Legislature(2011 - 2012)BELTZ 105 (TSBldg)
04/02/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB56 | |
| HB6 | |
| SB180 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 180 | TELECONFERENCED | |
| += | SB 138 | TELECONFERENCED | |
| += | SB 198 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 6 | TELECONFERENCED | |
| += | HB 56 | TELECONFERENCED | |
SB 180-NATURALLY OCCURRING ASBESTOS IN GRAVEL
1:39:35 PM
CHAIR FRENCH announced the consideration of SB 180 and asked for
a motion to adopt the proposed committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt the work draft CS for SB
180, labeled 27-LS1219\X, as the working document.
CHAIR FRENCH announced that without objection, version X was
before the committee.
1:40:06 PM
DAVID SCOTT, staff to Senator Donny Olson, said CS for SB 180,
version X, made three changes. 1) It removed immunity for the
state; 2) it removed the requirement for Department of
Transportation and Public Facilities (DOTPF) and Department of
Natural Resources (DNR) to maintain a database; and 3) it
removed the legislative findings and purpose section.
At Senator French's request, he provided a sectional analysis.
Section 1 amends AS 09.65 by adding a new Sec.
09.65.245 - Immunity for certain persons supplying or
using gravel or other aggregate material; limitations
on asbestos-related actions against defendants. This
would provide immunity to landowners and contractors
as long as they follow the provisions of a site-
specific plan, which is outlined in Section 3.
Section 2 amends AS 18.31 by adding new sections to
new Article 2A - Naturally occurring asbestos. Sec.
18.31.250 tells how an entity would qualify for the
immunity offered in Section 1. The contractor must
submit and get DOTPF approval of a site-specific plan
before gravel extraction can begin. To qualify for
immunity the contractor must adhere to the plan,
including monitoring and mitigation requirements. Sec.
18.31.260 defines the minimum detectable amount of
asbestos as 0.25 percent by mass as the baseline for
the presence of naturally occurring asbestos in gravel
or aggregate material.
Section 3 amends AS 44.42 by adding four new
subsections to new Article 3A - Use of Materials
Containing Naturally Occurring Asbestos.
Sec. 44.42.400 - Administration and designated use
areas, designates a single DOTPF employee to oversee
the program. It delineates how a designated area
within a municipality or community can be established
and how a designated area that is not within a
municipality or community can be established.
Sec. 44.42.410 - Site-specific use plan, requires a
contractor to submit a site-specific use plan that:
(1) describes the proposed use of the gravel that has
naturally occurring asbestos; (2) demonstrates
compliance with the law; (3) outlines long-term
maintenance of the completed project; (4) describes
how the gravel with naturally occurring asbestos would
be contained; (5) describes how the gravel will be
sealed if it is economically unreasonable to be
contained; and (6) describes how, if the requirements
under (4) and (5) are economically unreasonable, the
gravel containing naturally occurring asbestos will be
used in order to prevent the asbestos from becoming
airborne. Consideration must be given to vehicle
traffic, road maintenance, or grading. Under
subsection (b), the state is required to develop a
site-specific plan when it is the principal contractor
for a public transportation facility. Subsection (c)
requires DOTPF to review each site-specific use plan
and either work toward approving or disapproving the
plan. Subsection (d) prohibits DOTFP from approving a
plan to use gravel that contains more than the
threshold level unless it is determined to be
economically unreasonable to do otherwise, and the
gravel containing naturally occurring asbestos will
not be used for a surface application.
Sec. 44.42.420 - Regulations, gives power to DOTPF to
write regulations.
Sec. 44.42.430 - Definitions, defines naturally
occurring asbestos.
Section 4 adds a new section to the uncodified law
titled, Interim Project Authorization.
Section 5 adds a new section to the uncodified law of
the State of Alaska titled, Interim Standards for
Application of Asbestos Bulk Testing.
Section 6 is the effective date.
1:44:13 PM
CHAIR FRENCH asked if there was a definition for "economically
unreasonable."
