, emptying, or dumping;
“exploration facility” means a platform, vessel, or other facility used to explore for hydrocarbons in or on the waters of the state or in or on land in the state; the term does not include platforms or vessels used for stratigraphic drilling or other operations that are not authorized or intended to drill to a producing formation;
“natural gas”
1. means a hydrocarbon that at 70 degrees Fahrenheit and atmospheric pressure is in a gaseous state;
2. includes liquefied natural gas or other form of natural gas that has been converted to a liquid state by pressure or cooling that at 70 degrees Fahrenheit and atmospheric pressure reverts to a gaseous state;
“nonpersistent product” has the meaning given to “non-persistent or Group I oil” in 33 C.F.R. 155.1020;
“nontank vessel” means a self-propelled watercraft of more than 400 gross registered tons; in this paragraph, “watercraft” includes commercial fishing vessels, commercial fish processor vessels, passenger vessels, and cargo vessels, but does not include a tank vessel, oil barge, or public vessel;
“oil” means oil of any kind and in any form, whether crude, refined, or a petroleum by-product, including petroleum, fuel oil, gasoline, lubricating oils, oily sludge, oil refuse, oil mixed with other wastes, crude oils, liquefied natural gas, propane, butane, or other liquid hydrocarbons regardless of specific gravity;
“oil barge” means a vessel which is not self-propelled and which is constructed or converted to carry oil as cargo in bulk;
“oil terminal facility” means an onshore or offshore facility of any kind, and related appurtenances, including a deepwater port, bulk storage facility, or marina, located in, on, or under the surface of the land or waters of the state, including tide and submerged land, that is used for the purpose of transferring, processing, refining, or storing oil; a vessel, other than a nontank vessel, is considered an oil terminal facility only when it is used to make a ship-to-ship transfer of oil, and when it is traveling between the place of the ship-to-ship transfer of oil and an oil terminal facility;
“operator” means the person who, through contract, lease, sublease, or otherwise, exerts general supervision and control of activities at the facility; the term includes, by way of example and not limitation, a prime or general contractor, the master of a vessel and the master’s employer, or any other person who, personally or through an agent or contractor, undertakes the general functioning of the facility;
“persistent product” has the meaning given to “persistent oil” in 33 C.F.R. 155.1020;
“person” means an individual, public or private corporation, political subdivision, government agency, municipality, industry, partnership, association, firm, trust, estate, or any other entity;
“pipeline” means the facilities, including piping, compressors, pump stations, and storage tanks, used to transport crude oil and associated hydrocarbons between production facilities or from one or more production facilities to marine vessels;
“production facility” means a drilling rig, drill site, flow station, gathering center, pump station, storage tank, well, and related appurtenances on other facilities to produce, gather, clean, dehydrate, condition, or store crude oil and associated hydrocarbons in or on the water of the state or on land in the state, and gathering and flow lines used to transport crude oil and associated hydrocarbons to the inlet of a pipeline system for delivery to a marine facility, refinery, or other production facility;
“public vessel” means a vessel that is operated by and is either owned or bareboat chartered by the United States, a state or a political subdivision of that state, or a foreign nation, except when the vessel is engaged in commerce;
“railroad tank car” means rolling stock used to transport oil in bulk as cargo by rail;
“response action” means an action taken to respond to a release or threatened release of oil, including mitigation, cleanup, or removal;
“self-propelled” means propelled either by machinery aboard the vessel, or by a tug or other vessel secured into the cargo-carrying vessel through special hull design;
“service” means a function performed or service provided by the state, including functions not previously performed and services not previously provided by the state;
“tank vessel” means a self-propelled waterborne vessel that is constructed or converted to carry liquid bulk cargo in tanks and includes tankers, tankships, and combination carriers when carrying oil; the term does not include vessels carrying oil in drums, barrels, or other packages, or vessels carrying oil as fuel or stores for that vessel;
“train” means connected rolling stock operated as a single moving vehicle on rails; for purposes of this paragraph, “connected rolling stock” includes railroad tank cars;
“vessel” includes tank vessels, oil barges, and nontank vessels;
“village” means a place within the unorganized borough or within a borough as to a power, function, or service that is not exercised or provided by the borough on an areawide or nonareawide basis that
1. has irrevocably waived, in a form approved by the Department of Law, any claim of sovereign immunity that might arise under this chapter; and
2. has
  1. a council organized under 25 U.S.C. 476 (sec. 16 of the Indian Reorganization Act);
  2. a traditional village council recognized by the United States as eligible for federal aid to Indians; or
  3. a council recognized by the commissioner of commerce, community, and economic development under regulations adopted by the Department of Commerce, Community, and Economic Development to determine and give official recognition of village entities under AS 44.33.755(b) ;
“waters of the state” includes lakes, bays, sounds, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, straits, passages, canals, the Pacific Ocean, Gulf of Alaska, Bering Sea and Arctic Ocean, in the territorial limits of the state, and all other bodies of surface or underground water, natural or artificial, public or private, inland or coastal, fresh or salt, which are wholly or partially in or bordering the state or under the jurisdiction of the state.

History. (§ 2 ch 116 SLA 1980; am §§ 25 — 27 ch 191 SLA 1990; am §§ 13, 14 ch 83 SLA 1991; am § 2 ch 39 SLA 1992; am § 14 ch 83 SLA 1992; am § 69 ch 58 SLA 1999; am §§ 2 — 4 ch 128 SLA 2000; am § 8 ch 45 SLA 2003; am §§ 54, 58 ch 49 SLA 2004; am § 6 ch 79 SLA 2005; am §§ 57, 58 ch 22 SLA 2015)

Revisor’s notes. —

Formerly AS 46.04.120 . Renumbered in 1989. Reorganized in 1990, 1991, 1992, 2000, 2003, 2004, and 2008 to maintain the defined terms in alphabetical order and to reflect the repeal of paragraphs.

Administrative Code. —

For financial responsibility for oil discharges, see 18 AAC 75, art. 2.

For oil discharge prevention and contingency plans and nontank vessel plans, see 18 AAC 75, art. 4.

Effect of amendments. —

The 2015 amendment, effective May 15, 2015, in (12) and (14), deleted “but not limited to” following “including”.

Chapter 05. Water Pollution Control Act.

[Repealed, § 4 ch 120 SLA 1971. For current law, see AS 46.03.050 — 46.03.120 and 46.03.710 — 46.03.850 .]

Chapter 06. Recycling and Reduction of Litter.

Administrative Code. —

For solid waste management, see 18 AAC 60.

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For litter receptacles, see 18 AAC 64.

For litter reduction and resource recovery grants, see 18 AAC 65.

For waste reduction and recycling awards for schools, see 18 AAC 66.

Collateral references. —

40 Am. Jur. 2d, Highways, Streets and Bridges, §§ 475-477

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 398-405

61C Am. Jur. 2d, Pollution Control, §§ 1036-1044.

39A C.J.S., Health and Environment, § 160.

Validity and construction of statute or ordinance requiring return deposits on soft drink or similar containers. 73 ALR3d 1105.

Sec. 46.06.010. Powers of the department.

The department shall

serve as the coordinating agency among public and private organizations in the state that are involved in the control, reduction, and recycling of litter;
assist local governments in the adoption and amendment of ordinances relating to the control, reduction, and recycling of litter;
promote voluntary local programs and information campaigns that encourage the public to refrain from littering and to participate in efforts to clean up and recycle litter;
inform the public of, and encourage the public to comply with, the provisions of this chapter and regulations adopted under this chapter;
encourage federal, state, and local agencies to assist programs for the recycling of litter by allowing the use of publicly owned land, buildings, or equipment for those programs whenever possible;
apply for, receive, and expend grants, loans, and other monetary and nonmonetary assistance for use in programs established under this chapter;
determine the types of materials or energy that may be profitably recovered from litter, and adopt regulations under AS 44.62 (Administrative Procedure Act) that require the recovery of the materials or energy;
adopt other regulations under AS 44.62 (Administrative Procedure Act) necessary to implement this chapter.

History. (§ 2 ch 149 SLA 1980; am § 1 ch 164 SLA 1984; am § 2 ch 37 SLA 1987)

Revisor’s notes. —

Enacted as AS 41.21.010 . Renumbered in 1980.

Administrative Code. —

For waste disposal permit, see 18 AAC 60, art. 2.

For litter receptacles, see 18 AAC 64.

For litter reduction and resource recovery grants, see 18 AAC 65.

Sec. 46.06.020. Annual report. [Repealed, § 6 ch 37 SLA 1987.]

Sec. 46.06.021. Solid and hazardous waste management practices.

In order to minimize present and future threats to human health and the environment in the state, the department shall promote the following solid and hazardous waste management practices in the following order of priority:

waste source reduction;
recycling of waste;
waste treatment; and
waste disposal.

History. (§ 2 ch 88 SLA 1990)

Sec. 46.06.030. Advisory council. [Repealed § 6 ch 37 SLA 1987.]

Sec. 46.06.031. Solid and hazardous waste reduction and recycling program.

There is established within the department a solid and hazardous waste reduction and recycling program. Within the limit of funds available, the department shall
1. coordinate community and agency efforts to reduce the production of solid and hazardous waste, including air and water emissions;
2. promote the practices and priorities established under AS 46.06.021 by promoting solid and hazardous waste reduction, on-site recovery of resources from hazardous waste sources, recovery of resources from solid waste sources, repeated use of packaging and products, materials recycling, appropriate pretreatment, waste separation, or separate management for waste that creates problems when disposed of within the community, transportation for solid waste that cannot be disposed of within the community, and environmentally sound disposal;
3. provide technical assistance and consultation for source reduction and recycling as necessary to assist with the implementation of the practices and priorities established under AS 46.06.021 with communities and regional planning organizations and generators of solid and hazardous waste;
4. sponsor or co-sponsor, with public or private organizations, technical workshops and seminars on implementation of the practices and priorities established under AS 46.06.021, including solid and hazardous waste reduction and recycling;
5. develop a technical reference center and data base relating to the implementation of practices and priorities established under AS 46.06.021 for solid and hazardous waste reduction and recycling;
6. establish and maintain an information referral service on the implementation of the practices and priorities established under AS 46.06.021 for solid and hazardous waste reduction and recycling;
7. identify and evaluate research needs for state businesses and industry, communities and regional planning organizations, and state agencies as they relate to the implementation of the practices and priorities established under AS 46.06.021 for solid and hazardous waste reduction and recycling;
8. develop, in consultation with institutions of higher education in the state, courses and curricula related to the implementation of the practices and priorities established under AS 46.06.021 for solid and hazardous waste reduction and recycling; and
9. issue hazardous waste reduction matching grants under AS 46.03.317 and community solid waste management planning grants under AS 46.06.041 .
In response to a request of a hazardous waste generator, a representative of the department may visit the hazardous waste generator’s site for the purpose of observing a waste generating process, obtaining information relevant to waste reduction, rendering advice, and making recommendations. A visit under this subsection may not be regarded as an inspection or investigation. A representative of the department designated to render advisory or consultative services may not have enforcement authority.
This section does not diminish the responsibility of a person to comply with this chapter, AS 46.03, AS 46.04, or AS 46.09.

History. (§ 2 ch 88 SLA 1990)

Administrative Code. —

For standards applicable to specific hazardous wastes and facilities, see 18 AAC 62, art. 5.

Sec. 46.06.040. Public awareness; motivation. [Repealed § 6 ch 37 SLA 1987.]

Sec. 46.06.041. Community solid waste management planning grants.

A community solid waste management planning grant account is established in the general fund. It consists of appropriations made to it.
The department may issue matching grants from money in the account to a municipality, to an unincorporated community, to an organization representing two or more municipalities or unincorporated communities within a region, to a nonprofit organization, coastal resources service area, or regional health corporation for the purpose of a community solid waste management plan.
In its award of a grant under this section, the department shall consider the severity of environmental or public health concerns relating to existing solid waste management practices. The department may consider the extent to which the proposed planning effort will meet the needs of more than one community, the extent to which there is clear evidence of local support for the planning effort, and the number of individuals who will benefit from the planning effort.
The department shall establish guidelines for the preparation of plans funded under this section to achieve the practices and priorities established under AS 46.06.021 .
A grant under this section
1. must be matched on a dollar-for-dollar basis by the grantee in cash or in kind;
2. may not exceed $50,000 for a single proposal or project.
The department may waive the match required under (e) of this section on a showing satisfactory to the commissioner by the prospective applicant that matching funds are not available.

History. (§ 2 ch 88 SLA 1990)

Sec. 46.06.050. Litter receptacles and anti-litter symbol.

The department shall designate one or more types and sizes of litter receptacles for use in the state. The department shall designate and make available for distribution throughout the state an anti-litter symbol of a uniform color and design adopted by the department. This anti-litter symbol must bear a statement of the penalties for littering and must be designed so that it may be attached to litter receptacles. To aid public recognition and use of litter receptacles, the department may adopt an anti-litter symbol used in another state. The person or agency responsible for the placement of litter receptacles located in public places of the state shall attach to those receptacles the anti-litter symbol designated by the department.
Litter receptacles designated for use in the state by the department shall be placed at public places in the state unless the public place is specifically exempted by regulations adopted by the commissioner under AS 44.62 (Administrative Procedure Act). The number of receptacles required to be placed in each public place shall be determined by a formula related to the need for those receptacles. The requirements of this subsection are satisfied by the use of a litter receptacle which was in use before July 1, 1980, if the anti-litter symbol of the state is attached to the receptacle.
A person owning or operating a privately owned public place at which litter receptacles are required under (b) of this section shall place litter receptacles at the public place at the person’s own expense.
Compliance with this section requires proper upkeep, maintenance and repair of a litter receptacle sufficient to permit the receptacle to serve the function for which it was designed and to prevent the receptacle from becoming unsightly.
Responsibility for the placement of litter receptacles at publicly owned public places and for the removal of litter from those litter receptacles remains with the municipality or other public agency performing litter removal. Removal of litter from litter receptacles placed at privately owned public places remains the responsibility of the owner or operator of the privately owned public place.
A person may not damage, deface, abuse, or misuse a litter receptacle not owned by the person so as to interfere with its proper function or to detract from its appearance.
A person may not deposit leaves, clippings, prunings, garden refuse, or household waste materials in a litter receptacle without the permission of the owner of that receptacle.
Except as provided in (i) of this section, a person who violates the provisions of (b) — (g) of this section is guilty of a violation, and, in addition to the punishment imposed by AS 12.55.035(b)(7) , the court may order a person who violates this section to gather and dispose of litter in an area and for a length of time determined by the court.
If a municipality of the state adopts an ordinance that prohibits the same conduct prohibited by (b) — (g) of this section, a violation of (b) — (g) of this section that occurs in the municipality is punishable under the provisions of the municipal ordinance if the punishment imposed under the ordinance is equal to or greater than the punishment imposed by AS 12.55.035(b)(7) .

History. (§ 2 ch 149 SLA 1980; am § 2 ch 164 SLA 1984; am §§ 4, 5 ch 131 SLA 2002)

Revisor’s notes. —

Enacted as AS 41.21.050. Renumbered in 1980.

Administrative Code. —

For litter receptacles, see 18 AAC 64.

For litter reduction and resource recovery grants, see 18 AAC 65.

Sec. 46.06.060. Litter bags.

The department may design and have produced a litter bag bearing the state anti-litter symbol and a statement of the penalties for littering in the state. The department may make litter bags available for this purpose to the administrative component of the Department of Administration that administers motor vehicle and driver’s license laws. That component may distribute one litter bag to each person who applies for registration or reregistration of a motor vehicle and shall notify the person of the person’s responsibilities under the law. The department may make litter bags available to all vehicle and vessel operators entering the state. The commissioner shall designate distribution points for the broadest possible distribution of litter bags to persons entering the state by vehicle or vessel.

History. (§ 2 ch 149 SLA 1980; am § 3 ch 164 SLA 1984; am § 3 ch 37 SLA 1987; am E.O. No. 99 § 73 (1997))

Revisor’s notes. —

Enacted as AS 41.21.060. Renumbered in 1980.

Sec. 46.06.070. Litter patrol.

The department may establish a youth litter patrol program for the employment of young people on a seasonal basis. The department shall cooperate with federal, state, or municipal programs that either employ young people or encourage their employment. The department may contract with other state agencies to provide administration and other support for the youth litter patrol established by this section.
[Repealed, § 6 ch 37 SLA 1987.]

History. (§ 2 ch 149 SLA 1980; am § 4 ch 164 SLA 1984; am § 6 ch 37 SLA 1987)

Revisor’s notes. —

Enacted as AS 41.21.070. Renumbered in 1980.

Administrative Code. —

For litter reduction and resource recovery grants, see 18 AAC 65.

Sec. 46.06.080. Littering prohibited.

A person may not throw, drop, deposit, discard, or otherwise dispose of litter from a vehicle or otherwise, on public or private property in the state or in waters in the state or under state jurisdiction unless
1. the property is designated by a state agency or municipality as a site for the sanitary disposal of garbage or refuse, and the person is authorized to use the site for that purpose; or
2. litter is placed in a litter receptacle so that the litter is prevented from being carried away or deposited by the elements upon public or private property or water in the state or under state jurisdiction.
A vehicle may not be driven or moved on a public highway or right-of-way unless it is constructed, loaded, or covered to prevent its load from dropping, sifting, leaking, or otherwise escaping from the vehicle. This subsection does not apply to a vehicle used (1) to deposit salt or sand to secure traction, (2) by a public agency to clean or maintain highways, or (3) to transport agricultural, mining, or timber products. A person who operates a vehicle from which an object has fallen or escaped that obstructs or endangers travel upon a public highway or right-of-way shall immediately remove the object at the person’s own expense or pay the cost of removal incurred by the state or by another person.
A person who violates this section is guilty of a violation, and may be sentenced to pay a fine of not more than $1,000. In addition, the court may order the person to gather and dispose of litter in an area and for a length of time determined by the court.
A peace officer shall issue a citation as provided in AS 12.25.175 — 12.25.230 to a person who violates this section. If a citation is for a minor littering violation and the person does not contest the charge, the person to whom the citation is issued may, on or before the 30th day after the date of the citation, mail or personally deliver to the clerk of the court in which the citation is filed
1. a fine of $50; and
2. a copy of the citation indicating that the right to an appearance is waived and a plea of no contest is entered.
If a $50 fine has been paid under (d) of this section, then the court shall enter a judgment of conviction. Payment of the fine is a complete satisfaction for the violation.
A person cited under this section is guilty of failure to obey a citation under AS 12.25.230 if the person fails to pay the fine or to appear in court as required.
Notwithstanding other provisions of law, if a person cited for a minor littering violation under this section appears in court and is found guilty, the penalty that is imposed for the violation may not exceed $50.
In this section, “a minor littering violation” means a violation of (a) or (b) of this section involving littering having an aggregate weight of five pounds or less.

History. (§ 2 ch 149 SLA 1980; am §§ 4, 5 ch 37 SLA 1987; am §§ 57, 58 ch 29 SLA 2010)

Revisor’s notes. —

Enacted as AS 41.21.080. Renumbered in 1980.

Administrative Code. —

For waste disposal permit, see 18 AAC 60, art. 2.

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For monofills, see 18 AAC 60, art. 4.

For monitoring and corrective action requirements, see 18 AAC 60, art. 7.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (d), substituted “AS 12.25.175 — 12.25.230 ” for “AS 12.25.180 ”, substituted “and the person does not contest the charge,” for “then”, and substituted “on or before the 30th day after the date of the citation” for “within 15 days”; rewrote (f).

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendments to (d) and (f) of this section apply “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Sec. 46.06.090. Prohibited beverage containers; packaging requirements.

A person may not sell or offer to sell a nonglass beverage container that is designed and constructed so that the container is opened by detaching a metal ring or tab. This section does not apply to a beverage container that is opened by a detachable piece of tape, foil, or other soft material.
A person may not sell or offer to sell in this state beverage containers that are held together by plastic rings or similar plastic devices unless the rings or devices are degradable and bear a distinguishing mark furnished to the department by the manufacturer. The department may require test data that shows that the plastic rings or plastic devices meet or exceed the department’s standards of degradability.
A person who violates this section is guilty of a violation. Each sale or offer to sell is a separate offense.

History. (§ 2 ch 149 SLA 1980; am § 5 ch 164 SLA 1984; am §§ 63, 64 ch 41 SLA 2009)

Revisor’s notes. —

Enacted as AS 41.21.090. Renumbered in 1980.

Cross references. —

For fines for violations, see AS 12.55.035(b)(7) .

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, in (a), substituted “A” for “Beginning October 1, 1981, a”; in (b), substituted “A” for “Beginning January 1, 1985, a”.

Sec. 46.06.095. Coding required.

A person may not manufacture, sell, or offer to sell a plastic bottle or a rigid plastic container unless a code that identifies the type of resin used to produce the bottle or container and that complies with (b) of this section is molded into or imprinted on or near the bottom of the bottle or container.
The department shall establish by regulation the content and design for the code required under (a) of this section. The regulations and further amendments to those regulations shall be consistent with applicable federal requirements concerning plastic product labeling. Prior to the establishment of any applicable federal requirements concerning plastic product labeling, the department shall use the codification system designed by the Society of the Plastics Industry, Inc., including the following features:
1. a code number placed within an equilateral triangle of arrows, and code letters placed below the triangle of arrows, in which
  1. the triangle is formed by three arrows with the apex of the point of each triangle at the midpoint of each arrow, rounded with a short radius;
  2. the arrowhead of each arrow is at the midpoint of each side of the triangle with a short gap separating the arrowhead from the base of the adjacent arrow; and
  3. the triangle formed by the arrows depicts a clockwise path around the number;
2. the following code numbers and letters to be used in (1) of this subsection to identify types of resin:
  1. 1 and PETE, representing polyethylene terephthalate;
  2. 2 and HDPE, representing high density polyethylene;
  3. 3 and V, representing vinyl;
  4. 4 and LDPE, representing low density polyethylene;
  5. 5 and PP, representing polypropylene;
  6. 6 and PS, representing polystyrene; and
  7. 7 and OTHER, representing all other plastic resins.
The department shall maintain a list of the codes established under (b) of this section and provide a copy of the list upon request.
A person who violates (a) of this section is subject to a civil penalty of $50 for each violation. Penalties imposed under this subsection for a series of related violations by the same person may not exceed $500. The superior court may enjoin a person from violating (a) of this section.
In this section,
1. “plastic” means a material made of polymeric organic compounds and additives that can be shaped by flow;
2. “plastic bottle” means a plastic container that is intended for single use and that
  1. has a neck smaller than the body of the container;
  2. accepts a screw-top, snap-cap, or other closure; and
  3. has a capacity of not less than 16 fluid ounces or more than five gallons;
3. “rigid plastic container” means a formed or molded container that is intended for single use, that is composed predominately of plastic resin, and that has a relatively inflexible finite shape or form having a capacity of not less than eight ounces or more than five gallons; “rigid plastic container” does not include a plastic bottle.

History. (§ 1 ch 61 SLA 1990)

Sec. 46.06.100. Notice to public.

The penalties imposed for littering shall be posted along the public highways of the state, at visitor centers, at entrances to state parks and recreational areas, at public beaches, and other publicly owned public places the commissioner determines necessary to accomplish the purposes of this chapter. The state agency or municipality responsible for litter removal from a public place shall post the notice required by this section.

History. (§ 2 ch 149 SLA 1980)

Revisor’s notes. —

Enacted as AS 41.21.100. Renumbered in 1980.

Sec. 46.06.110. Enforcement authority.

The following persons are authorized to enforce the provisions of this chapter:
1. a state employee authorized by the commissioner; and
2. a peace officer.
The department shall prescribe a citation form, which shall be used by all peace officers and persons in the state who are authorized to enforce the provisions of this chapter. The citation form must meet the requirements of AS 12.25.175 — 12.25.230 .

History. (§ 2 ch 149 SLA 1980; am § 59 ch 29 SLA 2010)

Revisor’s notes. —

Enacted as AS 41.21.110 . Renumbered in 1980.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, added the last sentence in (b).

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendment of (b) of this section apply “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Sec. 46.06.120. Grants.

The department may make grants to state agencies, to municipalities, and to private organizations including nonprofit organizations for the establishment and operation of programs authorized under this chapter. A grant under this section may not exceed 18 months. A program qualifying for a grant under this section may include

courses of instruction at, or the distribution of informative materials to, elementary and secondary schools;
purchase and erection of roadside signs;
organization and operation of litter removal activities conducted by municipalities, private organizations or service groups using volunteer help;
a public information program to inform the public concerning the reduction of litter using the media including use of the electronic media;
expansion of existing, and planning, design, and construction of new, facilities for the recovery of materials and energy from litter;
research and evaluation of markets for the materials and energy recovered from litter;
advice and assistance, including information and consultation on available technology, operating procedures, organizational arrangements, markets for materials or energy obtained from litter, transportation alternatives, and publicity techniques;
surveys by public agencies or recognized research organizations to assess the amount and composition of litter, and rates of littering;
the purchase of litter receptacles;
the creation or expansion of litter law enforcement programs;
the initial purchase or lease of recycling equipment, the cost of operating that equipment, and the cost of storing and transporting materials before and after those materials are recycled.

History. (§ 2 ch 149 SLA 1980)

Revisor’s notes. —

Enacted as AS 41.21.120 . Renumbered in 1980.

Administrative Code. —

For litter reduction and resource recovery grants, see 18 AAC 65.

Sec. 46.06.130. Conditions for grants.

The department shall adopt regulations under AS 44.62 (Administrative Procedure Act) that establish
1. eligibility requirements for applicants for a grant under AS 46.06.120 ;
2. standards for the evaluation of proposals submitted by applicants for grants under AS 46.06.120 ; and
3. other conditions for the receipt of a grant under AS 46.06.120 that are necessary to achieve the purposes of this chapter.
The regulations adopted by the department under (a) of this section must meet the following criteria:
1. if there is not enough money for grants to all eligible applicants, the following shall receive priority:
  1. a proposed program or project that most efficiently recovers materials or energy from litter;
  2. the proposed program or project that creates the greatest number of new jobs;
2. the maximum amount for a single grant shall be established so that available money is distributed to a variety of programs;
3. a grant may be made for new programs or for improvements to or additions to existing programs that were not previously financed by other existing resources of financing.

History. (§ 2 ch 149 SLA 1980)

Revisor’s notes. —

Enacted as AS 41.21.130 . Renumbered in 1980.

Administrative Code. —

For litter reduction and resource recovery grants, see 18 AAC 65.

Sec. 46.06.140. Federal requirements.

If a federal department or agency issues a formal ruling that a section of this chapter will prevent the state from receiving federal financial participation in a program or activity established under this chapter, the section does not apply to the extent that it causes the program or activity to lose federal funding.

History. (§ 2 ch 149 SLA 1980)

Revisor’s notes. —

Enacted as AS 41.21.140 . Renumbered in 1980.

Sec. 46.06.150. Definitions.

