HB 333: "An Act directing the Department of Transportation and Public Facilities to develop and implement standards and operating procedures allowing for the use in the construction and maintenance of transportation projects and public facilities and in the construction of projects by public and private entities of gravel or aggregate materials that contain naturally occurring asbestos, and authorizing use on an interim basis of those materials for certain transportation projects and public facilities; and relating to certain claims arising out of or in connection with the use of gravel or aggregate materials."
00 HOUSE BILL NO. 333 01 "An Act directing the Department of Transportation and Public Facilities to develop 02 and implement standards and operating procedures allowing for the use in the 03 construction and maintenance of transportation projects and public facilities and in the 04 construction of projects by public and private entities of gravel or aggregate materials 05 that contain naturally occurring asbestos, and authorizing use on an interim basis of 06 those materials for certain transportation projects and public facilities; and relating to 07 certain claims arising out of or in connection with the use of gravel or aggregate 08 materials." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 11 to read: 12 LEGISLATIVE FINDINGS AND PURPOSE. (a) The legislature finds that
01 (1) gravel and similar aggregate material is constantly in demand for major 02 construction and maintenance of state and local transportation projects and public facilities 03 and for all types of construction by public and private entities; 04 (2) naturally occurring asbestos may be found in sources of gravel and similar 05 aggregate material throughout the state; 06 (3) while airborne asbestos fibers are a significant threat to workplace safety 07 and public health and are subject to close regulation by federal and state authorities under 42 08 U.S.C. 7401 - 7671q (Clean Air Act) and 15 U.S.C. 2601 - 2692 (Toxic Substances Control 09 Act), use of materials containing naturally occurring asbestos in construction projects may be 10 regulated by states; 11 (4) in communities that do not have sources of gravel or similar aggregate 12 material that is free of naturally occurring asbestos, costs of construction are substantially 13 increased because of the necessity of locating alternative sources of gravel or similar 14 aggregate material and transporting that material to distant construction and maintenance 15 sites; and 16 (5) a recent study suggests that, with careful use and close adherence to 17 appropriate control strategies, state and local transportation projects and public facilities may 18 be safely completed using sources of gravel or similar aggregate material containing naturally 19 occurring asbestos; the study recommends that the Department of Transportation and Public 20 Facilities establish standards and operating procedures through a statewide process that will 21 apply to all uses of gravel and aggregate material by the department and by any public or 22 private entity. 23 (b) It is the purpose of this Act 24 (1) to authorize and direct the Department of Transportation and Public 25 Facilities to develop, implement, and, as circumstances may require or indicate, modify 26 standards and operating procedures to allow the use in the construction and maintenance of 27 transportation projects and public facilities of gravel or aggregate material that is not free of 28 naturally occurring asbestos, with the expectation that use of that material in a manner that is 29 consistent with those standards and procedures may avoid significant risk to human health and 30 eliminate significantly higher costs of construction and maintenance of projects and facilities 31 associated with using only construction material that is free of asbestos; and
01 (2) to establish that a person that supplies or uses gravel that is not free of 02 naturally occurring asbestos shall prepare specific project plans that conform to the 03 department's standards and operating procedures. 04 * Sec. 2. AS 09.65 is amended by adding a new section to read: 05 Sec. 09.65.245. Immunity for persons using materials containing naturally 06 occurring asbestos in compliance with state approved standards and operating 07 procedures. A civil action for damages or costs may not be brought against a 08 defendant alleging an asbestos-related death, injury, or disability based on the 09 defendant's use of gravel or other aggregate material that is not free of naturally 10 occurring asbestos for an act or omission occurring in the course of use of the gravel 11 or materials when that use complies with the requirements of AS 18.31.250 or 12 AS 44.42.020(c), as appropriate. In this section, "gravel or other aggregate material 13 that is not free of naturally occurring asbestos" has the meaning given in 14 AS 18.31.250. 15 * Sec. 3. AS 18.31 is amended by adding a new section to read: 16 Article 2A. Use of materials containing naturally occurring asbestos. 17 Sec. 18.31.250. Use of materials containing naturally occurring asbestos. 18 Before initiating a construction project not subject to AS 44.42.020(c) that will use 19 gravel or other aggregate material that is not free of naturally occurring asbestos, the 20 principal construction contractor or, in the absence of an identified principal 21 construction contractor, the person having legal authority for the design and 22 construction of the project, shall prepare and submit to the Department of 23 Transportation and Public Facilities specific project plans demonstrating compliance 24 with the standards and operating procedures adopted by the department to implement 25 AS 44.42.020(c)(1) and (2). Before the principal construction contractor or other 26 person responsible for the project may use gravel or other aggregate material that is 27 not free of naturally occurring asbestos, the plan is subject to approval by the 28 department under the standards and operating procedures adopted under 29 AS 44.42.020(c). In this section, "gravel or other aggregate material that is not free of 30 naturally occurring asbestos" means gravel, rock, sand, and similar materials that are 31 appropriate to and intended for use in construction that, when tested using a bulk test