MR. SCOTT said no, but it was addressed in the regulations
section on page 9, line 23. Paragraph (8) says that DOTPF must
include in regulation "guidelines for determining whether the
cost associated with the use of gravel or other aggregate
material free from naturally occurring asbestos under AS
44.42.410(d) is economically unreasonable."
CHAIR FRENCH asked if this CS was modeled after the bill moving
through the other body.
MR. SCOTT said yes, with several differences. In SB 180, the
legislative findings and purpose section was removed, the
blanket immunity was limited, and gravel and other aggregate
material containing naturally occurring asbestos cannot be used
as a surface application. The House version did not make these
changes.
CHAIR FRENCH noted that the prohibition against NOA gravel as a
surface application was located in paragraph (2) on page 7,
lines 3-4. He reviewed the provisions in paragraphs (4), (5),
and (6) and commented that before the bill leaves, this may be
one area to give guidance to the department to put sideboards on
the idea of "economically unreasonable."
1:47:01 PM
SENATOR COGHILL asked if NOA gravel could be used generally to
build a road as long as it was capped.
MR. SCOTT deferred to Mr. Healy.
1:47:52 PM
ROGER HEALY, Chief Engineer, Department of Transportation and
Public Facilities (DOTPF), said that DOTPF would consider for
surface application anything that would provide a long-term
solution to preventing naturally occurring asbestos fibers in
gravels from becoming airborne. Considerations would include
chip sealing, dust palliatives, pavement, and overall coverage
with non-asbestos material.
SENATOR COGHILL asked if gravel containing naturally occurring
asbestos could be used as long as it was capped with an NOA-free
material.
MR. HEALY said yes, a contractor could use NOA material for
underlying courses, but the site-specific plan would require a
covering material that did not contain asbestos.
SENATOR COGHILL asked if the road shoulders would have to be
mitigated.
MR. HEALY said yes.
CHAIR FRENCH asked if the commissioner would be responsible for
approving the site-specific plan.
MR. HEALY replied that a DOTPF employee who had expertise in
determining longevity of a particular surface course for a
particular use would be tasked with that responsibility.
1:51:11 PM
CHAIR FRENCH asked him to comment on the process of using gravel
that contains asbestos as a base and a final layer of non-
asbestos material.
MR. HEALY said DOTPF did not have any new projects where it used
this type of construction, but it had been used in other states.
DOTPF modeled California law, which requires the asbestos to be
covered.
CHAIR FRENCH asked how long the California standards had been in
place.
MR. HEALY replied the final NOA regulations were in place in
early 2002. Responding to a further question, he explained that
the department is always looking for ways to build roads with
the best, most efficient and least expensive materials available
within the area.
SENATOR COGHILL asked what parameters would be used to determine
economic reasonableness.
MR. HEALY said that the considerations include the scale, type
and long term use of the project. The bill establishes that the
program is voluntary and a contractor who wants immunity will be
required to develop a site-specific plan and undergo some kind
of economic reasonableness determination.
SENATOR COGHILL mentioned his experience with dust on the Tanana
River and questioned how valuable this would be if it didn't
also include some way to evaluate those health risks.
MR. HEALY conceded that health risks associated with dust did
exist and deferred further response to Dr. McLaughlin.
1:58:15 PM
CHAIR FRENCH referred to paragraph (e) on page 7, lines 5-15,
that discussed attachment of a monitoring and mitigation plan to
the site-specific plan. He asked if the project would be
monitored after it was complete and who would do the monitoring.
MR. HEALY said that DOTPF envisioned that the contractor would
be responsible for monitoring in order to maintain compliance.
There would also be a provision for the contractor to provide a
maintenance and operations plan to the owner.
CHAIR FRENCH asked if, in most cases, the owner would be the
state.
MR. HEALY replied it could be the state, a municipality, or a
private owner.
SENATOR WIELECHOWSKI asked to hear from the Department of Law
(DOL) to verify that this would not exempt the use of asbestos
for other purposes.
