Legislature(2011 - 2012)HOUSE FINANCE 519

03/28/2012 01:30 PM FINANCE

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01:37:56 PM Start
01:38:36 PM State Board of Education Discussion
02:34:52 PM Presentation: Alaska Policy Forum
03:13:48 PM HB258
04:08:29 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Discussion with the Chair of the State Board of TELECONFERENCED
+ Presentation: Alaska Policy Forum TELECONFERENCED
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 258(FIN) Out of Committee
HOUSE BILL NO. 258                                                                                                            
     "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 a  limited amount                                                                    
     of  naturally occurring  asbestos, and  authorizing use                                                                    
     on  an interim  basis  of those  materials for  certain                                                                    
     transportation   projects    and   public   facilities;                                                                    
     relating  to  certain  claims  arising  out  of  or  in                                                                    
     connection  with   the  use  of  gravel   or  aggregate                                                                    
     materials  containing  a  limited amount  of  naturally                                                                    
     occurring  asbestos;  and  providing for  an  effective                                                                    
3:13:48 PM                                                                                                                    
BRODIE  ANDERSON, STAFF,  REPRESENTATIVE  REGGIE JOULE,  had                                                                    
previously  discussed  changes  appearing in  the  committee                                                                    
substitute (CS) for  HB 258. He noted that  new fiscal notes                                                                    
had  been disseminated  to member  packets. The  sponsor had                                                                    
worked  closely  with  all  involved  departments  including                                                                    
Department  of Transportation  and Public  Facilities (DOT),                                                                    
Department of  Environmental Conservation  (DEC), Department                                                                    
of Law (DOL), Department  of Labor and Workforce Development                                                                    
(DLWD), and other.                                                                                                              
Co-Chair  Stoltze   asked  whether   members  had   all  the                                                                    
amendments pertaining to the legislation.  He asked staff to                                                                    
compile a  packet of amendments  to distribute  to committee                                                                    
members. He believed there were three amendments.                                                                               
Mr. Anderson  discussed that the  collaborative work  on the                                                                    
bill had  been a success.  The fiscal notes had  evolved and                                                                    
reflected changes in the legislation.                                                                                           
Co-Chair  Stoltze noted  that representatives  from multiple                                                                    
departments and Nana Regional  Corporation were available to                                                                    
3:16:50 PM                                                                                                                    
Representative  Gara relayed  that his  preference would  be                                                                    
that non-asbestos  containing alternatives would be  used if                                                                    
available.  He pointed  to language  on pages  6 and  7 that                                                                    
specified  the item  would  be considered,  but  it was  not                                                                    
mandatory that  non-asbestos material was used.  He believed                                                                    
another part of  the bill made the item  mandatory and asked                                                                    
for an explanation.                                                                                                             
Mr. Anderson replied  that the designation of  use of gravel                                                                    
versus naturally  occurring asbestos (NOA) gravel  was found                                                                    
in  the  site-specific use  plan  (pages  7 through  9).  He                                                                    
explained  that the  section established  stages  of how  to                                                                    
approach the issue.  He referred to the  flow chart included                                                                    
in members' packets  (copy on file). He  elaborated that the                                                                    
use   of  non-NOA   material  was   required  when   it  was                                                                    
economically reasonable.                                                                                                        
Representative Gara  noted that  the new language  took care                                                                    
of one of  his concerns. He believed the  sponsor had worked                                                                    
to  address  the concept  of  another  of his  concerns.  He                                                                    
elaborated that  there were three  villages where  there was                                                                    
known NOA  that may need  to be used  due to the  absence of                                                                    
any other viable options. He  believed there should be signs                                                                    
posted to  inform residents  of potential  airborne asbestos                                                                    
containing materials in the area;  Amendment 2 addressed the                                                                    
issue. He  wondered whether  the posting  of signs  had been                                                                    
addressed in the bill.                                                                                                          
Mr.  Anderson   replied  that  Roger  Healy   from  DOT  was                                                                    
available to discuss signage  and notification. He furthered                                                                    
that  the bill  included the  requirements to  provide ample                                                                    
notification of the NOA zones.                                                                                                  
3:20:57 PM                                                                                                                    
