CSSB 180(JUD): "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 certain 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 reporting of certain asbestos-related data to the Department of Transportation and Public Facilities; and providing for an effective date."
00 CS FOR SENATE BILL NO. 180(JUD) 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 certain landowners, extractors, 07 suppliers, transporters, and contractors for certain actions or claims arising in 08 connection with the use of gravel or aggregate material containing naturally occurring 09 asbestos in certain areas; requiring reporting of certain asbestos-related data to the 10 Department of Transportation and Public Facilities; and providing for an effective 11 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) Except as provided in (b) of this section, a civil action or claim for 05 damages or costs alleging a death, injury, illness, disability, property damage, or any 06 other damages resulting from the use of gravel or other aggregate material that 07 contains naturally occurring asbestos may not be brought against a defendant 08 (1) based on the ownership of land within an area designated by the 09 Department of Transportation and Public Facilities under AS 44.42.400(b) or (c) from 10 which gravel or other aggregate material is extracted that, when tested using a bulk 11 method prescribed by the Department of Transportation and Public Facilities by 12 regulation, is determined to have a content equal to or greater than 0.25 percent 13 naturally occurring asbestos by mass; or 14 (2) for an act or omission occurring in the course of extracting, 15 supplying, transporting, or using gravel or other aggregate material containing 16 naturally occurring asbestos within an area designated by the Department of 17 Transportation and Public Facilities under AS 44.42.400(b) or (c) when the act or 18 omission was in compliance with the requirements of AS 18.31.250, AS 44.42.410(a) 19 and (d), and applicable regulations developed under AS 44.42.420. 20 (b) The immunity provided by this section does not apply to the state, but the 21 immunity does apply to a state employee acting within the scope of employment or by 22 a contractor employed by the state acting within the scope of the contract. 23 (c) In this section, "naturally occurring asbestos" has the meaning given in 24 AS 44.42.430. 25 * Sec. 2. AS 18.31 is amended by adding new sections to read: 26 Article 2A. Naturally occurring asbestos. 27 Sec. 18.31.250. Use of materials containing naturally occurring asbestos. 28 (a) A principal construction contractor or, in the absence of an identified principal 29 construction contractor, person having legal authority for the design and construction 30 of a project may qualify for immunity in a civil action under AS 09.65.245(a)(2) for 31 the use of gravel or other aggregate material that, when tested using a bulk test method
01 prescribed by the Department of Transportation and Public Facilities by regulation, is 02 determined to have a content equal to or greater than 0.25 percent of naturally 03 occurring asbestos by mass. 04 (b) To qualify for the immunity provided under AS 09.65.245(a)(2), before 05 initiating a construction project not subject to AS 44.42.410(b) that is within an area 06 designated by the Department of Transportation and Public Facilities under 07 AS 44.42.400(b) or (c) and that will use gravel or other aggregate material that 08 contains naturally occurring asbestos, the principal construction contractor or, in the 09 absence of an identified principal construction contractor, the person having legal 10 authority for the design and construction of the project, shall prepare and submit to the 11 Department of Transportation and Public Facilities specific project plans 12 demonstrating compliance with the standards adopted by the department under 13 AS 44.42.420 and the requirements of the site-specific use plan under AS 44.42.410. 14 Before extraction of gravel or other aggregate material may begin, the plan must be 15 approved and returned to the contractor by the department. 16 (c) To preserve the immunity provided under AS 09.65.245(a)(2), the 17 principal construction contractor or, in the absence of an identified principal 18 construction contractor, the person having legal authority for the design and 19 construction of the project, shall adhere to the site-specific use plan approved by the 20 department and the monitoring and mitigation plan created by the department. 21 Sec. 18.31.260. Presence of naturally occurring asbestos. The state shall 22 consider 0.25 percent by mass, the minimum detectable amount of asbestos under the 23 California Air Resources Board Method 435, as the baseline for the presence of 24 naturally occurring asbestos in gravel or other aggregate material. 25 * Sec. 3. AS 44.42 is amended by adding new sections to read: 26 Article 3A. Use of Materials Containing Naturally Occurring Asbestos. 27 Sec. 44.42.400. Administration and designated use areas. (a) The 28 department shall designate a single employee who reports to the commissioner to 29 oversee the duties assigned to the department in AS 44.42.400 - 44.42.430 and to 30 serve as the point of contact for inquiries related to projects using gravel or other 31 aggregate material containing naturally occurring asbestos.