2:03:06 PM
SARITHA ANJILVEL, Assistant Attorney General, Civil Division,
Transportation Section, Department of Law (DOL), said version X
was drafted to provide immunity only to those persons using,
transporting, or constructing anything that involved the use of
naturally occurring asbestos under the auspices of a site-
specific, approved DOTPF plan. The bill did not contemplate any
other uses.
SENATOR WIELECHOWSKI asked, hypothetically, if the bill would
immunize someone who put a fire insulator in homes in Ambler
that contained naturally occurring asbestos.
MS. ANJILVEL said no. She added that while there was no law that
prohibited the use of naturally occurring asbestos for other
purposes, anyone who chose to do so would not be covered by any
immunity.
SENATOR WIELECHOWSKI asked if the bill would provide immunity to
someone who processed naturally occurring asbestos and used it
in insulation, for example.
MS. ANJILVEL responded that she could not cite specific
regulations, but it might fall into existing regulations
regarding processed asbestos.
CHAIR FRENCH highlighted that the operative words were "gravel
or other aggregate material."
MS. ANJILVEL agreed.
2:05:47 PM
SENATOR WIELECHOWSKI asked if there was a definition for "other
aggregate material" or if she could state for the record what
that would include.
MS. ANJILVEL deferred the question to Mr. Healy.
CHAIR FRENCH noted that Mr. Healy had stepped away from the
witness chair. He asked Ms. Anjilvel if it was necessary to
define "economically unreasonable" to facilitate implementing
the statute.
MS. ANJILVEL opined that a definition may not be necessary
within the context of the site-specific plan. The broader the
mandate given to DOTPF to establish what is economically
reasonable, the more flexible it will be able to be.
CHAIR FRENCH responded that before extending immunity he was
looking for a minimum threshold below which the state would not
go in its search for economics.
MS. ANJILVEL said she understood the concern but it put DOTPF in
a difficult position with regard to upper limits, because there
was testimony that no amount of exposed asbestos was safe.
CHAIR FRENCH clarified that he was looking for an economic
threshold. For example, using gravel that contained naturally
occurring asbestos would be 25 percent cheaper than sourcing
gravel that was asbestos free.
MS. ANJILVEL suggested looking instead at the standard of care
that DOTPF was required to use regarding the best interests of
the state. The circumstances for evaluating each plan are unique
and imposing an economic threshold may tie DOTPF's hands.
SENATOR WIELECHOWSKI asked if case law had interpreted
"economically unreasonable."
MS. ANJILVEL said not in this context.
SENATOR WIELECHOWSKI asked how the decision would be made and
who would make it.
MS. ANJILVEL replied it would be an agency decision and courts
typically give deference to agencies in the belief that they
have the expertise to make these calls. An engineer would make a
call as to whether it was practically reasonable to use NOA
gravel or import clean gravel and assess the numbers against the
scale of the project.
CHAIR FRENCH asked Ms. Cox to tell the committee about immunity
in general.
2:12:24 PM
SUSAN COX, Chief Assistant Attorney General, Civil Division,
Torts and Workers' Compensation Section, Department of Law
(DOL), stated that she represented the state and state employees
in tort lawsuits.
CHAIR FRENCH asked if there were other grants of immunity in
state law.
MS. COX said yes and specifically cited the immunities in AS
09.50.250 and AS 09.65.
CHAIR FRENCH noted that the current CS immunized the people that
do the work but not the state. He asked the pros and cons of
that idea.
MS. COX confirmed that the current draft did not provide DOTPF
with the specific immunity that the House Finance version
provided. That did not mean that DOTPF would not have immunity
under other provisions of state law, she said.
CHAIR FRENCH asked if it was accurate to say that the bill
offered immunity for the execution phase, but not the planning
phase of a project.
MS. COX responded that the execution would not be on DOTPF.