Representative Gara  clarified that  he wanted to  make sure                                                                    
that people  were made aware  of the  NOA use so  they could                                                                    
notify the government if  there were alternatives available.                                                                    
He  also wanted  people to  be informed  of the  work taking                                                                    
place so  they could  choose to  wear a  mask or  take other                                                                    
Mr. Anderson  pointed to page  11, lines 17 through  23. The                                                                    
bill had been expanded  from the language "workplace safety"                                                                    
to read "and  air quality standards relating  to the project                                                                    
and to ensure the health  and safety of communities affected                                                                    
by construction projects that use  gravel or other aggregate                                                                    
material  containing  naturally   occurring  asbestos."  The                                                                    
language did  not directly address the  notification, but it                                                                    
did  expand  the  requirements to  workplace  and  community                                                                    
ROGER  HEALY, CHIEF  ENGINEER, DEPARTMENT  OF TRANSPORTATION                                                                    
AND  PUBLIC  FACILITIES,  replied that  public  notification                                                                    
took  on  several  different  forms  from  the  department's                                                                    
perspective. One  issue was related to  workplace safety and                                                                    
workers during  construction; another aspect related  to the                                                                    
public during and after construction  and how materials were                                                                    
contained.  He believed  the intent  of Amendment  2 was  to                                                                    
ensure  that  some form  of  public  and potentially  future                                                                    
worker  notification existed.  He  recommended that  details                                                                    
should  get  ironed  out  in  the  regulation  process.  The                                                                    
department was  under obligation  in workplace safety  to do                                                                    
Material    Safety   Data    Sheets   and    other   similar                                                                    
notifications. He reiterated his  recommendation to work out                                                                    
the appropriate signage notification through regulation.                                                                        
Representative Gara agreed and did  not want to specify what                                                                    
the  sign should  look  like. He  was  also concerned  about                                                                    
residents in  areas where the  asbestos may be  airborne due                                                                    
to construction.  He wondered whether there  was anything in                                                                    
the  bill  that  required  the  department  to  provide  the                                                                    
notification  that would  be implemented  by regulation.  He                                                                    
stressed  that   he  wanted  the  issue   addressed  in  the                                                                    
Mr.  Healy  responded  that  there  was  a  requirement  for                                                                    
workplace  notification.   Additionally,  there   were  many                                                                    
requirements  for notifications  of hazards  to public  in a                                                                    
construction zone.  He detailed  that hazards  could include                                                                    
naturally  occurring  asbestos,  dust,  machinery,  etc.  He                                                                    
added that  the overall notification of  a construction zone                                                                    
and its potential hazards was broad.                                                                                            
Mr. Anderson pointed  to language included on  page 7 (lines                                                                    
2 through  4) related  to NOA  zone setup  requirements that                                                                    
read  "the  department  shall  notify  potentially  affected                                                                    
persons that the  area has been designated in  an area where                                                                    
immunity  may   be  granted  under  AS   09.65.245(a)."  The                                                                    
requirement  was  applicable  to the  zone  and  surrounding                                                                    
areas that may be impacted by airborne materials.                                                                               
3:27:17 PM                                                                                                                    
Vice-chair Fairclough pointed  to page 6, line  17 that read                                                                    
"for causing  asbestos related  injuries." She  wondered why                                                                    
the specific language  had been used. She  believed it could                                                                    
imply to  a litigant  or a worker  who contracted  a disease                                                                    
(that  may  be  related   to  exposure)  that  the  specific                                                                    
exposure was the cause of  the related illness. She wondered                                                                    
whether the meaning of the  language "was contributing to or                                                                    
causing"  or  if  it  was   acceptable  to  have  a  blanket                                                                    
statement recognizing  the connection  that a  contractor or                                                                    
community had  a liability if  they chose to mine  a certain                                                                    
area.  She  queried  why  the  specific  language  had  been                                                                    
Mr. Anderson replied  that the language had  been changed in                                                                    
a  prior  committee from  a  broader  statement of  asbestos                                                                    
injury. There  had been concern with  previous language that                                                                    
there was a chance that if  there was an accident related to                                                                    