In this chapter,

“beverage container” means the individual, separate, sealed glass, metal or plastic bottle, can, jar or carton containing beer or other malt beverages or carbonated soft drinks, in liquid form;
“commissioner” means the commissioner of environmental conservation;
“degradable” means a characteristic of a material that allows the material to be broken down by biological, chemical, photochemical, or other physical processes
1. within two years upon exposure to natural elements; and
2. to a particle size and chemical composition that may be assimilated harmlessly and aesthetically into the environment without producing a residue or by-product determined by the department to be hazardous;
“department” means the Department of Environmental Conservation;
“litter” means all waste material including disposable packages or containers disposed of in a manner prohibited by AS 46.06.080 , but does not include the wastes of the primary processes of mining or other extraction process, logging, sawmilling, farming, or manufacturing;
“litter bag” means a bag, sack, or other container made of any material which is large enough and suitable to serve as a receptacle for litter inside a vehicle or vessel;
“public place” means public or private property that is used or held out for use by the public, whether owned or operated by public or private interests, including but not limited to highways or other roads upon which vehicles are moved, parks, campgrounds, trailer parks, drive-in and fast food restaurants, gasoline service stations, marinas, boat launching areas, boat moorage and fueling stations, public and private piers, beaches, bathing areas, school grounds, sporting event sites with seating capacity for more than 200 spectators, business district sidewalks, parking lots for taverns, shopping centers and grocery stores, and other parking lots if they have a capacity for more than 50 vehicles;
“vehicle” means a mechanically driven device of any kind that is used for the transportation of a person or property on a public highway, trail, or path;
“vessel” means all descriptions of watercraft used or capable of being used as a means of transportation on the water.

History. (§ 2 ch 149 SLA 1980; am §§ 6 — 8 ch 164 SLA 1984)

Revisor’s notes. —

Enacted as AS 41.21.150 . Renumbered in 1980.

Reorganized in 1989 to alphabetize the defined terms.

Chapter 07. Village Safe Water Act.

Cross references. —

For provisions relating to the establishment of, and report by, an Alaska Sewer and Water Advisory Committee in the Alaska State Legislature, see secs. 1 — 4, ch. 48, SLA 2016.

Collateral references. —

78 Am. Jur. 2d, Waterworks and Water Companies, §§ 32-51.

39A C.J.S., Health and Environment, §§ 162, 163

93 C.J.S., Waters, § 94 et seq.

Liability for pollution of stream by oil, water, or the like flowing from well. 19 ALR2d 1025.

Validity, construction, and effect of statute, ordinance, or other measure involving chemical treatment of public water supply. 43 ALR2d 453.

Measure and elements of damages for pollution of stream. 49 ALR2d 253.

Validity of prohibition or regulation of bathing, swimming, boating, fishing, or the like, to protect public water supply. 60 ALR2d 789.

Landowner’s right to relief against pollution of his water supply by industrial or commercial waste. 39 ALR3d 910.

Liability of water supplier for damages resulting from furnishing impure water. 54 ALR3d 936.

Measure and elements of damages for pollution of well or spring. 76 ALR4th 629.

Sec. 46.07.010. Statement of purpose.

It is the purpose of this chapter to establish a program designed to provide safe water and hygienic sewage disposal facilities in villages in the state.

History. (§ 1 ch 186 SLA 1970)

Sec. 46.07.020. Provision of facilities.

The commissioner shall institute and carry out a program to provide for the installation of safe water and hygienic sewage disposal facilities in villages in the state that are necessary to assure that there will be at least one facility for safe water and hygienic sewage disposal in each village.

History. (§ 1 ch 186 SLA 1970)

Sec. 46.07.030. Nature and location of facilities.

A facility constructed under authority of this chapter shall be available for use by the public and shall be designed to assure year-round use. The facility shall include, at a minimum, a source of clean water, such as a well with pumping facilities or utilization of surface water treated so it is safe and healthful for use, shower bath facilities, an adequate means of hygienic sewage disposal, and facilities for the washing of clothes. The building housing the facility shall also contain, if the commissioner determines it to be feasible and appropriate, suitable quarters to be used as a community health service office.
The location of a facility constructed under this chapter shall be determined by the commissioner after consultation with the governing body of the village in which the facility is located, as well as with appropriate public agencies. The aim of the consultation is to achieve maximum coordination in public development plans and activities affecting the community in which the facility is to serve.

History. (§ 1 ch 186 SLA 1970; am § 49 ch 71 SLA 1972; am § 136 ch 4 FSSLA 1992)

Sec. 46.07.040. Construction of facilities.

The commissioner shall provide for the construction of facilities under this chapter, and is authorized to provide for the construction by contract or through grants to public agencies or private nonprofit organizations, or otherwise. A contribution toward the cost of the construction of a facility may not be required from its users. Construction under this section by contract is governed by AS 36.30 (State Procurement Code).
In the construction of a facility under this chapter, workers from the village in which the facility is being constructed shall be utilized to the maximum extent feasible.
In (a) of this section, “cost of the construction of a facility” includes, in addition to costs directly related to the project, the sum total of all costs of financing and carrying out the project. These include, but are not limited to, the costs of all necessary studies, surveys, plans and specifications, architectural, engineering, or other special services, acquisition of real property, site preparation and development, purchase, construction, reconstruction, and improvement of real property, and the acquisition of machinery and equipment as may be necessary in connection with the project; an allocable portion of the administrative and operating expenses of the grantee; the cost of financing the project, including interest on bonds issued to finance the project; and the cost of other items, including any indemnity and surety bonds and premiums on insurance, legal fees, fees and expenses of trustees, depositaries, financial advisors, and paying agents for the bonds issued as the issuer considers necessary.

History. (§ 1 ch 186 SLA 1970; am § 32 ch 168 SLA 1978; am § 55 ch 106 SLA 1986)

Sec. 46.07.050. Operation of facilities.

It is the responsibility of the village governing body to maintain and operate the safe water and hygienic sewage disposal facility, and upon completion of the facility the commissioner shall execute the necessary transfers of title to vest complete ownership of the facility in the governing body. The commissioner may not construct a facility without first receiving satisfactory assurances from the village governing body that it will, upon completion of a facility, accept ownership and responsibility for the operation and maintenance of the facility.
Whenever the commissioner determines that the village governing body does not have sufficient financial resources to operate and maintain the facility, the commissioner may make grants to the governing body in amounts which, when combined with other financial assistance available to it, will enable the governing body to operate and maintain the facility.
When necessary, the commissioner may require the creation of a nonprofit corporation in the village and shall contract with this corporation in order to carry out the purpose of this chapter. The contract must provide that when an unincorporated community, which for purposes of this chapter is under contract to the state, subsequently is incorporated, then the contract terminates at the time of incorporation and the governing body of the newly incorporated city assumes the powers and duties set out in this chapter for the governing bodies of other incorporated cities.

History. (§ 1 ch 186 SLA 1970)

Sec. 46.07.060. Educational and informational program.

The commissioner shall conduct, in each village where there is located a safe water and hygienic sewage disposal facility, an appropriate educational and informational program designed to familiarize the residents of the village as to the health advantages to be achieved by the utilization of the facility.

History. (§ 1 ch 186 SLA 1970)

Sec. 46.07.070. Economy of administration.

In order to prevent duplication of effort and to promote economy of administration, the commissioner shall, to the maximum extent feasible, utilize the facilities of appropriate public agencies in the administration of the provisions of this chapter.

History. (§ 1 ch 186 SLA 1970)

Sec. 46.07.080. Definitions.

In this chapter,

“commissioner” means the commissioner of environmental conservation;
“village” means
1. a second class city;
2. a first class city with a population of less than 1,000;
3. a home rule municipality with a population of less than 1,000;
4. the Annette Island Reserve established by 25 U.S.C. 495 for the Metlakatla Indian Community;
5. a community with a population between 25 and 1,000 that is represented by
  1. a council organized under 25 U.S.C. 476 (sec. 16 of the Indian Reorganization Act);
  2. a traditional village council recognized by the United States as eligible for federal aid to Indians; or
  3. an incorporated nonprofit entity or Native village council that the Department of Commerce, Community, and Economic Development, with advice from the Department of Law, has determined is eligible to receive and spend a community assistance payment under AS 29.60.865 , if the incorporated nonprofit entity or Native village council agrees to act as a village governing body for the purposes of this chapter and provides for the ongoing maintenance of a project funded under this chapter.

History. (§ 1 ch 186 SLA 1970; am § 6 ch 104 SLA 1971; am § 53 ch 53 SLA 1973; am § 28 ch 208 SLA 1975; am § 1 ch 72 SLA 1992; am § 1 ch 24 SLA 2011; am § 17 ch 44 SLA 2016)

Effect of amendments. —

The 2011 amendment, effective June 24, 2011, repealed and reenacted (2).

The 2016 amendment, effective January 1, 2017, in (2)(iii), substituted “assistance” for “revenue sharing” following “community”.

Editor’s notes. —

Section 2, ch. 24, SLA 2011, provides as follows: “TRANSITION. Notwithstanding AS 46.07.080 (2), repealed and reenacted by this Act, a village for which Village Safe Water Act project funding was appropriated in a capital budget bill approved by the legislature for a fiscal year before fiscal year 2012 shall remain eligible to receive that Village Safe Water Act project funding after June 24, 2011 regardless of whether the village meets the definition of ‘village’ in AS 46.07.080 (2), repealed and reenacted by this Act.”

Chapter 08. Oil and Hazardous Substance Releases.

Cross references. —

For other provisions related to oil pollution control, see AS 46.04; for other provisions related to hazardous substance release control, see AS 46.09; for authority of municipalities to implement this chapter, see AS 46.09.060(b) .

Article 1. Release Prevention and Response Fund; Reimbursement; Liens.

Sec. 46.08.005. Purpose of fund; description of accounts.

The legislature finds and declares that the release of oil or hazardous substances into the environment presents a real and substantial threat to the public health and welfare, to the environment, and to the economy of the state. The legislature therefore concludes that it is in the best interest of the state and its citizens to provide a fund containing two accounts. Within the fund,

one account consists of money readily available to the commissioner for the payment of the expenses incurred by the department during a response to a release or threatened release of oil or hazardous substances when authorized by AS 46.08.045 and for related purposes intended to address those releases;
the other account consists of money that the state may use during a response to a release of oil or a hazardous substance, other than one described in (1) of this section, and to a threatened release of oil or a hazardous substance, to pay the expenses of making preparations for the possibility of a release or threatened release of oil or hazardous substances, to reduce the amount, degree, or intensity of a release or threatened release, and for other related purposes identified in law.

History. (§ 1 ch 59 SLA 1986; am § 2 ch 48 SLA 1991; am § 20 ch 128 SLA 1994; am § 59 ch 22 SLA 2015)

Revisor’s notes. —

In 2015, the word “section” was substituted for “subsection” in paragraph (2).

Effect of amendments. —

The 2015 amendment, effective May 15, 2015, in (1), substituted “department” for “department of environmental conservation” following “expenses incurred by”.

Sec. 46.08.010. Fund established.

There is established in the state general fund the oil and hazardous substance release prevention and response fund. The fund shall be administered by the commissioner. The fund is composed of two accounts,
1. the oil and hazardous substance release prevention account;
2. the oil and hazardous substance release response account.
Money from an appropriation made to an account in the fund remaining in that account at the end of a fiscal year does not lapse and remains available for expenditure in successive fiscal years.
The fund shall be used for actual expenses incurred under AS 46.08.040 . Except as provided in AS 46.08.040(a)(2)(D) for the acquisition, repair, or improvement of assets as preparedness measures, the fund may not be used for capital improvements.

History. (§ 1 ch 59 SLA 1986; am § 3 ch 48 SLA 1991; am §§ 21 — 23 ch 128 SLA 1994)

Editor’s notes. —

Some refer to the fund established by this section as “the Four-Seventy Fund” because this section was enacted by SCS CSHB 470(FIN)(14th Legislature).

Notes to Decisions

Funds validly appropriated. —

Because the legislature has made the entire balance of the oil and hazardous substance release response fund available for expenditure, the amounts deposited into the fund are already validly appropriated and therefore no longer available for appropriation. Hickel v. Cowper, 874 P.2d 922 (Alaska 1994).

Sec. 46.08.020. Financing of the oil and hazardous substance release prevention account; prevention mitigation account.

The legislature may appropriate from the following sources to the prevention account in the fund:
1. the annual estimated balance of the account maintained under AS 37.05.142 for deposits into the general fund of the proceeds of the oil conservation surcharge levied by AS 43.55.300 ;
2. money received from other state sources, from federal or other sources, or from a private donor;
3. money recovered or otherwise received from parties responsible for the containment and cleanup of oil or a hazardous substance at a specific site, but excluding money
  1. from performance bonds and other forms of financial responsibility held in escrow pending satisfactory performance of a privately financed response action; and
  2. described in AS 46.08.025(a)(3) ;
4. fines, penalties, or damages recovered under AS 46.08.005 — 46.08.080 or other law for costs incurred by the state as a result of the release or threatened release of oil or a hazardous substance; and
5. the interest earned on the balance of the accounts maintained under AS 37.05.142 for deposits into the general fund from the proceeds of the surcharges levied under AS 43.55.201 and 43.55.300 .
Money received by the state under (a)(2) — (5) of this section shall be deposited in the general fund and credited to a special account called the “oil and hazardous substance release prevention mitigation account.” The legislature may annually appropriate to the prevention account in the fund from the prevention mitigation account a sum equal to the amount received under (a)(2) — (5) of this section during the calendar year preceding the legislative session in which the appropriations are to be made.
The interest earned on the balances of each of the following accounts shall be deposited into the general fund and credited to the prevention account in the fund:
1. the prevention account;
2. the prevention mitigation account;
3. the response account; and
4. the response mitigation account.

History. (§ 1 ch 59 SLA 1986; am §§ 24, 25 ch 128 SLA 1994)

Revisor’s notes. —

A reference to “AS 46.08.005 — 46.08.080 ” was substituted for “this chapter” in (a)(4) of this section in 1989 to reflect the enactment of AS 46.08.100 — 46.04.190.

Opinions of attorney general. —

Air releases of hazardous substances are covered by the Release Response Fund (AS 46.08.050 — 46.08.900 ). Oct. 9, 1991 Op. Att’y Gen.

Sec. 46.08.025. Financing of the oil and hazardous substance release response account; release mitigation account.

The legislature may appropriate from the following sources to the oil and hazardous substance release response account in the fund:
1. the annual estimated balance of the account maintained under AS 37.05.142 for deposit into the general fund of the proceeds of the oil conservation surcharge levied by AS 43.55.201 ;
2. money received from other state sources, from federal or other sources, or from a private donor; and
3. money recovered or otherwise received from parties responsible for the containment and cleanup of oil or a hazardous substance at a specific site for which the state expended money from the former oil and hazardous substance release response fund before October 2, 1994 or for which the state expended money from the response account, but excluding
  1. money from performance bonds and other forms of financial responsibility held in escrow pending satisfactory performance of a privately financed response action;
  2. fines, penalties, and damages described in AS 46.08.020(a)(4) .
Money received by the state under (a)(2) and (3) of this section shall be deposited in the general fund and credited to a special account called the “oil and hazardous substance release response mitigation account.” The legislature may annually appropriate to the response account in the fund from the response mitigation account a sum equal to the amount received under (a)(2) and (3) of this section during the calendar year preceding the legislative session in which the appropriations are to be made.

History. (§ 26 ch 128 SLA 1994)

Sec. 46.08.030. Intent concerning the abatement of oil or hazardous substance releases.

It is the intent of the legislature and declared to be the public policy of the state that funds for the abatement of a release of oil or a hazardous substance will always be available.

History. (§ 1 ch 59 SLA 1986)

Sec. 46.08.040. Uses of the fund.

In addition to money in the response account of the fund that is transferred to the commissioner of commerce, community, and economic development to make grants under AS 29.60.510 and to pay for impact assessments under AS 29.60.560 , the commissioner of environmental conservation may use money
1. from the response account in the fund
  1. when authorized by AS 46.08.045 , to investigate and evaluate the release or threatened release of oil or a hazardous substance, and contain, clean up, and take other necessary action, such as monitoring and assessing, to address a release or threatened release of oil or a hazardous substance that poses an imminent and substantial threat to the public health or welfare, or to the environment;
  2. to provide matching funds in the event of a release of oil or a hazardous substance for which use of the response account is authorized by AS 46.08.045 for participation
    1. in federal oil discharge cleanup activities; and
    2. under 42 U.S.C. 9601 — 9657 (Comprehensive Environmental Response, Compensation, and Liability Act of 1980); and
  3. to recover the costs to the state, a municipality, a village, or a school district of a containment and cleanup resulting from the release or the threatened release of oil or a hazardous substance for which money was expended from the response account;
2. from the prevention account in the fund to
  1. investigate and evaluate the release or threatened release of oil or a hazardous substance, except a release described in AS 46.08.045(a) , and contain, clean up, and take other necessary action, such as monitoring and assessing, to address a release or threatened release of oil or a hazardous substance, except a release described in AS 46.08.045(a) ;
  2. pay all costs incurred
    1. to establish and maintain the oil and hazardous substance response office;
    2. under agreements entered into under AS 46.04.090 or AS 46.09.040 ;
    3. to review oil discharge prevention and contingency plans submitted under AS 46.04.030 ;
    4. to conduct training, response exercises, inspections, and tests, in order to verify equipment inventories and ability to prevent and respond to oil and hazardous substance release emergencies, and to undertake other activities intended to verify or establish the preparedness of the state, a municipality, or a party required by AS 46.04.030 to have an approved contingency plan to act in accordance with that plan; and
    5. to verify or establish proof of financial responsibility required by AS 46.04.040 ;
  3. pay, when presented with appropriate documentation by the Department of Military and Veterans’ Affairs, the expenses incurred by the Department of Military and Veterans’ Affairs for Alaska State Emergency Response Commission activities, including staff support, when the activities and staff support relate to oil or hazardous substances, and for the costs of being prepared for responding to a request by the department for support in response and restoration, but not including the costs of maintaining the response corps and the emergency response depots under AS 26.23.045 ;
  4. pay all costs incurred to acquire, repair, or improve an asset having an anticipated life of more than one year and that is acquired, repaired, or improved as a preparedness measure by which the state may respond to, recover from, reduce, or eliminate the effects of a release or threatened release of oil or a hazardous substance;
  5. pay the costs, if approved by the commissioner, that were incurred by local emergency planning committees to carry out the duties assigned them by AS 26.23.073(g) ;
  6. provide matching funds in the event of the release of oil or a hazardous substance, except a release of oil for the containment and cleanup of which use of the response account is authorized by AS 46.08.045, for participation
    1. in federal oil discharge cleanup activities; and
    2. under 42 U.S.C. 9601 — 9657 (Comprehensive Environmental Response, Compensation, and Liability Act of 1980);
  7. [Repealed, § 2 ch 102 SLA 2006.]
  8. transfer to the Department of Commerce, Community, and Economic Development for payment by the commissioner of commerce, community, and economic development of
    1. municipal impact grants when authorized under AS 29.60.510(b)(2) ;
    2. assessments of the social and economic effects of the release of oil or hazardous substances as required by AS 29.60.560 when, in the judgment of the commissioner, the release of oil or a hazardous substance is not one that is described in AS 46.08.045; and
    3. grants to repair, improve, or replace fuel storage facilities under the bulk fuel system emergency repair and upgrade program;
  9. recover the costs to the state, a municipality, a village, or a school district of a containment and cleanup resulting from the release or threatened release of oil or a hazardous substance for which money was expended from the prevention account;
  10. prepare, review, and revise
    1. the state’s master oil and hazardous substance discharge prevention and contingency plan required by AS 46.04.200 ; and
    2. a regional master oil and hazardous substance discharge prevention and contingency plan required by AS 46.04.210 ; and
  11. restore the environment by addressing the effects of an oil or hazardous substance release.
[Repealed, § 43 ch 128 SLA 1994.]
Notwithstanding other provisions of this section, money from the fund may not be used for a purpose specified in (a)(1)(B) or (C) or (a)(2) of this section unless money is available from an appropriation made specifically for that purpose. The legislature may use not more than three percent of the estimated annual balance of the prevention account to make appropriations for the purposes described in (a)(2)(E) of this section.
[Repealed, § 43 ch 128 SLA 1994.]

History. (§ 1 ch 59 SLA 1986; am § 3 ch 90 SLA 1989; am § 2 ch 113 SLA 1989; am §§ 14, 15 ch 190 SLA 1990; am § 28 ch 191 SLA 1990; am § 3 ch 199 SLA 1990; am §§ 4, 5 ch 48 SLA 1991; am § 15 ch 83 SLA 1991; am § 23 ch 32 SLA 1994; am §§ 27 — 29, 43 ch 128 SLA 1994; am § 98 ch 21 SLA 2000; am § 19 ch 41 SLA 2002; am § 2 ch 102 SLA 2006)

Revisor’s notes. —

In 1999, in (a) of this section, “commissioner of community and regional affairs” was changed to read “commissioner of community and economic development” and “Community and Regional Affairs” was changed to “Community and Economic Development” in accordance with § 91(a)(13), ch. 58, SLA 1999.

In 2004, in (a) of this section, “commissioner of community and economic development” was changed to “commissioner of commerce, community, and economic development” and “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

Opinions of attorney general. —

Air releases of hazardous substances are covered by the Release Response Fund (AS 46.08.050 — 46.08.900 ). Oct. 9, 1991 Op. Att’y Gen.

Sec. 46.08.045. Use of the response account; declared disasters.

The commissioner may use money from the response account in the fund to respond to a release or threatened release when the governor declares a disaster related to an oil or hazardous substance discharge emergency under AS 26.23.020(c) . During the effective period of the disaster emergency, the commissioner may use money from the response account to respond to the disaster emergency.
Notwithstanding (a) of this section, money from the response account may be used for the purpose in AS 46.08.040(a)(1)(A) without a declaration under AS 26.23.020(c) . However, when exercising authority under this subsection, the commissioner shall, within 120 hours of using money in the response account when authorized by this subsection, provide a written report to the governor and to the Legislative Budget and Audit Committee summarizing the release, the state’s actions, both taken and anticipated, the costs of the state’s actions, both taken and anticipated, and other information considered appropriate by the commissioner or the governor. The governor may, at any time during the state’s response, approve, disapprove, or amend the action.

History. (§ 30 ch 128 SLA 1994)

Sec. 46.08.050. Records of the fund.

The department shall maintain accounting records showing the income and expenses of the fund.
A department that is appropriated or allocated money from the fund, either directly or through a reimbursable service agreement with the Department of Environmental Conservation, shall develop procedures governing the expenditure of, and accounting for, money it expends from the fund. The Department of Environmental Conservation may not reimburse or pay money to another state agency for the agency’s activities under AS 46.08.040 unless the state agency provides to the department the information necessary to complete the report required by AS 46.08.060 .

History. (§ 1 ch 59 SLA 1986; am § 31 ch 128 SLA 1994)

Sec. 46.08.060. Report.

The commissioner shall make available a report to the legislature not later than the 10th day following the convening of each first regular session of the legislature. The commissioner shall notify the legislature that the report is available. The report may include information considered significant by the commissioner but must include
1. the amount of money expended by the department under AS 46.08.040(a) during the preceding two fiscal years;
2. the amount and source of money received and money recovered by or on behalf of the department during the preceding two fiscal years under
  1. AS 46.08.020 ; and
  2. AS 46.08.025 ;
3. a summary of municipal participation in the department’s responses that were paid for by the fund;
4. a detailed summary of department activities in responses paid for by the fund during the preceding two fiscal years, including response descriptions and statements outlining the nature of the threat; in this paragraph, “detailed” includes information describing each personal services position and total compensation for that position, each contract in excess of $10,000, and each purchase in excess of $10,000; and
5. the projected cost to the department for the next two fiscal years of monitoring, operating, and maintaining sites where response has been completed or is expected to be continued during the next two fiscal years.
As part of the department’s on-going identification efforts associated with oil spill or hazardous substance release or waste sites, the commissioner shall include in the report under this section
1. the number of sites that are included in the department’s contaminated sites data base, whether the site is active or closed; and
2. a prioritized listing of those sites, both statewide and by community, based on the immediate and long-term threats to the public health or welfare or to the environment.
In addition to the department’s report required under (a) of this section, the governor shall submit a report about use of the fund during the previous two fiscal years to the legislature not later than the 10th day following the convening of each first regular session of the legislature. In the report, the governor shall describe in detail the governor’s use of money from the fund, with separate explanations, by agency, of the activities that were paid for under the authority of AS 46.08.045 .

History. (§ 1 ch 59 SLA 1986; am §§ 16, 17 ch 190 SLA 1990; am § 29 ch 191 SLA 1990; am §§ 32 — 34 ch 128 SLA 1994; am § 106 ch 21 SLA 1995; am §§ 17, 18 ch 6 SLA 1998)

Sec. 46.08.070. Reimbursement for containment and cleanup.

Except as provided in (e) of this section, the commissioner shall seek reimbursement promptly under this section, AS 46.03.760(d) , or federal law for the cost incurred in the cleanup or containment of oil or a hazardous substance that has been released.
The attorney general, at the request of the commissioner, shall immediately seek to recover money expended by the department under AS 46.08.005 — 46.08.080 or other law to contain and clean up oil or a hazardous substance that has been released or to control the threatened release of oil or a hazardous substance.
The department shall reimburse a municipality or village for actual expenses, other than normal operating expenses, incurred in the abatement of a release or threatened release and may advance money to a municipality or village to carry out an emergency first response to a release or threatened release of oil or a hazardous substance if
1. the municipality or village has entered into an agreement with the commissioner under AS 46.04.020(e) or AS 46.09.020(e) ; and
2. the commissioner determines that
  1. the expenses to be reimbursed were for a necessary emergency first response to a release or threatened release that, at the time of the release or threatened release, posed an imminent and substantial threat to the public health or welfare or to the environment;
  2. the municipality or village has demonstrated a need for financial assistance, and the money to be advanced is necessary to enable the municipality or village to carry out an emergency first response to a release or threatened release that, at the time of the release or threatened release, poses an imminent and substantial threat to the public health or welfare, or to the environment; and
  3. containment and cleanup efforts paid for in whole or in part by a reimbursement or an advance made under this section were consistent with the regional master plan for the region in which the municipality or village is located if a plan has been prepared by the department under AS 46.04.210 .
The department shall adopt regulations to implement the cost recovery requirements of (a) and (b) of this section, but may not delay cost recovery actions pending the effective date of the adoption of the regulations. The department may adopt regulations to implement the provisions of (e) of this section.
Notwithstanding (a) of this section and for a person otherwise liable under AS 46.03.822 , the department may waive all or a portion of the response costs incurred by the department in the cleanup or containment of oil or a hazardous substance that has been released if the department makes a written finding that
1. the release was from piping, tankage, or other equipment used solely to provide heat or electrical power generation for a building used primarily for residential purposes and that does not consist of more than four dwelling units;
2. the person did not wilfully or negligently fail to comply with spill prevention, reporting, and response requirements of the department applicable to the release or the property where the release occurred;
3. the person took immediate measures upon discovery of the release to contain the release where possible; and
4. the person provided reasonable assistance to the department and other governmental entities that responded to the release, including providing reasonable access to the property where the release occurred and providing information requested by the department about the release and property.

History. (§ 1 ch 59 SLA 1986; am §§ 1, 2 ch 29 SLA 1989; am § 16 ch 83 SLA 1991; am § 35 ch 128 SLA 1994; am §§ 1 — 3 ch 113 SLA 2018)

Revisor’s notes. —

A reference to “AS 46.08.005 — 46.08.080 ” was substituted for “this chapter” in (b) of this section in 1989 to reflect the enactment of AS 46.08.100 — 46.08.190 .

In 2000, in subsection (a), “AS 46.03.760(d) ” was substituted for “AS 46.03.760(e) ” to reflect the 1995 relettering of AS 46.03.760(e) .

Cross references. —

For authority of municipalities for containment and cleanup of oil and hazardous substances, see AS 46.09.060(b) .

