CSSB 180(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 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 CS FOR SENATE BILL NO. 180(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 materials that contain a limited amount of naturally occurring 10 asbestos, and authorizing use on an interim basis of those materials for certain 11 transportation projects and public facilities; relating to certain claims arising out of or 12 in connection with the use of gravel or aggregate materials containing a limited amount
01 of naturally occurring asbestos; and providing for an effective date." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 04 to read: 05 LEGISLATIVE FINDINGS AND PURPOSE. (a) The legislature finds that 06 (1) gravel or similar aggregate material is constantly in demand for major 07 construction and maintenance of state and local transportation projects and public facilities 08 and for all types of construction by public and private entities; 09 (2) naturally occurring asbestos may be found in sources of gravel and similar 10 aggregate material throughout the state; 11 (3) while airborne asbestos fibers are a significant threat to workplace safety 12 and public health and are subject to close regulation by federal and state authorities under 42 13 U.S.C. 7401 - 7671q (Clean Air Act) and 15 U.S.C. 2601 - 2692 (Toxic Substances Control 14 Act), use of materials containing naturally occurring asbestos in construction projects may be 15 regulated by states; 16 (4) in communities that do not have sources of gravel or similar aggregate 17 material that is free of naturally occurring asbestos, costs of construction are substantially 18 increased because of the necessity of locating alternative sources of gravel or similar 19 aggregate material and transporting that material to distant construction and maintenance 20 sites; and 21 (5) a recent study suggests that, with careful use and close adherence to 22 appropriate control strategies, state and local transportation projects and public facilities may 23 be safely completed using sources of gravel or similar aggregate material containing a limited 24 amount of naturally occurring asbestos; the study recommends that the Department of 25 Transportation and Public Facilities establish standards and operating procedures through a 26 statewide process that will apply to the use of gravel and aggregate material that contains 27 asbestos by the department and by any public or private entity. 28 (b) It is the purpose of this Act 29 (1) to authorize and direct the Department of Transportation and Public 30 Facilities to develop, implement, and, as circumstances may require or indicate, modify
01 standards and operating procedures to allow the use in the construction and maintenance of 02 transportation projects and public facilities of gravel or aggregate material that contains a 03 limited amount of naturally occurring asbestos, with the expectation that use of that material 04 in a manner that is consistent with those standards and procedures may avoid significant risk 05 to human health and eliminate significantly higher costs of construction and maintenance of 06 projects and facilities associated with using only construction material that is free of asbestos; 07 (2) to establish that a person that uses gravel that contains a limited amount of 08 naturally occurring asbestos shall prepare specific project plans that conform to the 09 requirements of this Act and the department's standards and operating procedures; and 10 (3) to shield persons and the state, under certain conditions, from liability 11 based on exposure to naturally occurring asbestos. 12 (c) It is not the purpose of this Act to authorize or provide civil immunity for the use 13 of gravel or other aggregate material that contains more than 0.25 percent naturally occurring 14 asbestos by mass. 15 * Sec. 2. AS 09.65 is amended by adding a new section to read: 16 Sec. 09.65.245. Immunity for certain persons supplying or using gravel or 17 other aggregate material; limitations on asbestos-related actions against 18 defendants. (a) A civil action or claim for damages or costs alleging an asbestos- 19 related death, injury, illness, or disability or alleging asbestos-related property damage 20 or any other asbestos-related damages may not be brought against a defendant, 21 including the state, 22 (1) based on the ownership of land from which gravel or other 23 aggregate material is extracted that, when tested using a bulk method prescribed by the 24 Department of Transportation and Public Facilities by regulation, is determined to 25 have a content of more than zero and less than or equal to 0.25 percent naturally 26 occurring asbestos by mass; or 27 (2) for an act or omission occurring in the course of extracting, 28 supplying, transporting, or using gravel or other aggregate material containing 29 naturally occurring asbestos when the act or omission was in compliance with the 30 requirements of AS 18.31.250 or AS 44.42.410(b) and (d), as applicable. 31 (b) A civil action or claim based on noncompliance with the requirements of