faulty machinery  that the  company may be  able to  use the                                                                    
asbestos related injury claim  and therefore obtain immunity                                                                    
from responsibility of the accident.                                                                                            
EMILY  NAUMAN,  ATTORNEY,  LEGISLATIVE LEGAL  SERVICES  (via                                                                    
teleconference), added  that the language was  meant to link                                                                    
back to injuries  listed on page 4, line  4 including death,                                                                    
injury, illness,  disability, property damage, or  any other                                                                    
damages resulting from  the use of gravel  or other material                                                                    
that contained NOA.                                                                                                             
Vice-chair  Fairclough surmised  that the  "contributing to"                                                                    
was not an issue because the  language on page 6 referred to                                                                    
a list of specific items on  page 4. Ms. Nauman responded in                                                                    
the affirmative.                                                                                                                
Vice-chair   Fairclough   noted   that  the   reference   to                                                                    
California's  Air Resource  Board  Method  435 provided  her                                                                    
with some  comfort that  at least one  state was  working to                                                                    
access   aggregate   material   that   contained   naturally                                                                    
occurring  asbestos (page  6,  line 6).  She  looked at  the                                                                    
interim standards  for application of asbestos  bulk testing                                                                    
on  page  14,  which   used  the  California  standard.  She                                                                    
wondered  whether  the  state  would  continue  to  rely  on                                                                    
California language  or if the  term "interim"  implied that                                                                    
the standard would  change. She asked if  it was appropriate                                                                    
to include  the California  standard in  state statute  if a                                                                    
change was possible.                                                                                                            
3:32:30 PM                                                                                                                    
Mr. Anderson  answered that while Alaska  was developing its                                                                    
regulations the California standard  would be used. Once DOT                                                                    
had written the  regulations there would be  a discussion to                                                                    
determine  which  method  of testing  would  be  used  going                                                                    
forward. The  idea was  to avoid limiting  the state  to the                                                                    
California standards  and to  allow for  room to  expand. He                                                                    
explained  that California  had not  placed its  standard in                                                                    
statute; therefore, it had flexibility  and had been able to                                                                    
change the standard from 5 percent down to 0.25 percent.                                                                        
Vice-chair   Fairclough   explained  that   the   California                                                                    
reference  would be  embedded  in state  statute  if it  was                                                                    
included on page  6 of the legislation.  She elaborated that                                                                    
the bill did  discuss that DOT would  develop standards, but                                                                    
the legislation did not include  a section that would repeal                                                                    
the  California standard  once  Alaska's  own standards  had                                                                    
been established.                                                                                                               
Mr. Healy replied that one  of the points of identifying the                                                                    
California method  was because  of the detection  limit that                                                                    
offered the  analytical declination 0.25 percent  and below.                                                                    
The reference  on page  6 provided  the state  with guidance                                                                    
related to the detection limit and the level of asbestos.                                                                       
Vice-chair Fairclough  responded that she was  fine with the                                                                    
language and reiterated  that it would be  used throughout a                                                                    
statute.  She wondered  why a  maximum  amount of  naturally                                                                    
occurring   asbestos   had   not  been   included   in   the                                                                    
Mr.  Anderson responded  that the  largest concern  from DOL                                                                    
and DOT was the idea  that a number was arbitrarily selected                                                                    
that could  not be justified  through data or  other sources                                                                    
of information. He  furthered that it had  been difficult to                                                                    
establish an  analytical threshold  for the floor  based off                                                                    
of data  that could  be justified  if it  was ever  taken to                                                                    
court;  the same  was true  for a  maximum threshold,  given                                                                    
that a significant amount of data did not exist.                                                                                
Representative Gara communicated that  he wanted people near                                                                    
construction  zones  to  be   aware  of  potential  airborne                                                                    
asbestos.  He pointed  to  page  7, line  2  that read  "the                                                                    
department shall  notify potentially affected  persons" that                                                                    