Effect of amendments. —

The 2018 amendment, effective January 15, 2019, in (a), added “Except as provided in (e) of this section,” and made a related change; in (d), added the second sentence; added (e).

Editor's notes. —

Under sec. 5, ch. 113, SLA 2018, the 2018 changes to this section are retroactive to January 1, 2018.

Legislative history reports. —

For governor's transmittal letter for ch. 113, SLA 2018 (SB 158), which amended (a) and (d) and added (e), see 2018 Senate Journal 1815 — 1816.

Sec. 46.08.075. Liens against property as security for state expenditures.

The state has a lien for expenditures by the state from the fund, or from any other state fund, for the costs of response, containment, removal, or remedial action resulting from an oil or hazardous substance release, or, with respect to response costs, for the costs of response to a threatened release of oil or a hazardous substance, against all property owned by a person who is determined by the commissioner to be liable for the expenditures under this chapter, AS 46.03, AS 46.04, 42 U.S.C. 9607, or other state or federal law. The lien includes interest, at the maximum rate allowable under AS 45.45.010(a) , from the date of the expenditures. The state may file an action in a court of competent jurisdiction in order to foreclose on the lien.
A lien established under this section against real property is not effective until
1. a certificate of lien is recorded in the district recorder’s office for the district in which the property is located, describing the property and stating the amount of the lien, the name of the owner as grantor, and, if known, the name of the person causing the oil or hazardous substance release; and
2. the commissioner sends a copy of the certificate of lien by certified mail return receipt requested, or actually delivers a copy of the certificate of lien, to the persons described in (1) of this subsection and to all other persons of record holding an interest in the property.
When any amount with respect to which a lien has been recorded under this section has been paid or reduced, the commissioner shall, upon request of the property owner, issue a certificate discharging or partially releasing the lien. That certificate may be recorded in the office in which the certificate of lien was recorded.
The commissioner may, in the commissioner’s discretion, reduce, discharge or partially release a lien under this section if a bond, or other security, in a form and an amount satisfactory to the commissioner is posted. The bond or other security must include an amount sufficient to cover the cost of execution, collection, or foreclosure, including attorney fees. A reduction, discharge, or partial release may not be granted under this subsection if it would be contrary to the public interest. When a lien is reduced, discharged, or partially released under this subsection, the commissioner shall, at the request of the property owner, issue a certificate to that effect.
A person with an ownership interest in property against which a lien is recorded may bring an action in a court of competent jurisdiction to require that the lien be released. The lien may be released to the extent of that person’s ownership interest if the court finds that the person is not liable for the expenses incurred by the state in connection with the costs of response, containment, removal, or remedial action resulting from the release or from the threatened release, of oil or a hazardous substance.

History. (§ 7 ch 39 SLA 1989; am §§ 36, 37 ch 128 SLA 1994)

Sec. 46.08.080. Regulations.

The commissioner shall periodically review the minimum quantities of hazardous substances established under federal law and may adopt regulations establishing minimum quantities of substances for all or any portion of the substances to which AS 46.08.005 — 46.08.080 otherwise apply. The commissioner may otherwise adopt only those regulations that are expressly required to implement the specific purposes of AS 46.08.005 — 46.08.080 .

History. (§ 1 ch 59 SLA 1986)

Revisor’s notes. —

References to “AS 46.08.005 — 46.08.080 ” were substituted for “this chapter” in this section, with a corresponding minor word change, in 1989 to reflect the enactment of AS 46.08.100 — 46.08.190 .

Article 2. Oil and Hazardous Substance Response Office.

Sec. 46.08.100. Office established.

There is established in the department the oil and hazardous substance response office. The office shall include a director and employees who are specially trained in programs and technologies related to the containment and cleanup of releases or threatened releases of oil and hazardous substances.

History. (§ 3 ch 113 SLA 1989)

Secs. 46.08.110, 46.08.120. Response corps; response depots. [Repealed, § 28 ch 32 SLA 1994.]

Sec. 46.08.130. Duties of the office.

The office shall be prepared to respond promptly to a discharge of oil or a hazardous substance.
The office may respond under (a) of this section to an oil or hazardous substance discharge only if
1. the oil discharge is a catastrophic oil discharge that constitutes an emergency under AS 46.04.080(a) ;
2. the discharge of oil or a hazardous substance is declared to be an emergency under AS 46.03.865 ;
3. the governor declares the discharge an emergency under AS 26.23;
4. the commissioner reasonably believes that there has been a discharge of oil or a hazardous substance, or that there is a potential discharge of oil or a hazardous substance, and the discharge may qualify under (1) — (3) of this subsection; or
5. the commissioner reasonably believes that the discharge or potential discharge poses an imminent and substantial threat to public health or welfare or to the environment.
When the office or corps responds to an oil or hazardous substance discharge under this section, its activities shall be guided by the relevant provisions of the incident command system applicable to the type of discharge to which it is responding.

History. (§ 3 ch 113 SLA 1989; am § 20 ch 190 SLA 1990)

Cross references. —

For incident command systems, see AS 46.04.200 — 46.04.210 and AS 26.23.075 and 26.23.077 .

For the “corps” referred to in subsection (c), see AS 26.23.045 .

Sec. 46.08.140. Emergency powers and rights of property owners.

When the office has reasonable grounds to believe that a release of oil or a hazardous substance has occurred or is threatened to occur which, in the judgment of its director, presents an imminent or present danger to the health or welfare of the people of the state or would result in or is likely to result in irreversible or irreparable damage to the natural resources or environment, and it appears to be prejudicial to the interest of the people of the state to delay action until an opportunity for a hearing can be provided, state employees or members of the corps may, with permission of the director and without prior hearing, enter private property for the purpose of containment or cleanup.
The property owner affected by a response action taken under (a) of this section has the right to be heard as soon as practicable and to present proof to the office that the containment or cleanup action is unnecessary or that it is not necessary to enter the person’s property for the containment or cleanup action.

History. (§ 3 ch 113 SLA 1989)

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

Cross references. —

For the “corps” referred to in subsection (a), see AS 26.23.045 .

Sec. 46.08.150. Contracts.

The department may enter into agreements with agencies of the state and federal government, political subdivisions, the University of Alaska, or private persons or entities to conduct research into oil and hazardous substances spill technology.

History. (§ 3 ch 113 SLA 1989; am § 21 ch 190 SLA 1990; am § 24 ch 32 SLA 1994; am § 99 ch 21 SLA 2000)

Sec. 46.08.160. Limitation of liability.

The state, an employee of the state, and a member of the corps are not liable for costs or damages as a result of actions taken under AS 46.08.100 — 46.08.190 in response to a release or threatened release unless the actions taken by the state, the employee, or the member of the corps constitute gross negligence or intentional misconduct.

History. (§ 3 ch 113 SLA 1989)

Cross references. —

For the “corps” referred to in this section, see AS 23.26.045.

Sec. 46.08.190. Definition of “office” for AS 46.08.100 — 46.08.190.

In AS 46.08.100 — 46.08.190 , “office” means the oil and hazardous substance response office.

History. (§ 3 ch 113 SLA 1989; am § 22 ch 190 SLA 1990; am § 28 ch 32 SLA 1994)

Article 3. General Provisions.

Sec. 46.08.900. Definitions.

In this chapter,

“capital improvement” includes construction, renovation, repair of, and improvement to, a building, but does not include other improvements to real property, such as construction of a dike or retaining wall;
“commissioner” means the commissioner of environmental conservation;
“containment and cleanup” includes the direct and indirect efforts associated with the prevention, abatement, containment, or removal of oil or a hazardous substance, and the restoration of the environment; when applied to expenses, the term includes the additional costs of providing a reasonable and appropriate function or service incurred in response to the release of the oil or hazardous substance, including administrative expenses for the incremental costs of providing the function or service;
“department” means the Department of Environmental Conservation;
“fund” means the oil and hazardous substance release prevention and response fund;
“hazardous substance” means (A) an element or compound that, when it enters into or on the surface or subsurface land or water of the state, presents an imminent and substantial danger to the public health or welfare, or to fish, animals, vegetation, or any part of the natural habitat in which fish, animals, or wildlife may be found; or (B) a substance defined as a hazardous substance under 42 U.S.C. 9601 — 9657 (Comprehensive Environmental Response, Compensation, and Liability Act of 1980); “hazardous substance” does not include uncontaminated crude oil or uncontaminated refined oil in an amount of 10 gallons or less;
“oil” means petroleum products of any kind and in any form, whether crude, refined, or a petroleum by-product, including petroleum, fuel oil, gasoline, lubricating oils, oily sludge, oily refuse, oil mixed with other wastes, liquefied natural gas, propane, butane, and other liquid hydrocarbons regardless of specific gravity;
“permitted release” means a release occurring under the authority of a valid permit issued by the department or by the Environmental Protection Agency;
“prevention account” means the oil and hazardous substance release prevention account established in AS 46.08.010(a)(1) ;
“prevention mitigation account” means the oil and hazardous substance release prevention mitigation account established in AS 46.08.020(b) ;
“release”
1. means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment;
2. does not include
  1. a permitted release; or
  2. an act of nature;
“response account” means the oil and hazardous substance release response account established in AS 46.08.010(a)(2) ;
“response mitigation account” means the oil and hazardous substance release response mitigation account established in AS 46.08.025(b) ;
“service”
1. means a function performed or service provided by a municipality under a duty or power authorized by AS 29 or by another provision of law authorizing a municipality to perform functions or provide services, or a comparable function performed or service provided by a village;
2. includes functions not previously performed and services not previously provided by the municipality or village;
“threatened release” means that a release is imminent; a release is imminent if
1. it is impending or on the point of happening; or
2. though not impending, in the judgment of the commissioner
  1. the incident or occurrence may reasonably be expected to culminate in an actual release; and
  2. that actual release may reasonably be expected to cause personal injury, other injury to life, or loss of or damage to property, including the environment;
“village” means a place within the unorganized borough or within a borough if the power, function, or service for which a grant application under AS 29.60.510 is submitted is not exercised or provided by the borough on an areawide or nonareawide basis at the time the grant application is submitted that
1. has irrevocably waived, in a form approved by the Department of Law, any claim of sovereign immunity that might arise in connection with the use of grant money under this chapter; and
2. has
  1. a council organized under 25 U.S.C. 476 (sec. 16 of the Indian Reorganization Act);
  2. a traditional village council recognized by the United States as eligible for federal aid to Indians; or
  3. a council recognized by the commissioner of commerce, community, and economic development under regulations adopted by the Department of Commerce, Community, and Economic Development to determine and give official recognition of village entities under AS 44.33.755(b) .

History. (§ 1 ch 59 SLA 1986; am §§ 17, 18 ch 83 SLA 1991; am §§ 38 — 41 ch 128 SLA 1994; am § 70 ch 58 SLA 1999)

Revisor’s notes. —

Reorganized in 1991 and 1994 to maintain the alphabetical order of the terms defined.

Chapter 09. Hazardous Substance Release Control.

Cross references. —

For provisions related to violations of this chapter, see AS 46.03.

Sec. 46.09.010. Report of hazardous substance releases.

Except as provided in (b) of this section, a person in charge of a vehicle, vessel, or container from which, or a place at which, a hazardous substance is released shall report the release to the department and appropriate public safety agencies promptly after learning of the release.
The commissioner may enter into an agreement with a person for the periodic reporting of a controlled release of a hazardous substance if the release is not into water.

History. (§ 2 ch 59 SLA 1986)

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

Sec. 46.09.020. Containment and cleanup of a released hazardous substance.

A person who causes a release of a hazardous substance shall make reasonable efforts to contain and clean up the hazardous substance promptly after learning of the release, unless the commissioner determines
1. after consulting the Environmental Protection Agency or appropriate public safety agencies, that containment or cleanup is technically infeasible;
2. that containment or cleanup would cause greater environmental damage than if the release were not contained or cleaned up; or
3. that containment or cleanup would pose a greater threat to human life or health than if the release were not contained or cleaned up.
The commissioner shall develop guidelines prescribing general procedures and methods to be used in the containment and cleanup of a hazardous substance. The guidelines shall be consistent with the national contingency plan revised and republished under 42 U.S.C. 9605.
If the commissioner determines that the containment or cleanup of a hazardous substance undertaken is inadequate, the commissioner may direct the person undertaking the containment or cleanup to cease and may undertake the containment or cleanup directly or by contract.
If it appears to the commissioner that the cause or responsibility for the release of a hazardous substance is unclear or unexplained, the commissioner may immediately undertake the containment and cleanup of the release unless the commissioner determines
1. after consulting the Environmental Protection Agency or appropriate public safety agencies, that containment or cleanup is technically infeasible;
2. that containment or cleanup would cause greater environmental damage than if the release were not contained or cleaned up; or
3. that containment or cleanup would pose a greater threat to human life or health than if the release were not contained or cleaned up.
The commissioner shall enter into agreement with the Environmental Protection Agency, and may enter into agreements with other persons and municipalities, in order to
1. facilitate a coordinated and effective hazardous substance release response in the state;
2. provide for cooperative hazardous substance release notification procedures; or
3. provide for cooperative review of hazardous substance release response contingency plans submitted to the department.

History. (§ 2 ch 59 SLA 1986)

Cross references. —

For provision designating as peace officers the enforcement and inspection personnel of the department who perform duties under this chapter, see AS 46.03.890(b) ; for contingency plans, see AS 46.04.200 — 46.04.210 .

Administrative Code. —

For municipal solid waste landfills, see 18 AAC 60, art. 3.

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For corrective action for leaking underground storage tanks, see 18 AAC 78, art. 2.

For cleanup levels, see 18 AAC 78, art. 6.

Notes to Decisions

Uncontaminated refined oil is not a hazardous substance. Gates v. City of Tenakee Springs, 822 P.2d 455 (Alaska 1991).

Sec. 46.09.030. Disaster emergencies.

The commissioner of environmental conservation or the adjutant general of the Department of Military and Veterans’ Affairs may request the governor to determine that an actual or imminent release of a hazardous substance constitutes a disaster emergency under AS 26.23. The commissioner of environmental conservation and the adjutant general of the Department of Military and Veterans’ Affairs shall respond appropriately in the relief of the actual or imminent release under the relevant provisions of the applicable incident command system.

History. (§ 2 ch 59 SLA 1986; am § 23 ch 190 SLA 1990; am § 2 ch 11 SLA 1993; am § 48 ch 30 SLA 1996)

Cross references. —

For authority of department in cases of emergency, see AS 46.03.865 and AS 46.04.080 . For incident command systems, see AS 46.04.200 — 46.04.210 and AS 26.23.075 and 26.23.077 .

Sec. 46.09.040. Hazardous substances containment and cleanup.

The department may contract with a person or a municipality for personnel, equipment, or services that may be useful to carry out the requirements of this chapter. If the department determines that it is infeasible to contract with a person or a municipality, the department may establish and maintain containment and cleanup personnel, equipment, and supplies necessary to carry out the requirements of this chapter. When exercising its authority under this section, the department shall coordinate with the Department of Military and Veterans’ Affairs to avoid duplication of efforts.

History. (§ 2 ch 59 SLA 1986; am § 25 ch 32 SLA 1994)

Sec. 46.09.050. Compacts authorized.

The governor may enter into supplementary agreements, reciprocal arrangements, and compacts with another state or country for the implementation of this chapter subject to the approval of the Congress of the United States, if required, under the Constitution of the United States.

History. (§ 2 ch 59 SLA 1986)

Sec. 46.09.060. Municipalities.

If a provision of this chapter or of a regulation adopted by the commissioner under this chapter conflicts with the charter, ordinance, or regulation of a municipality, the provisions of this chapter or of the regulation adopted by the commissioner under this chapter prevails.
Authority to contain, clean up, or prevent a release or threatened release of oil or of a hazardous substance, and to exercise other powers necessary to implement this chapter, AS 46.04, and AS 46.08, are granted to municipalities that do not otherwise have that authority. Except as provided in (a) of this section, a municipality may exercise its police power within the area of the municipality.

History. (§ 2 ch 59 SLA 1986; am § 19 ch 83 SLA 1991)

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For cleanup levels, see 18 AAC 78, art. 6.

Sec. 46.09.070. Regulations.

The commissioner shall periodically review the minimum quantities of hazardous substances established under federal law and may adopt regulations establishing minimum quantities of substances for all or any portion of the substances to which this chapter otherwise applies. The commissioner shall adopt only those regulations that are expressly required to implement the specific purposes of this chapter.

History. (§ 2 ch 59 SLA 1986)

Administrative Code. —

For discharge reporting, cleanup, and disposal of oil and other hazardous substances, see 18 AAC 75, art. 3.

For cleanup levels, see 18 AAC 78, art. 6.

Sec. 46.09.900. Definitions.

In this chapter,

“commissioner” means the commissioner of environmental conservation;
“containment and cleanup” includes the direct and indirect efforts associated with the prevention, abatement, containment, or removal of a hazardous substance, and the restoration of the environment; when applied to expenses, the term includes the additional costs of providing a reasonable and appropriate function or service incurred in response to the release of the hazardous substance, including administrative expenses for the incremental costs of providing the function or service;
“department” means the Department of Environmental Conservation;
“hazardous substance” means (A) an element or compound that, when it enters into or on the surface or subsurface land or water of the state, presents an imminent and substantial danger to the public health or welfare, or to fish, animals, vegetation, or any part of the natural habitat in which fish, animals, or wildlife may be found; or (B) a substance defined as a hazardous substance under 42 U.S.C. 9601 — 9657 (Comprehensive Environmental Response, Compensation, and Liability Act of 1980); “hazardous substance” does not include uncontaminated crude oil or uncontaminated refined oil;
“permitted release” means a release occurring under the authority of a valid permit issued by the department or by the Environmental Protection Agency;
“release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, except that “release” does not include a permitted release or an act of nature;
“service” means a function performed or service provided by the state, including functions not previously performed and services not previously provided by the state;
“threatened release” means that a release is imminent; a release is imminent if
1. it is impending, or on the point of happening; or
2. though not impending, in the judgment of the commissioner
  1. the incident or occurrence may reasonably be expected to culminate in an actual release; and
  2. that actual release may reasonably be expected to cause personal injury, other injury to life, or loss of or damage to property, including the environment.

History. (§ 2 ch 59 SLA 1986; am §§ 20, 21 ch 83 SLA 1991; am § 42 ch 128 SLA 1994)

Revisor’s notes. —

Paragraph (7) was enacted as (8). Renumbered in 1991, at which time former (7) was renumbered as (8).

Notes to Decisions

Hazardous substance. —

Uncontaminated refined oil is not a hazardous substance. Gates v. City of Tenakee Springs, 822 P.2d 455 (Alaska 1991).

Chapter 10. Pollution as Nuisance.

[Repealed, § 4 ch 120 SLA 1971.]

Chapter 11. Conservation of Energy and Materials.

Administrative Code. —

For AHFC energy efficiency programs, see 15 AAC 155.

Collateral references. —

38 Am. Jur. 2d, Gas and Oil, § 158 et seq.

81A C.J.S., States, § 251.

Sec. 46.11.010. Thermal and lighting energy standards for public buildings. [Repealed, § 7 ch 39 SLA 2005.]

Sec. 46.11.020. Training of public building maintenance personnel.

Persons responsible for the maintenance of public buildings designed with energy conservation or production features shall be trained by the Department of Commerce, Community, and Economic Development in the use and operation of those features.

History. (§ 36 ch 83 SLA 1980; am § 50 ch 3 SLA 2017)

Effect of amendments. —

The 2017 amendment, effective July 1, 2017, substituted “Department of Commerce, Community, and Economic Development” for “department” following “shall be trained by the”.

Sec. 46.11.030. Energy audits. [Repealed, § 10 ch 79 SLA 1983.]

Sec. 46.11.040. Applicability of thermal and lighting energy standards to residential buildings.

State financial assistance may not be approved or granted for the construction of or purchase of a loan for a residential building if construction of the building began after December 31, 1991, unless

the building is in compliance with thermal and lighting energy standards;
the building is in compliance with the building code of a municipality and the standards for thermal and lighting energy of the municipal building code meet or exceed the thermal and lighting energy standards;
the building
1. is constructed under an exception to the municipal building code granted because the exception will result in increased energy efficiency; or
2. is located or is to be located in an area where thermal and lighting energy standards are not justified because of the high cost of implementation of the standards, with specific consideration given to the availability of inexpensive home heating energy sources, as determined under regulations adopted by the Alaska Housing Finance Corporation; or
the applicant agrees, in writing, that the building will be brought into compliance with thermal and lighting energy standards within one year of conveyance.

History. (§ 36 ch 83 SLA 1980; am § 7 ch 79 SLA 1983; am § 82 ch 74 SLA 1985; am § 6 ch 94 SLA 1990; am § 137 ch 4 FSSLA 1992)

Administrative Code. —

For building energy efficiency standard, see 15 AAC 155, art. 1.

For definitions, see 15 AAC 155, art. 9.

Editor’s notes. —

Section 8, ch. 94, SLA 1990 provides that persons “responsible for administration and management of programs in which state assistance is provided for the purchase or construction of residential buildings are encouraged to adopt and enforce the compliance standards and methods of AS 18.56.096(c)(2) within the housing programs for which they are responsible.”

Sec. 46.11.050. Financing of energy efficient homes and buildings.

After December 31, 1980, a financial institution shall take into consideration the economic benefits of alternative energy systems, life-cycle energy costs, energy efficient building design, and energy conservation when financing homes and buildings with state financial assistance.
After December 31, 1980, a financial institution that makes home mortgage loans with money provided to it by the commissioner of revenue from surplus state general fund investments authorized by AS 37.10.070 , or a state agency that makes a direct home mortgage loan to an applicant, shall include estimated heating and lighting costs as determined by an energy audit in standard principal, interest, taxes, and insurance calculation of the cost of buying a housing unit. An applicant for a home mortgage loan shall provide the financial institution or the state agency with a copy of an energy audit.

History. (§ 36 ch 83 SLA 1980)

Sec. 46.11.060. Recycling of materials by state agencies.

A state agency shall to the greatest extent practicable recycle reusable materials, including paper, glass, and cans.
The department shall encourage, through cooperative means, the adoption of all available and practicable methods throughout federal, state, and local governments that recycle, reuse, and conserve materials.

History. (§ 36 ch 83 SLA 1980; am §§ 51, 52 ch 3 SLA 2017)

Effect of amendments. —

The 2017 amendment, effective July 1, 2017, in (a), substituted “A state agency” for “Each state agency” at the beginning, and deleted “but not limited to,” following “reusable materials, including”; in (b), substituted “The department” for “The Department of Environmental Conservation” at the beginning.

Sec. 46.11.070. Waste reduction and recycling awards for schools.

In consultation with the Department of Education and Early Development, the department shall establish a waste reduction and recycling awards program under which the department may annually, subject to available funding, award grants of up to $2,000 each to public schools in recognition of their efforts and the efforts of their students to reduce and recycle waste generated in the administrative offices, classrooms, laboratories, cafeterias, and maintenance operations of the schools.
The department shall, on request, provide technical assistance to schools concerning their opportunities to reduce and recycle wastes.
The department shall adopt regulations to implement the awards program. For purposes of evaluating school waste reduction and recycling programs, the department may group schools according to geographical location, student population, distance to recycling markets, or other criteria considered appropriate by the department.
The department may accept and use restricted grants of money or other assistance from private persons or groups to fund the awards made under (a) of this section.
The department may not use state money to fund awards made under (a) of this section unless an appropriation is made specifically for the purposes of (a) of this section.

History. (§ 3 ch 86 SLA 1991; am § 53 ch 3 SLA 2017)

Revisor’s notes. —

In 1999, in (a) of this section, “Department of Education” was changed to “Department of Education and Early Development” in accordance with § 89, ch. 58, SLA 1999.

Administrative Code. —

For waste reduction and recycling awards for schools, see 18 AAC 66.

Effect of amendments. —

The 2017 amendment, effective July 1, 2017, substituted “department” for “Department of Environmental Conservation” throughout the section.

Sec. 46.11.900. Definitions.

In this chapter,

“alternative energy system”
1. means a source of thermal, mechanical, or electrical energy that is not dependent on oil or gas for the supply of energy for space heating and cooling, refrigeration and cold storage, electrical power, mechanical power, or the heating of water;
2. includes
  1. an alternative energy property as defined by 26 U.S.C. 48(a)(3)(A); and
  2. a method of architectural design and construction that provides for the collection, storage, and use of direct radiation from the sun;
“department” means the Department of Environmental Conservation;
“energy audit” means a determination and written summary prepared under 42 U.S.C. 8216(b) of
1. the energy consumption characteristics of a building, including the size, type, and rate of energy consumption of major energy consuming systems of the building and the climate characterizing the region where the building is located; and
2. the energy conservation and cost savings likely to result from appropriate energy-conserving maintenance and operating procedures and modifications, including the purchase and installation of energy-related fixtures; for purposes of this subparagraph when a fossil fuel is the energy source, the energy cost savings shall be determined with reference to the projected price of that fossil fuel over a 10-year period;
“financial institution” means a bank, trust company, savings bank, savings and loan association, or credit union;
“life-cycle cost” means the total cost of owning, operating, and maintaining a building over its useful life, including its energy and fuel costs, determined on a basis of a systematic evaluation and comparison of alternative building systems, except that in the case of leased buildings the life-cycle cost shall be calculated over the effective remaining term of the lease;
“public building” means a building owned or controlled and held by the state for government or public use;
“state financial assistance” means a loan, grant, guarantee, insurance, payment, rebate, subsidy, or other form of state assistance other than aid under AS 05.35.010 — 05.35.070 , AS 14.11, and AS 29.60, including the purchase by a state agency of a loan to finance the construction or purchase of a residential building;
“thermal and lighting energy standards” means the thermal and lighting energy standards
1. established by the American Society of Heating, Refrigeration, and Air Conditioning Engineers as revised by the Alaska Housing Finance Corporation for buildings and structures that are not public facilities; or
2. developed in regulations adopted by the Alaska Housing Finance Corporation for buildings and structures that are not public facilities.

History. (§ 36 ch 83 SLA 1980; am §§ 8 — 10 ch 79 SLA 1983; am § 83 ch 74 SLA 1985; am § 14 ch 5 SLA 1990; am § 7 ch 94 SLA 1990; am § 138 ch 4 FSSLA 1992; am § 6 ch 39 SLA 2005; am § 28 ch 83 SLA 2010; am § 54 ch 3 SLA 2017)

Revisor’s notes. —

In 1999, in this section, “Department of Commerce and Economic Development” was changed to “Department of Community and Economic Development” in accordance with § 88, ch. 58, SLA 1999.

In 2004, in this section “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

Administrative Code. —

For building energy efficiency standard, see 15 AAC 155, art. 1.

For definitions, see 15 AAC 155, art. 9.

Effect of amendments. —

The 2010 amendment, effective September 14, 2010, in (1), deleted “or a nuclear fuel” following “that is not dependent on oil or gas”.

The 2017 amendment, effective July 1, 2017, substituted “Department of Environmental Conservation” for “Department of Commerce, Community, and Economic Development”.

Editor’s notes. —

Paragraph (3) of this section refers to “a determination and written summary prepared under 42 U.S.C. 8216(b).” The program authorized under 42 U.S.C. 8216(b) terminated on June 30, 1989. 42 U.S.C. 8216(b) was then omitted from the United States Code.