01 AS 18.31.250 or AS 44.42.410(b) or (d) for damages or costs alleging an asbestos- 02 related death, injury, illness, or disability or alleging asbestos-related property damage 03 or any other asbestos-related damages may only be brought against a defendant that 04 has direct control over or responsibility for compliance with the requirements of 05 AS 18.31.250 or AS 44.42.410(b) and (d). 06 (c) A civil action or claim for damages or costs alleging an asbestos-related 07 death, injury, illness, or disability or alleging asbestos-related property damage or any 08 other asbestos-related damages may not be brought against any state agency for an act 09 or omission occurring in the course of approving a site-specific use plan or in the 10 course of developing or approving a monitoring plan or a mitigation plan. 11 (d) In this section, "asbestos" has the meaning given in AS 18.31.500. 12 * Sec. 3. AS 18.31 is amended by adding a new section to read: 13 Article 2A. Use of materials containing naturally occurring asbestos. 14 Sec. 18.31.250. Use of materials containing naturally occurring asbestos. 15 (a) Use of gravel or other aggregate material that, when tested using a bulk test 16 method prescribed by the Department of Transportation and Public Facilities by 17 regulation, is determined to have a content of more than zero percent and less than or 18 equal to 0.25 percent of naturally occurring asbestos by mass, may qualify for 19 immunity in a civil action under AS 09.65.245. 20 (b) To qualify for the immunity provided under AS 09.65.245, before 21 initiating a construction project not subject to AS 44.42.410(b) that will use gravel or 22 other aggregate material that contains naturally occurring asbestos within the limits of 23 (a) of this section, the principal construction contractor or, in the absence of an 24 identified principal construction contractor, the person having legal authority for the 25 design and construction of the project, shall prepare and submit to the Department of 26 Transportation and Public Facilities specific project plans demonstrating compliance 27 with the standards adopted by the department under AS 44.42.420 and the 28 requirements of the site-specific use plan under AS 44.42.410. Before extraction of 29 gravel or other aggregate material may begin, the plan must be approved and returned 30 to the contractor by the department. 31 * Sec. 4. AS 44.42 is amended by adding new sections to read:
01 Article 3A. Use of Materials Containing Naturally Occurring Asbestos. 02 Sec. 44.42.400. Administration. The department shall 03 (1) designate a single employee who reports to the commissioner to 04 oversee the duties assigned to the department in AS 44.42.400 - 44.42.430 and to 05 serve as the point of contact for inquiries related to projects using gravel or other 06 aggregate material containing naturally occurring asbestos; 07 (2) maintain a database of 08 (A) sites in the state known to contain naturally occurring 09 asbestos; 10 (B) known sources of gravel or other aggregate material free 11 from naturally occurring asbestos within reasonable proximity to known sites 12 of naturally occurring asbestos; 13 (C) known sources of gravel or other aggregate material free 14 from naturally occurring asbestos within 25 miles of a community for all 15 known projects the state or a municipality intends to undertake within 25 miles 16 of the community in the next five years where the state or municipality intends 17 to use gravel or other aggregate material containing naturally occurring 18 asbestos; and 19 (D) known communities that do not have reasonable access to 20 gravel or other aggregate material free from naturally occurring asbestos; 21 (3) annually transmit to the commissioner and publish on the 22 department's Internet website a report containing 23 (A) a listing of all current projects for which a plan has been 24 submitted under AS 18.31.250 or AS 44.42.410(b); 25 (B) a listing of all known projects intended to be undertaken by 26 the state or a municipality in the next five years where the state or municipality 27 intends to use gravel or aggregate material containing naturally occurring 28 asbestos; 29 (C) suggestions for potential locations to stockpile gravel or 30 other aggregate material free from naturally occurring asbestos for use in 31 future projects and an estimate of the cost of stockpiling that gravel; and
01 (D) suggestions for potential locations, in coordination with 02 ongoing state and municipal construction projects, to stockpile gravel or other 03 aggregate material free from naturally occurring asbestos for future projects 04 and an estimate of the cost of stockpiling that gravel; and 05 (4) annually provide a report on the monitoring and mitigation data 06 transmitted by contractors to the department under AS 44.42.410(f) and the results of 07 site monitoring performed by the department to the Department of Environmental 08 Conservation, the Department of Health and Social Services, and the Department of 09 Labor and Workforce Development. 