Enrolled HB 258: Directing the Department of Transportation and Public Facilities to develop and implement standards and operating procedures, to evaluate site-specific use plans, and to designate project areas concerning gravel or other aggregate material containing naturally occurring asbestos; authorizing use on an interim basis of gravel or other aggregate material containing naturally occurring asbestos 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 in certain areas; requiring contractors to report certain asbestos-related data to the Department of Transportation and Public Facilities; and providing for an effective date.
00Enrolled HB 258 01 Directing the Department of Transportation and Public Facilities to develop and implement 02 standards and operating procedures, to evaluate site-specific use plans, and to designate 03 project areas concerning gravel or other aggregate material containing naturally occurring 04 asbestos; authorizing use on an interim basis of gravel or other aggregate material containing 05 naturally occurring asbestos for certain transportation projects and public facilities; providing 06 immunity for the state and for landowners, extractors, suppliers, transporters, and contractors 07 for certain actions or claims arising in connection with the use of gravel or aggregate material 08 containing naturally occurring asbestos in certain areas; requiring contractors to report certain 09 asbestos-related data to the Department of Transportation and Public Facilities; and providing 10 for an effective date. 11 _______________ 12
01 * Section 1. AS 09.65 is amended by adding a new section to read: 02 Sec. 09.65.245. Immunity for certain persons supplying or using gravel or 03 other aggregate material; limitations on asbestos-related actions against 04 defendants. (a) Notwithstanding AS 09.50.250, a civil action or claim for damages or 05 costs alleging a death, injury, illness, disability, property damage, or any other 06 damages resulting from the use of gravel or other aggregate material that contains 07 naturally occurring asbestos may not be brought against a defendant, including a 08 contractor meeting the requirements of the program or the state and its agencies, 09 officers, and employees, 10 (1) based on the ownership of land within an area designated by the 11 Department of Transportation and Public Facilities under AS 44.42.400(b) or (c) from 12 which gravel or other aggregate material is extracted that, when tested using a bulk 13 method prescribed by the Department of Transportation and Public Facilities by 14 regulation, is determined to have a content equal to or greater than 0.25 percent 15 naturally occurring asbestos by mass; or 16 (2) for an act or omission occurring in the course of extracting, 17 supplying, transporting, or using gravel or other aggregate material containing 18 naturally occurring asbestos within an area designated by the Department of 19 Transportation and Public Facilities under AS 44.42.400(b) or (c) when the act or 20 omission was in compliance with the requirements of AS 18.31.250 or 21 AS 44.42.410(b), as applicable, and AS 44.42.410(a) and (e) and applicable 22 regulations developed under AS 44.42.420. 23 (b) A civil action or claim based on noncompliance with the requirements of 24 AS 18.31.250 or AS 44.42.410(b), as applicable, and AS 44.42.410(a) and (e) and 25 applicable regulations developed under AS 44.42.420 for damages or costs alleging an 26 asbestos-related death, injury, illness, or disability or alleging asbestos-related 27 property damage or any other asbestos-related damages may only be brought against a 28 defendant that has direct control over or responsibility for compliance with the 29 requirements of AS 18.31.250 or AS 44.42.410(b), as applicable, and AS 44.42.410(a) 30 and (e) and applicable regulations developed under AS 44.42.420. 31 (c) Notwithstanding AS 09.50.250, a civil action or claim for damages or costs
01 alleging an asbestos-related death, injury, illness, or disability or alleging asbestos- 02 related property damage or any other asbestos-related damages may not be brought 03 against any state agency or officer or employee of the state for an act or omission 04 occurring in the course of designating a project area under AS 44.42.400(b) or (c), 05 approving a site-specific use plan, or developing or approving a monitoring plan or a 06 mitigation plan under AS 44.42.410. 07 (d) In this section, "naturally occurring asbestos" has the meaning given in 08 AS 44.42.430. 09 * Sec. 2. AS 18.31 is amended by adding new sections to read: 10 Article 2A. Naturally Occurring Asbestos. 11 Sec. 18.31.250. Use of materials containing naturally occurring asbestos. 12 (a) A principal construction contractor or, in the absence of an identified principal 13 construction contractor, person having legal authority for the design and construction 14 of a project may qualify for immunity in a civil action under AS 09.65.245(a)(2) for 15 the use of gravel or other aggregate material that, when tested using a bulk test method 16 prescribed by the Department of Transportation and Public Facilities by regulation, is 17 determined to have a content equal to or greater than 0.25 percent of naturally 18 occurring asbestos by mass. 19 (b) To qualify for the immunity provided under AS 09.65.245(a)(2), before 20 initiating a construction project not subject to AS 44.42.410(b) that is within an area 21 designated by the Department of Transportation and Public Facilities under 22 AS 44.42.400(b) or (c) and that will use gravel or other aggregate material that 23 contains naturally occurring asbestos, the principal construction contractor or, in the 24 absence of an identified principal construction contractor, the person having legal 25 authority for the design and construction of the project shall prepare and submit to the 26 Department of Transportation and Public Facilities specific project plans 27 demonstrating compliance with the standards adopted by the department under 28 AS 44.42.420 and the requirements of the site-specific use plan under AS 44.42.410. 