there may  be airborne asbestos.  He wanted to  make certain                                                                    
that  notifications  were   decipherable.  He  believed  his                                                                    
Amendment  2 was  too complicated  and  wondered whether  it                                                                    
would  be feasible  to insert  the words  "including through                                                                    
signage" following "the department  shall notify" on page 7,                                                                    
line  2.  He  explained  that  the  language  would  provide                                                                    
departments with flexibility when  designing and posting the                                                                    
Representative Joule  asked DOT whether it  would post signs                                                                    
with  or  without  the insertion  of  the  words  "including                                                                    
through signage."                                                                                                               
Mr. Healy replied that he  did not believe signs were posted                                                                    
for  items  such  as  the exposure  of  diesel  fuel  during                                                                    
construction.  Under  current  statute DOT  would  not  post                                                                    
signs making  the public  aware if  the department  or other                                                                    
was using naturally  occurring asbestos in a  component of a                                                                    
construction  project. He  deferred  to  DEC for  additional                                                                    
detail. He  believed the best  way to notify the  public was                                                                    
project and site dependent in  many ways. He added that much                                                                    
of  the bill  and potential  regulations had  been patterned                                                                    
off of the California method; it  did not use signage of the                                                                    
sort mentioned.                                                                                                                 
Representative Joule surmised that  locals in the Ambler and                                                                    
Upper Kobuk areas were aware  of the issue and signage would                                                                    
probably  not be  necessary for  them; however,  he wondered                                                                    
how non-residents would know about  the issue. He thought it                                                                    
may not  be an issue for  locals because they would  just be                                                                    
happy to  have jobs. He  wondered whether the sign  would be                                                                    
beneficial for people  coming in from outside  the areas. He                                                                    
asked  how  the change  would  impact  the fiscal  note  and                                                                    
wondered whether  it would  need to  be brought  back before                                                                    
the committee.                                                                                                                  
Mr. Healy  replied that there  were two issues,  (1) whether                                                                    
signage should be posted presently  because of the naturally                                                                    
occurring asbestos that currently  existed in the Ambler and                                                                    
Upper  Kobuk areas  and (2)  should signage  be used  during                                                                    
construction and  operation of  projects. One  issue related                                                                    
to  new   projects  and  the   other  related   to  existing                                                                    
conditions.  The department  would need  to know  whether it                                                                    
was expected to  post signs under one  or both circumstances                                                                    
in order to determine the fiscal note impact.                                                                                   
3:44:43 PM                                                                                                                    
Representative Doogan  queried whether the  signage impacted                                                                    
the state's legal liability one way or the other.                                                                               
SARITHA     ANJILVEL,     ASSISTANT    ATTORNEY     GENERAL,                                                                    
TRANSPORTATION  SECTION, CIVIL  DIVISION, DEPARTMENT  OF LAW                                                                    
(via  teleconference),   addressed  whether   signage  would                                                                    
present  any legal  liability to  the  state. She  responded                                                                    
that under the bill's current  form it presented immunity to                                                                    
the   state  provided   that   regulations  were   followed;                                                                    
regulations would include site-specific  plans and notice of                                                                    
potentially  affected persons.  The  language  was vague  to                                                                    
allow   DOT  to   make  notice   requirements  in   its  own                                                                    
regulations.   She  reiterated   that   immunity  would   be                                                                    
preserved if DOT followed its own regulations.                                                                                  
Co-Chair Stoltze  concluded that  it would  pay off  to post                                                                    
signs. Ms.  Anjilvel responded that if  DOT regulations were                                                                    
structured to require the posting  of signs, the regulations                                                                    
would need to  be followed. The state had to  follow its own                                                                    
Co-Chair Stoltze  surmised that  DOT would be  posting signs                                                                    
with  or without  the additional  directive language  in the                                                                    
legislation. Ms. Anjilvel agreed.                                                                                               
3:47:45 PM                                                                                                                    
Representative Gara  relayed that  he may offer  Amendment 1                                                                    
on  the House  floor, but  would not  offer it  in committee                                                                    