01 (b) An area that includes land within a municipality or community may be 02 designated by the department as an area in which certain landowners and contractors 03 are granted immunity under AS 09.65.245(a) for causing asbestos-related injuries only 04 if the municipality or community requests that designation. A municipality or 05 community may request to become an area designated by the department under this 06 subsection by submitting an application to the department. The department may 07 approve an application received under this subsection only after reviewing tests 08 documenting the presence of naturally occurring asbestos in that area, analyzing the 09 effect of the presence of naturally occurring asbestos on construction projects in the 10 area, considering the availability of gravel or other aggregate material free from 11 naturally occurring asbestos in the area, and soliciting public input from residents in 12 the affected municipality or community. The department may require a municipality 13 or community that applies to become a designated area to provide the department with 14 tests documenting the presence of naturally occurring asbestos, information related to 15 the effect of the presence of naturally occurring asbestos on construction projects in 16 the area, information related to availability of gravel or other aggregate material free 17 from naturally occurring asbestos, and other information relevant to the application. 18 After designating an area after approval of an application under this subsection, the 19 department shall notify, including through signage, potentially affected persons that 20 the area has been designated as an area where immunity may be granted under 21 AS 09.65.245(a) for certain landowners and contractors causing asbestos-related 22 injuries. 23 (c) In places that do not include a municipality or community, the department 24 may designate an area in which certain landowners and contractors are granted 25 immunity under AS 09.65.245(a) for causing asbestos-related injuries. Before 26 designating an area under this subsection, the department shall document the presence 27 of naturally occurring asbestos in that area, analyze the effect of the presence of 28 naturally occurring asbestos on construction projects in the area, consider the 29 availability of gravel or other aggregate material free from naturally occurring 30 asbestos in the area, and solicit public input from potentially affected persons. After 31 designating an area under this subsection, the department shall notify, including
01 through signage, potentially affected persons that the area has been designated as an 02 area where immunity may be granted under AS 09.65.245(a) for certain landowners 03 and contractors causing asbestos-related injuries. 04 (d) In this section, "community" means a place in the unorganized borough, in 05 a borough, or in a unified municipality that is not incorporated as a municipality, that 06 is not a reserve, and in which 25 or more individuals reside as a social unit. 07 Sec. 44.42.410. Site-specific use plan. (a) To qualify for the immunity 08 provided under AS 09.65.245(a)(2), a contractor intending to use, within an area 09 designated by the department under AS 44.42.400(b) or (c), gravel or other aggregate 10 material that, when tested using a bulk test method prescribed by the department in 11 regulation, is determined to have a content equal to or greater than 0.25 percent of 12 naturally occurring asbestos by mass, shall, after consulting with the owner of the land 13 on which the gravel or other aggregate material containing naturally occurring 14 asbestos will be placed, submit a site-specific use plan to the department that 15 (1) describes the manner in which the proposed use of gravel or other 16 aggregate material that contains naturally occurring asbestos conforms to the standards 17 adopted under AS 44.42.420(b); 18 (2) demonstrates how the proposed construction operation and 19 maintenance practices comply with those that are required and those that are 20 minimally acceptable, as described in AS 44.42.420(b)(5), and otherwise meet 21 requirements of law applicable to the handling of compounds that contain asbestos; 22 (3) outlines the efforts that will be made, as a component of long-term 23 maintenance on the completed project or facility, to ensure that human health and air 24 quality are not compromised by the use of the gravel or other aggregate material that 25 contains naturally occurring asbestos; 26 (4) describes how the gravel or other aggregate material to be used can 27 be contained underneath the project or buried so that asbestos fibers cannot become 28 airborne or otherwise transferred outside of the project area, except as provided in (5) 29 and (6) of this subsection; 30 (5) if the requirements in (4) of this subsection are economically 31 unreasonable, describes how the gravel or other aggregate material to be used will be
