By: Truan S.B. No. 1278
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the licensing of lead abatement activities; providing
1-2 penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 4A, Title 71, Revised Statutes, is
1-5 amended by adding Article 4477-3b to read as follows:
1-6 Art. 4477-3b. LEAD ABATEMENT ACT
1-7 Sec. 1. SHORT TITLE. This Article may be cited as the Texas
1-8 Lead Abatement Act.
1-9 Sec. 2. DEFINITIONS. In this article:
1-10 (1) "Board" means the Texas Board of Health.
1-11 (2) "Commissioner" means the commissioner of health.
1-12 (3) "Department" means the Texas Department of Health.
1-13 (4) "Lead" includes metallic lead and lead-containing
1-14 substances.
1-15 (5) "Lead abatement" means any activity for the
1-16 purpose of or that has the effect of reducing or eliminating
1-17 concentrations of lead including the removal, encapsulation, or
1-18 enclosure of lead and the disposal of lead.
1-19 (6) "Person" has the meaning assigned by Section
1-20 311.005, Government Code.
1-21 (7) "Public building" means a building, whether
1-22 occupied or vacant, used or to be used to provide for public access
1-23 or occupancy, except a building owned or operated by the federal
1-24 government or a building used to house a manufacturing process.
2-1 (8) "Residence" means a building or structure, or a
2-2 portion of a building or structure, that is occupied in whole or in
2-3 part as the private home, dwelling, or sleeping place of one or
2-4 more individuals and includes a residence that serves as a private
2-5 child care facility.
2-6 (9) "Residential unit" means an apartment, a
2-7 condominium, or another space located in a public or nonpublic
2-8 building that is used as a residence.
2-9 Sec. 3. LICENSES REQUIRED. (a) A person who advertises or
2-10 otherwise holds himself out to be qualified to perform maintenance,
2-11 repair, installation, renovation, stripping, blasting, scraping, or
2-12 other lead abatement activities in a public building, residence, or
2-13 residential unit and who may dislodge, break, cut, abrade, or
2-14 impinge on lead-containing materials must be licensed under this
2-15 article.
2-16 (b) A person who is licensed to engage in lead abatement in
2-17 a public building, residence, or residential unit must notify the
2-18 department in writing according to the rules adopted by the board
2-19 at least 10 days before beginning the abatement project. Oral
2-20 notification may be substituted for written notification if the
2-21 abatement project is considered an emergency, and the 10-day
2-22 waiting period may be decreased depending on the nature of the
2-23 emergency.
2-24 (c) A sponsor of an initial or refresher lead abatement
2-25 training course must be licensed by the department.
2-26 Sec. 4. RULES. The board may adopt rules to implement this
2-27 article and to provide guidance to the department in discharging
3-1 its responsibilities. The board by rule may establish:
3-2 (1) procedures for license application, renewal, and
3-3 amendment;
3-4 (2) criteria for the issuance, denial, modification,
3-5 suspension, emergency suspension, or revocation of a license;
3-6 (3) standards for health risk reduction, safety
3-7 procedures, protective equipment, and other safeguards to prevent
3-8 contamination of a public building, residence, or residential unit
3-9 and to protect any persons exposed to lead as a result of
3-10 lead-related activities; and
3-11 (4) requirements for lead training.
3-12 Sec. 5. QUALIFICATIONS FOR LICENSURE. A person required to
3-13 be licensed under this article must demonstrate to the department
3-14 that the person is capable of complying with all applicable
3-15 standards of the department, the United States Environmental
3-16 Protection Agency, the United States Occupational Safety and Health
3-17 Administration, the United States Department of Housing and Urban
3-18 Development, and any other state or federal agency with authority
3-19 to regulate activities affecting the control and abatement of lead.
3-20 Sec. 6. TERM AND RENEWAL OF LICENSE. (a) Licenses issued
3-21 under this article expire as specified by board rule; however, the
3-22 board may not set the term of a license at less than one year.
3-23 Licenses may be renewed as specified by board rule.
3-24 (b) A license issued under this article may not be assigned
3-25 to another person.
3-26 Sec. 7. FEES. (a) The board shall charge fees for:
3-27 (1) a license that is reviewed, issued, renewed,
4-1 amended, or replaced; or
4-2 (2) an inspection performed under this article or a
4-3 rule adopted or order issued under this article.
4-4 (b) The aggregate of the fees set by the board and collected
4-5 by the department must be in an amount sufficient to cover the
4-6 administrative costs of the department.
