Legislature(2011 - 2012)BELTZ 105 (TSBldg)

04/02/2012 01:30 PM JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 180 NATURALLY OCCURRING ASBESTOS IN GRAVEL TELECONFERENCED
Heard & Held
+= SB 138 THIRD-PARTY CHARGES ON TELEPHONE BILLS TELECONFERENCED
<Above Item Removed from Agenda>
+= SB 198 POLICE OFFICER PROTECTIONS/CERTIFICATION TELECONFERENCED
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 6 REMOVING A REGENT TELECONFERENCED
Moved SCS CSHB 6(JUD) Out of Committee
+= HB 56 INCLUDE ARSON IN CRIMES OF CONSPIRACY TELECONFERENCED
Moved HB 56 Out of Committee
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 2, 2012                                                                                          
                           1:35 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                              
                                                                                                                                
Senator Hollis French, Chair                                                                                                    
Senator Bill Wielechowski, Vice Chair                                                                                           
Senator Joe Paskvan                                                                                                             
Senator John Coghill                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Lesil McGuire                                                                                                           
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                              
HOUSE BILL NO. 56                                                                                                               
"An Act making arson in the  first degree and arson in the second                                                               
degree serious felonies for purposes  of application of the crime                                                               
of conspiracy."                                                                                                                 
                                                                                                                                
     - MOVED HB 56 OUT OF COMMITTEE                                                                                             
                                                                                                                                
CS FOR HOUSE BILL NO. 6(JUD) am                                                                                                 
"An Act  authorizing the governor  to remove or suspend  a member                                                               
of the  Board of  Regents of  the University  of Alaska  for good                                                               
cause;  and   establishing  a  procedure   for  the   removal  or                                                               
suspension of a regent."                                                                                                        
                                                                                                                                
     - MOVED SCS CSHB 6(JUD) OUT OF COMMITTEE                                                                                   
                                                                                                                                
SENATE BILL NO. 180                                                                                                             
"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 date."                                                                       
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
SENATE BILL NO. 138                                                                                                             
"An Act relating  to the inclusion of the charges  of a vendor of                                                               
goods  or services  on the  bills  of certain  telecommunications                                                               
carriers; and adding  an unlawful act to the  Alaska Unfair Trade                                                               
Practices and Consumer Protection Act."                                                                                         
                                                                                                                                
     - REMOVED FROM AGENDA                                                                                                      
                                                                                                                                
SENATE BILL NO. 198                                                                                                             
"An   Act   establishing   procedures   relating   to   issuance,                                                               
suspension, or revocation of certification  of police officers by                                                               
the  police  standards  council;  making  certain  court  service                                                               
officers  subject  to  certification   by  the  police  standards                                                               
council; making confidential  certain information that personally                                                               
identifies a police officer; relating  to requesting or requiring                                                               
police  officers to  submit to  lie detector  tests; repealing  a                                                               
provision exempting  certain police  officers from  a prohibition                                                               
against  requiring certain  employees to  submit to  lie detector                                                               
tests; and providing for an effective date."                                                                                    
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 180                                                                                                                  
SHORT TITLE: NATURALLY OCCURRING ASBESTOS IN GRAVEL                                                                             
SPONSOR(s): SENATOR(s) OLSON                                                                                                    
                                                                                                                                
01/27/12       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/27/12       (S)       TRA, JUD                                                                                               
02/23/12       (S)       TRA AT 1:00 PM BUTROVICH 205                                                                           
02/23/12       (S)       Moved CSSB 180(TRA) Out of Committee                                                                   
02/23/12       (S)       MINUTE(TRA)                                                                                            
02/24/12       (S)       TRA RPT CS 3DP     NEW TITLE                                                                           
02/24/12       (S)       DP: KOOKESH, MENARD, THOMAS                                                                            
02/24/12       (S)       FIN REFERRAL ADDED AFTER JUD                                                                           
03/12/12       (S)       JUD AT 12:30 AM BELTZ 105 (TSBldg)                                                                     
03/12/12       (S)       Heard & Held                                                                                           
03/12/12       (S)       MINUTE(JUD)                                                                                            
03/23/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/23/12       (S)       Heard & Held                                                                                           
03/23/12       (S)       MINUTE(JUD)                                                                                            
04/02/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: HB   6                                                                                                                  
SHORT TITLE: REMOVING A REGENT                                                                                                  
SPONSOR(s): REPRESENTATIVE(s) GRUENBERG                                                                                         
                                                                                                                                
