CSHB 258(TRA): "An Act directing the Department of Transportation and Public Facilities to develop and implement standards and operating procedures, evaluate site-specific use plans, develop and maintain an information database that includes locations of gravel or other aggregate material that contains naturally occurring asbestos, gravel or other aggregate material free from naturally occurring asbestos, and suggests locations to stockpile gravel or other aggregate material free from naturally occurring asbestos, and transmit reports related to 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 material that contains naturally occurring asbestos, and authorizing use on an interim basis of that material for certain transportation projects and public facilities; providing immunity for the state and for landowners, extractors, suppliers, transporters, and contractors for certain actions or claims arising in connection with the use of gravel or aggregate material containing naturally occurring asbestos; requiring contractors to report certain asbestos-related data to the Department of Transportation and Public Facilities; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 258(TRA) 01 "An Act directing the Department of Transportation and Public Facilities to develop 02 and implement standards and operating procedures, evaluate site-specific use plans, 03 develop and maintain an information database that includes locations of gravel or other 04 aggregate material that contains naturally occurring asbestos, gravel or other aggregate 05 material free from naturally occurring asbestos, and suggests locations to stockpile 06 gravel or other aggregate material free from naturally occurring asbestos, and transmit 07 reports related to the use in the construction and maintenance of transportation projects 08 and public facilities and in the construction of projects by public and private entities of 09 gravel or aggregate material that contains naturally occurring asbestos, and authorizing 10 use on an interim basis of that material for certain transportation projects and public 11 facilities; providing immunity for the state and for landowners, extractors, suppliers, 12 transporters, and contractors for certain actions or claims arising in connection with the
01 use of gravel or aggregate material containing naturally occurring asbestos; requiring 02 contractors to report certain asbestos-related data to the Department of Transportation 03 and Public Facilities; and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 06 to read: 07 LEGISLATIVE FINDINGS AND PURPOSE. (a) The legislature finds that 08 (1) gravel or similar aggregate material is constantly in demand for major 09 construction and maintenance of state and local transportation projects and public facilities 10 and for all types of construction by public and private entities; 11 (2) naturally occurring asbestos may be found in sources of gravel and similar 12 aggregate material throughout the state; 13 (3) while airborne asbestos fibers are a significant threat to workplace safety 14 and public health and are subject to close regulation by federal and state authorities under 42 15 U.S.C. 7401 - 7671q (Clean Air Act) and 15 U.S.C. 2601 - 2692 (Toxic Substances Control 16 Act), use of materials containing naturally occurring asbestos in construction projects may be 17 regulated by states; 18 (4) in communities that do not have sources of gravel or similar aggregate 19 material that is free of naturally occurring asbestos, costs of construction are substantially 20 increased because of the necessity of locating alternative sources of gravel or similar 21 aggregate material and transporting that material to distant construction and maintenance 22 sites; and 23 (5) a recent study suggests that, with careful use and close adherence to 24 appropriate control strategies, state and local transportation projects and public facilities may 25 be safely completed using sources of gravel or similar aggregate material that contains 26 naturally occurring asbestos; the study recommends that the Department of Transportation 27 and Public Facilities establish standards and operating procedures through a statewide process 28 that will apply to the use of gravel and aggregate material that contains asbestos by the 29 department and by any public or private entity. 30 (b) It is the purpose of this Act