01 sealed, including chip sealing or mixing with asphalt, in order to prevent asbestos 02 fibers from becoming airborne or otherwise transferred outside of the project area, 03 except as provided in (6) of this subsection; and 04 (6) if the requirements under (4) and (5) of this subsection are 05 economically unreasonable, describes how the gravel or other aggregate material will 06 be used in order to prevent asbestos from becoming airborne or otherwise transferred 07 outside of the project area, including how the gravel or other aggregate material will 08 be used in order to prevent asbestos from becoming airborne because of vehicle 09 traffic, road maintenance, or grading, if applicable. 10 (b) For a project that is a transportation facility, including a public highway, 11 airport, or pipeline or railroad track bed, or a public work, as that term is defined in 12 AS 35.95.100, for which the department is the principal construction contractor, and 13 for which the department intends to use, within an area designated by the department 14 under AS 44.42.400(b) or (c), gravel or other aggregate material that, when tested 15 using a bulk testing method prescribed by the department in regulation, is determined 16 to have a content equal to or greater than 0.25 percent of naturally occurring asbestos 17 by mass, the department shall develop a site-specific use plan that details the use of 18 gravel or other aggregate material in the construction or maintenance of the 19 transportation project or public facility in accordance with the requirements of (a) of 20 this section and regulations developed under AS 44.42.420. The department may not 21 begin extraction of the gravel or aggregate material containing naturally occurring 22 asbestos until the site-specific use plan is approved and the monitoring and mitigation 23 plan is completed by the department. The department shall adhere to the site-specific 24 use and monitoring and mitigation plans. 25 (c) The department shall review each site-specific use plan and shall work 26 toward approving or disapproving the plan, taking into consideration the construction 27 season in the project location. 28 (d) The department may not approve a plan for construction with gravel or 29 other aggregate material determined to have a content equal to or greater than 0.25 30 percent of naturally occurring asbestos by mass unless 31 (1) the department determines that it is economically unreasonable to
01 undertake the construction project with gravel or other aggregate material free from 02 naturally occurring asbestos; and 03 (2) the completed project will not use gravel or other aggregate 04 material containing naturally occurring asbestos for a surface application. 05 (e) On developing or receiving a site-specific use plan that meets the 06 requirements of (a) and (d) of this section and the regulations adopted under 07 AS 44.42.420, the department, in 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, shall develop a monitoring and mitigation plan for the 11 project. If the site-specific use plan is approved, the monitoring and mitigation plan 12 developed by the department shall be attached to the site-specific use plan. To qualify 13 for the immunity provided in AS 09.65.245(a)(2), the person that has direct control 14 over or responsibility for the monitoring or mitigation shall comply with the 15 monitoring or mitigation plan developed by the department. 16 (f) On approval of a site-specific use plan, the department 17 (1) shall provide to the contractor a copy of the approved site-specific 18 use plan that includes 19 (A) the monitoring and mitigation plan developed under (e) of 20 this section; 21 (B) a requirement that all asbestos-related data collected by the 22 contractor during or after construction be submitted to the department; and 23 (C) recommended methods for reducing exposure to airborne 24 asbestos fibers; 25 (2) shall provide a copy of the site-specific use plan, including the 26 monitoring and mitigation plan, to the mayor or manager of a municipality affected by 27 the use of gravel or other aggregate material containing asbestos; and 28 (3) may provide to the contractor copies of the United States 29 Occupational Safety and Health Administration, United States Mine Safety and Health 30 Administration, and United States Environmental Protection Agency recommended 31 practices for handling and use of gravel or other aggregate material containing