01/18/11       (H)       PREFILE RELEASED 1/7/11                                                                                
01/18/11       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/18/11       (H)       EDC, JUD                                                                                               
02/11/11       (H)       EDC AT 8:00 AM CAPITOL 106                                                                             
02/11/11       (H)       Heard & Held                                                                                           
02/11/11       (H)       MINUTE(EDC)                                                                                            
02/21/11       (H)       EDC AT 8:00 AM CAPITOL 106                                                                             
02/21/11       (H)       Moved CSHB   6(EDC) Out of Committee                                                                   
02/21/11       (H)       MINUTE(EDC)                                                                                            
02/23/11       (H)       EDC RPT CS(EDC) 5DP                                                                                    
02/23/11       (H)       DP: P.WILSON, SEATON, KAWASAKI, FEIGE,                                                                 
                         DICK                                                                                                   
03/21/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/21/11       (H)       Heard & Held                                                                                           
03/21/11       (H)       MINUTE(JUD)                                                                                            
03/23/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/23/11       (H)       Scheduled But Not Heard                                                                                
04/04/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
04/04/11       (H)       Moved CSHB   6(JUD) Out of Committee                                                                   
04/04/11       (H)       MINUTE(JUD)                                                                                            
04/05/11       (H)       JUD RPT CS(JUD) 3DP 1NR 1AM                                                                            
04/05/11       (H)       DP: GRUENBERG, HOLMES, THOMPSON                                                                        
04/05/11       (H)       NR: PRUITT                                                                                             
04/05/11       (H)       AM: KELLER                                                                                             
04/11/11       (H)       TRANSMITTED TO (S)                                                                                     
04/11/11       (H)       VERSION: CSHB 6(JUD) AM                                                                                
04/12/11       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/12/11       (S)       JUD                                                                                                    
03/05/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/05/12       (S)       Heard & Held                                                                                           
03/05/12       (S)       MINUTE(JUD)                                                                                            
03/21/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/21/12       (S)       Scheduled But Not Heard                                                                                
03/28/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/28/12       (S)       Heard & Held                                                                                           
03/28/12       (S)       MINUTE(JUD)                                                                                            
03/30/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/30/12       (S)       Scheduled But Not Heard                                                                                
04/02/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: HB  56                                                                                                                  
SHORT TITLE: INCLUDE ARSON IN CRIMES OF CONSPIRACY                                                                              
SPONSOR(s): GATTO, GRUENBERG, LYNN                                                                                              
                                                                                                                                
01/18/11       (H)       PREFILE RELEASED 1/7/11                                                                                
01/18/11       (H)       READ THE FIRST TIME - REFERRALS                                                                        
01/18/11       (H)       JUD, FIN                                                                                               
02/18/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/18/11       (H)       -- MEETING CANCELED --                                                                                 
02/21/11       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/21/11       (H)       Moved Out of Committee                                                                                 
02/21/11       (H)       MINUTE(JUD)                                                                                            
02/23/11       (H)       JUD RPT 3DP 2NR                                                                                        
02/23/11       (H)       DP: LYNN, GRUENBERG, GATTO                                                                             
02/23/11       (H)       NR: KELLER, PRUITT                                                                                     
02/22/12       (H)       FIN AT 1:30 PM HOUSE FINANCE 519                                                                       
02/22/12       (H)       Moved Out of Committee                                                                                 
02/22/12       (H)       MINUTE(FIN)                                                                                            
02/24/12       (H)       FIN RPT 1DP 8NR                                                                                        
02/24/12       (H)       DP: GARA                                                                                               
02/24/12       (H)       NR:   T.WILSON,    NEUMAN,   FAIRCLOUGH,                                                               
                         COSTELLO,   EDGMON,   DOOGAN,   STOLTZE,                                                               
                         THOMAS                                                                                                 
03/06/12       (H)       TRANSMITTED TO (S)                                                                                     
03/06/12       (H)       VERSION: HB 56                                                                                         
03/12/12       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/12/12       (S)       JUD, FIN                                                                                               
03/30/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/30/12       (S)       Heard & Held                                                                                           
03/30/12       (S)       MINUTE(JUD)                                                                                            
04/02/12       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
DAVID SCOTT, Staff                                                                                                              
Senator Donny Olson                                                                                                             
Alaska State Legislature                                                                                                        
Juneau, AK                                                                                                                      
POSITION STATEMENT: Provided a sectional analysis of SB 180,                                                                  
version X.                                                                                                                      
                                                                                                                                
