SCS CSHB 258(FIN): "An Act directing the Department of Transportation and Public Facilities to develop and implement standards and operating procedures, to evaluate site-specific use plans, and to designate project areas concerning gravel or other aggregate material containing naturally occurring asbestos; authorizing use on an interim basis of gravel or other aggregate material containing naturally occurring asbestos for certain transportation projects and public facilities; providing immunity for the state and for landowners, extractors, suppliers, transporters, and contractors for certain actions or claims arising in connection with the use of gravel or aggregate material containing naturally occurring asbestos in certain areas; requiring contractors to report certain asbestos-related data to the Department of Transportation and Public Facilities; and providing for an effective date."
00 SENATE CS FOR CS FOR HOUSE BILL NO. 258(FIN) 01 "An Act directing the Department of Transportation and Public Facilities to develop 02 and implement standards and operating procedures, to evaluate site-specific use plans, 03 and to designate project areas concerning gravel or other aggregate material containing 04 naturally occurring asbestos; authorizing use on an interim basis of gravel or other 05 aggregate material containing naturally occurring asbestos for certain transportation 06 projects and public facilities; providing immunity for the state and for landowners, 07 extractors, suppliers, transporters, and contractors for certain actions or claims arising 08 in connection with the use of gravel or aggregate material containing naturally 09 occurring asbestos in certain areas; requiring contractors to report certain asbestos- 10 related data to the Department of Transportation and Public Facilities; and providing 11 for an effective date." 12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
01 * Section 1. AS 09.65 is amended by adding a new section to read: 02 Sec. 09.65.245. Immunity for certain persons supplying or using gravel or 03 other aggregate material; limitations on asbestos-related actions against 04 defendants. (a) Notwithstanding AS 09.50.250, a civil action or claim for damages or 05 costs alleging a death, injury, illness, disability, property damage, or any other 06 damages resulting from the use of gravel or other aggregate material that contains 07 naturally occurring asbestos may not be brought against a defendant, including a 08 contractor meeting the requirements of the program or the state and its agencies, 09 officers, and employees, 10 (1) based on the ownership of land within an area designated by the 11 Department of Transportation and Public Facilities under AS 44.42.400(b) or (c) from 12 which gravel or other aggregate material is extracted that, when tested using a bulk 13 method prescribed by the Department of Transportation and Public Facilities by 14 regulation, is determined to have a content equal to or greater than 0.25 percent 15 naturally occurring asbestos by mass; or 16 (2) for an act or omission occurring in the course of extracting, 17 supplying, transporting, or using gravel or other aggregate material containing 18 naturally occurring asbestos within an area designated by the Department of 19 Transportation and Public Facilities under AS 44.42.400(b) or (c) when the act or 20 omission was in compliance with the requirements of AS 18.31.250 or AS 21 44.42.410(b), as applicable, and AS 44.42.410(a) and (d) and applicable regulations 22 developed under AS 44.42.420. 23 (b) A civil action or claim based on noncompliance with the requirements of 24 AS 18.31.250 or AS 44.42.410(b), as applicable, and AS 44.42.410(a) and (e) and 25 applicable regulations developed under AS 44.42.420 for damages or costs alleging an 26 asbestos-related death, injury, illness, or disability or alleging asbestos-related 27 property damage or any other asbestos-related damages may only be brought against a 28 defendant that has direct control over or responsibility for compliance with the 29 requirements of AS 18.31.250 or AS 44.42.410(b), as applicable, and AS 44.42.410(a) 30 and (e) and applicable regulations developed under AS 44.42.420. 31 (c) Notwithstanding AS 09.50.250, a civil action or claim for damages or costs
01 alleging an asbestos-related death, injury, illness, or disability or alleging asbestos- 02 related property damage or any other asbestos-related damages may not be brought 03 against any state agency or officer or employee of the state for an act or omission 04 occurring in the course of designating a project area under AS 44.42.400(a) or (b), 05 approving a site-specific use plan, or developing or approving a monitoring plan or a 06 mitigation plan under AS 44.42.410. 07 (d) In this section, "naturally occurring asbestos" has the meaning given in AS 08 44.42.430. 09 * Sec. 2. AS 18.31 is amended by adding new sections to read: 10 Article 2A. Naturally occurring asbestos. 11 Sec. 18.31.250. Use of materials containing naturally occurring asbestos. 