29 Before extraction of gravel or other aggregate material may begin, the plan must be 30 approved and returned to the contractor by the department. 31 (c) To preserve the immunity provided under AS 09.65.245(a)(2), the
01 principal construction contractor or, in the absence of an identified principal 02 construction contractor, the person having legal authority for the design and 03 construction of the project shall adhere to the site-specific use plan approved by the 04 department and the monitoring and mitigation plan created by the department. 05 Sec. 18.31.260. Presence of naturally occurring asbestos. The state shall 06 consider 0.25 percent by mass, the minimum detectable amount of asbestos under the 07 California Air Resources Board Method 435, as the baseline for the presence of 08 naturally occurring asbestos in gravel or other aggregate material. 09 * Sec. 3. AS 44.42 is amended by adding new sections to read: 10 Article 3A. Use of Materials Containing Naturally Occurring Asbestos. 11 Sec. 44.42.400. Administration and designated areas. (a) The department 12 shall designate a single employee who reports to the commissioner to oversee the 13 duties assigned to the department in AS 44.42.400 - 44.42.430 and to serve as the 14 point of contact for inquiries related to projects using gravel or other aggregate 15 material containing naturally occurring asbestos. 16 (b) An area that includes land within a municipality or community may be 17 designated by the department as an area in which certain landowners and contractors 18 are granted immunity under AS 09.65.245(a) for causing asbestos-related injuries only 19 if the municipality or community requests that designation. A municipality or 20 community may request to become an area designated by the department under this 21 subsection by submitting an application to the department. The department may 22 approve an application received under this subsection only after reviewing tests 23 documenting the presence of naturally occurring asbestos in that area, analyzing the 24 effect of the presence of naturally occurring asbestos on construction projects in the 25 area, considering the availability of gravel or other aggregate material free from 26 naturally occurring asbestos in the area, and soliciting public input from residents in 27 the affected municipality or community. The department may require a municipality 28 or community that applies to become a designated area to provide the department with 29 tests documenting the presence of naturally occurring asbestos, information related to 30 the effect of the presence of naturally occurring asbestos on construction projects in 31 the area, information related to availability of gravel or other aggregate material free
01 from naturally occurring asbestos, and other information relevant to the application. 02 After designating an area after approval of an application under this subsection, the 03 department shall notify, including through signage, potentially affected persons that 04 the area has been designated as an area where immunity may be granted under 05 AS 09.65.245(a) for certain landowners and contractors causing asbestos-related 06 injuries. 07 (c) In places that do not include a municipality or community, the department 08 may designate an area in which certain landowners and contractors are granted 09 immunity under AS 09.65.245(a) for causing asbestos-related injuries. Before 10 designating an area under this subsection, the department shall document the presence 11 of naturally occurring asbestos in that area, analyze the effect of the presence of 12 naturally occurring asbestos on construction projects in the area, consider the 13 availability of gravel or other aggregate material free from naturally occurring 14 asbestos in the area, and solicit public input from potentially affected persons. After 15 designating an area under this subsection, the department shall notify, including 16 through signage, potentially affected persons that the area has been designated as an 17 area where immunity may be granted under AS 09.65.245(a) for certain landowners 18 and contractors causing asbestos-related injuries. 19 (d) In this section, "community" means a place in the unorganized borough, in 20 a borough, or in a unified municipality that is not incorporated as a municipality, that 21 is not a reserve, and in which 25 or more individuals reside as a social unit. 22 Sec. 44.42.410. Site-specific use plan. (a) To qualify for the immunity 23 provided under AS 09.65.245(a)(2), a contractor intending to use, within an area 24 designated by the department under AS 44.42.400(b) or (c), gravel or other aggregate 25 material that, when tested using a bulk test method prescribed by the department in 26 regulation, is determined to have a content equal to or greater than 0.25 percent of 27 naturally occurring asbestos by mass, shall, after consulting with the owner of the land 28 on which the gravel or other aggregate material containing naturally occurring 29 asbestos will be placed, submit a site-specific use plan to the department that 30 (1) describes the manner in which the proposed use of gravel or other 31 aggregate material that contains naturally occurring asbestos conforms to the standards