The reference to “American Society of Heating, Refrigeration and Air Conditioning Engineers” appears to be intended to refer to the “American Society of Heating, Refrigerating, and Air-Conditioning Engineers” (www.ashrac.org).

Chapter 12. Alaska Energy Center.

[Repealed, § 2 ch 97 SLA 1986.]

Chapter 13. Hazardous Substance Spill Technology Review Council.

Secs. 46.13.010 — 46.13.090. Alaska State Emergency Response Commission. [Repealed § 28 ch 32 SLA 1994. For current law, see AS 26.23.071 — 26.23.077.]

Secs. 46.13.100 — 46.13.900. Hazardous Substance Spill Technology Review Council. [Repealed, § 102 ch 21 SLA 2000.]

Chapter 14. Air Quality Control.

Cross references. —

For other provisions related to violations of this chapter, see AS 46.03.

Administrative Code. —

For air quality control, see 18 AAC 50.

For emissions inspection and maintenance requirements for motor vehicles, see 18 AAC 52.

Article 1. General Regulations and Classifications.

Administrative Code. —

For emissions inspection and maintenance requirements for motor vehicles, see 18 AAC 52.

Sec. 46.14.010. Emission control regulations.

After public hearing, the department may adopt regulations under this chapter establishing ambient air quality standards, emission standards, or exemptions to implement a state air quality control program required under 42 U.S.C. 7401 — 7671q (Clean Air Act), as amended, and regulations adopted under those sections. The standards established under this section may be for the state as a whole or may vary in recognition of local conditions.
Unless the governor has determined that an emergency exists that requires emergency regulations under AS 44.62.250 , the department may adopt the following types of regulations only after the procedures established in (a), (c), and (d) of this section and compliance with AS 46.14.015 :
1. a regulation that establishes an ambient air quality standard for an air pollutant for which there is no corresponding federal standard;
2. a regulation that establishes an ambient air quality standard or emission standard that is more stringent than a corresponding federal standard;
3. a regulation that establishes an equivalent emission limitation for a hazardous air pollutant for which the federal administrator has not adopted a corresponding maximum achievable control technology standard; or
4. a regulation that regulates emissions from an emissions unit or stationary source or establishes an emission standard under the authority of AS 46.14.120(e) or 46.14.130(c)(2) .
In preparation for peer review under AS 46.14.015 and before adopting a regulation described under (b) of this section, the department shall
1. find in writing that exposure profiles and either meteorological conditions or emissions unit characteristics in the state or in an area of the state reasonably require the ambient air quality standard, or emission standard to protect human health and welfare or the environment; this paragraph does not apply to a regulation under (b)(3) of this section;
2. find in writing that the proposed standard or emission limitation is technologically feasible; and
3. prepare a written analysis of the economic feasibility of the proposal.
Before adopting a regulation described in (b)(2) of this section, the department shall find in writing that exposure profiles and either meteorological conditions or emissions unit characteristics are significantly different in the state or in an area of the state from those upon which the corresponding federal regulation is based.
When incorporated into more than one permit, emission standards and limitations, emissions monitoring and reporting requirements, and compliance verification requirements that are generally applicable statewide or are generally applicable to individual emissions unit or stationary source types shall be adopted in regulation unless they have been requested by the owner and operator to whom the permit is issued. The department shall, by regulation, adopt a standard, limitation, or requirement described in this subsection as soon as its general applicability is reasonably foreseeable.
An emission standard adopted by the department may be applicable to individual emissions units within a stationary source or to all emissions units within a stationary source. For purposes of determining compliance with applicable regulations and with permit limitations, the department may allow numerical averaging of the emissions of each air pollutant from several emissions units within a stationary source if
1. requested by the owner and operator; and
2. allowed under 42 U.S.C. 7401 — 7671q (Clean Air Act), as amended, and regulations adopted under those sections.

History. (§ 2 ch 74 SLA 1993; am §§ 3 — 7 ch 46 SLA 2003; am §§ 63 — 67 ch 56 SLA 2005)

Administrative Code. —

For ambient air quality management, see 18 AAC 50, art. 1.

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

Notes to Decisions

Cited in

Alyeska Pipeline Serv. Co. v. Dep't of Envtl. Conservation, 145 P.3d 561 (Alaska 2006).

Sec. 46.14.015. Special procedure for more stringent regulations.

Before the department adopts a regulation described under AS 46.14.010(b) , written findings under AS 46.14.010(c) and (d) shall be made available by the department to the public at locations throughout the state that the department considers appropriate.
Before the department adopts a regulation described in AS 46.14.010(b) , the department shall submit the findings described under (a) of this section, the studies on which the findings are based, and other related data for peer review to a minimum of three separate parties who are not employees of the department and who are determined by the commissioner to be technically qualified in the subject matter under review. The commissioner shall ensure that the peer review includes an analysis of the factors considered by the commissioner to support the standards proposed to be adopted and recommendations, if any, for additional research or investigation considered appropriate. Peer review reports shall be submitted to the commissioner within 45 days after the department submits a matter for peer review unless the commissioner determines that additional time is required.
The department shall make available to the public at least 30 days before the public hearing required under AS 46.14.010(a) , at convenient locations, copies of the department’s proposed regulation, the findings of the department describing the basis for adoption of the regulation, and the peer review reports, submitted under (b) of this section.
The department shall contract with persons to perform peer review under (b) of this section. All persons selected shall be selected on the basis of competitive sealed proposals under AS 36.30.200 — 36.30.270 (State Procurement Code). The commissioner may not contract with a person to perform peer review under this section if the person has a significant financial interest or other significant interest that could bias evaluation of the proposed regulation. An interest is not considered significant under this subsection if it is an interest possessed generally by the public or a large class of persons or if the effect of the interest on the person’s ability to be impartial is only conjectural.

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.020. Classification of stationary sources or emissions units; reporting.

The department, by regulation, may classify stationary sources or emissions units that, in the department’s determination, are likely to cause or contribute to air pollution, according to the levels and types of emissions and other characteristics that relate to air quality. The department may make a classification under this subsection applicable to the state as a whole or to a designated area of the state. The department shall base the classifications on consideration of health, economic, and social factors, sensitivity of the receiving environment, and physical effects on property.
The department or a local air quality control program authorized under AS 46.14.400 may require an owner and operator of a stationary source or emissions unit classified under this section to report information to the department or the authorized local program concerning location, size, and height of stacks or area emissions units, processes employed, fuels used, the nature and time periods or duration of emissions, and other information relevant to air quality that is available or reasonably capable of being calculated and compiled.

History. (§ 2 ch 74 SLA 1993; am § 8 ch 46 SLA 2003; am § 68 ch 56 SLA 2005)

Administrative Code. —

For ambient air quality management, see 18 AAC 50, art. 1.

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

For oxygenated gasoline requirements, see 18 AAC 53, art. 1.

Sec. 46.14.030. State air quality plan.

The department shall act for the state in any negotiations relative to the state air quality control plan developed under 42 U.S.C. 7401 — 7671q (Clean Air Act), as amended. The department may adopt regulations necessary to implement the state plan.

History. (§ 2 ch 74 SLA 1993)

Administrative Code. —

For ambient air quality management, see 18 AAC 50, art. 1.

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

For conformity, see 18 AAC 50, art. 7.

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

For certification requirements, see 18 AAC 52, art. 4.

For certified station requirements, see 18 AAC 52, art. 5.

For oxygenated gasoline requirements, see 18 AAC 53, art. 1.

Article 2. Emission Control Permit Program.

Sec. 46.14.110. Additional contaminant control measures. [Repealed, § 28 ch 74 SLA 1993.]

Sec. 46.14.120. Permits for construction, installation, modification, or operation.

Before constructing, installing, modifying, or establishing a stationary source subject to AS 46.14.130(a) , the owner and operator shall obtain a construction permit under this chapter.
Except when considered to be in compliance with this chapter under AS 46.14.275 or under a regulation adopted under AS 46.14.140(a)(12) , the owner and operator shall obtain an operating permit under this chapter before operating a stationary source subject to AS 46.14.130(b) .
A permittee shall comply with the terms and conditions of a permit or a modifying compliance order issued by the department under this chapter or a court order. A person operating under the application shield available under AS 46.14.140(a)(12) and 46.14.275 , shall comply with the terms and conditions of the pending application and applicable regulations.
The department shall ensure that permits issued, modified, amended, renewed, or revoked and reissued under this chapter comply with all applicable federal, state, and local requirements.
If the federal administrator exempts a stationary source from the requirements of 42 U.S.C. 7661a(a) (Clean Air Act, sec. 502(a)), the commissioner shall consider the factors used by the administrator in reaching that determination and, by regulation, shall issue a similar determination unless public health or air quality effects provide a reasonable basis to regulate the stationary source.
The department may exempt or defer a stationary source from the requirement of AS 46.14.130(b) to the extent allowed under 40 C.F.R. 70.3(b).
Before constructing, installing, modifying, operating, or establishing a stationary source subject to AS 46.14.130(c) , the owner or operator shall obtain a minor permit under this chapter.

History. (§ 2 ch 74 SLA 1993; am §§ 9 — 12 ch 46 SLA 2003; am §§ 28, 29 ch 99 SLA 2004)

Administrative Code. —

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

Sec. 46.14.130. Stationary sources requiring permits.

The owner and operator shall obtain a construction permit from the department before beginning actual construction of any one of the following:
1. a new major stationary source;
2. a major modification;
3. a project subject to the construction permitting requirements of 42 U.S.C. 7412(i) (Clean Air Act, sec. 112(i)).
Except for the owner and operator of a stationary source exempted under AS 46.14.120(e) or (f), the owner and operator of a stationary source shall obtain an operating permit from the department for
1. a major source;
2. a stationary source that contains an emissions unit subject to federal new source performance standards under 42 U.S.C. 7411 (Clean Air Act, sec. 111) or national emission standards for hazardous air pollutants issued under 42 U.S.C. 7412 (Clean Air Act, sec. 112); or
3. another stationary source designated by the federal administrator by regulation.
Unless the owner and operator of a stationary source are required to obtain a construction permit under (a) of this section, before constructing, installing, modifying, operating, or establishing a stationary source, the owner and operator shall obtain a minor permit from the department if the stationary source is of a type classified under AS 46.14.020
1. as having the potential to violate the ambient air quality standards; or
2. under a finding by the department that public health or air quality effects provide a reasonable basis to regulate the stationary source.
In this section, “major source” has the meaning given in 42 U.S.C. 7661(2).

History. (§ 2 ch 74 SLA 1993; am §§ 13, 14 ch 46 SLA 2003; am §§ 1, 2 ch 33 SLA 2005; am § 69 ch 56 SLA 2005)

Administrative Code. —

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

Sec. 46.14.140. Emission control permit program regulations.

The department shall adopt regulations to address substantive and procedural elements of the emission control permit program established under this chapter that are not addressed in statute, except elements that relate only to the internal management of the department and do not affect the public or govern the way the department deals with the public. The regulations must be reasonable and adequate, and provide flexibility in the operation of a stationary source consistent with 42 U.S.C. 7401 — 7671q (Clean Air Act), as amended, and applicable federal regulations. Except for regulations concerning minor permits required under AS 46.14.130 (c), the regulations must include
1. a standard permit application form that meets the requirements of federal regulations adopted under 42 U.S.C. 7661a(b) (Clean Air Act, sec. 502(b));
2. monitoring, record keeping, and reporting requirements for facilities that are subject to AS 46.14.130(b) , which must comply with the requirements established for state operating permit programs in 40 C.F.R. 70.6, but which may be modified to take into account this state’s unique conditions;
3. procedures for preparation and submission of a monitoring, reporting, and quality assurance plan and, if required, a compliance schedule describing how a permitted stationary source will comply with the applicable requirements of this chapter;
4. procedures for
  1. specifying when permit applications and renewal requests are to be submitted;
  2. specifying the time duration for department review of permit applications;
  3. processing and reviewing an application;
  4. providing public notice, including opportunity for public comment and hearing; and
  5. issuing permits, including procedures for issuing permits for temporary operations or open burn activities;
5. reasonable standard permit conditions, including conditions for
  1. emission standards and limitations;
  2. monitoring, record keeping, and reporting for facilities subject to AS 46.14.130 ;
  3. inspection and entry;
  4. certification of corporate or other business organization reports;
  5. annual certification of compliance;
  6. excess emission or process deviation reporting; and
  7. equipment malfunctions and emergencies;
6. fees and procedures for collecting fees;
7. provisions addressing late payment or nonpayment of fees, which may include assessment of penalties and interest or refusal to issue, amend, modify, or renew an air quality control permit;
8. the duration of permits;
9. procedures for modifying or amending a permit that provide flexibility in the operation of the stationary source, including procedures to allow changes to a permitted stationary source without requiring a permit modification, consistent with the purposes of this chapter and with 42 U.S.C. 7401 — 7671q (Clean Air Act);
10. reasonable provisions for renewing, reopening, revoking and reissuing, and terminating a permit consistent with the purposes of this chapter and 42 U.S.C. 7401 — 7671q (Clean Air Act);
11. provisions allowing for physical or operational limitations that will reduce a stationary source’s emissions to levels below those that would make the stationary source subject to part or all of AS 46.14.120 and 46.14.130;
12. provisions authorizing stationary source operation while a permit application is pending, consistent with 42 U.S.C. 7661b(d) (Clean Air Act, sec. 503(d));
13. provisions for ensuring that compliance with an operating permit issued under this chapter will be considered to be compliance with 42 U.S.C. 7661a (Clean Air Act, sec. 502) and other provisions of state or federal law specifically provided for by the department consistent with 42 U.S.C. 7401 — 7671q (Clean Air Act) and regulations adopted under state and federal law;
14. provisions allowing for certification of inspectors who evaluate compliance with the terms and conditions of a permit, order, regulation, or other provision of law authorized under this chapter; and
15. definitions of terms incorporating applicable definitions in 42 U.S.C. 7401 — 7671q (Clean Air Act), as amended, and applicable federal regulations, to the extent that those definitions are not inconsistent with this chapter.
A permit issued under this chapter may not require a person to use
1. machinery, devices, or equipment of a particular type, from a particular supplier, or produced by a particular manufacturer; or
2. specific methods, processes, procedures, or designs for the management and operation of a stationary source regulated under this chapter except to the extent that the federal administrator has
  1. adopted a design, equipment work practice, or operational standard under 42 U.S.C. 7412(h), as amended, for the control of a hazardous air pollutant; or
  2. approved an alternative hazardous air pollutant standard under 42 U.S.C. 7412(h)(3), as amended.
The absence of, or the department’s failure to adopt, a regulation under this section does not relieve a person from compliance with a permit issued under this chapter and with other provisions of law, including emission control requirements.

History. (§ 2 ch 74 SLA 1993; am §§ 15, 16 ch 46 SLA 2003; am § 3 ch 33 SLA 2005)

Administrative Code. —

For informal and fee review procedures, see 18 AAC 15, art. 5.

For ambient air quality management, see 18 AAC 50, art. 1.

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

For user fees, see 18 AAC 50, art. 4.

Sec. 46.14.150. Time for submission of operating permit applications.

The owner and operator of a stationary source required to have an operating permit under this chapter shall submit the required application and other information required by the department by regulation no later than 12 months after the date on which the stationary source becomes subject to AS 46.14.120(b) .
The department may accept and begin processing applications filed earlier than the submission date. Applications filed earlier may be given priority for permit issuance.

History. (§ 2 ch 74 SLA 1993; am § 17 ch 46 SLA 2003)

Administrative Code. —

For informal and fee review procedures, see 18 AAC 15, art. 5.

For administrative appeal proceedures, see 18 AAC 15, art. 6.

For major stationary source permits, see 18 AAC 50, art. 3.

Sec. 46.14.160. Completeness determination.

The department shall review every application submitted under this chapter for completeness. To be determined complete, an application must provide the information identified by the department in regulations adopted under AS 46.14.140 and in standard application forms provided by the department under AS 46.14.140 (a)(1) and must be certified true and correct by the owner and operator.
The department shall notify the applicant in writing whether the application is complete. Unless the department notifies the applicant within 60 days of receipt of an application that the application is incomplete, the application is considered to be complete.
If, during the processing of an application after it has been determined or considered to be complete, the department finds that additional information is necessary to evaluate or take action on that application, the information may be requested in writing from the owner and operator. A request for information under this subsection does not render the application incomplete. However, notwithstanding AS 46.14.275 , an owner and operator may be found in violation of this chapter for operating without a valid permit if they fail to provide timely additional information.

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.170. Administrative actions regarding permits.

Except as provided in AS 46.14.220 or in regulations adopted under AS 46.14.140(a)(7) , after receipt of a complete application, and after notice and opportunity for public comment and hearing, the department shall issue or deny
1. a construction permit within 30 days after the close of the public comment period;
2. an operating permit, other than a general operating permit or temporary operating permit, within 12 months after receipt of the complete application by the department.
[Repealed, § 82 ch 41 SLA 2009.]
Failure by the department to act within the time limits established in or under (a) or (d) of this section is considered to be a final agency action, but only for the purpose of judicial review to determine whether the court will require that action be taken by the department.
The department shall issue or deny a minor permit under AS 46.14.130(c) within 30 days after the close of the public comment period or within 30 days after receipt of the complete application by the department if a public comment period is not required under this chapter.

History. (§ 2 ch 74 SLA 1993; am §§ 18 — 20 ch 46 SLA 2003; am § 30 ch 99 SLA 2004; am §§ 65, 82 ch 41 SLA 2009)

Revisor’s notes. —

Concerning the reference in former subsection (b) to the approval of the state program, on December 5, 1996, the federal administrator gave final interim approval of the state operating permit program submitted by the Alaska Department of Environmental Conservation. See 61 Federal Register 64463-64475 (December 5, 1996.)

Administrative Code. —

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, repealed (b); substituted “time limits established in or under (a) or (d)” for “time limits established in or under (a), (b), or (d)” in (c).

Sec. 46.14.180. Monitoring.

Monitoring by the owner and operator of stack emissions or ambient air quality shall be required by the department only for purposes of demonstrating compliance with applicable permit program requirements. Monitoring requirements must be reasonable and based on test methods, analytical procedures, and statistical conventions approved by the federal administrator or the department or otherwise generally accepted as scientifically competent. Unless otherwise agreed to by the owner and operator and the department,

the department may not require an owner and operator of an emissions unit to monitor emissions or ambient air quality solely for the purpose of scientific investigation or research; and
monitoring activities must be consistent with the applicable emission standards and their permit or permit application requirements.

History. (§ 2 ch 74 SLA 1993; am § 21 ch 46 SLA 2003; am § 70 ch 56 SLA 2005)

Administrative Code. —

For program administration, see 18 AAC 50, art. 2.

For major stationary source permits, see 18 AAC 50, art. 3.

Sec. 46.14.190. Single permit.

Except as provided in (b) of this section, the department shall issue only a single operating permit to a stationary source, regardless of whether the stationary source contains a single emissions unit or multiple emissions units.
The department may, upon request of a stationary source owner or operator, issue more than one permit for the stationary source. Substantive and procedural requirements otherwise applicable to a stationary source remain applicable regardless of whether the stationary source owner and operator apply for one or more permits.

History. (§ 2 ch 74 SLA 1993; am § 22 ch 46 SLA 2003; am § 71 ch 56 SLA 2005)

Administrative Code. —

For major stationary source permits, see 18 AAC 50, art. 3.

Sec. 46.14.200. Review of permit action.

A person who has a private, substantive, legally protected interest under state law that may be adversely affected by the permit action, the owner and operator, or, if a public comment process is required or solicited, a person who participated in the public comment process may request an adjudicatory hearing under the department’s adjudicatory hearing procedures. After the issuance of an adjudicatory hearing decision, a party to the hearing may obtain judicial review of that decision as provided in the Alaska Rules of Appellate Procedure.

History. (§ 2 ch 74 SLA 1993; am § 23 ch 46 SLA 2003)

Sec. 46.14.210. General operating permits.

After notice and opportunity for public comment and hearing, the department may, unless the permit is disapproved by the federal administrator, establish a general operating permit that would be applicable to more than one stationary source determined by the department to be similar in emissions unit structure. A general operating permit must contain provisions that meet the requirements of this chapter that are applicable to operating permits. A general operating permit issued to a particular person takes effect when the person’s application is determined to be complete unless the department notifies the applicant that the general permit is not applicable to the person’s stationary source.

History. (§ 2 ch 74 SLA 1993; am § 24 ch 46 SLA 2003; am § 72 ch 56 SLA 2005)

Sec. 46.14.211. General minor permits.

After notice and opportunity for public comment and hearing, the department may establish a general minor permit that would be applicable to more than one stationary source determined by the department to be similar in structure. If authorized by the department, a permit issued under this section may be valid for multiple locations in this state. A general minor permit must contain provisions that meet the requirements of this chapter that are applicable to a minor permit.

History. (§ 25 ch 46 SLA 2003)

Sec. 46.14.215. Temporary operations.

For purposes of AS 46.14.130(b) , the department may issue a single operating permit under AS 46.14.170 , authorizing a stationary source to operate at specific multiple locations in the state for temporary periods of time. A permit described in this section is valid only for the specific locations identified in the application and authorized by the department. The department may not issue a permit under this section unless the permit contains conditions that will ensure compliance with this chapter at each authorized location, including compliance with ambient air quality standards and applicable increment or visibility requirements adopted under this chapter. A permit under this section must require the owner and operator to notify the department at least 10 days before a change in location of a stationary source permitted under this section.

History. (§ 2 ch 74 SLA 1993; am § 26 ch 46 SLA 2003)

Sec. 46.14.220. Objection by federal administrator.

An operating permit may not be issued under this chapter until the federal administrator approves the permit, or until 45 days after a copy of the final draft permit has been provided by the department to the federal administrator, whichever is earlier. If, during the 45-day period, the federal administrator files an objection with the department, the department shall notify the applicant of the objection. The department may not issue the permit until the objection is resolved or the permit is revised to meet the objection of the federal administrator. Upon request of an applicant, the department shall assist the applicant in an effort to resolve promptly an objection by the federal administrator.
Within 60 days after the close of the 45-day period under (a) of this section and in accordance with procedures established in federal regulations adopted under 42 U.S.C. 7661d(b)(2) (Clean Air Act, sec. 505(b)(2)), a person may petition the federal administrator to file an objection to the permit.

History. (§ 2 ch 74 SLA 1993)

Administrative Code. —

For major stationary source permits, see 18 AAC 50, art. 3.

Sec. 46.14.230. Duration of operating permits.

An operating permit under this chapter, including an operating permit that contains a compliance schedule, shall be issued for a fixed term of five years after the date of issue, except as provided for temporary operations under AS 46.14.215 or unless a shorter term is requested by the permit applicant.
If a timely and complete application for renewal of an operating permit is submitted to the department, the existing permit issued under this chapter does not expire until the renewal permit has been issued or denied.

History. (§ 2 ch 74 SLA 1993)

Administrative Code. —

For major stationary source permits, see 18 AAC 50, art. 3.

Sec. 46.14.235. Federal termination, modification, or revocation and reissuance of permits.

The department shall take measures practicable and otherwise lawful to avoid termination, modification, or revocation and reissuance by the federal administrator of permits issued by the department under this chapter.

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.240. Permit administration fees.

The owner or operator of a stationary source who is required to apply for a permit under AS 46.14.130 shall pay to the department all assessed permit administration fees established under (b) of this section except that the person named in a permit issued under AS 46.14.170 shall pay assessed permit administration fees incurred after the date the permit is issued.
The department shall establish by regulation permit administration fees in accordance with AS 37.10.050 — 37.10.058 .
[Repealed, §§ 60(b), 65 ch 46 SLA 2003.]
Costs incurred by the department and other state or local governmental agencies that are assessed against small business facilities that qualify for assistance under AS 46.14.300 — 46.14.310 shall be recovered from emission fees under AS 46.14.250(h)(2) for the following services:
1. providing preapplication consultation, assistance, and completeness review of applications for a permit, an amendment, a permit modification, or a renewal of a permit;
2. reviewing or assisting in the preparation of specific documents to support a permit for a stationary source; the documents described in this paragraph include on-site evaluations.

History. (§ 2 ch 74 SLA 1993; am §§ 27 — 30, 60(b) ch 46 SLA 2003)

Administrative Code. —

For program administration, see 18 AAC 50, art. 2.

For user fees, see 18 AAC 50, art. 4.

Notes to Decisions

Issuance of fees held proper. —

Trial court properly upheld the denial of a company’s appeal of “permit administration fees” issued by the Alaska Department of Environmental Conservation in connection with the company’s administrative appeals of air quality control permits where former paragraph (c)(3) of this section allowed the Department to recover the costs of administrative appeals through permit administration fees. Alyeska Pipeline Serv. Co. v. Dep't of Envtl. Conservation, 145 P.3d 561 (Alaska 2006).

Sec. 46.14.250. Emission fees.

A person named as permittee in a permit issued under this chapter shall pay to the department all assessed emission fees established under this section.
The department shall establish by regulation an emission fee rate. The rate shall be set on the basis of dollars per ton of air pollutant emitted. The department shall assess emission fees annually on or before July 1 based on a stationary source’s estimated assessable emissions for the subsequent fiscal year. The department may allow installment payments of assessed emission fees.
For a stationary source that begins operation during a fiscal year, the department shall prorate the first year’s fee to cover the time period occurring before the next annual payment date. The owner or operator shall pay the initial emission fee upon commencement of lawful stationary source operation unless authorized to pay by installments under (b) of this section. The first year’s emission fee may not duplicate a fee paid by a permittee under AS 44.46.025 for the same emissions units for the same time period. If the fees would otherwise be duplicative, the department shall provide a credit toward the emission fee in the amount of the unused balance of the fee collected under AS 44.46.025 . The unused balance to be credited shall be based on prorating the total original fee under AS 44.46.025 for the time period for which an emission fee applies.
The department shall design the emission fee rate to distribute the total annual incurred costs described under (h) of this section in a manner so that each permittee is assessed an annual emission fee that reflects an equitable apportionment of the fees paid by each stationary source type, size, or category. In making an apportionment under (f)(6) of this section, the department shall consider factors such as exemptions or reduced rates for small amounts of emissions, limits upon assessable emissions, exempting small business facilities from the costs of the small business assistance program established under AS 46.14.300 , air pollution prevention efforts, and other factors that may ensure fair distribution of the costs described under (h) of this section.
[Repealed, § 88 ch 56 SLA 2005.]
The department shall set the emission fee rate in regulation to implement the policy established in (d) of this section. The department shall base the regulation on the findings of a report, which the department shall make available to the public with proper notice before adoption of the regulation, that examines
1. fees assessed;
2. alternative fee rates or formulas;
3. types, sizes, or categories of stationary sources, their respective emission quantities, and their previous or proposed fee burden;
4. apparent inequities encountered in the initial fee rate;
5. total costs incurred or anticipated to be incurred under (h) of this section; and
6. other factors that ensure fair distribution of the costs described in (h) of this section.
The department shall periodically, and at least every four years, evaluate the fee rate set under this section to determine if it is responsive to the policy established in (d) of this section and shall provide its findings in a report.
In this section,
1. “assessable emission” means the quantity of each air pollutant for which emission fees are assessed and is the lesser of
  1. the stationary source’s potential to emit, in tons per year, each air pollutant; or
  2. the projected annual rate of emissions, in tons per year, of each air pollutant by the stationary source based upon previous actual annual emissions if the permittee can demonstrate to the department its previous actual annual rate of emissions through monitoring, modeling, calculations, or other method acceptable to the department;
2. “emission fees” mean fees assessed to recover costs incurred by the department and other state or local governmental agencies for the implementation of minor permits, for the implementation of construction permits, and for operating permits to the extent required under 42 U.S.C. 7661a(b)(3)(A) and federal regulations implementing that provision, for execution of the permit program established under this chapter that are generally not associated with service provided to a specific facility, including the costs incurred by the department or a local air quality program to comply with AS 46.14.010 and 46.14.015 ; the costs may include rent, utilities, permit program management, administrative and accounting services, and other costs as identified by the department in regulations; the fees shall also be sufficient to recover the cost of the small business assistance program under AS 46.14.300 — 46.14.310 .