12 (a) A principal construction contractor or, in the absence of an identified principal 13 construction contractor, person having legal authority for the design and construction 14 of a project may qualify for immunity in a civil action under AS 09.65.245(a)(2) for 15 the use of gravel or other aggregate material that, when tested using a bulk test method 16 prescribed by the Department of Transportation and Public Facilities by regulation, is 17 determined to have a content equal to or greater than 0.25 percent of naturally 18 occurring asbestos by mass. 19 (b) To qualify for the immunity provided under AS 09.65.245(a)(2), before 20 initiating a construction project not subject to AS 44.42.410(b) that is within an area 21 designated by the Department of Transportation and Public Facilities under AS 22 44.42.400(b) or (c) and that will use gravel or other aggregate material that contains 23 naturally occurring asbestos, the principal construction contractor or, in the absence of 24 an identified principal construction contractor, the person having legal authority for 25 the design and construction of the project, shall prepare and submit to the Department 26 of Transportation and Public Facilities specific project plans demonstrating 27 compliance with the standards adopted by the department under AS 44.42.420 and the 28 requirements of the site-specific use plan under AS 44.42.410. Before extraction of 29 gravel or other aggregate material may begin, the plan must be approved and returned 30 to the contractor by the department. 31 (c) To preserve the immunity provided under AS 09.65.245(a)(2), the
01 principal construction contractor or, in the absence of an identified principal 02 construction contractor, the person having legal authority for the design and 03 construction of the project, shall adhere to the site-specific use plan approved by the 04 department and the monitoring and mitigation plan created by the department. 05 Sec. 18.31.260. Presence of naturally occurring asbestos. The state shall 06 consider 0.25 percent by mass, the minimum detectable amount of asbestos under the 07 California Air Resources Board Method 435, as the baseline for the presence of 08 naturally occurring asbestos in gravel or other aggregate material. 09 * Sec. 3. AS 44.42 is amended by adding new sections to read: 10 Article 3A. Use of Materials Containing Naturally Occurring Asbestos. 11 Sec. 44.42.400. Administration and designated areas. (a) The department 12 shall designate a single employee who reports to the commissioner to oversee the 13 duties assigned to the department in AS 44.42.400 - 44.42.430 and to serve as the 14 point of contact for inquiries related to projects using gravel or other aggregate 15 material containing naturally occurring asbestos. 16 (b) An area that includes land within a municipality or community may be 17 designated by the department as an area in which certain landowners and contractors 18 are granted immunity under AS 09.65.245(a) for causing asbestos-related injuries only 19 if the municipality or community requests that designation. A municipality or 20 community may request to become an area designated by the department under this 21 subsection by submitting an application to the department. The department may 22 approve an application received under this subsection only after reviewing tests 23 documenting the presence of naturally occurring asbestos in that area, analyzing the 24 effect of the presence of naturally occurring asbestos on construction projects in the 25 area, considering the availability of gravel or other aggregate material free from 26 naturally occurring asbestos in the area, and soliciting public input from residents in 27 the affected municipality or community. The department may require a municipality 28 or community that applies to become a designated area to provide the department with 29 tests documenting the presence of naturally occurring asbestos, information related to 30 the effect of the presence of naturally occurring asbestos on construction projects in 31 the area, information related to availability of gravel or other aggregate material free
01 from naturally occurring asbestos, and other information relevant to the application. 02 After designating an area after approval of an application under this subsection, the 03 department shall notify, including through signage, potentially affected persons that 04 the area has been designated as an area where immunity may be granted under AS 05 09.65.245(a) for certain landowners and contractors causing asbestos-related injuries. 06 (c) In places that do not include a municipality or community, the department 07 may designate an area in which certain landowners and contractors are granted 08 immunity under AS 09.65.245(a) for causing asbestos-related injuries. Before 09 designating an area under this subsection, the department shall document the presence 10 of naturally occurring asbestos in that area, analyze the effect of the presence of 11 naturally occurring asbestos on construction projects in the area, consider the 12 availability of gravel or other aggregate material free from naturally occurring 13 asbestos in the area, and solicit public input from potentially affected persons. After 14 designating an area under this subsection, the department shall notify, including 15 through signage, potentially affected persons that the area has been designated as an 16 area where immunity may be granted under AS 09.65.245(a) for certain landowners 17 and contractors causing asbestos-related injuries. 18 (d) In this section, "community" means a place in the unorganized borough, in 19 a borough, or in a unified municipality that is not incorporated as a municipality, that 20 is not a reserve, and in which 25 or more individuals reside as a social unit. 21 Sec. 44.42.410. Site-specific use plan. (a) To qualify for the immunity 22 provided under AS 09.65.245(a)(2), a contractor intending to use, within an area 23 designated by the department under AS 44.42.400(b) or (c), gravel or other aggregate 24 material that, when tested using a bulk test method prescribed by the department in 25 regulation, is determined to have a content equal to or greater than 0.25 percent of 26 naturally occurring asbestos by mass, shall, after consulting with the owner of the land 27 on which the gravel or other aggregate material containing naturally occurring 28 asbestos will be placed, submit a site-specific use plan to the department that 29 (1) describes the manner in which the proposed use of gravel or other 30 aggregate material that contains naturally occurring asbestos conforms to the standards 31 adopted under AS 44.42.420(b);