01 adopted under AS 44.42.420(b); 02 (2) demonstrates how the proposed construction operation and 03 maintenance practices comply with those that are required and those that are 04 minimally acceptable, as described in AS 44.42.420(b)(5), and otherwise meet 05 requirements of law applicable to the handling of compounds that contain asbestos; 06 (3) outlines the efforts that will be made, as a component of long-term 07 maintenance on the completed project or facility, to ensure that human health and air 08 quality are not compromised by the use of the gravel or other aggregate material that 09 contains naturally occurring asbestos; 10 (4) describes how the gravel or other aggregate material to be used can 11 be contained underneath the project or buried so that asbestos fibers cannot become 12 airborne or otherwise transferred outside of the project area, except as provided in (5) 13 and (6) of this subsection; 14 (5) if the requirements in (4) of this subsection are economically 15 unreasonable, describes how the gravel or other aggregate material to be used will be 16 sealed, including chip sealing or mixing with asphalt, in order to prevent asbestos 17 fibers from becoming airborne or otherwise transferred outside of the project area, 18 except as provided in (6) of this subsection; and 19 (6) if the requirements under (4) and (5) of this subsection are 20 economically unreasonable, describes how the gravel or other aggregate material will 21 be used in order to prevent asbestos from becoming airborne or otherwise transferred 22 outside of the project area, including how the gravel or other aggregate material will 23 be used in order to prevent asbestos from becoming airborne because of vehicle 24 traffic, road maintenance, or grading, if applicable. 25 (b) To qualify for and preserve the immunity provided under 26 AS 09.65.245(a)(2), the department, in its operating procedures applicable to a project 27 that is a transportation facility, including a public highway, airport, or pipeline or 28 railroad track bed, or a public work, as that term is defined in AS 35.95.100, and for 29 which the contractor intends to use, within an area designated by the department under 30 AS 44.42.400(b) or (c), gravel or other aggregate material that, when tested using a 31 bulk testing method prescribed by the department in regulation, is determined to have
01 a content equal to or greater than 0.25 percent of naturally occurring asbestos by mass, 02 shall require that 03 (1) the contractor submit a plan that details the use of gravel or other 04 aggregate material in the construction or maintenance of the transportation project or 05 public facility in accordance with the requirements of (a) of this section and 06 regulations developed under AS 44.42.420; 07 (2) before the extraction of the gravel or other aggregate material 08 containing naturally occurring asbestos may begin, the plan be approved and returned 09 to the contractor by the department; 10 (3) the contractor adhere to the monitoring, mitigation, and site- 11 specific use plans. 12 (c) The department shall review each submitted site-specific use plan and shall 13 work toward approving or disapproving the plan, taking into consideration the 14 construction season in the project location. 15 (d) The department may not approve a plan for construction with gravel or 16 other aggregate material determined to have a content equal to or greater than 0.25 17 percent of naturally occurring asbestos by mass unless 18 (1) the department determines that it is economically unreasonable to 19 undertake the construction project with gravel or other aggregate material free from 20 naturally occurring asbestos; and 21 (2) the completed project will not use gravel or other aggregate 22 material containing naturally occurring asbestos for a surface application except if the 23 material to be used for the surface application is treated or bound with a surface 24 compound, including chip seal or asphalt, approved by the department. 25 (e) On receiving a plan that meets the requirements of (a) and (d) of this 26 section and the regulations adopted under AS 44.42.420, the department, in 27 consultation with the Department of Environmental Conservation, the Department of 28 Health and Social Services, the Department of Natural Resources, the Department of 29 Law, and the Department of Labor and Workforce Development, shall develop a 30 monitoring and mitigation plan for the project. If the site-specific use plan is approved, 31 the monitoring and mitigation plan developed by the department shall be attached to