History. (§ 2 ch 74 SLA 1993; am §§ 31, 32 ch 46 SLA 2003; am §§ 73, 74, 88 ch 56 SLA 2005)

Administrative Code. —

For major stationary source permits, see 18 AAC 50, art. 3.

For user fees, see 18 AAC 50, art. 4.

Notes to Decisions

Quoted in

Alyeska Pipeline Serv. Co. v. Dep't of Envtl. Conservation, 145 P.3d 561 (Alaska 2006).

Sec. 46.14.255. Interest and sanctions for nonpayment.

The department may assess interest against the owner and operator after a fee is due under this chapter and is unpaid. Interest assessed under this subsection shall be computed at two percentage points higher than the prime rate, as defined in AS 44.88.599 , for the day the fee was due.
If a permittee has failed to pay a fee imposed under AS 46.14.240 — 46.14.250 , a penalty, assessment, or damage award imposed under AS 46.03.760(e) or 46.03.790 for a violation of this chapter, or interest imposed under (a) of this section, the department may, after 30 days’ written notice to the permittee, revoke a minor permit, refuse to issue or renew permits requested by the permittee, or refuse to amend or modify a permit when the amendment or modification is requested by the permittee.

History. (§ 2 ch 74 SLA 1993; am § 4 ch 33 SLA 2005)

Revisor’s notes. —

In 1995, in subsection (b), “AS 46.03.760 (e)” was substituted for “AS 46.03.760 (f)” to reflect the 1995 reorganization of AS 46.03.760.

Administrative Code. —

For user fees, see 18 AAC 50, art. 4.

Sec. 46.14.260. Clean air protection fund.

The clean air protection fund is established. The fund consists of fees collected by the department under AS 46.14.240 and 46.14.250 and under regulations authorized by AS 46.14.140 , as required by 42 U.S.C. 7661a(b)(3)(C)(iii) (Clean Air Act, sec. 502(b)(3)(C)(iii)) for state participation in the federal emission control permit program.
The money deposited into the clean air protection fund may only be used to cover the reasonable direct and indirect costs required to support the permit program under this chapter and the activities of the small business assistance program that are directed at stationary sources subject to this chapter, not including court costs or other costs associated with an enforcement action.

History. (§ 2 ch 74 SLA 1993; am § 33 ch 46 SLA 2003)

Sec. 46.14.265. Emission control permit receipts account.

The emission control permit receipts account is established in the state treasury. Under AS 37.05.146(c) , money received by the department in payment of fees under AS 46.14.240 and 46.14.250 and under regulations adopted under AS 46.14.140 , other than fees described in AS 46.14.260(a) , shall be deposited in the account. Appropriations from the account are not made from the unrestricted general fund.
Nothing in this section creates a dedicated fund.

History. (§ 34 ch 46 SLA 2003)

Sec. 46.14.270. Clean air protection account.

Civil or criminal penalties, fines, assessments, or damages, and interest, attorney fees, and costs collected as a result of a violation relating to this chapter and interest collected under AS 46.14.255 shall be deposited in the general fund and credited to a special account called the “clean air protection account.”

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.275. Timely and complete application as shield.

If an owner and operator have submitted a timely and complete application for a permit or a permit renewal, as applicable, but final action has not been taken on the application, the owner’s and operator’s failure to have an operating permit is not a violation of this chapter unless the delay in final action was due to the failure of the owner and operator to submit, in a timely manner, additional information required or requested to process the application. An owner and operator required to have an operating permit under this chapter are not in violation of the operating permit program established under this chapter before the date on which the owner and operator are required to submit an application under AS 46.14.150 .

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.280. Termination, modification, reopening, or revocation and reissuance of permits by the department.

After 30 days’ written notice to the permittee, the department
1. may terminate, modify, or revoke and reissue a construction, operating, or minor permit if the department finds that
  1. the permit was obtained by misrepresentation of material fact or by failure of the owner and operator to disclose fully the facts relating to issuance of the permit;
  2. the permittee has violated this chapter, a regulation, a judicial or administrative order, or a material term or condition of a permit, approval, or acceptance issued under this chapter; or
  3. the permittee has failed to construct or modify a stationary source within the time period specified in a construction permit, if any, required under AS 46.14.130(a) ;
2. may modify, or revoke and reissue a construction, operating, or minor permit if the department finds that
  1. the permit contains a material mistake; or
  2. there has been a material change in the quantity or type of air pollutant emitted from the stationary source; or
3. shall reopen a permit issued under this chapter
  1. based on a determination of the federal administrator or the department that the permit must be revised to comply with 42 U.S.C. 7401 — 7671q (Clean Air Act) and regulations adopted under 42 U.S.C. 7401 — 7671q; or
  2. to incorporate changes in law, or to impose equivalent emission limitations, that become applicable after the permit is issued if the permit is issued to a major source and has a remaining duration of three or more years; the department shall make revisions allowed under this subparagraph as soon as practicable, but, regarding a change in law, not later than 18 months after the change in law takes effect; the department may not reopen the permit of a major source under this subparagraph if the change in law is not effective until after the date that the permit expires.
Reopening of a permit under (a)(3) of this section shall be treated as a permit renewal by the department if the procedural requirements for permit renewal have been met.
Proceedings to reopen a permit under this section shall follow the same procedure as for initial permit issuance and shall affect only those parts of the permit for which the department had cause to reopen under this section.

History. (§ 2 ch 74 SLA 1993; am § 35 ch 46 SLA 2003; am § 5 ch 33 SLA 2005)

Revisor’s notes. —

In 1993, in (a)(3)(B) of this section, “limitations” was substituted for “limitation” to correct a clerical error.

Administrative Code. —

For major stationary source permits, see 18 AAC 50, art. 3.

Sec. 46.14.285. Amendment and modification of permit upon request of permittee.

A permittee may request
1. a permit amendment that provides for administrative changes to a permit that do not result in material changes in permit terms or conditions, such as changes in the name of the owner or operator, mailing address, registered agent, or assessable emissions;
2. an expedited authorization for minor changes in permit terms and conditions that provide for flexibility in the operation of a stationary source consistent with 42 U.S.C. 7661a(b)(10) (Clean Air Act, sec. 502(b)(10)), and regulations adopted under that paragraph; the department may adopt regulations that include procedures under which the public may participate when an expedited authorization is requested under this paragraph; or
3. a modification of a permit to authorize significant changes in permit terms and conditions consistent with this chapter and regulations adopted under AS 46.14.140 .
The department shall review all requests submitted under (a) of this section and issue or deny the permit amendment or modification or otherwise authorize or deny the request consistent with this chapter and regulations adopted under this chapter.

History. (§ 2 ch 74 SLA 1993; am § 36 ch 46 SLA 2003)

Sec. 46.14.290. Permit as shield.

To the extent allowed under 42 U.S.C. 7661c(f) (Clean Air Act, sec. 504(f)), a permittee is considered in compliance with applicable requirements of this chapter, regulations adopted under this chapter and 42 U.S.C. 7401 — 7671q (Clean Air Act) and regulations adopted under it, if
1. the applicable requirements are included and specifically identified in the owner or operator’s permit; or
2. the requirements are determined in writing not to be applicable to the permitted stationary source; a determination made under this paragraph shall be included in the permit.
This section does not alter or affect
1. the owner’s and operator’s obligation to comply with an emergency order issued under AS 46.03.820 or 42 U.S.C. 7603 (Clean Air Act, sec. 303);
2. the liability of an owner and operator for a violation of applicable requirements of law before or at the time of permit issuance; or
3. the ability of the department to obtain information from an owner or operator of a stationary source under AS 46.14.020(b) .

History. (§ 2 ch 74 SLA 1993; am § 37 ch 46 SLA 2003)

Article 3. Small Business Assistance Program.

Sec. 46.14.300. Small business assistance program.

A small business assistance program is established in the department. The department shall include the program in the state air quality control plan developed under 42 U.S.C. 7401 — 7671q (Clean Air Act).
The small business assistance program shall, by regulation, meet the requirements of 42 U.S.C. 7661f(a) (Clean Air Act, sec. 507(a)), including the requirement that a small business advocate be designated.
Except as provided in AS 46.14.310(b) , the department shall provide assistance as described in (b) of this section to a requesting stationary source that is not a small business concern as defined in 15 U.S.C. 632 but that is subject to the requirements of this chapter if the legislature appropriates money from the general fund for this purpose.

History. (§ 2 ch 74 SLA 1993; am § 38 ch 46 SLA 2003; am § 66 ch 41 SLA 2009)

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, in (c), substituted “15 U.S.C. 632” for “15 U.S.C. 631”.

Sec. 46.14.310. Power to limit small business assistance program.

After consultation with the federal administrator and the administrator of the United States Small Business Administration and after providing notice and opportunity for public hearing, the department may exclude from the scope of the small business assistance program established in AS 46.14.300 a category or subcategory of small business facilities that the department finds to have sufficient technical and financial capabilities to meet the requirements of this chapter and federal law without the assistance provided under AS 46.14.300 — 46.14.320 .
Nothing in AS 46.14.300(c) precludes the department from excluding a business facility or category of business facilities that the department finds to have sufficient technical and financial capabilities to meet the requirements of this chapter without assistance from the department.

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.320. Compliance advisory panel.

There is established in the department a compliance advisory panel whose members shall serve staggered three-year terms. A member may not serve more than two three-year terms consecutively.
The panel consists of
1. two members who are not owners or representatives of owners of small business facilities, selected by the governor to represent the general public;
2. one member selected by the commissioner to represent the department; and
3. four members who are owners or representatives of owners of small business facilities, selected as follows:
  1. one shall be selected by the president of the senate and one shall be selected by the speaker of the house;
  2. if there are members of the senate who are not part of the majority caucus of the senate, the leader of the largest nonmajority group shall select a panel member; if all members of the senate are in the majority caucus, then the president of the senate shall select a second panel member in addition to the selection authorized under (A) of this paragraph;
  3. if there are members of the house who are not part of the majority caucus of the house, the leader of the largest nonmajority group shall select a panel member; if all members of the house are in the majority caucus, then the speaker of the house shall select a second panel member in addition to the selection authorized under (A) of this paragraph.
The panel members shall serve without compensation but are entitled to transportation expenses and per diem as authorized for members of boards and commissions under AS 39.20.180 .
The compliance advisory panel shall
1. elect a chair and agree upon procedures by which the panel will function;
2. meet annually and at the call of the chair and give public notice of panel meetings as required under AS 44.62.310 — 44.62.319 (Open Meetings Act);
3. prepare advisory opinions concerning the effectiveness of the small business assistance program, difficulties encountered in making the program efficient and effective, and degree of enforcement and severity of air pollution offenses;
4. make periodic reports to the administrator concerning the compliance of the small business assistance program with requirements of 44 U.S.C. 3501 (Paperwork Reduction Act), 5 U.S.C. 601 (Regulatory Flexibility Act), and 5 U.S.C. 504 (Equal Access to Justice Act);
5. review information designed to assist small business facilities in complying with this chapter to ensure that the information is understandable by the public; and
6. use the assistance of the small business advocate designated under AS 46.14.300(b) in the development and dissemination of panel reports and advisory opinions.

History. (§ 2 ch 74 SLA 1993)

Revisor’s notes. —

In 2010, “AS 44.62.310 — 44.62.319 (Open Meetings Act)” was substituted for “AS 44.62.310 — 44.62.312 ” in accordance with § 29(2), ch. 58, SLA 2010.

Article 4. Local Programs.

Sec. 46.14.400. Local air quality control programs.

History. (§ 2 ch 74 SLA 1993; am § 4 ch 56 SLA 1995; am §§ 39, 40 ch 46 SLA 2003; am § 5 ch 97 SLA 2003; am §§ 75, 76 ch 56 SLA 2005)

Administrative Code. —

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

Notes to Decisions

Cited in

Stosh's I/M v. Fairbanks North Star Borough, 12 P.3d 1180 (Alaska 2000).

Sec. 46.14.410. Inadequacy of local program.

If a municipality or a local air quality district has an approved local air quality control program and the department determines that the program is being implemented in a manner that fails to meet the terms of the cooperative agreement or is otherwise being inappropriately administered, the department shall give written notice setting out its determination to the municipality or local air quality district. Within 45 days after giving written notice, the department shall conduct a public hearing on the matter. The hearing shall be recorded by any means that ensures an accurate record.
If, after the hearing, the department upholds the determination made in the written notice, the department shall provide the municipality or local air quality district with a written finding setting out the nature of the deficiencies and a description of the necessary action to be taken to ensure that the local air quality control program prevents or controls air pollution. The department shall provide its finding to the municipality or district within 45 days after closure of the public hearing record. The department shall set a reasonable period of time for the municipality or local air quality district to take corrective action in response to the department’s finding.
If the municipality or local air quality district fails to take corrective action within the time period set by the department under (b) of this section, the department shall terminate the cooperative agreement and resume management of air quality control in the affected jurisdiction. If the municipality or the local air quality district partially remedies, to the department’s satisfaction, the deficiencies found in the determination, the department shall amend the cooperative agreement to reflect a modified allocation of responsibilities between the department and municipality or the local air quality district.
A municipality or local air quality district that has had its cooperative agreement terminated may, with the department’s approval, resume a local air quality control program if the municipality or district agrees to comply with AS 46.14.400 and with any corrective action plan required by the department.
If the department finds that control of a particular class of stationary source or emissions unit, because of its complexity or magnitude, is beyond the reasonable capability of the municipality or the local air quality district or may be more efficiently and economically controlled at the state level, the department may assume and retain jurisdiction over the class of stationary source or emissions unit. Classifications under this subsection may be based on the nature of stationary sources or emissions units involved, their size relative to the size of the communities in which they are located, or another basis established by the department.

History. (§ 2 ch 74 SLA 1993; am § 41 ch 46 SLA 2003; am § 77 ch 56 SLA 2005)

Administrative Code. —

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

Article 5. Miscellaneous Provisions.

Sec. 46.14.500. Air pollution from outer continental shelf activities.

The department shall seek delegation of authority from the federal administrator to implement and enforce the terms and provisions of 42 U.S.C. 7627 (Clean Air Act, sec. 328) for the Pacific and Arctic Ocean areas offshore of the state. The department may adopt regulations that are necessary to acquire this delegated authority.
In adopting regulations under this section, the department shall ensure that stationary sources located within 25 miles of the seaward boundary of the state are subject to the same air quality control requirements that would be applicable if the stationary source were located in the corresponding onshore area. For purposes of this subsection, stationary sources located within 25 miles of the seaward boundary of the state include a vessel servicing or associated with the stationary source while at the stationary source or en route to or from the stationary source and within 25 miles of the stationary source.
In this section, “corresponding onshore area” means, with respect to a stationary source located within 25 miles of the seaward boundary of the state, the onshore attainment or nonattainment area that is closest to the stationary source, unless the commissioner determines that another area with more stringent requirements relating to control and abatement of air pollution may reasonably be expected to be affected by emissions from the offshore stationary source; this determination shall be based on the potential for air pollutants from the stationary source to reach the other onshore area and the potential of the air pollutants to affect the efforts of the other onshore area to attain or maintain a federal ambient air quality standard set under 42 U.S.C. 7470 — 7492 (Clean Air Act, secs. 160 — 169b) or a state equivalent.

History. (§ 2 ch 74 SLA 1993; am §§ 42, 43 ch 46 SLA 2003; am § 27 ch 58 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective June 10, 2010, in (c), substituted “42 U.S.C. 7470 — 7492 (Clean Air Act, secs. 160 — 169b)” for “42 U.S.C. 7470 — 7492 (Title I, Part C, Clean Air Act)”.

Sec. 46.14.510. Motor vehicle pollution.

When the department determines that the state of knowledge and technology may allow or make appropriate the control of emissions from motor vehicles to further air quality control, the department may provide, by regulation, for the control of the emissions from motor vehicles. The regulations may prescribe requirements for the installation and use of equipment designed to reduce or eliminate emissions and for the proper maintenance of this equipment.
Unless otherwise exempted by law, a person shall maintain in operating condition any element of the air pollution control system or mechanism of a motor vehicle that the department, by regulation, requires to be maintained in or on the motor vehicle.
The department shall consult with the Department of Administration regarding implementation of the motor vehicle pollution control program. The Department of Administration shall cooperate with the department in implementing the program. As a part of a motor vehicle pollution control program, the department or a municipality that enforces a motor vehicle pollution control program may determine if a vehicle is properly registered as required by law.
If the department adopts regulations requiring the maintenance of air pollution control systems or mechanisms in motor vehicles to control emissions from the vehicle, a motor vehicle subject to those regulations may not be issued a certificate of inspection unless the required air pollution control system or mechanism has been inspected in accordance with the standards, testing techniques, and instructions furnished by the department and the motor vehicle has been found to meet those standards. A valid certificate of inspection for the emission control system, if required by the department, must be presented to the Department of Administration before that department may register a motor vehicle.
If the department adopts regulations requiring emissions inspection for a motor vehicle, the department may not require the vehicle be inspected more than once every two years.
A person who fails to display an emissions inspection decal as required by law is guilty of a violation and, upon conviction, shall be fined an amount not to exceed $500. It is the intent of the legislature that money collected under this subsection be appropriated to control pollution from motor vehicle emissions.
In addition to the emission control inspection program fee imposed under AS 28.10.423 , the department or a municipality may impose a fee upon a vehicle required to be inspected under a motor vehicle emission control program established under this chapter, but the fee may not exceed the actual costs of the department or the municipality in administering
1. the motor vehicle emission control inspection program; and
2. the related ambient air monitoring program.

History. (§ 2 ch 74 SLA 1993; am § 5 ch 56 SLA 1995; am § 17 ch 44 SLA 1996; am E.O. No. 99 §§ 74, 75 (1997); am §§ 6 — 8 ch 97 SLA 2003)

Administrative Code. —

For fuel requirements for motor vehicles, see 18 AAC 53.

For emissions inspection and maintenance requirements, see 18 AAC 52, art. 1.

For certification requirements, see 18 AAC 52, art. 4.

For certified station requirements, see 18 AAC 52, art. 5.

For oxygenated gasoline requirements, see 18 AAC 53, art. 1.

Sec. 46.14.515. Inspection.

An officer or employee of the department designated by the commissioner or an inspector authorized by the commissioner and certified under regulations adopted under AS 46.14.140(a)(14) may, upon presentation of credentials and at reasonable times with the consent of the owner or operator, enter upon or through any premises of a stationary source regulated under this chapter to
1. inspect and copy any records required to be maintained;
2. inspect any emissions unit, monitoring equipment, or method required to be used; or
3. sample any emissions that the owner and operator of the stationary source is required to sample.
During an inspection under this section, the inspector shall comply with applicable health and safety standards.

History. (§ 2 ch 74 SLA 1993; am § 44 ch 46 SLA 2003; am § 78 ch 56 SLA 2005)

Administrative Code. —

For major stationary source permits, see 18 AAC 50, art. 3.

For oxygenated gasoline requirements, see 18 AAC 53, art. 1.

Opinions of attorney general. —

Alaska’s inspection and entry authority meets the requirements of federal law and regulations, and imposes no greater restrictions on the state’s inspection authority than exist under federal law. Although the Alaska Constitution contains a broader guarantee against unreasonable search and seizure than the U.S. Constitution, facilities with an operating permit issued under AS 46.14 are closely regulated with little reasonable expectation of privacy, and Alaska’s provisions requiring owners and operators of these facilities to consent to entry and inspection are permissible under the Alaska Constitution. Exceptions to the warrant requirement that are available under federal law are also available under state law, and the restrictions on the state’s inspection authority are no greater than under federal law. May 18, 1998 Op. Att’y Gen.

Sec. 46.14.520. Confidentiality of trade secrets.

Records, reports, and information, and parts of records, reports, and information, other than emission data, in the department’s possession or control are considered confidential records and shall be kept confidential and in separate files if the owner and operator have certified under oath to the department or authorized local program that

public disclosure would tend to affect adversely the owner’s and operator’s competitive position; and
the records, reports, or information, or parts of the records, reports, or information, would divulge production figures, sales figures, processes, production techniques, or financial data of the owner and operator that are entitled to protection as trade secrets under AS 45.50.910 — 45.50.945 (Alaska Uniform Trade Secrets Act).

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.525. Public records.

Except as provided in AS 46.14.520 , permits, permit applications, emissions and monitoring reports, compliance reports, certifications, and monitoring, reporting, and quality assurance plans in the department’s possession or control are available to the public for inspection and copying.

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.530. State and federal aid.

A municipality or local air quality district with a local air quality control program may apply for, receive, administer, and spend state aid for the control of air emissions or the development and administration of the program if an application is first submitted to and approved by the department. Subject to available money appropriated by the legislature for the purpose of this section, the department may approve an application if it is consistent with the terms and conditions of the applicable cooperative agreement and meets the requirements of this chapter.
A municipality or local air quality district with a local air quality control program may apply for, receive, administer, and spend federal aid for the control of air emissions or the development and administration of the program.

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.535. Grants. [Repealed, § 4 ch 20 SLA 2009.]

Sec. 46.14.540. Authority of department in cases of emergency.

When the commissioner finds that an act of God, act of war, act of terrorism, or similar catastrophe necessitates emergency use of an unpermitted emissions unit or emergency use of a permitted emissions unit in a manner not authorized by the permit, the commissioner may waive procedural requirements of this chapter and issue an order to authorize emergency use of the emissions unit. When acting under this section, the commissioner shall impose conditions necessary to protect life, human health, welfare, property, and the environment and may impose other conditions the commissioner finds necessary and appropriate.
An authorization issued under this section automatically terminates within a reasonable time after abatement of the emergency, subject to a maximum of 30 days from the date of issuance. However, the commissioner may reissue an authorization, if warranted, that may remain in effect for up to another 30 days. An authorization may be reissued more than once.
A person acting under an order issued under (a) of this section is considered to be acting in compliance with the operating permit program established in this chapter.
The commissioner may delegate the commissioner’s authority under this section to deputy commissioners and division directors in the department.

History. (§ 2 ch 74 SLA 1993; am § 45 ch 46 SLA 2003; am § 79 ch 56 SLA 2005)

Sec. 46.14.550. Responsibilities of owner and operator; agent for service.

Notwithstanding use of the conjunctive or disjunctive in a provision of this chapter, before issuance of a permit under this chapter both the owner and operator of a stationary source are responsible for compliance with this chapter and regulations adopted under this chapter. If the owner and operator of the stationary source are separate persons, only one person is required to discharge a specific responsibility. After issuance of a permit under this chapter, only the permittee is responsible for permitted operations. The permittee shall have a designated agent for service of process in the state.

History. (§ 2 ch 74 SLA 1993; am § 46 ch 46 SLA 2003)

Sec. 46.14.560. Unavoidable malfunctions and emergencies.

Excess emissions caused by an unavoidable emergency, a malfunction, or nonroutine repairs of an emissions unit including pollution control equipment or process equipment constitute an affirmative defense, when asserted under regulations adopted under AS 46.14.140 , to an action brought for noncompliance with a technology-based emission standard. This section does not limit the department’s power to enjoin the emission or require corrective action. This provision is in addition to any emergency or upset provision contained in an applicable requirement.

History. (§ 2 ch 74 SLA 1993; am § 47 ch 46 SLA 2003; am § 80 ch 56 SLA 2005)

Administrative Code. —

For program administration, see 18 AAC 50, art. 2.

Article 6. General Provisions.

Sec. 46.14.900. Limitations.

This chapter does not

grant jurisdiction or authority with respect to air contamination existing solely within a residential dwelling or a commercial or industrial plant, workplace, or shop;
affect the relations between employers and employees with respect to or arising out of a condition of air contamination or air pollution; or
supersede or limit the applicability of a law or ordinance relating to sanitation, industrial health, or safety.

History. (§ 2 ch 74 SLA 1993)

Sec. 46.14.990. Definitions.

In this chapter,

“air pollutant” has the meaning given in 42 U.S.C. 7602 (Clean Air Act, sec. 302);
“ambient air” has the meaning given in 40 C.F.R. 50.1;
“ambient air quality standard” means a standard, other than an emission standard, adopted under AS 46.14.010 , 46.14.140 , 46.14.400(f) , or 42 U.S.C. 7409 (Clean Air Act, sec. 109);
“building, structure, facility, or installation” has the meaning given in 40 C.F.R. 51.166(b) except that it includes a vessel
1. that is anchored or otherwise permanently or temporarily stationed within a locale;
2. upon which a stationary source or stationary sources are located; not including stationary sources engaged in propulsion of the vessel; and
3. that is used for an industrial process, excluding a tank vessel in the trade of transporting cargo; in this subparagraph, “industrial process” means the extraction of raw material or the physical or chemical transformation of raw material in either composition or character;
“commissioner” means the commissioner of environmental conservation;
“construction” has the meaning given in 40 C.F.R. 51.166(b);
“construction permit” means a permit under AS 46.14.130(a) , including all relevant exhibits, addendums, transmittal letters, compliance schedules, administrative orders, emergency orders, and court orders;
“department” means the Department of Environmental Conservation;
“emission” means a release of one or more air pollutants to the atmosphere;
“emission limitation” and “emission standard” have the meanings given in 40 C.F.R. 51.100;
“emissions unit” has the meaning given in 40 C.F.R. 51.166(b)(7) or 40 C.F.R. 70.2, depending on the context in which the term is used;
“federal administrator” means the administrator of the United States Environmental Protection Agency;
[Repealed, § 82 ch 41 SLA 2009.]
“hazardous air pollutant” means a pollutant listed in or under 42 U.S.C. 7412(b) (Clean Air Act, sec. 112(b));
“local air quality control program” means a program authorized under AS 46.14.400 to implement some or all of the provisions of this chapter;
“major modification” means a change that meets the definition of “major modification” under either 40 C.F.R. 51.165 or 40 C.F.R. 51.166;
“major stationary source” means a stationary source or physical change that meets the definition of “major stationary source” under either 40 C.F.R. 51.165 or 40 C.F.R. 51.166;
“operating permit” means a permit under AS 46.14.130(b) , including all relevant exhibits, addendums, transmittal letters, compliance schedules, administrative orders, emergency orders, and court orders;
“operator” means a person or persons who direct, control, or supervise a stationary source or emissions unit that has the potential to emit an air pollutant to the atmosphere;
“owner” means a person or persons with a proprietary or possessory interest in a stationary source or emissions unit that has the potential to emit an air pollutant to the atmosphere;
“person” has the meaning given in AS 01.10.060 and also includes an agency of the United States, a municipality, the University of Alaska, the Alaska Railroad Corporation, and other departments, agencies, instrumentalities, units, and corporate authorities of the state;
“potential to emit” has the meaning given in 40 C.F.R. 51.166(b);
“regulated air pollutant” means an air pollutant subject to regulation under 42 U.S.C. 7401 — 7671q (Clean Air Act);
“small business facility” means a stationary source that
1. is owned or operated by a person who employs 100 or fewer individuals;
2. is a small business concern as defined in 15 U.S.C. 632; and
3. emits less than 100 tons per year of regulated air pollutants;
“stack” has the meaning given in 40 C.F.R. 51.100;
“stationary source” has the meaning given in 40 C.F.R. 51.166(b) or 40 C.F.R. 70.2, depending on the context in which the term is used;
“tank vessel” means a waterborne vessel, ship, or barge, whether or not self-propelled, that is constructed or converted to carry cargo; “tank vessel” includes a tanker, tank ship, or combination carrier, but does not include a vessel that is loading or unloading
1. cargo in sealed drums, barrels, or other packages; or
2. petroleum or petroleum products solely as fuel for use on that vessel;
[Repealed, § 60 ch 3 SLA 2017.]