CHAIR FRENCH summarized that the contractor would execute the
site-specific plan that the state developed. The state could
potentially be liable for the having developed a bad plan, but
the contractor would not be liable for executing that plan.
MS. COX said the immunity required compliance with the site-
specific plan as well as compliance with the monitoring and
mitigation. She added that DOTPF would not have a specific
immunity created by this committee substitute for developing the
plan. However, it was more than possible that DOTPF would be
subject to immunity under some other provision of state law. The
discretionary function immunity in AS 09.50.250 would likely
cover the development of the site-specific plan and adoption of
the regulations. Policy making operations were a classic example
of things for which the state cannot be sued, she said.
2:19:31 PM
CHAIR FRENCH asked if any other state enjoyed immunity for using
gravel that contained naturally occurring asbestos in its road
projects.
MS. COX replied she was aware that California had standards
regarding naturally occurring asbestos that were utilized in
developing this legislation, but she was not familiar with the
state law in that regard.
CHAIR FRENCH said his understanding was that Alaska would be the
only state to grant any immunity in this area. He asked to be
notified if she learned anything to the contrary.
He asked if she would agree or disagree that the immunity for
landowners did not appear to be tied to any site-specific plan
use.
MS. COX said the immunity in Section 1, subsection (a)(1),
appeared to be based solely on ownership of land, within an area
designated by DOTPF, that had naturally occurring asbestos
exceeding 0.25 percent. She added that there may be some overlap
with the existing immunity in state law for personal injury or
death occurring on unimproved land.
CHAIR FRENCH asked if there were other immunities in state law
related to construction projects and materials.
MS. COX said she was not familiar with any immunity that
specifically related to the use of materials for construction.
CHAIR FRENCH questioned whether there was a way to ensure, now,
in the law that future maintenance would take place.
MS. COX replied that was not her expertise.
CHAIR FRENCH mused that the answer was probably no. It would
probably be necessary to set maintenance funds aside initially
to ensure a particular maintenance schedule, because a future
legislature may not appropriate the funds.
2:23:25 PM
SENATOR PASKVAN joined the committee.
MS. COX said that to preserve the immunity it would be in the
contractor's best interest to follow the monitoring and
maintenance schedule.
CHAIR FRENCH asked if she had any input with regard to putting
sideboards on the term "economically unreasonable."
MS. COX replied she did not deal with the development of policy.
2:25:32 PM
DR. JOE MCLAUGHLIN, State Epidemiologist, Division of Public
Health, Department of Health and Social Services (DHSS),
introduced himself.
CHAIR FRENCH recalled that his previous testimony was that there
was no safe level of asbestos.
DR. MCLAUGHLIN confirmed that there was no safe threshold for
airborne exposure to asbestos.
CHAIR FRENCH asked if the relationship was linear. Greater
exposure would increase the health risks, whereas less exposure
would decrease the likelihood of getting sick.
DR. MCLAUGHLIN said that was correct.
2:26:40 PM
SENATOR WIELECHOWSKI referred to the public health report of
pleural changes in residents of Ambler, Kobuk, Shungnak, and
Kiana, based on a review of their chest x-rays. He asked how
that data might extrapolate to the population as a whole.
DR. MCLAUGHLIN noted that he sent a written response to the
question. He summarized that his research found that there was
no formal surveillance system for pleural changes among the
general state or U.S. populations. An expert in the field, Dr.
Al Franzblau with the University of Michigan School of Public
Health, stated that an accurate estimate was very difficult to
make because of the wide variability in the sensitivity and
specificity of diagnosing pleural changes from x-rays. Dr.
Franzblau further stated that he had seen papers that estimated
from 1-10 percent variability in the prevalence of pleural
abnormalities among people with no known exposure to asbestos.
The variation depended on the population being studied, the
methodology employed by the researchers, and the experience and
training of the individuals reading the x-rays.
CHAIR FRENCH confirmed that Dr. McLaughlin's report arrived that
day and relayed that the members probably had not had time to
review it carefully.
