SB 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."
00 SENATE BILL NO. 180 01 "An Act directing the Department of Transportation and Public Facilities to develop 02 and implement standards and operating procedures allowing for the use in the 03 construction and maintenance of transportation projects and public facilities and in the 04 construction of projects by public and private entities of gravel or aggregate materials 05 that contain a limited amount of naturally occurring asbestos, and authorizing use on an 06 interim basis of those materials for certain transportation projects and public facilities; 07 relating to certain claims arising out of or in connection with the use of gravel or 08 aggregate materials containing a limited amount of naturally occurring asbestos; and 09 providing for an effective date." 10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 11 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 12 to read:
01 LEGISLATIVE FINDINGS AND PURPOSE. (a) The legislature finds that 02 (1) gravel or similar aggregate material is constantly in demand for major 03 construction and maintenance of state and local transportation projects and public facilities 04 and for all types of construction by public and private entities; 05 (2) naturally occurring asbestos may be found in sources of gravel and similar 06 aggregate material throughout the state; 07 (3) while airborne asbestos fibers are a significant threat to workplace safety 08 and public health and are subject to close regulation by federal and state authorities under 42 09 U.S.C. 7401 - 7671q (Clean Air Act) and 15 U.S.C. 2601 - 2692 (Toxic Substances Control 10 Act), use of materials containing naturally occurring asbestos in construction projects may be 11 regulated by states; 12 (4) in communities that do not have sources of gravel or similar aggregate 13 material that is free of naturally occurring asbestos, costs of construction are substantially 14 increased because of the necessity of locating alternative sources of gravel or similar 15 aggregate material and transporting that material to distant construction and maintenance 16 sites; and 17 (5) a recent study suggests that, with careful use and close adherence to 18 appropriate control strategies, state and local transportation projects and public facilities may 19 be safely completed using sources of gravel or similar aggregate material containing a limited 20 amount of naturally occurring asbestos; the study recommends that the Department of 21 Transportation and Public Facilities establish standards and operating procedures through a 22 statewide process that will apply to the use of gravel and aggregate material that contains 23 asbestos by the department and by any public or private entity. 24 (b) It is the purpose of this Act 25 (1) to authorize and direct the Department of Transportation and Public 26 Facilities to develop, implement, and, as circumstances may require or indicate, modify 27 standards and operating procedures to allow the use in the construction and maintenance of 28 transportation projects and public facilities of gravel or aggregate material that contains a 29 limited amount of naturally occurring asbestos, with the expectation that use of that material 30 in a manner that is consistent with those standards and procedures may avoid significant risk 31 to human health and eliminate significantly higher costs of construction and maintenance of
01 projects and facilities associated with using only construction material that is free of asbestos; 02 (2) to establish that a person that uses gravel that contains a limited amount of 03 naturally occurring asbestos shall prepare specific project plans that conform to the 04 department's standards and operating procedures; and 05 (3) to shield persons, under certain conditions, from liability based on 06 exposure to naturally occurring asbestos. 07 * Sec. 2. AS 09.65 is amended by adding a new section to read: 08 Sec. 09.65.245. Immunity for certain persons supplying or using gravel or 09 other aggregate material; limitations on asbestos-related actions against 10 defendants. (a) A civil action or claim for damages or costs alleging an asbestos- 11 related death, injury, illness, or disability or alleging asbestos-related property damage 12 or any other asbestos-related damages may not be brought against a defendant 13 (1) based on the ownership of land from which gravel or other 14 aggregate material is extracted that, when tested using a bulk method prescribed by the 15 Department of Transportation and Public Facilities by regulation is determined to have 16 a content of less than or equal to 0.25 percent naturally occurring asbestos by mass; or 17 (2) for an act or omission occurring in the course of extracting, 18 supplying, transporting, or using gravel or other aggregate material containing 19 naturally occurring asbestos when the act or omission was in compliance with the 20 requirements of AS 18.31.250 or AS 44.42.022, as applicable. 21 (b) A civil action or claim based on noncompliance with the requirements of 22 AS 18.31.250 or AS 44.42.022 for damages or costs alleging an asbestos-related 23 death, injury, illness, or disability or alleging asbestos-related property damage or any 24 other asbestos-related damages may only be brought against a defendant that has 25 direct control over or responsibility for compliance with the requirements of 26 AS 18.31.250 or AS 44.42.022. 27 (c) In this section, "asbestos" has the meaning given in AS 18.31.500. 28 * Sec. 3. AS 18.31 is amended by adding a new section to read: 29 Article 2A. Use of materials containing naturally occurring asbestos. 30 Sec. 18.31.250. Use of materials containing naturally occurring asbestos. 31 (a) Use of gravel or other aggregate material that, when tested using a bulk test