01 (2) demonstrates how the proposed construction operation and 02 maintenance practices comply with those that are required and those that are 03 minimally acceptable, as described in AS 44.42.420(b)(5), and otherwise meet 04 requirements of law applicable to the handling of compounds that contain asbestos; 05 (3) outlines the efforts that will be made, as a component of long-term 06 maintenance on the completed project or facility, to ensure that human health and air 07 quality are not compromised by the use of the gravel or other aggregate material that 08 contains naturally occurring asbestos; 09 (4) describes how the gravel or other aggregate material to be used can 10 be contained underneath the project or buried so that asbestos fibers cannot become 11 airborne or otherwise transferred outside of the project area, except as provided in (5) 12 and (6) of this subsection; 13 (5) if the requirements in (4) of this subsection are economically 14 unreasonable, describes how the gravel or other aggregate material to be used will be 15 sealed, including chip sealing or mixing with asphalt, in order to prevent asbestos 16 fibers from becoming airborne or otherwise transferred outside of the project area, 17 except as provided in (6) of this subsection; and 18 (6) if the requirements under (4) and (5) of this subsection are 19 economically unreasonable, describes how the gravel or other aggregate material will 20 be used in order to prevent asbestos from becoming airborne or otherwise transferred 21 outside of the project area, including how the gravel or other aggregate material will 22 be used in order to prevent asbestos from becoming airborne because of vehicle 23 traffic, road maintenance, or grading, if applicable. 24 (b) To qualify for and preserve the immunity provided under AS 25 09.65.245(a)(2), the department, in its operating procedures applicable to a project that 26 is a transportation facility, including a public highway, airport, or pipeline or railroad 27 track bed, or a public work, as that term is defined in AS 35.95.100, and for which the 28 contractor intends to use, within an area designated by the department under AS 29 44.42.400(b) or (c), gravel or other aggregate material that, when tested using a bulk 30 testing method prescribed by the department in regulation, is determined to have a 31 content equal to or greater than 0.25 percent of naturally occurring asbestos by mass,
01 shall require that 02 (1) the contractor submit a plan that details the use of gravel or other 03 aggregate material in the construction or maintenance of the transportation project or 04 public facility in accordance with the requirements of (a) of this section and 05 regulations developed under AS 44.42.420; 06 (2) before the extraction of the gravel or aggregate material containing 07 naturally occurring asbestos may begin, the plan be approved and returned to the 08 contractor by the department; 09 (3) the contractor adhere to the monitoring, mitigation, and site- 10 specific use plans. 11 (c) The department shall review each submitted site-specific use plan and shall 12 work toward approving or disapproving the plan, taking into consideration the 13 construction season in the project location. 14 (d) The department may not approve a plan for construction with gravel or 15 other aggregate material determined to have a content equal to or greater than 0.25 16 percent of naturally occurring asbestos by mass unless 17 (1) the department determines that it is economically unreasonable to 18 undertake the construction project with gravel or other aggregate material free from 19 naturally occurring asbestos; and 20 (2) the completed project will not use gravel or other aggregate 21 material containing naturally occurring asbestos for a surface application except if the 22 material to be used for the surface application is treated or bound with a surface 23 compound, including chip seal or asphalt, approved by the department. 24 (e) On receiving a plan that meets the requirements of (a) and (d) of this 25 section and the regulations adopted under AS 44.42.420, the department, in 26 consultation with the Department of Environmental Conservation, the Department of 27 Health and Social Services, the Department of Natural Resources, the Department of 28 Law, and the Department of Labor and Workforce Development, shall develop a 29 monitoring and mitigation plan for the project. If the site-specific use plan is approved, 30 the monitoring and mitigation plan developed by the department shall be attached to 31 the site-specific use plan. To qualify for the immunity provided in AS 09.65.245(a)(2),