01 (1) to authorize and direct the Department of Transportation and Public 02 Facilities to develop, implement, and, as circumstances may require or indicate, modify 03 standards and operating procedures to allow the use in the construction and maintenance of 04 transportation projects and public facilities of gravel or aggregate material that contains 05 naturally occurring asbestos, with the expectation that use of that material in a manner that is 06 consistent with those standards and procedures may avoid significant risk to human health and 07 eliminate significantly higher costs of construction and maintenance of projects and facilities 08 associated with using only construction material that is free of asbestos; 09 (2) to establish that a person that uses gravel that contains naturally occurring 10 asbestos may prepare specific project plans that conform to the requirements of this Act and 11 the department's standards and operating procedures; and 12 (3) to shield persons and the state, under certain conditions, from liability 13 based on exposure to naturally occurring asbestos. 14 (c) This Act creates a voluntary program and provides civil immunity for the use of 15 gravel or other aggregate material that contains naturally occurring asbestos for contractors 16 meeting the requirements of the program; nothing in this Act mandates a contractor to submit 17 a site-specific plan or to adhere to the requirements of a plan approved by the department. 18 * Sec. 2. AS 09.65 is amended by adding a new section to read: 19 Sec. 09.65.245. Immunity for certain persons supplying or using gravel or 20 other aggregate material; limitations on asbestos-related actions against 21 defendants. (a) A civil action or claim for damages or costs alleging a death, injury, 22 illness, disability, property damage, or any other damages resulting from the use of 23 gravel or other aggregate material that contains naturally occurring asbestos may not 24 be brought against a defendant, including a contractor meeting the requirements of the 25 program or the state, 26 (1) based on the ownership of land from which gravel or other 27 aggregate material is extracted that, when tested using a bulk method prescribed by the 28 Department of Transportation and Public Facilities by regulation, is determined to 29 have a content equal to or greater than 0.25 percent naturally occurring asbestos by 30 mass; or 31 (2) for an act or omission occurring in the course of extracting,
01 supplying, transporting, or using gravel or other aggregate material containing 02 naturally occurring asbestos when the act or omission was in compliance with the 03 requirements of AS 18.31.250 or AS 44.42.410(b), as applicable, and AS 44.42.410(a) 04 and (d) and applicable regulations developed under AS 44.42.420. 05 (b) A civil action or claim based on noncompliance with the requirements of 06 AS 18.31.250 or AS 44.42.410(b), as applicable, and AS 44.42.410(a) and (e) and 07 applicable regulations developed under AS 44.42.420 for damages or costs alleging an 08 asbestos-related death, injury, illness, or disability or alleging asbestos-related 09 property damage or any other asbestos-related damages may only be brought against a 10 defendant that has direct control over or responsibility for compliance with the 11 requirements of AS 18.31.250 or AS 44.42.410(b), as applicable, and AS 44.42.410(a) 12 and (e) and applicable regulations developed under AS 44.42.420. 13 (c) A civil action or claim for damages or costs alleging an asbestos-related 14 death, injury, illness, or disability or alleging asbestos-related property damage or any 15 other asbestos-related damages may not be brought against any state agency for an act 16 or omission occurring in the course of approving a site-specific use plan or in the 17 course of developing or approving a monitoring plan or a mitigation plan under 18 AS 44.42.410. 19 (d) In this section, 20 (1) "asbestos" has the meaning given in AS 18.31.500; 21 (2) "naturally occurring asbestos" means asbestos-containing material 22 that has not been processed in an asbestos mill. 23 * Sec. 3. AS 18.31 is amended by adding a new section to read: 24 Article 2A. Use of materials containing naturally occurring asbestos. 25 Sec. 18.31.250. Use of materials containing naturally occurring asbestos. 26 (a) A principal construction contractor or, in the absence of an identified principal 27 construction contractor, person having legal authority for the design and construction 28 of a project may qualify for immunity in a civil action under AS 09.65.245 for the use 29 of gravel or other aggregate material that, when tested using a bulk test method 30 prescribed by the Department of Transportation and Public Facilities by regulation, is 31 determined to have a content equal to or greater than 0.25 percent of naturally
01 occurring asbestos by mass. 02 (b) To qualify for the immunity provided under AS 09.65.245, before 03 initiating a construction project not subject to AS 44.42.410(b) that will use gravel or 04 other aggregate material that contains naturally occurring asbestos, the principal 05 construction contractor or, in the absence of an identified principal construction 06 contractor, the person having legal authority for the design and construction of the 07 project, shall prepare and submit to the Department of Transportation and Public 08 Facilities specific project plans demonstrating compliance with the standards adopted 09 by the department under AS 44.42.420 and the requirements of the site-specific use 10 plan under AS 44.42.410. Before extraction of gravel or other aggregate material may 11 begin, the plan must be approved and returned to the contractor by the department. 