(copy  on   file).  He  discussed  the   serious  nature  of                                                                    
asbestosis and mesothelioma. Asbestos  became a problem when                                                                    
it was airborne, not when  it was undisturbed. He understood                                                                    
the desire to limit the  liability of those involved because                                                                    
they were in  a difficult situation. Amendment  1 would have                                                                    
prohibited class  actions and punitive damages;  however, it                                                                    
would provide  people with compensatory  damages to  pay for                                                                    
health care  costs, lost wages,  or other basic  damages. He                                                                    
hoped  people   would  think  about  the   concept  and  any                                                                    
potential alternatives.                                                                                                         
3:50:09 PM                                                                                                                    
Representative Gara WITHDREW Amendment  2 (copy on file). He                                                                    
MOVED to Amend Amendment 3 to read:                                                                                             
     Page 6, line 19:                                                                                                           
     Insert "after at least 2 public hearings," after                                                                           
There being NO OBJECTION, Amendment 3 was AMENDED.                                                                              
Co-Chair Stoltze OBJECTED to Amendment 3.                                                                                       
Representative  Gara   explained  that  he   had  originally                                                                    
thought a public vote on the  use of the asbestos was a good                                                                    
idea; however, many  people believed that was  not the right                                                                    
way  to go.  Under  the current  legislation a  municipality                                                                    
could  opt  in,  but  that  did  not  necessarily  mean  the                                                                    
municipality would  work with the  public (notices  could be                                                                    
unclear  and difficult  to  understand).  Amendment 3  would                                                                    
require  at  least two  public  hearings  on the  issue.  He                                                                    
believed the communities  in Representative Joule's district                                                                    
had already gone through a public hearing process.                                                                              
Representative   Joule  responded   that  all   municipality                                                                    
meetings and agendas were  public. He thought municipalities                                                                    
went through several public hearings  on issues. He believed                                                                    
the  issue  was  already  accomplished,  but  asked  for  an                                                                    
opinion from DOT.                                                                                                               
Mr.  Healy   responded  that  the  current   public  meeting                                                                    
requirement would apply to DOT  and third-party projects. He                                                                    
furthered  that DOT  would require  two public  meetings for                                                                    
any project seeking  plan approval for the  use of naturally                                                                    
occurring  asbestos. The  requirement placed  the burden  on                                                                    
the department  to complete the  use in accordance  with the                                                                    
plan and to have two public meetings.                                                                                           
Co-Chair Stoltze asked  about the intent of  Amendment 3 and                                                                    
whether the  public meetings would  be held by  the locality                                                                    
or a state agency.                                                                                                              
Representative Gara  assumed that the public  hearings would                                                                    
be held by the municipality or community.                                                                                       
Co-Chair   Stoltze  noted   that  the   language  could   be                                                                    
interpreted  that  DOT  would be  required  to  hold  public                                                                    
Representative  Joule agreed.  He believed  the goal  of the                                                                    
amendment was already in place.                                                                                                 
Representative Gara,  in response to a  question by Co-Chair                                                                    
Stoltze,  WITHDREW Amendment  3. He  believed the  amendment                                                                    
should  be rewritten  and  offered on  the  House floor.  He                                                                    
noted that the  public tended not to  follow normal assembly                                                                    
meetings unless an issue was highlighted beforehand.                                                                            
Representative Joule  did not  know whether  the requirement                                                                    
would  change  anything  in  terms   of  public  action.  He                                                                    
believed either the  public would be interested  in an issue                                                                    
or not. He noted that the  whole town of Ambler had shown up                                                                    
to multiple meetings  in support of the work.  He would work                                                                    
on the issue with Representative Gara.                                                                                          
3:55:56 PM                                                                                                                    
Representative Gara MOVED Amendment 4:                                                                                          
     Page 7, line 2, after "notify" and Page 13, line 22                                                                        
     after "notify" insert ", including through signage,"                                                                       