01 the party that has direct control over or responsibility for the monitoring or mitigation 02 shall comply with the monitoring or mitigation plan developed by the department. 03 (f) On approval of a site-specific use plan, the department 04 (1) shall provide to the contractor a copy of the approved site-specific 05 use plan that includes 06 (A) the monitoring and mitigation plan developed under (e) of 07 this section; 08 (B) a requirement that all asbestos-related data collected by the 09 contractor during or after construction be submitted to the department; and 10 (C) recommended methods for reducing exposure to airborne 11 asbestos fibers; 12 (2) shall provide a copy of the site-specific use plan, including the 13 monitoring and mitigation plan, to the mayor or manager of a municipality affected by 14 the use of gravel or other aggregate material containing asbestos; and 15 (3) may provide to the contractor copies of the United States 16 Occupational Safety and Health Administration, United States Mine Safety and Health 17 Administration, and United States Environmental Protection Agency recommended 18 practices for handling and use of gravel or other aggregate material containing 19 naturally occurring asbestos. 20 (g) Within 60 days after completing a project in accordance with a site- 21 specific plan approved by the department, the contractor shall record in the recording 22 district where the property is located a document that includes a description of the 23 affected property, a reference to the most recent recorded conveyance of that property, 24 and a notice indicating the presence of naturally occurring asbestos, and stating that 25 subsequent interest holders may have legal obligations with respect to preventing the 26 naturally occurring asbestos from becoming airborne or otherwise transferred outside 27 of the project area. The contractor shall provide written notification to the department 28 and the landowner that the document has been recorded. 29 (h) The contractor shall submit to the department the results of any monitoring 30 or testing performed in accordance with the site-specific use plan and any mitigation 31 measures undertaken.
01 Sec. 44.42.420. Regulations. (a) The department, after consultation with the 02 Department of Environmental Conservation, the Department of Health and Social 03 Services, the Department of Natural Resources, the Department of Law, and the 04 Department of Labor and Workforce Development, shall prescribe in regulation a bulk 05 testing method for gravel or other aggregate material containing naturally occurring 06 asbestos. 07 (b) The department, after consultation with the Department of Environmental 08 Conservation, the Department of Health and Social Services, the Department of 09 Natural Resources, the Department of Law, and the Department of Labor and 10 Workforce Development, may adopt regulations under AS 44.62 (Administrative 11 Procedure Act) to implement AS 44.42.400 - 44.42.430, including regulations revising 12 statewide standards on the use in the construction and maintenance of transportation 13 projects and public facilities of gravel or aggregate material that, when tested using a 14 bulk test method prescribed by the department by regulation, is determined to have a 15 content equal to or greater than 0.25 percent of naturally occurring asbestos by mass. 16 The regulations adopted under this subsection must include 17 (1) procedures for completing site investigations and characterizations 18 of proposed projects, including the development and description of appropriate 19 laboratory practices; 20 (2) procedures for reviewing design alternatives and preparing and 21 evaluating appropriate comparative cost analyses that consider the use of gravel or 22 other aggregate material that does not contain naturally occurring asbestos; 23 (3) procedures for evaluating human health concerns arising out of 24 gravel or other aggregate material that contains naturally occurring asbestos and 25 documentation of methods and means to be used during periods of handling of the 26 gravel or other aggregate material to ensure compliance with appropriate workplace 27 safety and air quality standards relating to the project and to ensure the health and 28 safety of communities affected by construction projects that use gravel or other 29 aggregate material containing naturally occurring asbestos; 30 (4) procedures for preparing designs and design specifications for 31 facilities involving use of gravel or other aggregate material that contains naturally
01 occurring asbestos; 02 (5) procedures for outlining construction operation and maintenance 03 practices that are required and those that are minimally acceptable to meet 04 requirements of law applicable to the handling of compounds that contain asbestos; 05 (6) procedures for processing, reviewing, and approving or 06 disapproving site-specific use plans and area designation requests received under AS 07 44.42.400(b) in a uniform manner; 08 (7) guidelines to analyze the cost of a project; 09 (8) guidelines for determining whether the cost associated with the use 10 of gravel or other aggregate material free from naturally occurring asbestos under AS 11 44.42.410(d) is economically unreasonable; 12 (9) guidelines for determining whether the cost associated with 13 burying or sealing gravel or other aggregate material containing naturally occurring 14 asbestos under AS 44.42.410(a)(2) and (3) is economically unreasonable; 15 (10) guidelines for establishing areas designated under AS 16 44.42.400(b) or (c) that take into account the