01 the site-specific use plan. To qualify for the immunity provided in AS 09.65.245(a)(2), 02 the party that has direct control over or responsibility for the monitoring or mitigation 03 shall comply with the monitoring or mitigation plan developed by the department. 04 (f) On approval of a site-specific use plan, the department 05 (1) shall provide to the contractor a copy of the approved site-specific 06 use plan that includes 07 (A) the monitoring and mitigation plan developed under (e) of 08 this section; 09 (B) a requirement that all asbestos-related data collected by the 10 contractor during or after construction be submitted to the department; and 11 (C) recommended methods for reducing exposure to airborne 12 asbestos fibers; 13 (2) shall provide a copy of the site-specific use plan, including the 14 monitoring and mitigation plan, to the mayor or manager of a municipality affected by 15 the use of gravel or other aggregate material containing naturally occurring asbestos; 16 and 17 (3) may provide to the contractor copies of the United States 18 Occupational Safety and Health Administration, United States Mine Safety and Health 19 Administration, and United States Environmental Protection Agency recommended 20 practices for handling and use of gravel or other aggregate material containing 21 naturally occurring asbestos. 22 (g) Within 60 days after completing a project in accordance with a site- 23 specific use plan approved by the department, the contractor shall record in the 24 recording district where the property is located a document that includes a description 25 of the affected property, a reference to the most recent recorded conveyance of that 26 property, and a notice indicating the presence of naturally occurring asbestos, and 27 stating that subsequent interest holders may have legal obligations with respect to 28 preventing the naturally occurring asbestos from becoming airborne or otherwise 29 transferred outside of the project area. The contractor shall provide written notification 30 to the department and the landowner that the document has been recorded. 31 (h) The contractor shall submit to the department the results of any monitoring
01 or testing performed in accordance with the site-specific use plan and any mitigation 02 measures undertaken. 03 Sec. 44.42.420. Regulations. (a) The department, after consultation with the 04 Department of Environmental Conservation, the Department of Health and Social 05 Services, the Department of Natural Resources, the Department of Law, and the 06 Department of Labor and Workforce Development, shall prescribe in regulation a bulk 07 testing method for gravel or other aggregate material containing naturally occurring 08 asbestos. 09 (b) The department, after consultation with the Department of Environmental 10 Conservation, the Department of Health and Social Services, the Department of 11 Natural Resources, the Department of Law, and the Department of Labor and 12 Workforce Development, may adopt regulations under AS 44.62 (Administrative 13 Procedure Act) to implement AS 44.42.400 - 44.42.430, including regulations revising 14 statewide standards on the use in the construction and maintenance of transportation 15 projects and public facilities of gravel or other aggregate material that, when tested 16 using a bulk test method prescribed by the department by regulation, is determined to 17 have a content equal to or greater than 0.25 percent of naturally occurring asbestos by 18 mass. The regulations adopted under this subsection must include 19 (1) procedures for completing site investigations and characterizations 20 of proposed projects, including the development and description of appropriate 21 laboratory practices; 22 (2) procedures for reviewing design alternatives and preparing and 23 evaluating appropriate comparative cost analyses that consider the use of gravel or 24 other aggregate material that does not contain naturally occurring asbestos; 25 (3) procedures for evaluating human health concerns arising out of 26 gravel or other aggregate material that contains naturally occurring asbestos and 27 documentation of methods and means to be used during periods of handling of the 28 gravel or other aggregate material to ensure compliance with appropriate workplace 29 safety and air quality standards relating to the project and to ensure the health and 30 safety of communities affected by construction projects that use gravel or other 31 aggregate material containing naturally occurring asbestos;
01 (4) procedures for preparing designs and design specifications for 02 facilities involving use of gravel or other aggregate material that contains naturally 03 occurring asbestos; 04 (5) procedures for outlining construction operation and maintenance 05 practices that are required and those that are minimally acceptable to meet 06 requirements of law applicable to the handling of compounds that contain asbestos; 07 (6) procedures for processing, reviewing, and approving or 08 disapproving site-specific use plans and area designation requests received under 09 AS 44.42.400(b) in a uniform manner; 10 (7) guidelines to analyze the cost of a project; 11 (8) guidelines for determining whether the cost associated with the use 12 of gravel or other aggregate material free from naturally occurring asbestos under 13 AS 44.42.410(d) is economically unreasonable; 14 (9) guidelines for determining whether the cost associated with 15 burying or sealing gravel or other aggregate material containing naturally occurring 16 asbestos under AS 44.42.410(a)(2) and (3) is economically unreasonable; 17 (10) guidelines for establishing areas designated under 18 AS 44.42.400(b) or (c) that take into account the effect on human health in and around 19 the designated area and environmental