01 naturally occurring asbestos. 02 (g) Within 60 days after completing a project in accordance with a site- 03 specific plan approved by the department, the person responsible for compliance with 04 the site-specific use plan shall record in the recording district where the property is 05 located a document that includes a description of the affected property, a reference to 06 the most recent recorded conveyance of that property, and a notice indicating the 07 presence of naturally occurring asbestos, and stating that subsequent interest holders 08 may have legal obligations with respect to preventing the naturally occurring asbestos 09 from becoming airborne or otherwise transferred outside of the project area. The 10 person that records a document required under this section shall provide written 11 notification to the department and the landowner that the document has been recorded. 12 (h) The person responsible for compliance with the site-specific use plan shall 13 submit to the department the results of any monitoring or testing performed in 14 accordance with the site-specific use plan and any mitigation measures undertaken. 15 Sec. 44.42.420. Regulations. (a) The department, after consultation with the 16 Department of Environmental Conservation, the Department of Health and Social 17 Services, the Department of Natural Resources, the Department of Law, and the 18 Department of Labor and Workforce Development, shall prescribe in regulation a bulk 19 testing method for gravel or other aggregate material containing naturally occurring 20 asbestos. 21 (b) The department, after consultation with the Department of Environmental 22 Conservation, the Department of Health and Social Services, the Department of 23 Natural Resources, the Department of Law, and the Department of Labor and 24 Workforce Development, may adopt regulations under AS 44.62 (Administrative 25 Procedure Act) to implement AS 44.42.400 - 44.42.430, including regulations revising 26 statewide standards on the use in the construction and maintenance of transportation 27 projects and public facilities of gravel or aggregate material that, when tested using a 28 bulk test method prescribed by the department by regulation, is determined to have a 29 content equal to or greater than 0.25 percent of naturally occurring asbestos by mass. 30 The regulations adopted under this subsection must include 31 (1) procedures for completing site investigations and characterizations
01 of proposed projects, including the development and description of appropriate 02 laboratory practices; 03 (2) procedures for reviewing design alternatives and preparing and 04 evaluating appropriate comparative cost analyses that consider the use of gravel or 05 other aggregate material that does not contain naturally occurring asbestos; 06 (3) procedures for evaluating human health concerns arising out of 07 gravel or other aggregate material that contains naturally occurring asbestos and 08 documentation of methods and means to be used during periods of handling of the 09 gravel or other aggregate material to ensure compliance with appropriate workplace 10 safety and air quality standards relating to the project and to ensure the health and 11 safety of communities affected by construction projects that use gravel or other 12 aggregate material containing naturally occurring asbestos; 13 (4) procedures for preparing designs and design specifications for 14 facilities involving use of gravel or other aggregate material that contains naturally 15 occurring asbestos; 16 (5) procedures for outlining construction operation and maintenance 17 practices that are required and those that are minimally acceptable to meet 18 requirements of law applicable to the handling of compounds that contain asbestos; 19 (6) procedures for processing, reviewing, and approving or 20 disapproving site-specific use plans and area designation requests received under 21 AS 44.42.400(b) in a uniform manner; 22 (7) guidelines to analyze the cost of a project; 23 (8) guidelines for determining whether the cost associated with the use 24 of gravel or other aggregate material free from naturally occurring asbestos under 25 AS 44.42.410(d) is economically unreasonable; 26 (9) guidelines for determining whether the cost associated with 27 burying or sealing gravel or other aggregate material containing naturally occurring 28 asbestos under AS 44.42.410(a)(2) and (3) is economically unreasonable; 29 (10) guidelines for establishing areas designated under 30 AS 44.42.400(b) or (c) that take into account the effect on human health in and around 31 the designated area and environmental factors affecting the transfer of asbestos fibers
