Section 44.42.410. Site-specific use plan.

   (a) To qualify for the immunity provided under AS 09.65.245(a)(2), a contractor intending to use, within an area designated by the department under AS 44.42.400(b) or (c), gravel or other aggregate material that, when tested using a bulk test method prescribed by the department in regulation, is determined to have a content equal to or greater than 0.25 percent of naturally occurring asbestos by mass, shall, after consulting with the owner of the land on which the gravel or other aggregate material containing naturally occurring asbestos will be placed, submit a site-specific use plan to the department that
        (1) describes the manner in which the proposed use of gravel or other aggregate material that contains naturally occurring asbestos conforms to the standards adopted under AS 44.42.420(b);
        (2) demonstrates how the proposed construction operation and maintenance practices comply with those that are required and those that are minimally acceptable, as described in AS 44.42.420(b)(5), and otherwise meet requirements of law applicable to the handling of compounds that contain asbestos;
        (3) outlines the efforts that will be made, as a component of long-term maintenance on the completed project or facility, to ensure that human health and air quality are not compromised by the use of the gravel or other aggregate material that contains naturally occurring asbestos;
        (4) describes how the gravel or other aggregate material to be used can be contained underneath the project or buried so that asbestos fibers cannot become airborne or otherwise transferred outside of the project area, except as provided in (5) and (6) of this subsection;
        (5) if the requirements in (4) of this subsection are economically unreasonable, describes how the gravel or other aggregate material to be used will be sealed, including chip sealing or mixing with asphalt, in order to prevent asbestos fibers from becoming airborne or otherwise transferred outside of the project area, except as provided in (6) of this subsection; and
        (6) if the requirements under (4) and (5) of this subsection are economically unreasonable, describes how the gravel or other aggregate material will be used in order to prevent asbestos from becoming airborne or otherwise transferred outside of the project area, including how the gravel or other aggregate material will be used in order to prevent asbestos from becoming airborne because of vehicle traffic, road maintenance, or grading, if applicable.
   (b) To qualify for and preserve the immunity provided under AS 09.65.245(a)(2), the department, in its operating procedures applicable to a project that is a transportation facility, including a public highway, airport, or pipeline or railroad track bed, or a public work, as that term is defined in AS 35.95.100, and for which the contractor intends to use, within an area designated by the department under AS 44.42.400(b) or (c), gravel or other aggregate material that, when tested using a bulk testing method prescribed by the department in regulation, is determined to have a content equal to or greater than 0.25 percent of naturally occurring asbestos by mass, shall require that
        (1) the contractor submit a plan that details the use of gravel or other aggregate material in the construction or maintenance of the transportation project or public facility in accordance with the requirements of (a) of this section and regulations developed under AS 44.42.420;
        (2) before the extraction of the gravel or other aggregate material containing naturally occurring asbestos may begin, the plan be approved and returned to the contractor by the department;
        (3) the contractor adhere to the monitoring, mitigation, and site-specific use plans.
   (c) The department shall review each submitted site-specific use plan and shall work toward approving or disapproving the plan, taking into consideration the construction season in the project location.
   (d) The department may not approve a plan for construction with gravel or other aggregate material determined to have a content equal to or greater than 0.25 percent of naturally occurring asbestos by mass unless
        (1) the department determines that it is economically unreasonable to undertake the construction project with gravel or other aggregate material free from naturally occurring asbestos; and
        (2) the completed project will not use gravel or other aggregate material containing naturally occurring asbestos for a surface application except if the material to be used for the surface application is treated or bound with a surface compound, including chip seal or asphalt, approved by the department.
   (e) On receiving a plan that meets the requirements of (a) and (d) of this section and the regulations adopted under AS 44.42.420, the department, in consultation with the Department of Environmental Conservation, the Department of Health and Social Services, the Department of Natural Resources, the Department of Law, and the Department of Labor and Workforce Development, shall develop a monitoring and mitigation plan for the project. If the site-specific use plan is approved, the monitoring and mitigation plan developed by the department shall be attached to the site-specific use plan. To qualify for the immunity provided in AS 09.65.245(a)(2), the party that has direct control over or responsibility for the monitoring or mitigation shall comply with the monitoring or mitigation plan developed by the department.
   (f) On approval of a site-specific use plan, the department
        (1) shall provide to the contractor a copy of the approved site-specific use plan that includes
             (A) the monitoring and mitigation plan developed under (e) of this section;
             (B) a requirement that all asbestos-related data collected by the contractor during or after construction be submitted to the department; and
             (C) recommended methods for reducing exposure to airborne asbestos fibers;
        (2) shall provide a copy of the site-specific use plan, including the monitoring and mitigation plan, to the mayor or manager of a municipality affected by the use of gravel or other aggregate material containing naturally occurring asbestos; and
        (3) may provide to the contractor copies of the United States Occupational Safety and Health Administration, United States Mine Safety and Health Administration, and United States Environmental Protection Agency recommended practices for handling and use of gravel or other aggregate material containing naturally occurring asbestos.
   (g) Within 60 days after completing a project in accordance with a site-specific use plan approved by the department, the contractor shall record in the recording district where the property is located a document that includes a description of the affected property, a reference to the most recent recorded conveyance of that property, and a notice indicating the presence of naturally occurring asbestos, and stating that subsequent interest holders may have legal obligations with respect to preventing the naturally occurring asbestos from becoming airborne or otherwise transferred outside of the project area. The contractor shall provide written notification to the department and the landowner that the document has been recorded.
   (h) The contractor shall submit to the department the results of any monitoring or testing performed in accordance with the site-specific use plan and any mitigation measures undertaken.

Authorities

9.65.245;18.31.250;44.42.420

Notes

Implemented As

17 AAC 97.040
17 AAC 97.900

References

17 AAC 97.040
AS 9.65.245 .245">Sec. 09.65.245. Immunity for certain persons supplying or using gravel or other aggregate material; limitations on asbestos-related actions against defendants.
AS 18.31.250 Use of materials containing naturally occurring asbestos.
AS 44.42.420 Regulations.

History

(Sec. 3 ch 13 SLA 2012)