History. (§ 2 ch 74 SLA 1993; am § 29 ch 23 SLA 1995; am §§ 48 — 60 ch 46 SLA 2003; am §§ 6 — 8 ch 33 SLA 2005; am §§ 81 — 83 ch 56 SLA 2005; am §§ 67, 82 ch 41 SLA 2009; am §§ 55, 60 ch 3 SLA 2017)

Revisor’s notes. —

Reorganized in 1995, 2003, and 2008 to alphabetize the defined terms and delete repealed paragraphs.

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, repealed (13), which read “ ‘fugitive emissions’ has the meaning given in 40 C.F.R. 51.166(b);”; in (24)(B), substituted “15 U.S.C. 632” for “15 U.S.C. 631 (Small Business Act)” following “business concern as defined in”.

The 2017 amendment, effective July 1, 2017, in (24)(C), substituted “100 tons per year” for “100 TPY”; repealed (28).

Chapter 15. Water Use Act.

Administrative Code. —

For water management, see 11 AAC 93.

Article 1. Administration.

Collateral references. —

93 Am. Jur. 2d, Waters, § 1 et seq.

93 C.J.S., Waters, §§ 9-17

94 C.J.S., Waters, § 488 et seq.

Sec. 46.15.010. Determination of water rights.

The Department of Natural Resources shall determine and adjudicate rights in the water of the state, and in its appropriation and distribution.

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

For enforcement, see 11 AAC 93, art. 6.

For critical water management areas, see 11 AAC 93, art. 9.

Notes to Decisions

Cited in

Paug-Vik, Inc. v. Wards Cove Packing Co., 633 P.2d 1015 (Alaska 1981); Doyle v. Peabody, 781 P.2d 957 (Alaska 1989); McCavit v. Lacher, 447 P.3d 726 (Alaska 2019).

Sec. 46.15.020. Authority and duties of the commissioner.

The commissioner shall exercise all those powers and do all those acts necessary to carry out the provisions and objectives of this chapter. The commissioner may
1. subject to AS 36.30 (State Procurement Code), enter into contractual agreements necessary to carry out the provisions of this chapter including agreements with federal, state, and local agencies;
2. apply for, accept, administer, and expend grants, gifts, and loans from the federal government and any other public or private sources for the purposes of this chapter, and adopt procedures and do acts not otherwise restricted by law which are necessary to qualify the state to receive grants, gifts, and loans;
3. establish a division of water in the Department of Natural Resources and assign to that division the responsibility for carrying out the provisions of this chapter.
The commissioner shall
1. adopt procedural and substantive regulations to carry out the provisions of this chapter, taking into consideration the responsibilities of the Department of Environmental Conservation under AS 46.03 and the Department of Fish and Game under AS 16;
2. develop and maintain a standardized procedure for processing applications and the issuance of authorizations, permits, and certifications under this chapter; shall keep a public record of all applications for permits and certificates and other documents filed in the commissioner’s office; shall record all permits and certificates and amendments and orders affecting them and shall index them in accordance with the source of the water and the name of the applicant or appropriator; shall require that temporary water use authorizations are valid only to the extent that the water withdrawal and use complies with applicable requirements of AS 16.05.871 ; and shall make the record of applications, including temporary water use applications under AS 46.15.155 that have been accepted as complete, authorizations, permits, certificates, amendments, and orders affecting them available to the public on the Internet;
3. cooperate with, assist, advise, and coordinate plans with the federal, state, and local agencies, including local soil and water conservation districts, in matters relating to the appropriation, use, conservation, quality, disposal, or control of waters and activities related thereto;
4. prescribe fees or service charges for any public service rendered consistent with AS 37.10.050 — 37.10.058 , except that the department may charge under regulations adopted by the department an annual $50 administrative service fee to maintain the water management program and a water conservation fee under AS 46.15.035 ;
5. before February 1 of each year, prepare a report describing the activities of the commissioner under AS 46.15.035 and 46.15.037 ; the commissioner shall notify the legislature that the report is available; the report must include
  1. information on the number of applications and appropriations for the removal of water from one hydrological unit to another that were requested and that were granted and on the amounts of water involved;
  2. information on the number and location of sales of water conducted by the commissioner and on the volume of water sold;
  3. recommendations of the commissioner for changes in state water law; and
  4. a description of state revenue and expenses related to activities under AS 46.15.035 and 46.15.037 .

History. (§ 1 ch 50 SLA 1966; am § 6 ch 104 SLA 1971; am § 50 ch 71 SLA 1972; am § 56 ch 106 SLA 1986; am § 30 ch 2 FSSLA 1992; am § 107 ch 21 SLA 1995; am § 4 ch 100 SLA 2001; am § 1 ch 66 SLA 2002; am E.O. No. 107 § 42 (2003); am E.O. No. 114 § 37 (2008))

Administrative Code. —

For appeals, see 11 AAC 2.

For fees for department services, see 11 AAC 5.

For geothermal unitization, see 11 AAC 84, art. 8.

For exploratory operations, see 11 AAC 87, art. 2.

For drilling of geothermal wells, see 11 AAC 87, art. 3.

For existing rights, see 11 AAC 93, art. 1.

For appropriation and use of water, see 11 AAC 93, art. 2.

For temporary water use, see 11 AAC 93, art. 4.

For preferred use, see 11 AAC 93, art. 5.

For enforcement, see 11 AAC 93, art. 6.

For appeals, see 11 AAC 93, art. 7.

For administrative basin-wide adjudication, see 11 AAC 93, art. 8.

For critical water management areas, see 11 AAC 93, art. 9.

Article 2. Appropriation and Use of Water.

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

Collateral references. —

78 Am. Jur. 2d, Waters, § 1 et seq.

94 C.J.S., Waters, § 338 et seq.

Liability for damages from destruction of stream by debris or waste. 29 ALR2d 447.

Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions. 54 ALR2d 643.

Liability for overflow of water confined or diverted for public water power purposes. 91 A.L.R.3d 1065.

Modern status of rules governing interference with drainage of surface waters. 93 ALR3d 1193.

Measure and elements of damages for pollution of well or spring. 76 ALR4th 629.

Liability for diversion of surface water by raising surface level of land. 88 ALR4th 891.

Sec. 46.15.030. Water reserved to the people.

Wherever occurring in a natural state, the water is reserved to the people for common use and is subject to appropriation and beneficial use and to reservation of instream flows and levels of water, as provided in this chapter.

History. (§ 1 ch 50 SLA 1966; am § 4 ch 84 SLA 1980)

Notes to Decisions

Pursuant to the Alaska Statehood Act, the Submerged Lands Act of 1953 applies to Alaska. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

Ownership and control of land under navigable waters. —

The court takes judicial notice of the fact that Alaska lies westward of the 98th meridian. Thus, under federal law, ownership and control of the land under navigable waters is confirmed in the state. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

Ownership of ground and surface waters is to be determined according to state law. Under the Alaska Constitution and state law, the right to use such waterways is placed in the people of the state. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

Purpose of easements along courses of major waterways is to provide a place for docks, campsites, and such facilities to service those who are properly using the public waters. This purpose is apparently accommodated by the reservation of site easements under the order of the Secretary of the Interior. Alaska Pub. Easement Def. Fund v. Andrus, 435 F. Supp. 664 (D. Alaska 1977).

Groundwater was not the “owned property” of the oil refinery contaminating it through spills and leaks and as such did not fall within the “owned property” exclusion of insurance policies issued to the refinery. MAPCO Alaska Petro., Inc. v. Central Nat'l Ins. Co., 784 F. Supp. 1454 (D. Alaska 1991).

Collateral references. —

Right of public to fish in stream notwithstanding objection by riparian owner. 47 ALR2d 381.

Right of public in shore of inland navigable lake between high- and low-water marks. 40 ALR3d 776.

Public rights of recreational boating, fishing, wading, or the like in inland stream the bed of which is privately owned. 6 ALR4th 1030.

Sec. 46.15.035. Appropriation or removal of water out of hydrologic units to other hydrologic units; water conservation fee; reservation of water for fish.

Water may not be removed from the hydrologic unit from which it was appropriated to another hydrologic unit, inside or outside the state, without being returned to the hydrologic unit from which it was appropriated nor may water be appropriated for removal from the hydrologic unit from which the appropriation is sought to another hydrologic unit, inside or outside the state, without the water being returned to the hydrologic unit from which it is to be appropriated, unless the commissioner
1. finds that the water to be removed or appropriated for removal is surplus to needs within the hydrologic unit from which the water is to be removed or appropriated for removal, including fishing, mining, timber, oil and gas, agriculture, domestic water supply, and other needs as determined by the commissioner;
2. finds that the application for removal or appropriation for removal meets the requirements of AS 46.15.080 ; and
3. assesses a water conservation fee under (b) of this section.
The commissioner shall establish, by regulation, a water conservation fee for a use of water in which the water is removed from the hydrologic unit from which it was appropriated to another hydrologic unit inside or outside the state, without the water being returned to the hydrologic unit from which it was appropriated. The fee established under this subsection shall be graduated to encourage the conservation of water.
Except as provided in AS 46.15.090 , and in addition to the requirements of (a) of this section, the commissioner may approve an application for removal or permit an appropriation for removal under (a) of this section of water from a lake, river, or stream that is used by fish for spawning, incubation, rearing, or migration, or ground water that significantly influences the volume of water in a lake, river, or stream that is used by fish for spawning, incubation, rearing, or migration, only if the commissioner reserves a volume of water in the lake or an instream flow in the river or stream for the use of fish and to maintain habitat for fish. The commissioner may adjust the volume of water reserved under this subsection if the commissioner, after public notice and opportunity to comment and with the concurrence of the commissioner of fish and game, finds that the best interests of the state are served by the adjustment. A reservation under this subsection
1. of a volume of water or an instream flow for the use of fish and to maintain habitat for fish that is reserved under this section is withdrawn from appropriation;
2. for fish from a lake, river, or stream, identified under AS 16.05.871 or identified in a Department of Fish and Game regional guide as being used by fish for spawning, incubation, rearing, or migration on or before July 1, 1992, has a priority date as of July 1, 1992;
3. of water does not apply to an application for removal or appropriation for removal under AS 46.15.040 for nonconsumptive uses of water or for single family domestic use;
4. is not subject to AS 46.15.145 ;
5. of water does not apply to appropriations of ground water of 5,000 gallons or less a day unless the commissioner, in consultation with the Department of Fish and Game, determines that the appropriation may adversely affect fish habitat in a lake, river, or stream; the commissioner shall consider multiple appropriations of water for a single related use as a single appropriation for the purposes of this subsection.
With respect to rivers and streams described in (c) of this section, the instream flow reservation shall be limited to the portion of the stream, including tributaries to the stream, at and downstream of the point of diversion or withdrawal. With respect to lakes described in (c) of this section, the reservation shall be limited to the lake from which the diversion or withdrawal is made, and the outlet and tributaries to the outlet flowing downstream.
In this section,
1. “fish” means a species of anadromous or freshwater fish that may be taken under regulations of the Board of Fisheries;
2. “hydrologic unit” means a hydrologic subregion established by the United States Department of the Interior, Geological Survey, on the “Hydrologic Unit Map-1987, State of Alaska”; “hydrologic unit” includes the water of an ocean that is adjacent to a hydrologic subregion of the state.

History. (§ 31 ch 2 FSSLA 1992; am § 5 ch 100 SLA 2001; am § 68 ch 41 SLA 2009)

Administrative Code. —

For fees for department services, see 11 AAC 5.

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, in (c)(2), substituted “AS 16.05.871 ” for “AS 16.05.870 ”.

Sec. 46.15.037. Sale of water by the state.

The commissioner may provide for the sale of water by the state if
1. the water has first been appropriated to the state in accordance with the requirements of this chapter; and
2. the commissioner determines that
  1. the water is surplus to needs within the hydrologic unit from which it was appropriated, including fishing, mining, timber, oil and gas, agriculture, domestic water supply, and other needs as determined by the commissioner;
  2. the proposed sale of the water meets the requirements of AS 46.15.080 ; and
  3. the sale price of the water is based upon the fair market value of the water.
A purchaser of water from the state under this section shall acquire only those contractual rights to the water set out in sale documents prepared by the commissioner except that a sale of water by the state does not constitute an appropriation of water under this chapter to the purchaser.
If water to be sold by the state under (a) of this section, is to be removed from the hydrologic unit from which it was appropriated to another hydrologic unit, inside or outside the state, without being returned to the hydrologic unit from which it was appropriated, the commissioner may not sell the water unless the sale meets the requirements of (a)(2) of this section, a water conservation fee is assessed under AS 46.15.035 , and, if the water to be sold is from a lake, river, or stream that is used by fish for spawning, incubation, rearing, or migration, or ground water that significantly influences the volume of water in a lake, river, or stream that is used by fish for spawning, incubation, rearing, or migration, the commissioner reserves a volume of water in the lake or an instream flow in the river or stream for the use of fish and to maintain habitat for fish. The commissioner may adjust the volume of water reserved under this subsection if the commissioner, after public notice and opportunity to comment and with the concurrence of the commissioner of fish and game, finds that the best interests of the state are served by the adjustment. A reservation under this subsection
1. of a volume of water or an instream flow for the use of fish and to maintain habitat for fish that is reserved under this section is withdrawn from appropriation;
2. for fish from a lake, river, or stream, identified under AS 16.05.870 or identified in a Department of Fish and Game regional guide as being used by fish for spawning, incubation, rearing, or migration on or before July 1, 1992, has a priority date as of July 1, 1992;
3. is not subject to AS 46.15.145 ;
4. of water does not apply to appropriations under this section of ground water of 5,000 gallons or less a day unless the commissioner, in consultation with the Department of Fish and Game, determines that the appropriation may adversely affect fish habitat in a lake, river, or stream; the commissioner shall consider multiple appropriations of water for a single related use as a single appropriation for the purposes of this subsection.
With respect to rivers and streams described in (c) of this section, the instream flow reservation shall be limited to the portion of the stream, including tributaries to the stream, at and downstream of the point of diversion or withdrawal. With respect to lakes described in (c) of this section, the reservation shall be limited to the lake from which the diversion or withdrawal is made, and the outlet and tributaries to the outlet flowing downstream.
In this section,
1. “fish” means a species of anadromous or freshwater fish that may be taken under regulations of the Board of Fisheries;
2. “hydrologic unit” has the meaning given in AS 46.15.035(e) .
The commissioner may not provide for the sale of salt water under this section.

History. (§ 31 ch 2 FSSLA 1992)

Administrative Code. —

For fees for department services, see 11 AAC 5.

Sec. 46.15.040. Right to appropriate.

A right to appropriate water can be acquired only as provided in this chapter. A right to the use of water either appropriated or unappropriated may not be acquired by adverse use or possession.
A right to appropriate water shall be obtained by first making application to the commissioner for a permit to appropriate. The commissioner shall by regulation prescribe the form and contents of the application and the procedure for filing the application. If a permit is granted and the means of appropriation is constructed, a certificate of appropriation may be obtained.
All applications to the commissioner for a permit to appropriate water, filed subsequent to July 1, 1966, shall be considered as having been simultaneously filed with the Department of Fish and Game under AS 16 and the Department of Environmental Conservation under AS 46.03.
The commissioner’s issuance of a permit under AS 46.15.080 or of a certificate under AS 46.15.065 or 46.15.120 does not represent a guarantee by the state to the permittee or certificate holder that water will be available for appropriation at a certain volume, quality, artesian pressure, or cost. This subsection does not, however, alter the right a permittee or certificate holder may have against a later appropriator, including a government agency.

History. (§ 1 ch 50 SLA 1966; am § 6 ch 104 SLA 1971; am § 51 ch 71 SLA 1972; am § 1 ch 135 SLA 1986)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

For temporary water use, see 11 AAC 93, art. 4.

For preferred use, see 11 AAC 93, art. 5.

Notes to Decisions

Quoted in

Paug-Vik, Inc. v. Wards Cove Packing Co., 633 P.2d 1015 (Alaska 1981).

Collateral references. —

Relative riparian or littoral rights respecting the removal of water from a natural, private, nonnavigable lake. 54 ALR2d 1450.

Acquisition by adverse possession or use of public property held by governmental unit. 55 ALR2d 554.

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement or specification. 65 ALR2d 143.

Way by necessity where property is accessible by navigable water. 9 ALR3d 600.

Sec. 46.15.050. Priority.

Priority of appropriation gives prior right. Priority of appropriation does not include the right to prevent changes in the condition of water occurrence, such as the increase or decrease of stream flow, or the lowering of a water table, artesian pressure, or water level, by later appropriators, if the prior appropriator can reasonably acquire the appropriator’s water under the changed conditions.
Priority of appropriation made under this chapter dates from the filing of an application with the commissioner.
Priority of appropriation perfected before July 1, 1966, shall be determined as provided in AS 46.15.065 .

History. (§ 1 ch 50 SLA 1966)

Revisor’s notes. —

Subsections (b) and (c) were formerly AS 46.15.130(a) and (b). Renumbered in 1982.

Collateral references. —

Right of riparian owner to continuation of periodic and seasonal overflows from stream. 20 ALR2d 656.

Right of riparian owner to construct dikes, embankments, or other structures necessary to maintain or restore bank of stream or to prevent flood. 23 ALR2d 750.

Right to accretion built up from one tract of land and extending laterally in front of adjoining tract without being contiguous thereto. 61 ALR3d 1173.

Riparian owner’s right to new land created by reliction or by accretion influenced by artificial condition not produced by such owner. 63 ALR3d 249.

Sec. 46.15.060. Existing rights.

A water right acquired by law before July 1, 1966 or a beneficial use of water on July 1, 1966, or made within five years before July 1, 1966, or made in conjunction with works under construction on July 1, 1966, under a lawful common law or customary appropriation or use, is a lawful appropriation under this chapter. The appropriation is subject to applicable provisions of this chapter and regulations adopted under this chapter.

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For existing rights, see 11 AAC 93, art. 1.

For preferred use, see 11 AAC 93, art. 5.

Notes to Decisions

Quoted in

Paug-Vik, Inc. v. Wards Cove Packing Co., 633 P.2d 1015 (Alaska 1981); Doyle v. Peabody, 781 P.2d 957 (Alaska 1989).

Sec. 46.15.065. Determination of existing rights.

A claimant of an existing right under AS 46.15.060 shall file a declaration of appropriation with the commissioner as set out in this section. The declaration shall be considered correct until a certificate of appropriation is issued or denied. Priority of the right dates from the day work was begun on the appropriation if due diligence was used in completing the work; otherwise, from the day water was applied for the beneficial use.
The commissioner shall, as soon as practicable, determine the rights of persons owning existing appropriations. To accomplish this, the commissioner shall
1. by order set a definite period for filing a declaration of appropriation within a specified area or from a specified source;
2. publish notice of the order once a week for three weeks before the beginning of the period in a newspaper of general circulation in the affected area;
3. give notice of the order by certified mail to any appropriator within the specified area or from the specified source who has requested mailed notice or of whom the commissioner can readily obtain knowledge including each owner of a recorded mining claim.
The commissioner shall make investigations as necessary of rights asserted by declarations filed under this section and shall determine each existing appropriation and mail a summary of the determination to each person who has filed a declaration with respect to the specified area or source. Any person adversely affected by a determination may file with the commissioner a request for a hearing within 20 days of the date the notice is mailed. If a hearing is requested, the commissioner shall, after consulting with the office of administrative hearings (AS 44.64.010 ), send a notice of the time and place of the hearing to each person who has filed a declaration.
If a hearing is not requested with respect to a determination, or if, after the hearing, the commissioner finds the determination to have been correctly made, the commissioner shall immediately issue a certificate of appropriation. If the commissioner finds the determination to be incorrect, the commissioner shall correct it and either issue a certificate of appropriation or refuse the certificate according to the commissioner’s findings.
A person aggrieved by the action of the commissioner may appeal to the superior court within 30 days of the date on which that action is final.
The adjudication process for a declaration filed under (a) of this section that is pending before the commissioner on June 10, 1986, continues under the procedures set out in this section until the commissioner finally determines whether the declarant is entitled to a certificate. If a certificate is issued under this section, the certificate holder may be included as a participant in an adjudication under AS 46.15.165 or 46.15.166 .

History. (§ 1 ch 50 SLA 1966; am § 2 ch 135 SLA 1986; am § 89 ch 163 SLA 2004)

Revisor’s notes. —

Formerly AS 46.15.135 . Renumbered in 1980.

Editor’s notes. —

Under § 92(b), ch. 163, SLA 2004, the provisions of (c) of this section as amended effective July 1, 2007, by § 89, ch. 163, SLA 2004, apply “to administrative proceedings that begin on or after July 1, 2007.” See § 92(b), ch. 163, SLA 2004, in the 2004 Temporary and Special Acts.

Administrative Code. —

For preferred use, see 11 AAC 93, art. 5.

Notes to Decisions

Cited in

Doyle v. Peabody, 781 P.2d 957 (Alaska 1989).

Sec. 46.15.070. [Renumbered as AS 46.15.133.]

Sec. 46.15.080. Criteria for issuance of permit.

The commissioner shall issue a permit if the commissioner finds that
1. rights of a prior appropriator will not be unduly affected;
2. the proposed means of diversion or construction are adequate;
3. the proposed use of water is beneficial; and
4. the proposed appropriation is in the public interest.
In determining the public interest, the commissioner shall consider
1. the benefit to the applicant resulting from the proposed appropriation;
2. the effect of the economic activity resulting from the proposed appropriation;
3. the effect on fish and game resources and on public recreational opportunities;
4. the effect on public health;
5. the effect of loss of alternate uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation;
6. harm to other persons resulting from the proposed appropriation;
7. the intent and ability of the applicant to complete the appropriation; and
8. the effect upon access to navigable or public water.

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

For enforcement, see 11 AAC 93, art. 6.

Notes to Decisions

Cited in

Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935 (Alaska 1995); State v. Greenpeace, Inc., 96 P.3d 1056 (Alaska 2004).

Sec. 46.15.090. Preference in granting permits.

When there are competing applications for water from the same source, and the source is insufficient to supply all applicants, the commissioner shall give preference first to public water supply and then to the use that alone or in combination with other foreseeable uses will constitute the most beneficial use.

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For preferred use, see 11 AAC 93, art. 5.

Sec. 46.15.100. Terms of permit.

The commissioner may issue a permit for less than the amount of water requested, but in no case for more water than can be beneficially used for the purposes stated in the application. The commissioner may require modification of plans and specifications for the appropriation. The commissioner may issue a permit subject to terms, conditions, restrictions, and limitations necessary to protect the rights of others, and the public interest. However, the permit shall be subject to termination only as provided in this chapter.

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

For temporary water use, see 11 AAC 93, art. 4.

For enforcement, see 11 AAC 93, art. 6.

Sec. 46.15.110. Time for construction and completion.

A permit may place a time limit for beginning construction and perfecting appropriation. Reasonable extensions of time shall be permitted for good cause shown.

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

Notes to Decisions

“Diligent effort” requirement. —

The regulatory standard of requiring an applicant to demonstrate “diligent effort toward completing the appropriation” for a permit extension satisfies the more general statutory standard of granting an extension for “good cause shown.” Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935 (Alaska 1995).

The Department of Natural Resources acted outside its authority in extending water rights permits for placer gold mining where it was shown that the mining company did not make diligent efforts toward completing the appropriation and, even though the department did not abuse its discretion in determining that the permit extensions adequately addressed water quality and navigation concerns, it did not abuse its discretion by failing to address fish and wildlife concerns adequately. Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935 (Alaska 1995).

Sec. 46.15.120. Certificates.

Upon completion of construction of the works and commencement of use of water, the permit holder shall notify the commissioner that the appropriator has perfected the appropriation. If the commissioner determines that the appropriation has been perfected in substantial accordance with the permit, the commissioner shall issue the permit holder a certificate of appropriation. The certificate shall set out any condition that the commissioner may prescribe by regulation, including conditions that are necessary to protect the prior rights of other persons and the public interest.

History. (§ 1 ch 50 SLA 1966; am § 9 ch 175 SLA 1980)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

Sec. 46.15.130. [Renumbered as AS 46.15.050.]

Sec. 46.15.133. Notices; objections.

If the commissioner proposes a sale of water or receives an application for appropriation or removal, the commissioner shall prepare a notice containing the location and extent of the proposed sale, appropriation, or removal, the name and address of the applicant, if applicable, and other information the commissioner considers pertinent. The notice shall state that within 15 days of publication or service of notice, persons may file with the director written objections, stating the name and address of the objector, and any facts tending to show that rights of the objector or the public interest would be adversely affected by the proposed sale, appropriation, or removal.
The commissioner shall publish the notice in one issue of a newspaper of general distribution in the area of the state in which the water is to be appropriated, removed, or sold. The commissioner shall also have notice served personally or by certified mail upon an appropriator of water or applicant for or holder of a permit who, according to the records of the division of lands, may be affected by the proposed sale, appropriation, or removal and may serve notice upon any governmental agency, political subdivision, or person; notice shall also be served upon the Department of Fish and Game and the Department of Environmental Conservation. An applicant for an appropriation or removal shall pay the commissioner’s costs in providing publication and notice under this subsection. The commissioner may require as a condition of a sale of water under AS 46.15.037 , that a purchaser of water reimburse the department for the costs associated with providing notice of the proposed sale.
Within 15 days of publication or service of notice, an interested person may file an objection. The commissioner may hold hearings upon giving due notice and shall grant, deny, or condition the proposed sale or application for appropriation or removal in whole or in part within 30 days of receipt of the last objection or, if the commissioner elects to hold hearings, within 180 days of receipt of the last objection. Notice of the order or decision shall be served personally or mailed to any person who has filed an objection.
If no objection is filed, the commissioner may proceed to make a determination upon the application for appropriation or removal or the proposal for sale.
A person aggrieved by the action of the commissioner or by the failure of the commissioner to grant, deny, or condition a proposed sale or an application for appropriation or removal in accordance with (c) of this section may appeal to the superior court.
The commissioner may, by regulation, designate types of appropriations that are exempt from this section and provide simplified procedures for ruling on the applications. The commissioner may not exempt under this subsection appropriations for removal under AS 46.15.035 , appropriations by the state for sale or sales by the state under AS 46.15.037 , or removals of water under AS 46.15.035 and 46.15.037 .

History. (§ 1 ch 50 SLA 1966; am § 6 ch 104 SLA 1971; am § 52 ch 71 SLA 1972; am §§ 5, 6 ch 84 SLA 1980; am § 32 ch 2 FSSLA 1992)

Revisor’s notes. —

Formerly AS 46.15.070 . Renumbered in 1980.

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

For temporary water use, see 11 AAC 93, art. 4.