factors affecting the transfer of asbestos fibers 20 within and outside of a designated area. 21 Sec. 44.42.430. Definitions. In AS 44.42.400 - 44.42.430, 22 (1) "contractor" means the principal construction contractor or, in the 23 absence of an identified principal construction contractor, the person having legal 24 authority for the design and construction of the project; 25 (2) "naturally occurring asbestos" means chrysotile, amosite, 26 crocidolite, fibrous tremolite, fibrous anthophyllite, and fibrous actinolite asbestos- 27 containing material that has not been processed in an asbestos mill and that, when 28 tested using a bulk method prescribed by the Department of Transportation and Public 29 Facilities by regulation, is determined to have a content equal to or greater than 0.25 30 percent naturally occurring asbestos by mass. 31 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to
01 read: 02 INTERIM PROJECT AUTHORIZATION. (a) Notwithstanding AS 44.42.400(b) and 03 (c), added by sec. 3 of this Act, the Department of Transportation and Public Facilities may, 04 on a temporary basis, designate a limited number of areas in the state in which certain 05 landowners and contractors are granted immunity under AS 09.65.245(a) for causing 06 asbestos-related injuries where an inability to complete construction projects has been 07 demonstrated because of lack of gravel or other aggregate material free from naturally 08 occurring asbestos. After designating an area on a temporary basis, the department shall 09 notify, including through signage, potentially affected persons that the area has been 10 designated as an area in which immunity may be granted under AS 09.65.245(a) for certain 11 landowners and contractors causing asbestos-related injuries. Notwithstanding AS 18.31.250, 12 added by sec. 2 of this Act, the Department of Transportation and Public Facilities may 13 approve a limited number of appropriate construction projects until the development and 14 implementation of initial standards under AS 44.42.420 and the administrative requirements 15 of AS 44.42.400, added by sec. 3 of this Act, for projects not subject to AS 44.42.410(b), if, 16 under (b) of this section, the Department of Transportation and Public Facilities prepares and 17 adopts interim standards and requires its contractors to prepare site-specific plans for the use 18 of gravel or other aggregate material that, when tested using the bulk method prescribed in 19 sec. 5 of this Act, is determined to have a content equal to or greater than 0.25 percent 20 naturally occurring asbestos by mass in transportation projects and public facilities. The 21 department shall apply the standards developed under (b) of this section to a person described 22 in AS 18.31.250 for a project that is not subject to AS 44.42.410(b). 23 (b) Notwithstanding AS 44.42.400(b) and (c), added by sec. 3 of this Act, the 24 Department of Transportation and Public Facilities may, on a temporary basis, designate a 25 limited number of areas in the state in which certain landowners and contractors are granted 26 immunity under AS 09.65.245(a) for causing asbestos-related injuries where an inability to 27 complete construction projects has been demonstrated because of lack of gravel or other 28 aggregate material free from naturally occurring asbestos. After designating an area on a 29 temporary basis, the department shall notify, including through signage, potentially affected 30 persons that the area has been designated as an area where immunity may be granted under 31 AS 09.65.245(a) for certain landowners and contractors causing asbestos-related injuries.
01 Notwithstanding AS 44.42.410(b), added by sec. 3 of this Act, the Department of 02 Transportation and Public Facilities may approve a limited number of appropriate 03 transportation projects and public facilities until the development and implementation of 04 initial standards under AS 44.42.420 and the administrative requirements of AS 44.42.400, 05 after consultation with the Department of Environmental Conservation, the Department of 06 Health and Social Services, the Department of Labor and Workforce Development, and 07 appropriate federal agencies. The Department of Transportation and Public Facilities may 08 prepare and adopt interim standards and operating procedures and may require of its 09 contractors the preparation of site-specific plans for the use of gravel or other aggregate 10 material that, when tested using the bulk method prescribed in sec. 5 of this Act, is determined 11 to have a content equal to or greater than 0.25 percent naturally occurring asbestos by mass. 12 (c) The authority granted by (a) and (b) of this section expires December 31, 2013. 13 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 14 read: 15 INTERIM STANDARDS FOR APPLICATION OF ASBESTOS BULK TESTING. 16 Until the Department of Transportation and Public Facilities adopts and prescribes a method 17 of bulk testing under AS 44.42.420(a), added by sec. 3 of this Act, the department shall use 18 California Air Resources Board Method 435, Determination of Asbestos Content of 19 Serpentine Aggregate, adopted on June 6, 1991, as that standard has effect on the effective 20 date of this Act, as the basis for determining the asbestos content of a bulk sample or for 21 interim use as authorized by sec. 4 of this Act. 22 * Sec. 6. This Act takes effect immediately under AS 01.10.070(c).