10 Sec. 44.42.410. Site-specific use plan. (a) A principal construction contractor 11 intending to use gravel or other aggregate material that, when tested using a bulk test 12 method prescribed by the department in regulation, is determined to have a content of 13 more than zero percent and less than or equal to 0.25 percent of naturally occurring 14 asbestos by mass shall submit a site-specific use plan to the department that 15 (1) describes the manner in which the proposed use of gravel or other 16 aggregate material that contains naturally occurring asbestos conforms to the standards 17 adopted under AS 44.42.420(b); 18 (2) demonstrates how the proposed construction operation and 19 maintenance practices comply with those that are required and those that are 20 minimally acceptable, as described in AS 44.42.420(b)(5), and otherwise meet 21 requirements of law applicable to the handling of compounds that contain asbestos; 22 (3) outlines how, as a component of long-term maintenance on the 23 completed project or facility, the department may reasonably ensure that human health 24 and air quality are not compromised by the use of the gravel or other aggregate 25 material that contains naturally occurring asbestos; 26 (4) describes how the gravel or other aggregate material to be used can 27 be contained underneath the project or buried so that asbestos fibers cannot become 28 airborne or otherwise transferred outside of the project area, except as provided in (5) 29 and (6) of this subsection; 30 (5) if the requirements in (4) of this subsection are economically 31 unreasonable, describes how the gravel or other aggregate material to be used will be
01 sealed, including chip sealing or mixing with asphalt, in order to prevent asbestos 02 fibers from becoming airborne or otherwise transferred outside of the project area, 03 except as provided in (6) of this subsection; and 04 (6) if the requirements under (4) and (5) of this subsection are 05 economically unreasonable, describes how the gravel or other aggregate material will 06 be used in order to prevent asbestos from becoming airborne or otherwise transferred 07 outside of the project area. 08 (b) The department, in its operating procedures applicable to a project that is a 09 transportation facility, including a public highway, airport, or pipeline or railroad track 10 bed, or a public work, as that term is defined in AS 35.95.100, and for which the 11 contractor intends to use gravel or other aggregate material that, when tested using a 12 bulk testing method prescribed by the department in regulation, is determined to have 13 a content of more than zero and less than or equal to 0.25 percent of naturally 14 occurring asbestos by mass, shall require that 15 (1) the principal construction contractor submit a plan that details the 16 use of gravel or other aggregate material in the construction or maintenance of the 17 transportation project or public facility in accordance with the requirements of (a) of 18 this section and regulations developed under AS 44.42.420; 19 (2) before the extraction of the gravel or aggregate material containing 20 naturally occurring asbestos may begin, the plan be approved and returned to the 21 principal construction contractor by the department. 22 (c) A plan for construction with gravel or other aggregate material determined 23 to have a content of more than zero percent and less than or equal to 0.25 percent of 24 naturally occurring asbestos by mass may not be approved unless the department 25 determines that it is economically unreasonable to undertake the construction project 26 with gravel or other aggregate material free from naturally occurring asbestos. 27 (d) On receiving a plan that meets the requirements of (a) and (c) of this 28 section and the regulations adopted under AS 44.42.420, the department, in 29 consultation with the Department of Environmental Conservation, the Department of 30 Health and Social Services, and the Department of Labor and Workforce 31 Development, shall develop a monitoring and mitigation plan for the project. If the
01 site-specific use plan is approved, the monitoring and mitigation plan developed by the 02 department shall be attached to the site-specific use plan. To qualify for the immunity 03 provided in AS 09.65.245, the party that has direct control over or responsibility for 04 the monitoring or mitigation shall comply with the monitoring or mitigation plan 05 developed by the department. 06 (e) On approval of a site-specific use plan, the department shall 07 (1) return to the principal construction contractor, a copy of the site- 08 specific use plan, including 09 (A) the monitoring and mitigation plan developed under (d) of 10 this section; 11 (B) recommended methods for reducing exposure to airborne 12 asbestos fibers; and 13 (C) copies of the United States Occupational Safety and Health 14 Administration, United States Mine Safety and Health Administration, and 15 United States Environmental Protection Agency recommended practices for 16 handling and use of gravel or other aggregate material containing naturally 17 occurring asbestos; 18 (2) provide a copy of the site-specific use plan, including the 19 monitoring and mitigation plan, to the mayor or manager of a municipality affected by 20 the use of gravel or other aggregate material containing asbestos. 21 (f) The contractor shall submit to the department the results of any monitoring 22 or testing performed in accordance with the site-specific use plan and any mitigation 23 measures undertaken. 24 Sec. 44.42.420. Regulations. (a) The department, after consultation with the 25 Department of Environmental Conservation, Department of Health and Social 26 Services, and Department of Labor and Workforce Development, shall prescribe in 27 regulation a bulk testing method for gravel or other aggregate material containing 28 naturally occurring asbestos. 29 (b) The department, after consultation with the Department of Environmental 30 Conservation, Department of Health and Social Services, and Department of Labor 31 and Workforce Development, shall develop, implement, and revise statewide