Sec. 46.15.135. [Renumbered as AS 46.15.065.]

Sec. 46.15.140. Abandonment, forfeiture, and reversion of appropriations.

The commissioner may declare an appropriation to be wholly or partially abandoned and revoke or amend the certificate of appropriation as to the unused quantity of water if an appropriator, with intention to abandon, does not make beneficial use of all or a part of the appropriated water.
The commissioner may declare that an appropriator has wholly or partially forfeited an appropriation, and shall revoke the certificate of appropriation in whole or in part if the appropriator voluntarily fails or neglects, without sufficient cause, to make use of all or a part of the appropriated water for a period of five successive years. A person who has a permit to develop a use of water including but not limited to residential, agricultural, industrial, or mining use, but has not developed that property to the point of water use before permit expiration, may file a request for permit extension with the commissioner.
Failure to use beneficially for five successive years all or part of the water granted in a certificate of appropriation raises a rebuttable presumption that the appropriator has abandoned or forfeited the right to use the unused quantity of water and shifts to the appropriator the burden to prove otherwise to the satisfaction of the commissioner.
If the commissioner revokes a certificate in whole or in part, the portion of the certificate covered by the revocation reverts to the state and the water becomes unappropriated water.

History. (§ 1 ch 50 SLA 1966; am §§ 3, 4 ch 135 SLA 1986)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

Sec. 46.15.145. Reservation of water.

The state, an agency or a political subdivision of the state, an agency of the United States, or a person may apply to the commissioner to reserve sufficient water to maintain a specified instream flow or level of water at a specified point on a stream or body of water, or in a specified part of a stream, throughout a year or for specified times, for
1. protection of fish and wildlife habitat, migration, and propagation;
2. recreation and park purposes;
3. navigation and transportation purposes; and
4. sanitary and water quality purposes.
Upon receiving an application for a reservation under this section, the commissioner shall proceed in accordance with AS 46.15.133 .
The commissioner shall issue a certificate reserving the water applied for under this section if the commissioner finds that
1. the rights of prior appropriators will not be affected by the reservation;
2. the applicant has demonstrated that a need exists for the reservation;
3. there is unappropriated water in the stream or body of water sufficient for the reservation; and
4. the proposed reservation is in the public interest.
After the issuance of a certificate reserving water, the water specified in the certificate shall be withdrawn from appropriation and the commissioner shall reject an application for a permit to appropriate the reserved water.
A reservation under this section does not affect rights in existence on the date the certificate reserving water is issued.
At least once each 10 years the commissioner shall review each reservation under this section to determine whether the purpose described in (a) of this section for which the certificate reserving water was issued and the findings described in (c) of this section still apply to the reservation. If the commissioner determines that the purpose, or part or all of the findings, no longer apply to the reservation, the commissioner may revoke or modify the certificate reserving the water after notice, hearing when appropriate, and a written determination that the revocation or modification is in the best interests of the state.

History. (§ 7 ch 84 SLA 1980; am § 5 ch 135 SLA 1986)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

Sec. 46.15.147. [Renumbered as AS 46.15.175.]

Sec. 46.15.150. Preferred use.

An applicant who asserts and proves a preferred use shall be granted a permit and shall be granted preference over other appropriators. A preferred use of water is for a public water supply.
To be entitled to a preference an applicant must show that the applicant’s use will be prevented or substantially interfered with by a prior appropriation; the use is a preferred use; the applicant agrees to compensate a permit or certificate holder for the prior appropriation for any damages sustained by the preferred use; and other information that the commissioner requires by regulation.

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For preferred use, see 11 AAC 93, art. 5.

Collateral references. —

Liability for overflow of water confined or diverted for public water power purposes. 91 A.L.R.3d 1065.

Sec. 46.15.155. Authorization for temporary use of water.

Notwithstanding any contrary provision of this chapter, the commissioner may authorize the temporary use of a significant amount of water, as determined by the department by regulation, for a period of time not to exceed five consecutive years, if the water applied for has not been appropriated in accordance with this chapter.
Notwithstanding any contrary provision of this chapter, an authorization for a temporary use of less than a significant amount of water is not required under this section unless the commissioner has determined by regulation that the use may have an adverse effect on other water uses and that an authorization must be obtained from the department.
The issuance of an authorization for temporary use of water under this section does not establish a right to appropriate water. The temporary use of water under an authorization remains subject to appropriation under this chapter.
Notwithstanding any contrary provision of this chapter, the commissioner is not required to provide public notice under AS 46.15.133 of a proposed authorization for temporary use of water; however, the commissioner shall request comment on an application for temporary use of water from the Department of Fish and Game and the Department of Environmental Conservation.
The provisions of AS 46.15.080 do not apply to the issuance under this section of an authorization for temporary use of water.
The commissioner may impose reasonable conditions or limitations on an authorization for temporary use of water to protect the water rights of other persons or to protect fish and wildlife habitat, human health, or other public interests.
Upon approval by the department, an authorization under this section may be transferred to another person under the same conditions and limitations under which the authorization was issued.
A person to whom an authorization for temporary use of water was issued under this section may allow another person to use the authorization, consistent with the conditions and limitations of the authorization.
The commissioner may modify, suspend, or revoke an authorization issued under this section if the commissioner determines it necessary to protect the water rights of other persons or the public interest.

History. (§ 6 ch 100 SLA 2001)

Cross references. —

For a legislative declaration addressing the validity of existing temporary permits authorizing the temporary use of water under AS 46.15 as the treatment of the permits as authorizations for temporary water use under this section, see § 11, ch. 100, SLA 2001.

Administrative Code. —

For temporary water use, see 11 AAC 93, art. 4.

Notes to Decisions

Cited in

State v. Greenpeace, Inc., 96 P.3d 1056 (Alaska 2004).

Sec. 46.15.160. Transfer and change of appropriations.

The right to use water under an appropriation or permit shall be appurtenant to the land or place where it has been or is to be beneficially used, provided, that water supplied by one person to another person’s property is not appurtenant to the property unless the parties so intend. An appurtenant water right shall pass with a conveyance of the land, or transfer, or by operation of law unless specifically exempted from the conveyance.
With the permission of the commissioner, all or any part of an appropriation may be severed from the land to which it is appurtenant, may be sold, leased or transferred for other purposes or to other land and be made appurtenant to other land. A permit or certificate or a deed, lease, contract, assignment of permit or other instrument transferring an appropriation must be filed in the office of the commissioner and a certified copy of the instrument must be recorded in the recorder’s office of the recording district in which the appropriation is located.

History. (§ 1 ch 50 SLA 1966)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in subsection (b) of this section in 1988 under § 42, ch. 161, SLA 1988.

Collateral references. —

Description of land conveyed by reference to river or stream as carrying to thread or center or only to bank thereof — modern status. 78 ALR3d 604.

Sec. 46.15.165. Administrative adjudications.

The commissioner may, by order, initiate an administrative adjudication to quantify and determine the priority of all water rights and claims in a drainage basin, river system, ground water aquifer system, or other identifiable and distinct hydrologic regime, including any hydrologically interrelated surface and ground water systems.
In the order initiating an administrative adjudication, the commissioner shall describe the appropriate geographic and hydrologic boundaries of the adjudication area. During the adjudication, the commissioner may adjust the boundaries to ensure the efficient administration of water appropriations among users.
Upon initiation of the adjudication, the commissioner shall
1. serve the order on each applicant, certificate holder, or permittee listed in the department’s records within the adjudication area;
2. serve the order on any agency of the federal, state, or a local government with management authority over land or water within the adjudication area;
3. serve the order on any person who owns or claims land within the adjudication area if the land is held in trust by the United States for the person or if the patent, deed, or certificate to the land from the United States was issued under 25 U.S.C. 334 (Indian General Allotment Act of February 8, 1887, 24 Stat. 389, as amended and supplemented), 25 U.S.C. 372 (the Allotment Act of June 25, 1910, 36 Stat. 855), former 43 U.S.C. 270-1, 270-2 (the Allotment Act of May 17, 1906, 34 Stat. 197), any other allotment act, or the Alaska Native Townsite Act of May 25, 1926, 44 Stat. 629, and serve the order on the United States on behalf of the person;
4. serve the order on the United States and the appropriate governing body of the Annette Island Reserve established by 25 U.S.C. 495 (the Act of March 3, 1891, 26 Stat. 1101) if the land or water, including hydrologically interconnected water, of the Annette Island Reserve is within the adjudication area;
5. serve the order on any other person claiming a federal reserved water right within the adjudication area;
6. serve the regional corporation and village corporation established under 43 U.S.C. 1601 et seq. (Alaska Native Claims Settlement Act) that has a pending land selection or has acquired ownership to land under that act that is located within the adjudication area; and
7. serve the order on each mining claimant of record with the United States and the state within the adjudication area as of the date of the order initiating the administrative adjudication.
Service of an order under (c) of this section does not constitute an admission by the state that the person served with the order has a water right.
Service of the order under (c)(1) of this section is sufficient if mailed by certified mail, return receipt requested, to the last known address that the applicant, certificate holder, permittee, or claimant has given to the division of the department responsible for administration of water rights. A person served under (c)(1) — (7) of this section who fails to appear in a timely manner and assert a claim as prescribed by the commissioner is estopped from subsequently asserting an objection to the adjudication of that person’s water rights within the adjudication area, unless the person is entitled to a federal reserved water right and has failed to consent under (k) of this section.
In an adjudication under this section, the commissioner may appoint an impartial qualified person as a master to preside over the adjudication, to hold hearings, to take testimony, to collect evidence, to propose to the commissioner an order adjudicating the validity of, quantifying, and determining the priority of all water rights, and to take other action the commissioner decides is necessary.
A state agency may assert a water right on behalf of the state in the adjudication.
A division of the department or another state agency may provide documentary and testimonial evidence, research, and scientific analysis during the adjudication. The commissioner may provide evidence, research, or analysis from sources outside government.
In conducting an adjudication, the commissioner may take action necessary for the efficient and fair administration and use of the state’s water including
1. determining indispensable, necessary, and convenient parties to the adjudication;
2. classifying applicants, certificate holders, permittees, and claimants in groups that share similar interest, such as by the amount of water used or the type of use, and restricting their active participation in the adjudication by appointing group representatives for the purposes of receiving notices, examining witnesses, and other adjudicatory functions;
3. entering interlocutory orders appropriate to a disposal of all or part of the issues in the adjudication, and designating the orders as final for the purposes of an appeal to the superior court under (l) of this section; and
4. allocating to a participant the extra costs that the state has incurred in conducting the adjudication because the participant has in bad faith asserted a claim to water wholly without merit or has unreasonably delayed the proceeding.
For the purpose of asserting a water right in an adjudication, a certificate issued under this chapter is prima facie evidence of the water right and its priority date.
If the commissioner has initiated the adjudication and the federal government or a private person who has been served under (c)(2) — (4) of this section asserts a federal reserved water right but fails to consent in writing to the adjudication, then the commissioner may exclude the federal government or the person, respectively, as participants in the adjudication. The commissioner may negotiate the terms of the written consent.
A person adversely affected by a final order of the commissioner adjudicating water rights under this section may appeal to the superior court within 30 days after the decision is mailed or delivered to the person.
The commissioner may adopt regulations setting out procedures for administrative adjudications under this section.

History. (§ 6 ch 135 SLA 1986; am § 84 ch 56 SLA 2005; am § 69 ch 41 SLA 2009)

Administrative Code. —

For administrative basin-wide adjudication, see 11 AAC 93, art. 8.

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, in (c)(3), added “former” preceding “43 U.S.C. 270-1, 270-2 (the Allotment Act of May 17, 1906, 34 Stat. 197)”.

Sec. 46.15.166. Judicial adjudications.

Instead of initiating an adjudication under AS 46.15.165 , the commissioner may, with the concurrence of the attorney general, if a federal reserved water right has been or might be asserted by an agency of the United States on its own behalf or on behalf of a person described in AS 46.15.165 (c)(3) — (6), file on behalf of the state a complaint in superior court to initiate a judicial adjudication consistent with 43 U.S.C. 666 to quantify and determine the priority of all water rights in a drainage basin, river system, ground water aquifer system, or other identifiable and distinct hydrologic regime, including any hydrologically interrelated surface and ground water systems.
The venue for an action filed under (a) of this section shall be established by rule of the supreme court under AS 22.10.030 .
In a complaint brought under (a) of this section, the court may appoint an impartial, qualified person as a master to hold hearings, take testimony, collect evidence, and make recommendations to the court regarding the scope and content of a proposed judicial decree that would finally adjudicate the validity of water rights, quantify them, and determine priorities among the water right appropriations in the adjudication area. Employment by a federal, state, or local government agency does not disqualify an individual from appointment as master under this subsection if the court determines that the individual is otherwise impartial and qualified to act as master. The master may, with the court’s permission, take action that the commissioner would be authorized to take in an administrative adjudication under AS 46.15.165 .
In an adjudication under this section, the court may incorporate in an order or judgment final orders of the commissioner previously issued under AS 46.15.165 .
Proceedings under this section shall be conducted without a jury.

History. (§ 6 ch 135 SLA 1986)

Sec. 46.15.167. Effect of decision.

The final order of the commissioner under AS 46.15.165 and the final judgment of a court under AS 46.15.166 are binding on each party to the adjudication and on each person who subsequently makes an application for a water right. The court or the commissioner may retain jurisdiction for a period of time necessary to implement an adjudication order or judgment and to provide for subsequent water appropriations.

History. (§ 6 ch 135 SLA 1986)

Sec. 46.15.168. Other actions.

The state may timely intervene as a party in a superior court action potentially involving a determination of the validity, quantity, use, reservation, or priority of water rights.
The commissioner may accept a remand from a state or federal court of a water rights dispute and may administratively adjudicate the dispute under AS 46.15.165 .
The commissioner may enter into arbitration to resolve a water rights dispute.
The commissioner may incorporate and apply as binding upon the parties to an administrative adjudication under AS 46.15.165 any court decree concerning the state hydrologic regime involved in the adjudication.

History. (§ 6 ch 135 SLA 1986)

Notes to Decisions

Cited in

Doyle v. Peabody, 781 P.2d 957 (Alaska 1989).

Sec. 46.15.169. Federal reserved water rights.

This chapter does not represent a commitment by the state to a specific federal reserved water right.

History. (§ 6 ch 135 SLA 1986)

Administrative Code. —

For administrative basin-wide adjudication, see 11 AAC 93, art. 8.

Sec. 46.15.170. Effect of recording.

A deed, lease, contract, assignment of permit, or other instrument transferring an appropriation is void as against a subsequent innocent purchaser who in good faith paid a valuable consideration for the appropriation or any portion of it and whose instrument is first filed and recorded under AS 46.15.160(b) .
A deed, lease, contract, assignment of permit, or other instrument transferring an appropriation that is recorded under AS 46.15.160(b) is constructive notice of its contents to subsequent purchasers of the appropriation or any portion of it. An unrecorded instrument is valid between the parties to it and as against one who has actual notice of it.

History. (§ 1 ch 50 SLA 1966)

Sec. 46.15.175. Termination of permit for violation.

If the commissioner has reason to believe that a person who holds an appropriation permit under this chapter is wilfully violating or has wilfully violated a term, condition, restriction, or limitation of the permit, the commissioner may commence proceedings to terminate the appropriation permit under AS 44.62.330 — 44.62.630 (Administrative Procedure Act).
When an appropriation permit is terminated under this section, the appropriation of water made by the permit reverts to the state and becomes unappropriated water.

History. (§ 8 ch 175 SLA 1980)

Revisor’s notes. —

Enacted as AS 46.15.145 . Renumbered as AS 46.15.147 in 1980. Renumbered again in 1982.

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

Sec. 46.15.180. Crimes.

A person may not
1. construct works for an appropriation, or divert, impound, withdraw, or use a significant amount of water from any source without a permit, certificate of appropriation, or authorization issued under this chapter;
2. violate an order of the commissioner to cease and desist from preventing any water from moving to a person having a prior right to use it;
3. disobey an order of the commissioner requiring the person to take steps to cause the water to move to a person having a prior right to use it;
4. fail or refuse to install meters, gauges, or other measuring devices or control works;
5. violate an order establishing corrective controls for an area or for a source of water;
6. knowingly make a false or misleading statement in a declaration of existing right.
A person who violates this section is guilty of a misdemeanor.
Crimes under this section are in addition to any other crimes provided by law.

History. (§ 1 ch 50 SLA 1966; am § 7 ch 100 SLA 2001)

Revisor’s notes. —

Organized into subsections in 1987, at which time minor word changes were made to conform to the style of the Alaska Statutes and implement the reorganization.

Cross references. —

For fines and sentences for misdemeanors, see AS 12.55.035 and 12.55.135 .

Administrative Code. —

For enforcement, see 11 AAC 93, art. 6.

For appeals, see 11 AAC 93, art. 7.

For critical water management areas, see 11 AAC 93, art. 9.

Notes to Decisions

Quoted in

G & A Contractors v. Alaska Greenhouses, 517 P.2d 1379 (Alaska 1974).

Cited in

Doyle v. Peabody, 781 P.2d 957 (Alaska 1989).

Collateral references. —

Propriety of injunctive relief against diversion of water by municipal corporation or public utility. 42 ALR3d 426.

Sec. 46.15.185. Appeals.

Appeals to the superior court under this chapter are subject to AS 44.62.560 — 44.62.570 (Administrative Procedure Act).

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For critical water management areas, see 11 AAC 93, art. 9.

Article 3. Water Resources Board.

Collateral references. —

78 Am. Jur. 2d, Waters, §§ 138-143.

Sec. 46.15.190. The Water Resources Board.

There is created the Water Resources Board composed of seven members having a general knowledge of the use and requirements for use of the water of the state and the conservation and protection of it. The commissioner of environmental conservation or a designee shall serve as an additional, ex officio member serving without a vote. The commissioner of natural resources shall act as the executive secretary of the board, and shall provide clerical staff for the board. Members of the board are appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session.

History. (§ 1 ch 50 SLA 1966; am § 1 ch 58 SLA 1972)

Sec. 46.15.200. Term of office.

The term of office for members of the board is four years. If a vacancy occurs, the governor shall fill it by appointment for the unexpired term, subject to AS 39.05.080 (4). The appointment shall be submitted to the legislature for confirmation at the next regular session.

History. (§ 1 ch 50 SLA 1966; am § 82 ch 14 SLA 1987; am § 19 ch 80 SLA 1996)

Sec. 46.15.210. Duties of the board.

The board shall inform and advise the governor on all matters relating to the use and appropriation of water in the state, including, but not limited to,

the effect and adequacy of state laws and regulations governing the establishment of water rights;
the multi-purpose uses of water;
the prevention of pollution and the protection of fish and game;
studies of the state’s water supplies and plans for future requirements;
development of water resources;
participation of local governmental units in the management of water resources;
land that is or may be needed for dams, reservoirs, flood dams, flood ways, canals, or ditches for the impoundment, storage, flow, and control of water.

History. (§ 1 ch 50 SLA 1966)

Revisor’s notes. —

Organized into paragraphs in 1987.

Sec. 46.15.220. Board meetings.

The board shall hold one regular meeting annually at the state capital and one or more additional meetings at the time and place in the state the board selects for the transaction of business.

History. (§ 1 ch 50 SLA 1966)

Sec. 46.15.230. Public meetings.

The board may hold and conduct public meetings at any time or any place in the state in order to obtain public opinion on a water use problem or proposal and it may, by majority vote of all members, formally or informally delivered, authorize one or more of its members to hold and conduct a public meeting.

History. (§ 1 ch 50 SLA 1966)

Sec. 46.15.240. Compensation of board members.

Each member of the board is entitled to travel expenses and per diem as authorized for state boards by AS 39.20.180 while traveling to or from, or in attendance at, regular or special meetings or conferences authorized by the board.

History. (§ 1 ch 50 SLA 1966)

Article 4. General Provisions.

Collateral references. —

78 Am. Jur. 2d, Waters, § 1 et seq.

93 C.J.S., Waters, § 1 et seq.

Sec. 46.15.250. Enforcement authority.

The following persons are peace officers of the state and they shall enforce this chapter:

a state employee authorized by the commissioner;
a police officer of the state.

History. (§ 1 ch 50 SLA 1966)

Administrative Code. —

For critical water management areas, see 11 AAC 93, art. 9.

Notes to Decisions

Cited in

McCavit v. Lacher, 447 P.3d 726 (Alaska 2019).

Sec. 46.15.255. Enforcement and costs.

In addition to a penalty imposed under AS 46.15.180 for violation of an order issued under this chapter, the commissioner may
1. remove or abate unpermitted works of appropriation, diversion, impoundment, or withdrawal;
2. install corrective controls or control works; and
3. seek enforcement of the order by filing an action in the superior court.
A person who violates an order issued under AS 46.15.180 is liable for all costs of removal, abatement, or installation and for court costs and attorney fees incurred by the state in seeking enforcement of the order.

History. (§ 7 ch 135 SLA 1986)

Administrative Code. —

For enforcement, see 11 AAC 93, art. 6.

For critical water management areas, see 11 AAC 93, art. 9.

Sec. 46.15.256. Data collection authority.

To carry out the provisions of this chapter, the commissioner may

inspect books, records, meters, gauges, well logs, works of appropriation, diversion, impoundment, withdrawal, or control and other relevant information or physical condition;
enter private property at all reasonable times after obtaining a search warrant from a judicial officer if the owner refuses consent to entry; and
compel the production of relevant information by a subpoena or subpoena duces tecum signed by the commissioner if the commissioner reasonably believes the information is necessary to carry out the purposes of this chapter.

History. (§ 7 ch 135 SLA 1986)

Administrative Code. —

For appropriation and use of water, see 11 AAC 93, art. 2.

For enforcement, see 11 AAC 93, art. 6.

For critical water management areas, see 11 AAC 93, art. 9.

Sec. 46.15.260. Definitions.

In this chapter, unless the context otherwise requires,

“appropriate” means to divert, impound, or withdraw a quantity of water from a source of water, for a beneficial use or to reserve water under AS 46.15.145 ;
“appropriation” means the diversion, impounding, or withdrawal of a quantity of water from a source of water for a beneficial use or the reservation of water under AS 46.15.145 ;
“beneficial use” means a use of water for the benefit of the appropriator, other persons or the public, that is reasonable and consistent with the public interest, including, but not limited to, domestic, agricultural, irrigation, industrial, manufacturing, fish and shellfish processing, navigation and transportation, mining, power, public, sanitary, fish and wildlife, recreational uses, and maintenance of water quality;
“commissioner” means the commissioner of natural resources;
“director” means the director of the division of lands, Department of Natural Resources;
“mineral and medicinal water” means
1. water of a hot spring or spring with curative properties which has been reserved by the federal government under Public Land Order No. 399; and
2. geothermal fluid, as defined in AS 41.06.060 ;
“person” includes an individual, partnership, association, public or private corporation, state agency, political subdivision of the state, and the United States;
“source of water” means a substantial quantity of water capable of being put to beneficial use;
“water” means all water of the state, surface and subsurface, occurring in a natural state, except mineral and medicinal water.

History. (§ 1 ch 50 SLA 1966; am §§ 8 — 10 ch 84 SLA 1980; am §§ 10, 11 ch 175 SLA 1980)

Revisor’s notes. —

Reorganized in 1987 to alphabetize the defined terms.

Notes to Decisions

Quoted in

Doyle v. Peabody, 781 P.2d 957 (Alaska 1989).

Cited in

Tulkisarmute Native Community Council v. Heinze, 898 P.2d 935 (Alaska 1995).

Sec. 46.15.270. Short title.

This chapter may be cited as the Alaska Water Use Act.

History. (§ 1 ch 50 SLA 1966)

Chapter 16. Management and Use of Water in Mining.

Administrative Code. —

For placer mining demonstration grants and duties of the review committee, see 18 AAC 71.

Sec. 46.16.010. Mining water use review committee established.

The mining water use review committee is established. The review committee is responsible for reviewing and making recommendations on applications for grants under this chapter.

History. (§ 1 ch 131 SLA 1984)

Sec. 46.16.020. Membership of the review committee.

The review committee consists of the commissioner of natural resources, the commissioner of environmental conservation, the dean of the school of mineral industry at the University of Alaska, two individuals appointed by the governor who have placer mining experience, and one public member appointed by the governor.
An individual described in (a) of this section who serves ex officio may designate an alternate to serve on the review committee.
An individual appointed by the governor serves for a three-year term.

History. (§ 1 ch 131 SLA 1984)

Sec. 46.16.030. Responsibility of the review committee.

The review committee shall select a presiding officer and establish procedures necessary to implement its responsibilities.
The review committee shall review each application for a grant filed under this chapter and make a recommendation to the commissioner of natural resources or to the commissioner of environmental conservation for action on the application.
In making its recommendation, the committee shall consider the economic benefits to the placer mining industry, the environmental benefits to the public, and other benefits that each grant may offer.

History. (§ 1 ch 131 SLA 1984)

Sec. 46.16.040. Responsibility of commissioner of natural resources.

The commissioner of natural resources shall administer the innovative gold recovery demonstration grant program established under AS 46.16.070 .

History. (§ 1 ch 131 SLA 1984)

Sec. 46.16.050. Responsibility of commissioner of environmental conservation.

The commissioner of environmental conservation shall administer the innovative pollution control demonstration grant program established under AS 46.16.080 .

History. (§ 1 ch 131 SLA 1984)

Sec. 46.16.060. Uniform regulations.

The commissioner of natural resources and the commissioner of environmental conservation shall adopt uniform regulations and administrative procedures to implement the grant programs established by this chapter.

History. (§ 1 ch 131 SLA 1984)

Administrative Code. —

For placer mining demonstration grants, see 18 AAC 71.

Sec. 46.16.070. Innovative gold recovery demonstration grant program.

The innovative gold recovery demonstration grant program is established as a direct grant program to give a person engaged in placer mining the opportunity to study and test new methods of gold recovery and water use reduction.
The commissioner of natural resources may make a grant under this section to a person that has
1. a proven history of successful placer mining in the state;
2. the capability to produce verifiable results; and
3. the capability to study and test new methods of gold recovery and water use reduction under actual operating conditions.
The commissioner of natural resources may not make a grant under this section to a person in excess of $100,000.
The commissioner of natural resources shall monitor and evaluate the results of grants made under this section.

History. (§ 1 ch 131 SLA 1984)

Sec. 46.16.080. Innovative pollution control demonstration grant program.

The innovative pollution control demonstration grant program is established as a direct grant program to give a person engaged in placer mining the opportunity to study and test innovative and economically viable mining techniques for waste disposal and pollution control in placer mining.
The commissioner of environmental conservation may make grants under this section to a person that has
1. a proven history of successful placer mining in the state;
2. the capability to produce verifiable results; and
3. the capability to study and test innovative and economically viable techniques for waste disposal and pollution control in placer mining.
The commissioner of environmental conservation may not make a grant under this section to a person in excess of $100,000.
The commissioner of environmental conservation shall monitor and evaluate the results of grants made under this section.

History. (§ 1 ch 131 SLA 1984)

Sec. 46.16.090. Access to information.

All information generated as a result of grants made under this chapter is public information. The commissioner of natural resources and the commissioner of environmental conservation shall compile, analyze, and distribute the information for the benefit of the placer mining industry and the state and federal governments.
The contents of an application for a grant are available to the extent permitted under AS 40.25.110 and 40.25.120 .