4-7 (c) Fees collected under this article by the department
4-8 shall be deposited in a special account in the general revenue fund
4-9 and may be used only for the administration and enforcement of this
4-10 article.
4-11 Sec. 8. CIVIL PENALTY; INJUNCTION. (a) If it appears that
4-12 a person has violated, is violating, or is threatening to violate
4-13 this article or a rule adopted or order issued under this article,
4-14 the commissioner or the commissioner's designee may request the
4-15 attorney general or the district, county, or municipal attorney of
4-16 the municipality or county in which the violation has occurred, is
4-17 occurring, or may occur to institute a civil suit for:
4-18 (1) injunctive relief to restrain the person from
4-19 continuing the violation or threat of violation;
4-20 (2) the assessment and recovery of a civil penalty; or
4-21 (3) both injunctive relief and civil penalty.
4-22 (b) The civil penalty may be in an amount not to exceed
4-23 $10,000 a day for each violation. Each day of violation
4-24 constitutes a separate violation for purposes of the penalty
4-25 assessment.
4-26 Sec. 9. ADMINISTRATIVE PENALTY. (a) If a person violates
4-27 this article or a rule adopted or order issued under this article,
5-1 the commissioner may assess an administrative penalty against that
5-2 person.
5-3 (b) The penalty may be in an amount not to exceed $10,000 a
5-4 day for each violation. Each day a violation continues may be
5-5 considered a separate violation for purposes of the penalty
5-6 assessment.
5-7 (c) The administrative penalty may be assessed only after
5-8 the person charged with the violation has been given the
5-9 opportunity for a hearing.
5-10 (d) If the person charged with the violation fails to avail
5-11 himself of the opportunity for a hearing, an administrative penalty
5-12 may be assessed by the commissioner after the commissioner has
5-13 determined that a violation did occur and the amount of the penalty
5-14 that is warranted.
5-15 (e) Within the 30-day period immediately following the date
5-16 the commissioner's order is final as provided in Section 16(c),
5-17 Administrative Procedure and Texas Register Act (Article 6252-13a,
5-18 Vernon's Texas Civil Statutes), and its subsequent amendments, the
5-19 person charged with the penalty shall:
5-20 (1) pay the amount of the penalty;
5-21 (2) pay the amount of the penalty and file a petition
5-22 for judicial review contesting the fact of the violation, the
5-23 amount of the penalty, or both the fact of the violation and the
5-24 amount; or
5-25 (3) without paying the amount of the penalty, file a
5-26 petition for judicial review contesting the fact of the penalty,
5-27 the amount of the penalty, or both the fact of the penalty and the
6-1 amount.
6-2 (f) Within the 30-day period, a person who acts under
6-3 Subdivision (3) of Subsection (e) of this section may:
6-4 (1) stay the enforcement of the penalty by:
6-5 (A) paying the amount of the penalty to the
6-6 court for placement in an escrow account; or
6-7 (B) giving to the court a supersedeas bond that
6-8 is in a form approved by the court for the amount of the penalty
6-9 and that is effective until all judicial review of the order is
6-10 final; or
6-11 (2) request the court to stay enforcement of the
6-12 penalty by:
6-13 (A) filing with the court a sworn affidavit of
6-14 the person stating that the person is financially unable to pay the
6-15 amount of the penalty and is financially unable to give the
6-16 supersedeas bond; and
6-17 (B) delivering a copy of the affidavit to the
6-18 commissioner.
6-19 (g) The commissioner may file with the court within five
6-20 days after the date the copy is received a contest to the
6-21 affidavit. The court shall hold a hearing on the facts alleged in
6-22 the affidavit as soon as practicable. The person who files an
6-23 affidavit has the burden of proving that the person is financially
6-24 unable to pay the amount of the penalty and to give a supersedeas
6-25 bond.
6-26 (h) If the person does not pay the amount of the penalty and
6-27 the enforcement of the penalty is not stayed, the commissioner may
7-1 refer the matter to the attorney general for enforcement.
7-2 (i) Judicial review of the order of the commissioner:
7-3 (1) is instituted by filing a petition as provided by
7-4 Section 19, Administrative Procedure and Texas Register Act
7-5 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
7-6 subsequent amendments, with a district court of Travis County,
7-7 Texas; and
7-8 (2) is under the substantial evidence rule.
7-9 SECTION 2. This Act takes effect September 1, 1993.
7-10 SECTION 3. The importance of this legislation and the
7-11 crowded condition of the calendars in both houses create an
7-12 emergency and an imperative public necessity that the
7-13 constitutional rule requiring bills to be read on three several
7-14 days in each house be suspended, and this rule is hereby suspended.