He asked Ms. Hensley if the current CS satisfied NANA's concerns
and if the corporation would go forward with road projects if
the bill were to pass.
ELIZABETH HENSLEY, Corporate and Public Policy Liaison, NANA
Regional Corporation, Anchorage, AK, said yes; NANA would do
what it could to make gravel available so that the nearly $10
million in projects could be completed, thereby improving the
quality of life in Ambler.
CHAIR FRENCH asked if she had any thoughts regarding a
definition for "economically unreasonable" and if she thought
that use of gravel containing naturally occurring asbestos
should be at least 25 percent cheaper than the use of asbestos-
free gravel.
MS. HENSLEY deferred to the sponsor and the administration who
would draft the regulations.
CHAIR FRENCH asked if NANA had considered the provision in
paragraph (2) on page 7, lines 3-4. It prohibits in a completed
project the use of gravel or other aggregate material containing
naturally occurring asbestos for a surface application.
MS. HENSLEY said she was aware of the change and it would not be
an obstacle.
2:32:15 PM
CHAIR FRENCH asked Mr. Healy what percentage of a road was the
surface and, by extrapolation, how much asbestos-free gravel
would be required to build a road under the bill.
MR. HEALY discussed alignment, terrain, embankment height,
availability of non-NOA material, typical road materials such as
D-1 gravel and concluded that he could not give a specific
answer.
2:34:14 PM
SENATOR PASKVAN asked if the Nome projects were delayed because
clean gravel was not available locally.
MR. HEALY clarified that the projects that were most affected
were in the communities of Ambler and Kobuk. The delayed DOTPF
projects were the runway extension at Ambler and a road to the
sewage lagoon. He relayed that the preliminary results from an
extensive testing program in the area indicated that some
sources of NOA gravel had very low concentrations of asbestos.
Some of those sources were not accessible by road so there was a
cost associated with getting the material to the projects.
CHAIR FRENCH asked him to consider whether it would be workable
to set an economic threshold and say it had to be 25 percent
cheaper to use NOA gravel than asbestos free gravel.
MR. HEALY replied he would not recommend confining DOTPF to a
percentage of overall construction cost. He stated a preference
for having flexibility within the regulations to identify what
was economically reasonable.
CHAIR FRENCH asked what the estimated cost of the runway
extension was.
MR. HEALY said the current construction funding was between $13
million and $15 million.
CHAIR FRENCH asked what the estimated cost of the sewage lagoon
road was.
MR. HEALY estimated it was less than $10 million.
CHAIR FRENCH asked what it would cost to build a road to the
identified clean gravel sources.
MR. HEALY offered to follow up with the information.
SENATOR PASKVAN asked if the runway extension would have a
finish surface of asphalt or gravel.
MR. HEALY replied the original intent was non-pavement, but the
final decision would balance the availability, applicability,
and cost of non-NOA material.
SENATOR COGHILL expressed a desire for more information on the
general immunity.
CHAIR FRENCH clarified that the current version gave immunity to
the contractor, not the state.
SENATOR COGHILL said that today he heard that immunity applied
generally in other areas of the state law.
CHAIR FRENCH asked Ms. Cox to address the question.
2:42:17 PM
MS. COX explained that what she was referring to earlier was
that there are other provisions in state law that may provide
immunity for at least some of the functions that DOTPF would
carry out in fulfilling the requirements under this law, just as
it would in other aspects of implementing state law. The current
bill did not offer immunity with regard to the regulations that
DOTPF would implement, but immunity elsewhere in the statutes
would probably apply.
SENATOR COGHILL said his reading was that the state could be
liable because of its planning, but he was hearing that it may
not be true.
MS. COX agreed that nothing in the current bill said a person
could not sue the state. If that happened, state would use other
provision in state law to defend itself.
CHAIR FRENCH announced he would hold SB 180 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 180 version X.pdf |
SJUD 4/2/2012 1:30:00 PM |
SB 180 |