History. (§ 1 ch 131 SLA 1984)

Revisor’s notes. —

In 2000, “AS 40.25.110 and 40.25.120 ” was substituted for “AS 09.25.110 and 09.25.120” to reflect the 2000 renumbering of AS 09.25.110 and 09.25.120.

Sec. 46.16.100. Patents.

A person who applies for a grant under this chapter shall assign to the state the right to patent any patentable process developed as a result of a grant under this chapter. The department making the grant shall seek to patent any patentable process developed as a result of a grant under this chapter. The state shall license without cost to a person engaged in placer mining in the state the right to use in the state a patented process that was developed as a result of a grant under this chapter.

History. (§ 1 ch 131 SLA 1984)

Chapter 17. Supervision of Safety of Dams and Reservoirs.

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.010. Purpose.

It is the purpose of this chapter to provide for the regulation, supervision, and periodic inspection by the department of privately owned and state-owned dams, reservoirs, and appurtenant works in order to ensure that the design, construction, enlargement, alteration, repair, maintenance, operation, and removal of dams and reservoirs is consistent with the protection of life and property.

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.020. Administration and staffing.

The department shall supervise the safety of dams and reservoirs. The department shall employ a licensed and qualified engineer, experienced in the design and construction of dams and reservoirs, and other employees necessary for performing the duties under this chapter. Under AS 36.30 (State Procurement Code), the department may contract with engineering consultants to assist in the performance of the department’s duties under this chapter.

History. (§ 2 ch 30 SLA 1987)

Sec. 46.17.030. Regulations and orders.

The department shall adopt regulations and issue orders necessary to carry out this chapter.

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For appeals, see 11 AAC 2.

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.040. Approval required.

Except in the performance of routine maintenance and operations not affecting structural safety, a person may not construct, enlarge, repair, alter, remove, maintain, operate, or abandon a dam or reservoir without the approval of the department.
The owner of a dam or reservoir that was constructed before May 31, 1987 shall, under regulations adopted by the department, file an application with the department for the approval of the dam or reservoir.
An applicant under this section shall comply with the requirements of other applicable statutes.

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.050. Inspections.

At least once every five years the department shall inspect every dam and reservoir that is subject to this chapter. The department may require the owner of a dam or reservoir to perform the required inspection, according to the department’s inspection standards, using a qualified engineer approved by the department. To protect public safety, the department may inspect, or may require the owner to inspect, a dam or reservoir more frequently than every five years. The department may require the owner of the dam or reservoir to pay the cost of an inspection under this section.

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.060. Entry upon property.

If the department has given two weeks’ written notice of intent to inspect a dam or reservoir and the owner refuses to allow the inspection, the department may seek a search warrant to allow the inspection. If the department has been refused inspection of drawings, operational records, or other information concerning a dam or reservoir, the department may seek an administrative subpoena compelling production of the drawings, operational records, or other information.
If the department has reason to believe that a dam or reservoir may be unsafe or presents an imminent threat to life or property, the department may enter the dam or reservoir premises without notice.

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.070. Determining danger.

In determining whether a dam or reservoir, or proposed dam or reservoir, constitutes or would constitute a danger to life or property, the department shall consider whether the structural integrity of the dam or reservoir might be endangered by overtopping, seepage, settlement, erosion, cracking, earth movement, earthquakes, or the failure of bulkheads, flashboards, gates, or conduits. The department may consider other relevant conditions. If it determines that the dam or reservoir is unsafe, the department shall order the owner to take the action that the department considers necessary to protect life and property.

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.080. Injunction and damages.

With the assistance of the attorney general, the department may seek an injunction and damages in the enforcement of this chapter, a department order issued under this chapter, or a regulation adopted under AS 46.17.030 .

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.090. Judicial review.

A final action of the department under this chapter is subject to judicial review as provided in AS 44.62 (Administrative Procedure Act).

History. (§ 2 ch 30 SLA 1987)

Sec. 46.17.100. Other government agencies.

The department may enter into cooperative agreements with municipalities and other state and federal agencies to carry out this chapter.
If the action would conflict with the powers and duties vested in the department, a municipality may not
1. regulate, supervise, inspect, or provide for the regulation, supervision, or inspection of a dam or reservoir;
2. provide for the construction, maintenance, operation, removal, or abandonment of a dam or reservoir; or
3. limit the size of or the amount of water that may be stored in a dam or reservoir.
This chapter does not apply to a federally-owned or operated dam or reservoir or a dam or reservoir regulated by the Federal Energy Regulatory Commission.
This chapter does not affect the powers of the Department of Environmental Conservation or the Department of Fish and Game.

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Sec. 46.17.110. Action against state for damages.

Except as provided in (b) of this section, a person may not bring an action against the state, the department, or agents or employees of the state, for the recovery of damages caused by the partial or total failure of a dam or reservoir, or by the operation of a dam or reservoir, or by an act or omission in connection with
1. approval of the construction of a dam or reservoir, or approval of flood-handling plans during or after construction;
2. issuance or enforcement of orders relating to maintenance or operation of the dam or reservoir;
3. control or regulation of the dam or reservoir;
4. measures taken to protect against failure of the dam or reservoir during an emergency; or
5. investigations or inspections authorized under this chapter.
A person may bring an action against the state for the recovery of damages caused by an action undertaken by a dam owner that was negligently ordered by the state over the owner’s objection.

History. (§ 2 ch 30 SLA 1987)

Sec. 46.17.120. Duties of owner.

This chapter does not relieve an owner of a dam or reservoir of the duties or liabilities incident to the ownership or operation of the dam or reservoir.

History. (§ 2 ch 30 SLA 1987)

Sec. 46.17.150. Penalties.

A person is guilty of a class A misdemeanor if the person knowingly
1. violates a provision of this chapter,
2. violates the terms of an approval, order, regulation, or requirement of the department under this chapter; or
3. obstructs, hinders, or prevents the department’s agents or employees from performing duties under this chapter.
Each day that a violation continues constitutes a separate offense.

History. (§ 2 ch 30 SLA 1987)

Cross references. —

For penalties for misdemeanors, see AS 12.55.035 and 12.55.135 .

Sec. 46.17.900. Definitions.

In this chapter, unless the context requires otherwise,

“alteration” means only an alteration that might directly affect the safety of the dam or reservoir, as determined by the department;
“appurtenant works” includes structures including spillways, either in a dam or separate from it; a reservoir and its rim; low level outlet works; and water conduits including tunnels, pipelines, or penstocks, whether running through the dam or through its abutments;
“dam” includes an artificial barrier, and its appurtenant works, which may impound or divert water and which
1. has or will have an impounding capacity at maximum water storage elevation of 50 acre-feet and is at least 10 feet in height measured from the lowest point at either the upstream or downstream toe of the dam to the crest of the dam;
2. is at least 20 feet in height measured from the lowest point at either the upstream or downstream toe of the dam to the crest of the dam; or
3. poses a threat to lives and property as determined by the department after an inspection;
“department” means the Department of Natural Resources;
“enlargement” means an alteration of an existing dam or reservoir that raises or is capable of raising the water storage elevation, or that increases the quantity of water impounded by the dam or reservoir;
“owner” means a person who owns, controls, operates, maintains, manages, or proposes to construct a dam or reservoir, and includes
1. a public utility; and
2. the appointed or authorized agents, employees, lessees, receivers, or trustees of an owner;
“person” has the meaning given in AS 01.10.060 , and includes the state and political subdivisions of the state, including the Alaska Railroad Corporation and the University of Alaska;
“repair” means only a repair that might directly affect the safety of the dam or reservoir, as determined by the department;
“reservoir” means a basin, appurtenant to a dam, that is capable of impounding water.

History. (§ 2 ch 30 SLA 1987)

Administrative Code. —

For dam safety, see 11 AAC 93, art. 3.

Chapter 25. Alaska State Commission of Oceanography.

[Repealed, § 3 ch 115 SLA 1969.]

Chapter 26. Commission for Ocean Advancement Through Science and Technology.

[Repealed, § 4 ch 115 SLA 1969, as amended by § 81 ch 69 SLA 1970.]

Chapter 30. Water and Wastewater Works Operators.

Administrative Code. —

For water and wastewater operator certification and training, see 18 AAC 74.

Collateral references. —

78 Am. Jur. 2d, Waterworks and Water Companies, § 2.

94 C.J.S., Waters, § 531 et seq.

Sec. 46.30.010. Classification.

The department shall classify all potable water systems and facilities actually used or intended for use by the public, and all wastewater systems and facilities that discharge into publicly owned wastewater systems, or to receiving bodies of water, or on land used by others. The classification shall give due regard to

the size and type of the systems and facilities;
the character of water or wastewater to be treated;
other physical conditions affecting the systems and facilities; and
the skill, knowledge, and experience required of an operator.

History. (§ 1 ch 244 SLA 1976)

Administrative Code. —

For requirements for a class I — class IV water system or wastewater system, see 18 AAC 74, art. 1.

For requirements for an operator of a small, untreated or small, treated water system, see 18 AAC 74, art. 2.

Sec. 46.30.020. Water and Wastewater Works Advisory Board.

There is created the Water and Wastewater Works Advisory Board composed of the commissioner of environmental conservation and eight additional members appointed by the governor. The Water and Wastewater Works Advisory Board shall advise and assist the department in the administration of the training and certification program. Appointments to the board shall be for a period of five years. Vacancies shall be filled in the same manner as the original appointments.

History. (§ 1 ch 244 SLA 1976; am § 129 ch 6 SLA 1984)

Sec. 46.30.030. Training.

The department shall, with the assistance and advice of the Water and Wastewater Works Advisory Board, provide a water and wastewater works operator training program. The purpose of this program is to provide mechanisms for water and wastewater works operators to become certified under the provisions of this chapter and for certified operators to maintain and improve their competency in operating water and wastewater systems or facilities. The department shall coordinate and cooperate with educational institutions and other organizations or individuals in the administration of this section.

History. (§ 1 ch 244 SLA 1976)

Administrative Code. —

For litter reduction and resource recovery grants, see 18 AAC 65.

Sec. 46.30.040. Certification of operators required.

All potable water supply and wastewater systems and facilities, whether publicly or privately owned, which serve 100 or more service connections or are used or intended for use by 500 or more persons, must at all times be under the supervision of an operator whose competency is certified to by the department in a classification corresponding to the classification of the system or facility to be supervised.

History. (§ 1 ch 244 SLA 1976; am § 130 ch 6 SLA 1984)

Administrative Code. —

For domestic wastewater treatment and disposal, see 18 AAC 72, art. 1.

For requirements for a class I — class IV water system or wastewater system, see 18 AAC 74, art. 1.

Sec. 46.30.050. Examinations.

Examinations shall be held at least annually at times and places set by the department. Separate examinations shall be given for each operator classification. Applicants who fail to pass an examination may repeat the examination at subsequent regularly scheduled examinations.

History. (§ 1 ch 244 SLA 1976)

Administrative Code. —

For requirements for a class I — class IV water system or wastewater system, see 18 AAC 74, art. 1.

For requirements for an operator of a small, untreated or small, treated water system, see 18 AAC 74, art. 2.

Sec. 46.30.060. Certification.

The department shall issue certification entitling those persons who successfully complete the required examinations to supervise the operation of potable water supply and wastewater systems and facilities after considering the recommendations of the advisory board. The certificate must designate the class of system for which the operator is qualified in accordance with the classification system of the department. The certificate shall be valid for three years unless revoked for cause or replaced by one of a higher grade.

History. (§ 1 ch 244 SLA 1976; am § 1 ch 14 SLA 1986)

Administrative Code. —

For requirements for a class I — class IV water system or wastewater system, see 18 AAC 74, art. 1.

For requirements for an operator of a small, untreated or small, treated water system, see 18 AAC 74, art. 2.

Sec. 46.30.070. Certificates without examination.

Certificates may be issued without an examination to persons employed as water or wastewater works operators on September 24, 1976, who request a waiver. The examination waiver shall be printed on the certificate. An operator certified under this section may request to have a certificate transferred to another facility of the same general class and type or to another facility of lower class. The request shall be granted if, in the opinion of the department, the transfer would not adversely affect the health and safety of the public or the environment. The department shall consider the recommendations of the Water and Wastewater Works Advisory Board before granting or denying a request under this section.

History. (§ 1 ch 244 SLA 1976)

Sec. 46.30.080. Regulations.

The department, with the advice of the Water and Wastewater Works Advisory Board, shall adopt regulations for administration of this chapter. The regulations must include

the basis for classification of potable water supply and wastewater systems and facilities, including the type and size of lesser systems and facilities, if any, to which the provisions of this chapter do not apply, as required by AS 46.30.010 ;
criteria for the qualification of applicants for operator certification corresponding to each of the classifications referred to in AS 46.30.010 ;
procedures for examination of candidates and renewal of certificates;
procedures for the revocation of certificates;
determination as to which additional personnel shall be certified when certification is required for more than the operator in direct responsible charge.

History. (§ 1 ch 244 SLA 1976; am § 70 ch 41 SLA 2009)

Administrative Code. —

For requirements for a class I — class IV water system or wastewater system, see 18 AAC 74, art. 1.

For requirements for an operator of a small, untreated or small, treated water system, see 18 AAC 74, art. 2.

Effect of amendments. —

The 2009 amendment, effective June 21, 2009, in the lead-in language, added “Water and” preceding “Wastewater Works Advisory Board”.

Sec. 46.30.090. Guidelines.

The department, to the extent it determines feasible, shall be guided by the standards recommended by the Association of Boards of Certification for Operating Personnel in Water and Wastewater Utilities.

History. (§ 1 ch 244 SLA 1976)

Administrative Code. —

For requirements for a class I — class IV water system or wastewater system, see 18 AAC 74, art. 1.

Editor’s notes. —

“The Association of Boards of Certification for Operating Personnel in Water and Wastewater Utilities” as used in this section may refer to the Associate of Boards of Certification (www.abccert.org) and the Certification Program Guide and other publications of that organization.

Sec. 46.30.100. Reciprocity.

Certificates may be issued without examination in the comparable classification to an applicant who holds a certificate in a state, territory, or possession of the United States, if its certification requirements and examinations are comparable to those of this state and if reciprocal privileges are granted to operators certified in this state.

History. (§ 1 ch 244 SLA 1976)

Sec. 46.30.110. Temporary certification.

In the event of unusual or emergency circumstances or following the hiring of new employees, temporary certificates may be issued to an operator until a time when the operator can be examined and certified. Within two weeks after employment of such an operator, the department must be notified in writing and information shall be provided, including the operator’s name, background, experience, training, education, and references. Thereafter, the operator may be issued a temporary certificate which shall remain valid only for that time required for the next routine examination and evaluation.

History. (§ 1 ch 244 SLA 1976)

Sec. 46.30.120. Prohibited acts.

It is unlawful

for any potable water supply or wastewater system or facility subject to AS 46.30.040 to be operated unless the operator is certified under the provisions of this chapter;
for any person to perform the duties of an operator without being certified under the provisions of this chapter.

History. (§ 1 ch 244 SLA 1976; am § 131 ch 6 SLA 1984)

Administrative Code. —

For requirements for a class I — class IV water system or wastewater system, see 18 AAC 74, art. 1.

Sec. 46.30.130. Definitions.

In this chapter,

“certificate” means certificate of competency issued by the department stating that the operator has met the requirements for the specified operator classification of the certification program;
“department” means the Department of Environmental Conservation;
“potable water supply system” means the system of pipes, structures, and facilities through which water is obtained, treated and sold, distributed or otherwise offered to the public for household use or any use by humans;
“wastewater system” means the system of pipes, structures, equipment and processes required to collect, carry away, and treat domestic and industrial wastewater and dispose of the effluent.

History. (§ 1 ch 244 SLA 1976)

Chapter 35. Permit Extension.

Cross references. —

For powers of Department of Environmental Conservation, see AS 46.03.020 .

Collateral references. —

61B Am. Jur. 2d, Pollution Control, §§ 187-197.

39A C.J.S., Health and Environment, § 120 et seq.

Secs. 46.35.010 — 46.35.210. Environmental procedures coordination and extension. [Repealed, § 4, ch. 23, SLA 2003.]

Sec. 46.35.300. Extension of resource extraction or removal related permits.

The department that issued the permit shall extend a resource removal or extraction permit when the permittee
1. is unwilling to engage in the resource removal or extraction activity allowed under the permit due to the actions of another person, other than the state, seeking administrative or judicial review of the issuance or validity of the permit or another permit, or a permit, lease, authorization, or license issued by the federal government, relating to the same resource removal or extraction activity; and
2. at the conclusion of the legal proceedings is allowed to proceed with the resource removal or extraction activity.
A department may not extend a permit under (a) of this section
1. unless
  1. the permittee notifies the department that issued the permit of the legal proceedings and provides a sworn statement that the permittee is unwilling to engage in the permitted activity due to the proceedings; and
  2. upon the conclusion of the legal proceedings, the permittee notifies the department of the conclusion of the proceedings and the outcome of the proceedings;
2. for any period that the permittee has engaged in the resource removal or extraction activity authorized under the permit;
3. if the extension is prohibited by or otherwise inconsistent with federal law applicable to the permitted activity;
4. if another provision of state law, or a regulation, or contractual provision authorizes an extension, or otherwise stays the running, of the permit.
A permittee receiving an extension of a permit under this section is subject to the rights, conditions, and liabilities the permittee would have had under the original permit if the permit had not been extended.
An extension of a permit under this section may only be for the length of time equivalent to the period from the date the department receives the notice and sworn statement under (b) of this section until the conclusion of the legal proceedings that allow the permittee to engage in the resource removal or extraction activity.
The Department of Environmental Conservation, the Department of Fish and Game, and the Department of Natural Resources shall adopt regulations to implement this section.
In this section,
1. “legal proceedings” means, as appropriate, administrative proceedings not followed by judicial proceedings, administrative proceedings followed by judicial proceedings, or judicial proceedings not preceded by administrative proceedings;
2. “permit” means a permit, lease, authorization, license, or another determination necessary for or related to resource extraction or removal that is issued by the Department of Environmental Conservation, the Department of Fish and Game, or the Department of Natural Resources.

History. (§ 1 ch 37 SLA 1994)

Chapter 39. Coastal Management Administration.

Article 1. Coastal Management Administration.

Sec. 46.39.010. Coastal management duties; regulations. [Repealed, § 18 ch 31 SLA 2005.]

Sec. 46.39.020. Alaska Coastal Policy Council. [Repealed, § 44 ch 24 SLA 2003.]

Secs. 46.39.030, 46.39.040. Powers of the department; duties of the department. [Repealed, § 18 ch 31 SLA 2005.]

Sec. 46.39.050. Council staff. [Repealed, § 44 ch 24 SLA 2003.]

Article 2. General Provisions.

Sec. 46.39.900. Definition. [Repealed, § 18 ch 31 SLA 2005.]

Chapter 40. The Alaska Coastal Management Program.

Secs. 46.40.010 — 46.40.070. Development of Alaska coastal management program. [Repealed, § 18 ch 31 SLA 2005.]

Sec. 46.40.080. Effective date of Alaska coastal management program. [Repealed, § 44 ch 24 SLA 2003.]

Secs. 46.40.090 — 46.40.100. Development of Alaska coastal management program. [Repealed, § 18 ch 31 SLA 2005.]

Sec. 46.40.110. Coastal management plans in the unorganized borough. [Repealed, § 18 ch 31 SLA 2005.]

Secs. 46.40.120, 46.40.130. Coastal resource service areas; organization of coastal resource service area. [Repealed, § 44 ch 24 SLA 2003.]

Secs. 46.40.140, 46.40.150. Coastal management plans in the unorganized borough. [Repealed, § 18 ch 31 SLA 2005.]

Secs. 46.40.160, 46.40.170. Organization at the direction of the council; preparation of district coastal management program by the Department of Community and Economic Development. [Repealed, § 44 ch 24 SLA 2003.]

Sec. 46.40.180. Coastal management plans in the unorganized borough. [Repealed, § 18 ch 31 SLA 2005.]

Secs. 46.40.190, 46.40.195. Cooperative administration; construction with other laws. [Repealed, § 18 ch 31 SLA 2005.]

Sec. 46.40.200. State agencies. [Repealed, § 44 ch 24 SLA 2003.]

Secs. 46.40.205, 46.40.210. Consistency determinations for certain activities involving nonconventional gas; definitions. [Repealed, § 18 ch 31 SLA 2005.]

Chapter 45. Northwest Interstate Compact on Low-level Radioactive Waste Management.

Sec. 46.45.010. Compact enacted.

The Northwest Interstate Compact on Low-Level Radioactive Waste Management, as contained in this section, is enacted into law and entered into on behalf of the State of Alaska with any and all other states legally joining it in a form substantially as follows:

History. (§ 1 ch 37 SLA 1983)

Northwest Interstate Compact on Low-level

Radioactive Waste Management

Article I. Policy and Purpose.

The party states recognize that low-level radioactive wastes are generated by essential activities and services that benefit the citizens of the states. It is further recognized that the protection of the health and safety of the citizens of the party states and the most economical management of low-level radioactive wastes can be accomplished through cooperation of the states in minimizing the amount of handling and transportation required to dispose of such wastes and through the cooperation of the states in providing facilities that serve the region. It is the policy of the party states to undertake the necessary cooperation to protect the health and safety of the citizens of the party states and to provide for the most economical management of low-level radioactive wastes on a continuing basis. It is the purpose of this compact to provide the means for such a cooperative effort among the party states so that the protection of the citizens of the states and the maintenance of the viability of the states’ economies will be enhanced while sharing the responsibilities of radioactive low-level waste management.

Article II. Definitions.

In this compact

“facility” means any site, location, structure, or property used or to be used for the storage, treatment, or disposal of low-level waste, excluding federal waste facilities;
“generator” means any person, partnership, association, corporation, or any other entity whatsoever, which, as part of its activities, produces low-level radioactive waste;
“host state” means a state in which a facility is located;
“low-level waste” means waste material which contains radioactive nuclides emitting primarily beta or gamma radiation, or both, in concentrations or quantities which exceed applicable federal or state standards for unrestricted release; low-level waste does not include waste containing more than 10 nanocuries of transuranic contaminants per gram of material, nor spent reactor fuel, nor material classified as either high-level waste or waste which is unsuited for disposal by near-surface burial under any applicable federal regulations.

Article III. Regulatory Practices.

Each party state agrees to adopt practices which will require low-level waste shipments originating within its borders and destined for a facility within another party state to conform to the applicable packaging and transportation requirements and regulations of the host state. Those practices must include:

maintaining an inventory of all generators within the state that have shipped or expect to ship low-level waste to facilities in another party state;
periodic unannounced inspection of the premises of such generators and the waste management activities on them;
authorization of the containers in which such waste may be shipped, and a requirement that generators use only that type of container authorized by the state;
assurance that inspections of the carriers which transport such waste are conducted by proper authorities, and appropriate enforcement action taken for violation;
after receiving notification from a host state that a generator within the party state is in violation of applicable packaging or transportation standards, the party state will take appropriate action to assure that such violations do not recur. That action may include inspection of every individual low-level waste shipment by that generator.

Each party state may impose fees upon generators and shippers to recover the cost of the inspections and other practices under this article. Nothing in this section limits any party state’s authority to impose additional or more stringent standards on generators or carriers than those required under this paragraph.

Article IV. Regional Facilities.

Facilities located in any party state, other than facilities established or maintained by individual low-level waste generators for the management of their own low-level waste, shall accept low-level waste generated in any party state if that waste has been packaged and transported according to applicable laws and regulations.
No facility located in any party state may accept low-level waste generated outside of the region comprised of the party states, except as provided in article V.
Until paragraph (2) of this article takes effect, facilities located in any party state may accept low-level waste generated outside of any of the party states only if that waste is accompanied by a certificate of compliance issued by an official of the state in which the waste shipment originated. Such a certificate must be in the form required by the host state, and must contain at least the following:
1. the generator’s name and address;
2. a description of the contents of the low-level waste container;
3. a statement that the low-level waste being shipped has been inspected by the official who issued the certificate or by that official’s agent or by a representative of the United States nuclear regulatory commission, and found to have been packaged in compliance with applicable federal regulations and such additional requirements as may be imposed by the host state;
4. a binding agreement by the state of origin to reimburse any party state for any liability or expense incurred as a result of an accidental release of the waste during shipment or after the waste reaches the facility.
Each party state shall cooperate with the other party states in determining the appropriate site of any facility that might be required within the region comprised of the party states, in order to maximize public health and safety while minimizing the use of one party state as the host of such facilities on a permanent basis. Each party state further agrees that decisions regarding low-level waste management facilities in their region will be reached through a good-faith process which takes into account the burdens borne by each of the party states as well as the benefits each has received.
The party states recognize that the issue of hazardous chemical waste management is similar in many respects to that of low-level waste management. Therefore, in consideration of the State of Washington allowing access to its low-level waste disposal facility by generators in other party states, party states such as Oregon and Idaho which host hazardous chemical waste disposal facilities will allow access to such facilities by generators within other party states. Nothing in this compact prevents any party state from limiting the nature and type of hazardous chemical or low-level wastes to be accepted at facilities within its borders or from ordering the closure of such facilities, so long as that action by a host state is applied equally to all generators within the region comprised of the party states.
Any host state may establish a schedule of fees and requirements related to its facility, to assure that closure, perpetual care, and maintenance and contingency requirements are met, including adequate bonding.

Article V. Northwest Low-level Waste Compact Committee.

The governor of each party state shall designate one official of that state as the person responsible for administration of this compact. The officials so designated comprise the Northwest Low-level Waste Compact Committee. The committee shall meet as required to consider matters arising under this compact. The parties shall inform the committee of existing regulations concerning low-level waste management in their states, and shall afford all parties a reasonable opportunity to review and comment upon any proposed modifications in those regulations. Notwithstanding any provision of article IV to the contrary, the committee may enter into arrangements with states, provinces, individual generators, or regional compact entities outside the region comprised of the party states for access to facilities on such terms and conditions as the committee considers appropriate. However, a two-thirds vote of all members, including the affirmative vote of the member of any party state in which a facility affected by such an arrangement is located, is required for the committee to enter into such an arrangement.

Article VI. Eligible Parties and Effective Date.

Each of the following states is eligible to become a party to this compact: Alaska, Hawaii, Idaho, Montana, Oregon, Utah, Washington, and Wyoming. As to any eligible party, this compact becomes effective upon enactment into law by that party, but it does not become initially effective until enacted into law by two states. Any party state may withdraw from this compact by enacting a statute repealing its approval.
After the compact has initially taken effect pursuant to paragraph (1) of this article, any eligible party state may become a party to this compact by the execution of an executive order by the governor of the state. Any state which becomes a party in this manner ceases to be a party upon the final adjournment of the next general or regular session of its legislature or July 1, 1983, whichever occurs first, unless the compact has by then been enacted as a statute of that state.
Paragraph (2) of article IV of this compact takes effect on July 1, 1983, if consent is given by Congress. As provided in Public Law 96-573, Congress may withdraw its consent to the compact after every five-year period.

Article VII. Severability.

If any provision of this compact, or its application to any person or circumstance, is held to be invalid, all other provisions of this compact, and the application of all of its provisions to all other persons and circumstances, remain valid; and to this end the provisions of this compact are severable.

Revisor’s notes. —

Article II was reorganized in 1983 to alphabetize the defined terms.

Sec. 46.45.020. Implementation.

The commissioner of environmental conservation may adopt regulations and do all things necessary or incidental to the carrying out of the Northwest Interstate Compact on Low-Level Radioactive Waste Management.

History. (§ 1 ch 37 SLA 1983)