Co-Chair Stoltze OBJECTED.                                                                                                      
Representative Joule had no objection.                                                                                          
Co-Chair Stoltze WITHDREW his objection.                                                                                        
Representative Costello observed  that the amendment related                                                                    
to bill  version L. Representative  Gara clarified  that the                                                                    
Amendment related to bill version Y.                                                                                            
There being NO further OBJECTION, Amendment 4 was ADOPTED.                                                                      
3:57:58 PM                                                                                                                    
AT EASE                                                                                                                         
3:59:43 PM                                                                                                                    
Vice-chair Fairclough  discussed the  fiscal notes  (copy on                                                                    
file).   She  highlighted   zero  fiscal   notes  from   the                                                                    
Departments  of Law  and Natural  Resources. The  third note                                                                    
was from  the Department  of Environmental  Conservation for                                                                    
$27,800 in  FY 13, $28,200  in FY  14, and $10,700  per year                                                                    
for  FY  15  through  FY  18. The  next  note  affected  the                                                                    
Department of  Transportation and  Public Facilities  in the                                                                    
amount of $210,100 in FY 13,  $190,600 in FY 14, $121,800 in                                                                    
FY 15,  $66,800 in FY  16, and $31,500 for  FY 17 and  FY 18                                                                    
for full-time  equivalent positions.  The fifth  fiscal note                                                                    
impacted the  Department of Health  and Social  Services for                                                                    
$21,300  in FY  13, $20,100  in FY  14, and  zero for  FY 15                                                                    
through FY 18. She noted that  the DHSS note backup showed a                                                                    
0.10   health  program   manager  position   that  was   not                                                                    
referenced elsewhere on the note.                                                                                               
Mr. Anderson  communicated that DHSS  would need  the health                                                                    
program  manager position  while regulations  were developed                                                                    
in  the  first two  years.  He  believed the  increment  was                                                                    
included   under  "Personal   Services"  and   not  in   the                                                                    
"Positions" category.                                                                                                           
Vice-chair  Fairclough   communicated  that   the  remaining                                                                    
fiscal note  was a zero allocation  for FY 13 through  FY 18                                                                    
for the Department of Labor and Workforce Development.                                                                          
Representative Joule concurred with the fiscal notes.                                                                           
Representative  Doogan believed  that the  legislation would                                                                    
cost  approximately $260,000  in  the first  year and  would                                                                    
decline in subsequent years.                                                                                                    
Representative Joule responded in the affirmative.                                                                              
Vice-chair Fairclough  MOVED to report CSHB  258(FIN) out of                                                                    
committee   with   individual    recommendations   and   the                                                                    
accompanying fiscal notes.                                                                                                      
Representative    Gara   OBJECTED    for   discussion.    He                                                                    
communicated that  he wanted to help  Representative Joule's                                                                    
district, but  he expressed concern  that there was  no safe                                                                    
level  of  airborne  asbestos  established  (California  had                                                                    
reduced the level to 0.25 percent)  and that he did not have                                                                    
a  way  of   knowing  the  right  level.   He  WITHDREW  his                                                                    
Vice-chair  Fairclough clarified  that  the California  0.25                                                                    
percent represented a floor level and not a ceiling.                                                                            
There  being   NO  further  OBJECTION,  CSHB   258(FIN)  was                                                                    
REPORTED out  of committee with  a "do  pass" recommendation                                                                    
and  with one  new  fiscal impact  note  from Department  of                                                                    
Transportation and Public Facilities,  one new fiscal impact                                                                    
note from Department of  Environmental Conservation, one new                                                                    
zero  note from  Department  of Natural  Resources, one  new                                                                    
zero note from Department of Law, and previously published                                                                      
fiscal notes: FN1 (DLWD), FN3 (DHSS).                                                                                           
Co-Chair Stoltze discussed the schedule for the following                                                                       
Representative Gara made an apology to Mr. Boyle. He                                                                            
believed he should not have gone through Mr. Boyle's prior                                                                      
school board record.                                                                                                            

Document Name Date/Time Subjects
HFIN EDC Presentation 3.28.12PM.pdf HFIN 3/28/2012 1:30:00 PM
HFIN School Choice presentation 3.28.12.pdf HFIN 3/28/2012 1:30:00 PM
HFIN State BOE presentation Cox Bio 3.28.12.pdf HFIN 3/28/2012 1:30:00 PM
HB258 Amendment-4 Gara.pdf HFIN 3/28/2012 1:30:00 PM
HB 258