By Palmer H.B. No. 2621
76R13594 E
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the installation of asbestos in public buildings;
1-3 providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 161, Health and Safety Code, is amended
1-6 by adding Subchapter Q to read as follows:
1-7 SUBCHAPTER Q. INSTALLATION OF ASBESTOS
1-8 Sec. 161.401. DEFINITIONS. In this subchapter:
1-9 (1) "Asbestos" means the asbestiform varieties of
1-10 chrysotile, amosite, crocidolite, tremolite, anthophyllite, and
1-11 actinolite and all asbestos-containing building materials
1-12 containing more than one percent of any of those substances.
1-13 (2) "Contractor" means a person who constructs,
1-14 repairs, or maintains a public building as an independent
1-15 contractor. The term includes a subcontractor.
1-16 (3) "Public building" means a building used or to be
1-17 used for purposes that provide for public access or occupancy. The
1-18 term does not include:
1-19 (A) an industrial facility to which access is
1-20 limited principally to employees of the facility because of
1-21 processes or functions that are hazardous to human safety or
1-22 health;
1-23 (B) a federal building or installation;
1-24 (C) a private residence;
2-1 (D) an apartment building with not more than
2-2 four dwelling units; or
2-3 (E) a manufacturing facility or building that is
2-4 part of a facility that is limited to workers and invited guests
2-5 under controlled conditions.
2-6 Sec. 161.402. ASBESTOS INSTALLATION OR REINSTALLATION
2-7 PROHIBITED. A person may not install asbestos-containing building
2-8 materials or reinstall asbestos-containing building materials in a
2-9 public building unless there is not an alternative material or
2-10 replacement part.
2-11 Sec. 161.403. INJUNCTION. (a) The attorney general or the
2-12 appropriate district or county attorney, in the name of the state,
2-13 may institute and conduct an action in a district court of Travis
2-14 County or of a county in which any part of the violation occurs for
2-15 an injunction or other process against a contractor who is
2-16 violating this subchapter.
2-17 (b) The district court may grant any prohibitory or
2-18 mandatory relief warranted by the facts, including a temporary
2-19 restraining order, temporary injunction, or permanent injunction.
2-20 Sec. 161.404. CIVIL PENALTY. (a) A contractor who
2-21 violates this subchapter is subject to a civil penalty not to
2-22 exceed $10,000 a day for each violation. Each day of violation
2-23 contitutes a separate violation for purposes of penalty assessment.
2-24 In determining the amount of the civil penalty, the court shall
2-25 consider:
2-26 (1) the contractor's previous violations;
2-27 (2) the seriousness of the violation, including the
3-1 nature, circumstances, extent, and gravity of the violation;
3-2 (3) whether the health and safety of the public was
3-3 threatened by the violation;
3-4 (4) the demonstrated good faith of the contractor; and
3-5 (5) the amount necessary to deter future violations.
3-6 (b) The attorney general or the appropriate district or
3-7 county attorney, in the name of the state, may institute and
3-8 conduct an action authorized by this section in a district court of
3-9 Travis County or of a county in which any part of the violation
3-10 occurs.
3-11 (c) The party bringing the suit may:
3-12 (1) combine a suit to assess and recover civil
3-13 penalties with a suit for injunctive relief brought under Section
3-14 161.403; or
3-15 (2) file a suit to assess and recover civil penalties
3-16 independently of a suit for injunctive relief.
3-17 (d) The party bringing the suit may recover reasonable
3-18 expenses incurred in obtaining injunctive relief, civil penalties,
3-19 or both, including investigation costs, court costs, reasonable
3-20 attorney's fees, witness fees, and deposition expenses.
3-21 (e) A penalty collected under this section by the attorney
3-22 general shall be deposited in the state treasury to the credit of
3-23 the general revenue fund. A penalty collected under this section
3-24 by a district or county attorney shall be deposited to the credit
3-25 of the general fund of the county in which the suit was heard.
3-26 Sec. 161.405. ADMINISTRATIVE PENALTY. (a) The board may
3-27 impose an administrative penalty on a contractor who violates this
4-1 subchapter.
4-2 (b) The amount of the penalty may not exceed $10,000, and
4-3 each day a violation continues or occurs is a separate violation
4-4 for the purpose of imposing a penalty. The amount shall be based
4-5 on:
4-6 (1) the seriousness of the violation, including the
4-7 nature, circumstances, extent, and gravity of the violation;
4-8 (2) the history of previous violations;
4-9 (3) the amount necessary to deter a future violation;
4-10 (4) efforts to correct the violation; and
4-11 (5) any other matter that justice may require.
4-12 (c) The enforcement of the penalty may be stayed during the
4-13 time the order is under judicial review if the contractor pays the
4-14 penalty to the clerk of the court or files a supersedeas bond with
4-15 the court in the amount of the penalty. A contractor who cannot
4-16 afford to pay the penalty or file the bond may stay the enforcement
4-17 by filing an affidavit in the manner required by the Texas Rules of
4-18 Civil Procedure for a party who cannot afford to file security for
4-19 costs, subject to the right of the board to contest the affidavit
4-20 as provided by those rules.
4-21 (d) The attorney general may sue to collect the penalty.
4-22 (e) A proceeding to impose the penalty is considered to be a
4-23 contested case under Chapter 2001, Government Code.
4-24 Sec. 161.406. REMEDIES CUMULATIVE. The civil penalty,
4-25 administrative penalty, and injunction authorized by this
4-26 subchapter are in addition to any other civil, administrative, or
4-27 criminal action provided by law.
5-1 SECTION 2. This Act takes effect September 1, 1999, and
5-2 applies only to the installation or reinstallation of asbestos on
5-3 or after that date. The installation or reinstallation of asbestos
5-4 before the effective date of this Act is governed by the law in
5-5 effect on the date the asbestos was installed, and the former law
5-6 is continued in effect for that purpose.
5-7 SECTION 3. The importance of this legislation and the
5-8 crowded condition of the calendars in both houses create an
5-9 emergency and an imperative public necessity that the
5-10 constitutional rule requiring bills to be read on three several
5-11 days in each house be suspended, and this rule is hereby suspended.