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