Section 09.45.230. Action based on private nuisance.

   (a) A person may bring a civil action to enjoin or abate a private nuisance. Damages may be awarded in the action.
   (b) A person may not maintain an action under this section based upon an air emission or water or solid waste discharge, other than the placement of nuclear waste, where the emission or discharge was expressly authorized by and is not in violation of a term or condition of
        (1) a statute or regulation;
        (2) a license, permit, or order that is
             (A) issued after public hearing by the state or federal government; and
             (B) subject to
                  (i) continuing compliance monitoring;
                  (ii) periodic review by the issuing agency; or
                  (iii) renewal on a periodic basis; or
        (3) a court order or judgment.
   (c) The provisions of (b) of this section do not apply to actions in which the air emission or water or solid waste discharge that is the subject of the action produces a result that was unknown or not reasonably foreseeable at the time of the authorization.
   (d) The provisions of (b) of this section remain in effect only as long as both of the following are satisfied:
        (1) AS 46.03.900 defines "pollution" as including the contamination or altering of waters, land, or subsurface land of the state in a manner that creates a nuisance; and
        (2) AS 46.14.990 defines "emission" as the release of one or more air pollutants to the atmosphere.
   (e) Notwithstanding other provisions of law, except AS 09.50.170 - 09.50.240 and AS 19.25.080 - 19.25.180, a person may not bring a civil action to enjoin or abate a private nuisance or to recover damages for a private nuisance unless the action is authorized by this section.
   (f) A person who is shielded under (b) of this section from a nuisance action shall indemnify, defend, and hold the state harmless from a claim or court action for inverse condemnation, including damages, costs, and attorney fees, for which the state may become liable because of the air emission or wastewater or solid waste discharge for which the person is shielded by (b) of this section. The state shall immediately tender the defense of the inverse condemnation claim or court action to the person. The provisions of (b) of this section do not apply to shield the person, if the person fails to accept or refuses the tender of the defense. A person who prevails in the defense of the claim or court action for inverse condemnation described under this subsection shall be awarded full reasonable attorney fees and costs.

Authorities

9.45.255;34.75.010

Notes

References

AS 9.45.255 .255">Sec. 09.45.255. Definition of nuisance.
AS 34.75.010 Limitation on actions arising from noise level.

History

(Sec. 21.01 ch 101 SLA 1962; am Sec. 1 ch 17 SLA 1994; am Sec. 1 ch 99 SLA 2004; am Sec. 1 ch 31 SLA 2005)