01 method prescribed by the Department of Transportation and Public Facilities by 02 regulation, is determined to have a content of more than zero percent and less than or 03 equal to 0.25 percent of naturally occurring asbestos by mass, may qualify for 04 immunity in a civil action under AS 09.65.245. 05 (b) To qualify for the immunity provided under AS 09.65.245, before 06 initiating a construction project not subject to AS 44.42.022 that will use gravel or 07 other aggregate material that contains naturally occurring asbestos within the limits of 08 (a) of this section, the principal construction contractor or, in the absence of an 09 identified principal construction contractor, the person having legal authority for the 10 design and construction of the project, shall prepare and submit to the Department of 11 Transportation and Public Facilities specific project plans demonstrating compliance 12 with the standards adopted by the department to implement AS 44.42.022. Before the 13 principal construction contractor or other person responsible for the project may use 14 the gravel or other aggregate material, the plan must be approved by the department. 15 * Sec. 4. AS 44.42 is amended by adding a new section to read: 16 Sec. 44.42.022. Use of materials containing naturally occurring asbestos. 17 (a) The department, after consultation with the Department of Environmental 18 Conservation, Department of Health and Social Services, and Department of Labor 19 and Workforce Development, shall develop, implement, and revise statewide 20 standards to regulate the use in the construction and maintenance of transportation 21 projects and public facilities of gravel or aggregate material that, when tested using a 22 bulk test method prescribed by the department by regulation, is determined to have a 23 content of more than zero percent and less than or equal to 0.25 percent of naturally 24 occurring asbestos by mass. 25 (b) The standards adopted under (a) of this section must include procedures 26 for 27 (1) completing site investigations and characterizations of proposed 28 projects, including the development and description of appropriate laboratory 29 practices; 30 (2) reviewing design alternatives and preparing and evaluating 31 appropriate comparative cost analyses that consider the use of gravel or other
01 aggregate material that does not contain naturally occurring asbestos; 02 (3) evaluating human health concerns arising out of gravel or other 03 aggregate material that contains naturally occurring asbestos and documentation of 04 methods and means to be used during periods of handling of the gravel or other 05 aggregate material to ensure compliance with appropriate workplace safety and air 06 quality standards relating to the project; 07 (4) preparing designs and design specifications for facilities involving 08 use of gravel or other aggregate material that contains naturally occurring asbestos; 09 (5) outlining construction operation and maintenance practices that are 10 required and those that are minimally acceptable to meet requirements of law 11 applicable to the handling of compounds that contain asbestos. 12 (c) The department, in its operating procedures applicable to a project that is a 13 transportation facility, including a public highway, airport, or pipeline or railroad track 14 bed, or a public work, as that term is defined in AS 35.95.100 and that is subject to 15 this section, shall require that 16 (1) the principal contractor responsible for performance of the work 17 under the construction contract prepare and submit a plan that details the use of gravel 18 or other aggregate material in the construction or maintenance of the transportation 19 project or public facility; 20 (2) the plan be approved by the department before the contractor may 21 use the gravel or aggregate material. 22 (d) The contractor's site-specific plan required under (c) of this section shall 23 (1) describe the manner in which the contractor's proposed use of 24 gravel or other aggregate material that contains naturally occurring asbestos conforms 25 to the standards adopted under (a) of this section; 26 (2) demonstrate how the contractor's proposed construction operation 27 and maintenance practices comply with those that are required and those that are 28 minimally acceptable, as described in (b)(5) of this section, and otherwise meet 29 requirements of law applicable to the handling of compounds that contain asbestos; 30 and 31 (3) outline how, as a component of long-term maintenance on the
01 completed project or facility, the department may reasonably ensure that human health 02 and air quality are not compromised by the use of the gravel or other aggregate 03 material that contains naturally occurring asbestos. 04 (e) In this section, "asbestos" has the meaning given in AS 18.31.500. 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 44.42.022, added by sec. 4 of this Act, for 11 projects not subject to that section, if, under (b) of this section, the Department of 12 Transportation and Public Facilities prepares and adopts interim standards and requires its 13 contractors to prepare site-specific plans for the use of gravel or other aggregate material that 14 contains naturally occurring asbestos within the limits set out in AS 18.31.250(a), added by 15 sec. 3 of this Act, in transportation projects and public facilities, the department shall apply 16 those standards to a person described in AS 18.31.250 for a project that is not subject to 17 AS 44.42.022. 18 (b) Notwithstanding AS 44.42.022, added by sec. 4 of this Act, to ensure early 19 application of the policy described in sec. 1 of this Act to a limited number of appropriate 20 transportation projects and public facilities until the development and implementation of 21 initial standards under AS 44.42.022, after consultation with the Department of 22 Environmental Conservation, Department of Health and Social Services, Department of Labor 23 and Workforce Development, and appropriate federal agencies, the Department of 24 Transportation and Public Facilities may prepare and adopt interim standards and operating 25 procedures and may require of its contractors the preparation of site-specific plans for the use 26 of gravel or other aggregate material that contains naturally occurring asbestos within the 27 limits set out in AS 44.42.022, added by sec. 4 of this Act. 28 (c) The authority granted by (a) and (b) of this section expires December 31, 2012. 29 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 INTERIM STANDARDS FOR APPLICATION OF ASBESTOS BULK TESTING.
01 Until the Department of Transportation and Public Facilities adopts and prescribes a method 02 of bulk testing under AS 44.42.022, added by sec. 4 of this Act, the department may use 03 California Air Resources Board Method 435, Determination of Asbestos Content of 04 Serpentine Aggregate, adopted on June 6, 1991, as that standard has effect on the effective 05 date of this Act, as the basis for determining the asbestos content of a bulk sample in a bulk 06 test that is required under AS 44.42.022, enacted by sec. 4 of this Act, or for interim use as 07 authorized by sec. 5 of this Act. 08 * Sec. 7. This Act takes effect immediately under AS 01.10.070(c).