12 (c) To preserve the immunity provided under AS 09.65.245, the principal 13 construction contractor or, in the absence of an identified principal construction 14 contractor, the person having legal authority for the design and construction of the 15 project, shall adhere to the site-specific use plan approved by the department and the 16 monitoring and mitigation plan created by the department. 17 * Sec. 4. AS 44.42 is amended by adding new sections to read: 18 Article 3A. Use of Materials Containing Naturally Occurring Asbestos. 19 Sec. 44.42.400. Administration. The department shall 20 (1) designate a single employee who reports to the commissioner to 21 oversee the duties assigned to the department in AS 44.42.400 - 44.42.430 and to 22 serve as the point of contact for inquiries related to projects using gravel or other 23 aggregate material containing naturally occurring asbestos; 24 (2) maintain a database of 25 (A) sites in the state known to contain naturally occurring 26 asbestos; 27 (B) known sources of gravel or other aggregate material free 28 from naturally occurring asbestos within reasonable proximity to known sites 29 of naturally occurring asbestos; 30 (C) known sources of gravel or other aggregate material free 31 from naturally occurring asbestos within 25 miles of a community for all
01 known projects the state or a municipality intends to undertake within 25 miles 02 of the community in the next five years where the state or municipality intends 03 to use gravel or other aggregate material containing naturally occurring 04 asbestos; 05 (D) known communities that do not have reasonable access to 06 gravel or other aggregate material free from naturally occurring asbestos; and 07 (E) all data collected under the requirements of 08 AS 44.42.410(f)(1)(B), by project; 09 (3) annually transmit to the commissioner and publish on the 10 department's Internet website a report containing 11 (A) a listing of all current projects for which a plan has been 12 submitted under AS 18.31.250 or AS 44.42.410(b); 13 (B) a listing of all known projects intended to be undertaken by 14 the state or a municipality in the next five years where the state or municipality 15 intends to use gravel or aggregate material containing naturally occurring 16 asbestos; 17 (C) suggestions for potential locations to stockpile gravel or 18 other aggregate material free from naturally occurring asbestos for use in 19 future projects and an estimate of the cost of stockpiling that gravel; and 20 (D) suggestions for potential locations, in coordination with 21 ongoing state and municipal construction projects, to stockpile gravel or other 22 aggregate material free from naturally occurring asbestos for future projects 23 and an estimate of the cost of stockpiling that gravel; and 24 (4) annually provide a report on the monitoring and mitigation data 25 transmitted by contractors to the department under AS 44.42.410(h) and the results of 26 site monitoring performed by the department to the Department of Environmental 27 Conservation, the Department of Health and Social Services, and the Department of 28 Labor and Workforce Development. 29 Sec. 44.42.410. Site-specific use plan. (a) To qualify for the immunity 30 provided under AS 09.65.245, a contractor intending to use gravel or other aggregate 31 material that, when tested using a bulk test method prescribed by the department in
01 regulation, is determined to have a content equal to or greater than 0.25 percent of 02 naturally occurring asbestos by mass shall, after consulting with the owner of the land 03 on which the gravel containing naturally occurring asbestos will be placed, submit a 04 site-specific use plan to the department that 05 (1) describes the manner in which the proposed use of gravel or other 06 aggregate material that contains naturally occurring asbestos conforms to the standards 07 adopted under AS 44.42.420(b); 08 (2) demonstrates how the proposed construction operation and 09 maintenance practices comply with those that are required and those that are 10 minimally acceptable, as described in AS 44.42.420(b)(5), and otherwise meet 11 requirements of law applicable to the handling of compounds that contain asbestos; 12 (3) outlines how, as a component of long-term maintenance on the 13 completed project or facility, the department may reasonably ensure that human health 14 and air quality are not compromised by the use of the gravel or other aggregate 15 material that contains naturally occurring asbestos; 16 (4) describes how the gravel or other aggregate material to be used can 17 be contained underneath the project or buried so that asbestos fibers cannot become 18 airborne or otherwise transferred outside of the project area, except as provided in (5) 19 and (6) of this subsection; 20 (5) if the requirements in (4) of this subsection are economically 21 unreasonable, describes how the gravel or other aggregate material to be used will be 22 sealed, including chip sealing or mixing with asphalt, in order to prevent asbestos 23 fibers from becoming airborne or otherwise transferred outside of the project area, 24 except as provided in (6) of this subsection; and 25 (6) if the requirements under (4) and (5) of this subsection are 26 economically unreasonable, describes how the gravel or other aggregate material will 27 be used in order to prevent asbestos from becoming airborne or otherwise transferred 28 outside of the project area. 29 (b) To qualify for and preserve the immunity provided under AS 09.65.245, 30 the department, in its operating procedures applicable to a project that is a 31 transportation facility, including a public highway, airport, or pipeline or railroad track