01 within and outside of a designated area. 02 Sec. 44.42.430. Definitions. In AS 44.42.400 - 44.42.430, 03 (1) "contractor" means the principal construction contractor, or in 04 absence of an identified principal construction contractor, the person having legal 05 authority for the design and construction of the project and includes the department; 06 (2) "naturally occurring asbestos" means chrysotile, amosite, 07 crocidolite, fibrous tremolite, fibrous anthophyllite, and fibrous actinolite asbestos- 08 containing material that has not been processed in an asbestos mill and that, when 09 tested using a bulk method prescribed by the Department of Transportation and Public 10 Facilities by regulation, is determined to have a content equal to or greater than 0.25 11 percent naturally occurring asbestos by mass. 12 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 13 read: 14 INTERIM PROJECT AUTHORIZATION. (a) Notwithstanding AS 44.42.400(a) and 15 (b), added by sec. 2 of this Act, the Department of Transportation and Public Facilities may, 16 on a temporary basis, designate a limited number of areas in the state in which certain 17 landowners and contractors are granted immunity under AS 09.65.245(a) for causing 18 asbestos-related injuries where an inability to complete construction projects has been 19 demonstrated because of lack of gravel or other aggregate material free from naturally 20 occurring asbestos. After designating an area on a temporary basis, the department shall 21 notify, including through signage, potentially affected persons that the area has been 22 designated as an area in which immunity may be granted under AS 09.65.245(a) for certain 23 landowners and contractors causing asbestos-related injuries. Notwithstanding AS 18.31.250, 24 added by sec. 2 of this Act, the Department of Transportation and Public Facilities may 25 approve a limited number of appropriate construction projects until the development and 26 implementation of initial standards under AS 44.42.420, added by sec. 3 of this Act, for 27 projects not subject to AS 44.42.410(b), if, under (b) of this section, the Department of 28 Transportation and Public Facilities prepares and adopts interim standards and requires its 29 contractors to prepare site-specific plans for the use of gravel or other aggregate material that, 30 when tested using the bulk method prescribed in sec. 5 of this Act, is determined to have a 31 content equal to or greater than 0.25 percent naturally occurring asbestos by mass in
01 transportation projects and public facilities. The department shall apply the standards 02 developed under (b) of this section to a person described in AS 18.31.250 for a project that is 03 not subject to AS 44.42.410(b). 04 (b) Notwithstanding AS 44.42.400(a) and (b), added by sec. 2 of this Act, the 05 Department of Transportation and Public Facilities may, on a temporary basis, designate a 06 limited number of areas in the state in which certain landowners and contractors are granted 07 immunity under AS 09.65.245(a) for causing asbestos-related injuries where an inability to 08 complete construction projects has been demonstrated because of lack of gravel or other 09 aggregate material free from naturally occurring asbestos. After designating an area on a 10 temporary basis, the department shall notify, including through signage, potentially affected 11 persons that the area has been designated as an area where immunity may be granted under 12 AS 09.65.245(a) for certain landowners and contractors causing asbestos-related injuries. 13 Notwithstanding AS 44.42.410(b), added by sec. 3 of this Act, the Department of 14 Transportation and Public Facilities may approve a limited number of appropriate 15 transportation projects and public facilities until the development and implementation of 16 initial standards under AS 44.42.420, added by sec. 3 of this Act, after consultation with the 17 Department of Environmental Conservation, the Department of Health and Social Services, 18 the Department of Labor and Workforce Development, and appropriate federal agencies. The 19 Department of Transportation and Public Facilities may prepare and adopt interim standards 20 and operating procedures and may require of its contractors the preparation of site-specific 21 plans for the use of gravel or other aggregate material that when tested using the bulk method 22 prescribed in sec. 5 of this Act, is determined to have a content equal to or greater than 0.25 23 percent naturally occurring asbestos by mass. 24 (c) The authority granted by (a) and (b) of this section expires December 31, 2013. 25 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 INTERIM STANDARDS FOR APPLICATION OF ASBESTOS BULK TESTING. 28 Until the Department of Transportation and Public Facilities adopts and prescribes a method 29 of bulk testing under AS 44.42.420(a), added by sec. 3 of this Act, the department shall use 30 California Air Resources Board Method 435, Determination of Asbestos Content of 31 Serpentine Aggregate, adopted on June 6, 1991, as that standard has effect on the effective
01 date of this Act, as the basis for determining the asbestos content of a bulk sample or for 02 interim use as authorized by sec. 4 of this Act. 03 * Sec. 6. This Act takes effect immediately under AS 01.10.070(c).