ROGER HEALY, Chief Engineer                                                                                                     
Department of Transportation and Public Facilities (DOTPF)                                                                      
Juneau, AK                                                                                                                      
POSITION STATEMENT: Answered questions and provided information                                                               
related to SB 180, version X.                                                                                                   
                                                                                                                                
SARITHA ANJILVEL, Assistant Attorney General                                                                                    
Civil Division                                                                                                                  
Transportation Section                                                                                                          
Department of Law (DOL)                                                                                                         
Anchorage, AK                                                                                                                   
POSITION  STATEMENT:  Provided  information related  to  SB  180,                                                             
version X.                                                                                                                      
                                                                                                                                
SUSAN COX, Chief Assistant Attorney General                                                                                     
Civil Division                                                                                                                  
Torts and Workers' Compensation Section                                                                                         
Department of Law (DOL)                                                                                                         
Juneau, AK                                                                                                                      
POSITION  STATEMENT:  Answered  questions   related  to  SB  180,                                                             
version X.                                                                                                                      
                                                                                                                                
DR. JOE MCLAUGHLIN, State Epidemiologist                                                                                        
Division of Public Health                                                                                                       
Department of Health and Social Services (DHSS)                                                                                 
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Testified on  SB 180  and stated  that there                                                             
was no safe level of exposure to airborne asbestos.                                                                             
                                                                                                                                
ELIZABETH HENSLEY, Corporate and Public Policy Liaison                                                                          
NANA Regional Corporation                                                                                                       
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Stated support for SB 180, version X.                                                                     
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:35:07 PM                                                                                                                    
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:35  p.m. Present at the  call to                                                               
order were Senators Coghill, Wielechowski, and Chair French.                                                                    
                                                                                                                                
          HB  56-INCLUDE ARSON IN CRIMES OF CONSPIRACY                                                                      
                                                                                                                                
1:35:39 PM                                                                                                                    
CHAIR  FRENCH  announced the  consideration  of  HB 56,  "An  Act                                                               
making arson in  the first degree and arson in  the second degree                                                               
serious  felonies for  purposes of  application of  the crime  of                                                               
conspiracy."  Finding no  questions, comments  or discussion,  he                                                               
asked for a motion.                                                                                                             
                                                                                                                                
1:36:10 PM                                                                                                                    
SENATOR WIELECHOWSKI  moved to report  HB 56 from  committee with                                                               
individual recommendations and attached fiscal note(s).                                                                         
                                                                                                                                
CHAIR FRENCH announced  that without objection, HB  56 moved from                                                               
the Senate Judiciary Standing Committee.                                                                                        
                                                                                                                                
                    HB   6-REMOVING A REGENT                                                                                
                                                                                                                              
                                                                                                                              
1:36:31 PM                                                                                                                    
CHAIR  FRENCH  announced  the  consideration of  HB  6,  "An  Act                                                               
authorizing the  governor to  remove or suspend  a member  of the                                                               
Board of Regents of the University  of Alaska for good cause; and                                                               
establishing  a procedure  for  the removal  or  suspension of  a                                                               
regent."  He  noted that  Legislative  Legal  issued opinions  in                                                               
response to  Senator Coghill's  question about  the retrospective                                                               
aspects of  the bill, and he  was right. There was  no reason for                                                               
the bill to be retrospective.                                                                                                   
                                                                                                                                
1:37:14 PM                                                                                                                    
SENATOR COGHILL moved Amendment 1,  which would delete Section 4,                                                               
located on page 6, lines 18-21.                                                                                                 
                                                                                                                                
CHAIR  FRENCH  announced  that  without  objection,  Amendment  1                                                               
passed. Finding no further questions  or discussion, he solicited                                                               
a motion.                                                                                                                       
                                                                                                                                
1:37:55 PM                                                                                                                    
SENATOR WIELECHOWSKI moved  to report Senate CS for CS  for HB 6,                                                               
version   G   as   amended,  from   committee   with   individual                                                               
recommendations and attached fiscal note(s).                                                                                    
                                                                                                                                
CHAIR FRENCH  announced that without  objection, SCS  CSHB 6(JUD)                                                               
moved from the Senate Judiciary Standing Committee.                                                                             
                                                                                                                                
1:38:20 PM                                                                                                                    
At ease from 1:38 p.m. to 1:39 p.m.                                                                                             
                                                                                                                                
         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.                                                                       
                                                                                                                                
2:45:01 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair French adjourned the meeting at 2:45 p.m.                                                                                 
                                                                                                                                
                                                                                                                                

Document Name Date/Time Subjects
SB 180 version X.pdf SJUD 4/2/2012 1:30:00 PM
SB 180