01 bed, or a public work, as that term is defined in AS 35.95.100, and for which the 02 contractor intends to use gravel or other aggregate material that, when tested using a 03 bulk testing method prescribed by the department in regulation, is determined to have 04 a content equal to or greater than 0.25 percent of naturally occurring asbestos by mass, 05 shall require that 06 (1) the contractor submit a plan that details the use of gravel or other 07 aggregate material in the construction or maintenance of the transportation project or 08 public facility in accordance with the requirements of (a) of this section and 09 regulations developed under AS 44.42.420; 10 (2) before the extraction of the gravel or aggregate material containing 11 naturally occurring asbestos may begin, the plan be approved and returned to the 12 contractor by the department; 13 (3) the contractor adhere to the monitoring, mitigation, and site- 14 specific use plans. 15 (c) The department shall review each submitted site-specific use plan and shall 16 work toward approving or disapproving the plan, taking into consideration the 17 construction season in the project location. 18 (d) The department may not approve a plan for construction with gravel or 19 other aggregate material determined to have a content equal to or greater than 0.25 20 percent of naturally occurring asbestos by mass unless the department determines that 21 it is economically unreasonable to undertake the construction project with gravel or 22 other aggregate material free from naturally occurring asbestos. 23 (e) On receiving a plan that meets the requirements of (a) and (d) of this 24 section and the regulations adopted under AS 44.42.420, the department, in 25 consultation with the Department of Environmental Conservation, the Department of 26 Health and Social Services, and the Department of Labor and Workforce 27 Development, shall develop a monitoring and mitigation plan for the project. If the 28 site-specific use plan is approved, the monitoring and mitigation plan developed by the 29 department shall be attached to the site-specific use plan. To qualify for the immunity 30 provided in AS 09.65.245, the party that has direct control over or responsibility for 31 the monitoring or mitigation shall comply with the monitoring or mitigation plan
01 developed by the department. 02 (f) On approval of a site-specific use plan, the department shall 03 (1) return to the contractor, a copy of the site-specific use plan, 04 including 05 (A) the monitoring and mitigation plan developed under (e) of 06 this section; 07 (B) a requirement that all asbestos-related data collected by the 08 contractor during or after construction be submitted to the department; 09 (C) recommended methods for reducing exposure to airborne 10 asbestos fibers; and 11 (D) copies of the United States Occupational Safety and Health 12 Administration, United States Mine Safety and Health Administration, and 13 United States Environmental Protection Agency recommended practices for 14 handling and use of gravel or other aggregate material containing naturally 15 occurring asbestos; 16 (2) provide a copy of the site-specific use plan, including the 17 monitoring and mitigation plan, to the mayor or manager of a municipality affected by 18 the use of gravel or other aggregate material containing asbestos. 19 (g) Within 60 days after completing a project in accordance with a site- 20 specific plan approved by the department, the contractor shall record in the recording 21 district where the property is located a document that includes a description of the 22 affected property, a reference to the most recent recorded conveyance of that property, 23 and a notice indicating the presence of naturally occurring asbestos, and stating that 24 subsequent interest holders may have legal obligations with respect to preventing the 25 naturally occurring asbestos from becoming airborne or otherwise transferred. The 26 contractor shall provide written notification to the department and the landowner that 27 the document has been recorded. 28 (h) The contractor shall submit to the department the results of any monitoring 29 or testing performed in accordance with the site-specific use plan and any mitigation 30 measures undertaken. 31 Sec. 44.42.420. Regulations. (a) The department, after consultation with the
