1-1 By: Truan S.B. No. 1278
1-2 (In the Senate - Filed March 17, 1993; March 18, 1993, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 28, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 8, Nays 0; April 28, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR S.B. No. 1278 By: Truan
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the licensing of lead abatement activities; providing
1-22 penalties.
1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-24 SECTION 1. Chapter 4A, Title 71, Revised Statutes, is
1-25 amended by adding Article 4477-3b to read as follows:
1-26 Art. 4477-3b. LEAD ABATEMENT ACT
1-27 Sec. 1. SHORT TITLE. This Article may be cited as the Texas
1-28 Lead Abatement Act.
1-29 Sec. 2. DEFINITIONS. In this article:
1-30 (1) "Board" means the Texas Board of Health.
1-31 (2) "Commissioner" means the commissioner of health.
1-32 (3) "Department" means the Texas Department of Health.
1-33 (4) "Lead" includes metallic lead and lead-containing
1-34 substances.
1-35 (5) "Lead abatement" means any activity for the
1-36 purpose of or that has the effect of reducing or eliminating
1-37 concentrations of lead including the removal, encapsulation, or
1-38 enclosure of lead and the disposal of lead.
1-39 (6) "Person" has the meaning assigned by Section
1-40 311.005, Government Code.
1-41 (7) "Public building" means a building, whether
1-42 occupied or vacant, used or to be used to provide for public access
1-43 or occupancy, except a building owned or operated by the federal
1-44 government or a building used to house a manufacturing process.
1-45 (8) "Residence" means a building or structure, or a
1-46 portion of a building or structure, that is occupied in whole or in
1-47 part as the private home, dwelling, or sleeping place of one or
1-48 more individuals and includes a residence that serves as a private
1-49 child care facility.
1-50 (9) "Residential unit" means an apartment, a
1-51 condominium, or another space located in a public or nonpublic
1-52 building that is used as a residence.
1-53 Sec. 3. LICENSES REQUIRED. (a) A person who advertises or
1-54 otherwise holds himself out to be qualified to perform maintenance,
1-55 repair, installation, renovation, stripping, blasting, scraping, or
1-56 other lead abatement activities in a public building, residence, or
1-57 residential unit and who may dislodge, break, cut, abrade, or
1-58 impinge on lead-containing materials must be licensed under this
1-59 article.
1-60 (b) A person who is licensed to engage in lead abatement in
1-61 a public building, residence, or residential unit must notify the
1-62 department in writing according to the rules adopted by the board
1-63 at least 10 days before beginning the abatement project. Oral
1-64 notification may be substituted for written notification if the
1-65 abatement project is considered an emergency, and the 10-day
1-66 waiting period may be decreased depending on the nature of the
1-67 emergency.
1-68 (c) A sponsor of an initial or refresher lead abatement
2-1 training course must be licensed by the department.
2-2 Sec. 4. RULES. The board may adopt rules to implement this
2-3 article and to provide guidance to the department in discharging
2-4 its responsibilities. The board by rule may establish:
2-5 (1) procedures for license application, renewal, and
2-6 amendment;
2-7 (2) criteria for the issuance, denial, modification,
2-8 suspension, emergency suspension, or revocation of a license;
2-9 (3) standards for health risk reduction, safety
2-10 procedures, protective equipment, and other safeguards to prevent
2-11 contamination of a public building, residence, or residential unit
2-12 and to protect any persons exposed to lead as a result of
2-13 lead-related activities; and
2-14 (4) requirements for lead training.
2-15 Sec. 5. QUALIFICATIONS FOR LICENSURE. A person required to
2-16 be licensed under this article must demonstrate to the department
2-17 that the person is capable of complying with all applicable
2-18 standards of the department, the United States Environmental
2-19 Protection Agency, the United States Occupational Safety and Health
2-20 Administration, the United States Department of Housing and Urban
2-21 Development, and any other state or federal agency with authority
2-22 to regulate activities affecting the control and abatement of lead.
2-23 Sec. 6. TERM AND RENEWAL OF LICENSE. (a) Licenses issued
2-24 under this article expire as specified by board rule; however, the
2-25 board may not set the term of a license at less than one year.
2-26 Licenses may be renewed as specified by board rule.
2-27 (b) A license issued under this article may not be assigned
2-28 to another person.
2-29 Sec. 7. FEES. (a) The board shall charge fees for:
2-30 (1) a license that is reviewed, issued, renewed,
2-31 amended, or replaced; or
2-32 (2) an inspection performed under this article or a
2-33 rule adopted or order issued under this article.
2-34 (b) The aggregate of the fees set by the board and collected
2-35 by the department must be in an amount sufficient to cover the
2-36 administrative costs of the department.
2-37 (c) Fees collected under this article by the department
2-38 shall be deposited in a special account in the general revenue fund
2-39 and may be used only for the administration and enforcement of this
2-40 article.
2-41 Sec. 8. CIVIL PENALTY; INJUNCTION. (a) If it appears that
2-42 a person has violated, is violating, or is threatening to violate
2-43 this article or a rule adopted or order issued under this article,
2-44 the commissioner or the commissioner's designee may request the
2-45 attorney general or the district, county, or municipal attorney of
2-46 the municipality or county in which the violation has occurred, is
2-47 occurring, or may occur to institute a civil suit for:
2-48 (1) injunctive relief to restrain the person from
2-49 continuing the violation or threat of violation;
2-50 (2) the assessment and recovery of a civil penalty; or
2-51 (3) both injunctive relief and civil penalty.