01 standards to regulate the use in the construction and maintenance of transportation 02 projects and public facilities of gravel or aggregate material that, when tested using a 03 bulk test method prescribed by the department by regulation, is determined to have a 04 content of more than zero percent and less than or equal to 0.25 percent of naturally 05 occurring asbestos by mass. The standards adopted under this subsection must include 06 procedures for 07 (1) completing site investigations and characterizations of proposed 08 projects, including the development and description of appropriate laboratory 09 practices; 10 (2) reviewing design alternatives and preparing and evaluating 11 appropriate comparative cost analyses that consider the use of gravel or other 12 aggregate material that does not contain naturally occurring asbestos; 13 (3) evaluating human health concerns arising out of gravel or other 14 aggregate material that contains naturally occurring asbestos and documentation of 15 methods and means to be used during periods of handling of the gravel or other 16 aggregate material to ensure compliance with appropriate workplace safety and air 17 quality standards relating to the project; 18 (4) preparing designs and design specifications for facilities involving 19 use of gravel or other aggregate material that contains naturally occurring asbestos; 20 (5) outlining construction operation and maintenance practices that are 21 required and those that are minimally acceptable to meet requirements of law 22 applicable to the handling of compounds that contain asbestos. 23 Sec. 44.42.430. Definitions. In AS 44.42.400 - 44.42.430, 24 (1) "asbestos" has the meaning given in AS 18.31.500; 25 (2) "principal construction contractor" means the person having legal 26 authority for the design and construction of the project. 27 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 INTERIM PROJECT AUTHORIZATION. (a) Notwithstanding AS 18.31.250, added 30 by sec. 3 of this Act, to ensure early application of the policy described in sec. 1 of this Act to 31 a limited number of appropriate construction projects until the development and
01 implementation of initial standards under AS 44.42.420 and the administrative requirements 02 of AS 44.42.400, added by sec. 4 of this Act, for projects not subject to AS 44.42.410(b), if, 03 under (b) of this section, the Department of Transportation and Public Facilities prepares and 04 adopts interim standards and requires its contractors to prepare site-specific plans for the use 05 of gravel or other aggregate material that, when tested using the bulk method prescribed in 06 sec. 6 of this Act, is determined to have a content of more than zero and less than or equal to 07 0.25 percent naturally occurring asbestos by mass in transportation projects and public 08 facilities, the department shall apply those standards to a person described in AS 18.31.250 09 for a project that is not subject to AS 44.42.410(b). 10 (b) Notwithstanding AS 44.42.410(b), added by sec. 4 of this Act, to ensure early 11 application of the policy described in sec. 1 of this Act to a limited number of appropriate 12 transportation projects and public facilities until the development and implementation of 13 initial standards under AS 44.42.420 and the administrative requirements of AS 44.42.400, 14 after consultation with the Department of Environmental Conservation, Department of Health 15 and Social Services, Department of Labor and Workforce Development, and appropriate 16 federal agencies, the Department of Transportation and Public Facilities may prepare and 17 adopt interim standards and operating procedures and may require of its contractors the 18 preparation of site-specific plans for the use of gravel or other aggregate material that when 19 tested using the bulk method prescribed in sec. 6 of this Act, is determined to have a content 20 of more than zero and less than or equal to 0.25 percent naturally occurring asbestos by mass. 21 (c) The authority granted by (a) and (b) of this section expires December 31, 2012. 22 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 INTERIM STANDARDS FOR APPLICATION OF ASBESTOS BULK TESTING. 25 Until the Department of Transportation and Public Facilities adopts and prescribes a method 26 of bulk testing under AS 44.42.420(a), added by sec. 4 of this Act, the department shall use 27 California Air Resources Board Method 435, Determination of Asbestos Content of 28 Serpentine Aggregate, adopted on June 6, 1991, as that standard has effect on the effective 29 date of this Act, as the basis for determining the asbestos content of a bulk sample or for 30 interim use as authorized by sec. 5 of this Act. 31 * Sec. 7. This Act takes effect immediately under AS 01.10.070(c).