01 Department of Environmental Conservation, Department of Health and Social 02 Services, and Department of Labor and Workforce Development, shall prescribe in 03 regulation a bulk testing method for gravel or other aggregate material containing 04 naturally occurring asbestos. 05 (b) The department, after consultation with the Department of Environmental 06 Conservation, Department of Health and Social Services, and Department of Labor 07 and Workforce Development, shall develop, implement, and revise statewide 08 standards to regulate the use in the construction and maintenance of transportation 09 projects and public facilities of gravel or aggregate material that, when tested using a 10 bulk test method prescribed by the department by regulation, is determined to have a 11 content equal to or greater than 0.25 percent of naturally occurring asbestos by mass. 12 The standards adopted under this subsection must include procedures for 13 (1) completing site investigations and characterizations of proposed 14 projects, including the development and description of appropriate laboratory 15 practices; 16 (2) reviewing design alternatives and preparing and evaluating 17 appropriate comparative cost analyses that consider the use of gravel or other 18 aggregate material that does not contain naturally occurring asbestos; 19 (3) evaluating human health concerns arising out of gravel or other 20 aggregate material that contains naturally occurring asbestos and documentation of 21 methods and means to be used during periods of handling of the gravel or other 22 aggregate material to ensure compliance with appropriate workplace safety and air 23 quality standards relating to the project; 24 (4) preparing designs and design specifications for facilities involving 25 use of gravel or other aggregate material that contains naturally occurring asbestos; 26 (5) outlining construction operation and maintenance practices that are 27 required and those that are minimally acceptable to meet requirements of law 28 applicable to the handling of compounds that contain asbestos. 29 Sec. 44.42.430. Definitions. In AS 44.42.400 - 44.42.430, 30 (1) "asbestos" has the meaning given in AS 18.31.500; 31 (2) "contractor" means the principal construction contractor, or in
01 absence of an identified principal construction contractor, the person having legal 02 authority for the design and construction of the project; 03 (3) "naturally occurring asbestos" means asbestos-containing material 04 that has not been processed in an asbestos mill. 05 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 06 read: 07 INTERIM PROJECT AUTHORIZATION. (a) Notwithstanding AS 18.31.250, added 08 by sec. 3 of this Act, to ensure early application of the policy described in sec. 1 of this Act to 09 a limited number of appropriate construction projects until the development and 10 implementation of initial standards under AS 44.42.420 and the administrative requirements 11 of AS 44.42.400, added by sec. 4 of this Act, for projects not subject to AS 44.42.410(b), if, 12 under (b) of this section, the Department of Transportation and Public Facilities prepares and 13 adopts interim standards and requires its contractors to prepare site-specific plans for the use 14 of gravel or other aggregate material that, when tested using the bulk method prescribed in 15 sec. 6 of this Act, is determined to have a content equal to or greater than 0.25 percent 16 naturally occurring asbestos by mass in transportation projects and public facilities, the 17 department shall apply those standards to a person described in AS 18.31.250 for a project 18 that is not subject to AS 44.42.410(b). 19 (b) Notwithstanding AS 44.42.410(b), added by sec. 4 of this Act, to ensure early 20 application of the policy described in sec. 1 of this Act to a limited number of appropriate 21 transportation projects and public facilities until the development and implementation of 22 initial standards under AS 44.42.420 and the administrative requirements of AS 44.42.400, 23 after consultation with the Department of Environmental Conservation, Department of Health 24 and Social Services, Department of Labor and Workforce Development, and appropriate 25 federal agencies, the Department of Transportation and Public Facilities may prepare and 26 adopt interim standards and operating procedures and may require of its contractors the 27 preparation of site-specific plans for the use of gravel or other aggregate material that when 28 tested using the bulk method prescribed in sec. 6 of this Act, is determined to have a content 29 equal to or greater than 0.25 percent naturally occurring asbestos by mass. 30 (c) The authority granted by (a) and (b) of this section expires December 31, 2012. 31 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to
01 read: 02 INTERIM STANDARDS FOR APPLICATION OF ASBESTOS BULK TESTING. 03 Until the Department of Transportation and Public Facilities adopts and prescribes a method 04 of bulk testing under AS 44.42.420(a), added by sec. 4 of this Act, the department shall use 05 California Air Resources Board Method 435, Determination of Asbestos Content of 06 Serpentine Aggregate, adopted on June 6, 1991, as that standard has effect on the effective 07 date of this Act, as the basis for determining the asbestos content of a bulk sample or for 08 interim use as authorized by sec. 5 of this Act. 09 * Sec. 7. This Act takes effect immediately under AS 01.10.070(c).