01 method prescribed by the department by regulation, are determined to have a content 02 of at least 0.25 percent asbestos by mass. 03 * Sec. 4. AS 44.42.020 is amended by adding a new subsection to read: 04 (c) The department, after consultation with the Department of Environmental 05 Conservation, Department of Health and Social Services, and Department of Labor 06 and Workforce Development, shall develop and implement, and, from time to time, 07 revise, statewide standards and operating procedures to allow the use in the 08 construction and maintenance of transportation projects and public facilities of gravel 09 or aggregate material that is not free of naturally occurring asbestos. For purposes of 10 this subsection, 11 (1) the department's standards must set out means and measures for 12 (A) completing site investigations and characterizations of 13 proposed projects, including the development and description of appropriate 14 laboratory practices; 15 (B) reviewing design alternatives and preparing and evaluating 16 appropriate comparative cost analyses that consider the use of gravel or other 17 aggregate material that does not contain naturally occurring asbestos; 18 (C) evaluating human health concerns arising out of gravel or 19 other aggregate material that is not free of naturally occurring asbestos, and 20 documentation of methods and means to be used during periods of handling of 21 the gravel or other aggregate material to ensure compliance with appropriate 22 workplace safety and air quality standards relating to the project; 23 (D) preparing designs and design specifications for facilities 24 involving use of gravel or other aggregate material that is not free of naturally 25 occurring asbestos; 26 (E) outlining construction operation and maintenance practices 27 that are required and those that are minimally acceptable to meet requirements 28 of law applicable to the handling of compounds that contain asbestos; 29 (2) the department shall require, in its operating procedures applicable 30 to a project that is a transportation facility, including a public highway, airport, or 31 pipeline or railroad track bed, or a public work, as that term is defined in
01 AS 35.95.100, and that is subject to this subsection, that the principal contractor 02 responsible for performance of the work under the construction contract prepare and 03 submit a plan that addresses with specificity the use of gravel or other aggregate 04 material in the construction or maintenance of the transportation project or public 05 facility; the plan is subject to department approval before the contractor may use 06 gravel or other aggregate material that is not free of naturally occurring asbestos; the 07 contractor's site-specific plan must 08 (A) describe the manner in which the contractor's proposed use 09 of gravel or other aggregate material that is not free of naturally occurring 10 asbestos conforms to the standards adopted under (1) of this subsection; 11 (B) demonstrate how the contractor's proposed construction 12 operation and maintenance practices comply with those that are required and 13 those that are minimally acceptable, as described in (1)(E) of this subsection, 14 and otherwise meet requirements of law applicable to the handling of 15 compounds that contain asbestos; and 16 (C) outline how, as a component of long-term maintenance on 17 the completed project or facility, the department may reasonably ensure that 18 human health and air quality are not compromised by the use of the gravel or 19 other aggregate material that is not free of naturally occurring asbestos; and 20 (3) "gravel or other aggregate material that is not free of naturally 21 occurring asbestos" means gravel, rock, sand, and similar materials that are 22 appropriate to and intended for use in construction of a transportation project or public 23 facility that, when tested using a bulk test method prescribed by the department by 24 regulation, are determined to have a content of at least 0.25 percent asbestos by mass; 25 in this paragraph, "asbestos" has the meaning given in AS 18.31.500. 26 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 INTERIM PROJECT AUTHORIZATION. (a) Notwithstanding AS 18.31.250, added 29 by sec. 3 of this Act, to ensure early application of the policy described in sec. 1 of this Act to 30 a limited number of appropriate construction projects until the development and 31 implementation of initial standards and operating procedures under AS 44.42.020(c) for
01 projects not subject to that subsection, if, under (b) of this section, the Department of 02 Transportation and Public Facilities prepares and adopts interim standards and operating 03 procedures and requires its contractors to prepare site-specific plans for the use of gravel or 04 other aggregate material that is not free of naturally occurring asbestos in transportation 05 projects and public facilities, the department shall apply those standards and operating 06 procedures to a person described in AS 18.31.250 for a project that is not subject to 07 AS 44.42.020(c). In this subsection, "gravel or other aggregate material that is not free of 08 naturally occurring asbestos" has the meaning given in AS 18.31.250, added by sec. 3 of this 09 Act. 10 (b) Notwithstanding AS 44.42.020(c), added by sec. 4 of this Act, to ensure early 11 application of the policy described in sec. 1 of this Act to a limited number of appropriate 12 transportation projects and public facilities until the development and implementation of 13 initial standards and operating procedures under AS 44.42.020(c), after consultation with the 14 Department of Environmental Conservation, Department of Health and Social Services, 15 Department of Labor and Workforce Development, and appropriate federal agencies, the 16 Department of Transportation and Public Facilities may prepare and adopt interim standards 17 and operating procedures and may require of its contractors the preparation of site-specific 18 plans for the use of gravel or other aggregate material that is not free of naturally occurring 19 asbestos in transportation projects and public facilities. In this subsection, "gravel or other 20 aggregate material that is not free of naturally occurring asbestos" has the meaning given in 21 AS 44.42.020(c), added by sec. 4 of this Act. 22 (c) The authority granted by (a) and (b) of this section expires December 31, 2011. 23 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 INTERIM STANDARDS FOR APPLICATION OF ASBESTOS BULK TESTING. 26 Until the Department of Transportation and Public Facilities adopts and prescribes a method 27 of bulk testing under AS 44.42.020(c)(3), the department may use California Air Resources 28 Board Method 435, Determination of Asbestos Content of Serpentine Aggregate, adopted on 29 June 6, 1991, as that standard has effect on the effective date of this Act, as the basis for 30 determining the asbestos content of a bulk sample in a bulk test that is required under 31 AS 44.42.020(c), enacted by sec. 4 of this Act, or for interim use as authorized by sec. 5 of
01 this Act.