2-52 (b) The civil penalty may be in an amount not to exceed
2-53 $10,000 a day for each violation. Each day of violation
2-54 constitutes a separate violation for purposes of the penalty
2-55 assessment.
2-56 Sec. 9. ADMINISTRATIVE PENALTY. (a) If a person violates
2-57 this article or a rule adopted or order issued under this article,
2-58 the commissioner may assess an administrative penalty against that
2-59 person.
2-60 (b) The penalty may be in an amount not to exceed $10,000 a
2-61 day for each violation. Each day a violation continues may be
2-62 considered a separate violation for purposes of the penalty
2-63 assessment.
2-64 (c) The administrative penalty may be assessed only after
2-65 the person charged with the violation has been given the
2-66 opportunity for a hearing.
2-67 (d) If the person charged with the violation fails to avail
2-68 himself of the opportunity for a hearing, an administrative penalty
2-69 may be assessed by the commissioner after the commissioner has
2-70 determined that a violation did occur and the amount of the penalty
3-1 that is warranted.
3-2 (e) Within the 30-day period immediately following the date
3-3 the commissioner's order is final as provided in Section 16(c),
3-4 Administrative Procedure and Texas Register Act (Article 6252-13a,
3-5 Vernon's Texas Civil Statutes), and its subsequent amendments, the
3-6 person charged with the penalty shall:
3-7 (1) pay the amount of the penalty;
3-8 (2) pay the amount of the penalty and file a petition
3-9 for judicial review contesting the fact of the violation, the
3-10 amount of the penalty, or both the fact of the violation and the
3-11 amount; or
3-12 (3) without paying the amount of the penalty, file a
3-13 petition for judicial review contesting the fact of the penalty,
3-14 the amount of the penalty, or both the fact of the penalty and the
3-15 amount.
3-16 (f) Within the 30-day period, a person who acts under
3-17 Subdivision (3) of Subsection (e) of this section may:
3-18 (1) stay the enforcement of the penalty by:
3-19 (A) paying the amount of the penalty to the
3-20 court for replacement in an escrow account; or
3-21 (B) giving to the court a supersedeas bond that
3-22 is in a form approved by the court for the amount of the penalty
3-23 and that is effective until all judicial review of the order is
3-24 final; or
3-25 (2) request the court to stay enforcement of the
3-26 penalty by:
3-27 (A) filing with the court a sworn affidavit of
3-28 the person stating that the person is financially unable to pay the
3-29 amount of the penalty and is financially unable to give the
3-30 supersedeas bond; and
3-31 (B) delivering a copy of the affidavit to the
3-32 commissioner.
3-33 (g) The commissioner may file with the court within five
3-34 days after the date the copy is received a contest to the
3-35 affidavit. The court shall hold a hearing on the facts alleged in
3-36 the affidavit as soon as practicable. The person who files an
3-37 affidavit has the burden of proving that the person is financially
3-38 unable to pay the amount of the penalty and to give a supersedeas
3-39 bond.
3-40 (h) If the person does not pay the amount of the penalty and
3-41 the enforcement of the penalty is not stayed, the commissioner may
3-42 refer the matter to the attorney general for enforcement.
3-43 (i) Judicial review of the order of the commissioner:
3-44 (1) is instituted by filing a petition as provided by
3-45 Section 19, Administrative Procedure and Texas Register Act
3-46 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
3-47 subsequent amendments, with a district court of Travis County,
3-48 Texas; and
3-49 (2) is under the substantial evidence rule.
3-50 SECTION 2. This Act takes effect September 1, 1993.
3-51 SECTION 3. The importance of this legislation and the
3-52 crowded condition of the calendars in both houses create an
3-53 emergency and an imperative public necessity that the
3-54 constitutional rule requiring bills to be read on three several
3-55 days in each house be suspended, and this rule is hereby suspended.
3-56 * * * * *
3-57 Austin,
3-58 Texas
3-59 April 28, 1993
3-60 Hon. Bob Bullock
3-61 President of the Senate
3-62 Sir:
3-63 We, your Committee on Health and Human Services to which was
3-64 referred S.B. No. 1278, have had the same under consideration, and
3-65 I am instructed to report it back to the Senate with the
3-66 recommendation that it do not pass, but that the Committee
3-67 Substitute adopted in lieu thereof do pass and be printed.
3-68 Zaffirini,
3-69 Chair
3-70 * * * * *
4-1 WITNESSES
4-2 FOR AGAINST ON
4-3 ___________________________________________________________________
4-4 Name: Bob Galvan
4-5 Representing: City of Plano
4-6 City: Plano
4-7 -------------------------------------------------------------------
4-8 Name: Leslie Lanham x
4-9 Representing: Children's Defense Fund
4-10 City: Austin
4-11 -------------------------------------------------------------------
4-12 Name: Sandy Kibby x
4-13 Representing: TX PTA
4-14 City: Austin
4-15 -------------------------------------------------------------------
4-16 Name: Dr. Cliff Price x
4-17 Representing: TX Pediatric Society
4-18 City: Austin
4-19 -------------------------------------------------------------------