effect on human health in and around the 17 designated area and environmental factors affecting the transfer of asbestos fibers 18 within and outside of a designated area. 19 Sec. 44.42.430. Definitions. In AS 44.42.400 - 44.42.430, 20 (1) "contractor" means the principal construction contractor, or in 21 absence of an identified principal construction contractor, the person having legal 22 authority for the design and construction of the project; 23 (2) "naturally occurring asbestos" means chrysotile, amosite, 24 crocidolite, fibrous tremolite, fibrous anthophyllite, and fibrous actinolite asbestos- 25 containing material that has not been processed in an asbestos mill and that, when 26 tested using a bulk method prescribed by the Department of Transportation and Public 27 Facilities by regulation, is determined to have a content equal to or greater than 0.25 28 percent naturally occurring asbestos by mass. 29 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 INTERIM PROJECT AUTHORIZATION. (a) Notwithstanding AS 44.42.400(a) and
01 (b), added by sec. 3 of this Act, the Department of Transportation and Public Facilities may, 02 on a temporary basis, designate a limited number of areas in the state in which certain 03 landowners and contractors are granted immunity under AS 09.65.245(a) for causing 04 asbestos-related injuries where an inability to complete construction projects has been 05 demonstrated because of lack of gravel or other aggregate material free from naturally 06 occurring asbestos. After designating an area on a temporary basis, the department shall 07 notify, including through signage, potentially affected persons that the area has been 08 designated as an area in which immunity may be granted under AS 09.65.245(a) for certain 09 landowners and contractors causing asbestos-related injuries. Notwithstanding AS 18.31.250, 10 added by sec. 2 of this Act, the Department of Transportation and Public Facilities may 11 approve a limited number of appropriate construction projects until the development and 12 implementation of initial standards under AS 44.42.420 and the administrative requirements 13 of AS 44.42.400, added by sec. 3 of this Act, for projects not subject to AS 44.42.410(b), if, 14 under (b) of this section, the Department of Transportation and Public Facilities prepares and 15 adopts interim standards and requires its contractors to prepare site-specific plans for the use 16 of gravel or other aggregate material that, when tested using the bulk method prescribed in 17 sec. 5 of this Act, is determined to have a content equal to or greater than 0.25 percent 18 naturally occurring asbestos by mass in transportation projects and public facilities. The 19 department shall apply the standards developed under (b) of this section to a person described 20 in AS 18.31.250 for a project that is not subject to AS 44.42.410(b). 21 (b) Notwithstanding AS 44.42.400(a) and (b), added by sec. 3 of this Act, the 22 Department of Transportation and Public Facilities may, on a temporary basis, designate a 23 limited number of areas in the state in which certain landowners and contractors are granted 24 immunity under AS 09.65.245(a) for causing asbestos-related injuries where an inability to 25 complete construction projects has been demonstrated because of lack of gravel or other 26 aggregate material free from naturally occurring asbestos. After designating an area on a 27 temporary basis, the department shall notify, including through signage, potentially affected 28 persons that the area has been designated as an area where immunity may be granted under 29 AS 09.65.245(a) for certain landowners and contractors causing asbestos-related injuries. 30 Notwithstanding AS 44.42.410(b), added by sec. 3 of this Act, the Department of 31 Transportation and Public Facilities may approve a limited number of appropriate
01 transportation projects and public facilities until the development and implementation of 02 initial standards under AS 44.42.420 and the administrative requirements of AS 44.42.400, 03 after consultation with the Department of Environmental Conservation, the Department of 04 Health and Social Services, the Department of Labor and Workforce Development, and 05 appropriate federal agencies. The Department of Transportation and Public Facilities may 06 prepare and adopt interim standards and operating procedures and may require of its 07 contractors the preparation of site-specific plans for the use of gravel or other aggregate 08 material that when tested using the bulk method prescribed in sec. 5 of this Act, is determined 09 to have a content equal to or greater than 0.25 percent naturally occurring asbestos by mass. 10 (c) The authority granted by (a) and (b) of this section expires December 31, 2013. 11 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 12 read: 13 INTERIM STANDARDS FOR APPLICATION OF ASBESTOS BULK TESTING. 14 Until the Department of Transportation and Public Facilities adopts and prescribes a method 15 of bulk testing under AS 44.42.420(a), added by sec. 3 of this Act, the department shall use 16 California Air Resources Board Method 435, Determination of Asbestos Content of 17 Serpentine Aggregate, adopted on June 6, 1991, as that standard has effect on the effective 18 date of this Act, as the basis for determining the asbestos content of a bulk sample or for 19 interim use as authorized by sec. 4 of this Act. 20 * Sec. 6. This Act takes effect immediately under AS 01.10.070(c).