By Geren, Goodman, Davis of Dallas, Walker, H.B. No. 1927
77R9130 YDB-D
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.
1-12 (2) "Contractor" means a person who constructs,
1-13 repairs, or maintains a public building as an independent
1-14 contractor. The term includes a subcontractor.
1-15 (3) "Public building" means a building used or to be
1-16 used for purposes that provide for public access or occupancy. The
1-17 term does not include:
1-18 (A) an industrial facility to which access is
1-19 limited principally to employees of the facility because of
1-20 processes or functions that are hazardous to human safety or
1-21 health;
1-22 (B) a federal building or installation;
1-23 (C) a private residence;
1-24 (D) an apartment building with not more than
1-25 four dwelling units; or
2-1 (E) a manufacturing facility or building that is
2-2 part of a facility to which access is limited to workers and
2-3 invited guests under controlled conditions.
2-4 Sec. 161.402. MATERIAL SAFETY DATA SHEET REQUIRED; ASBESTOS
2-5 INSTALLATION OR REINSTALLATION PROHIBITED. The board shall adopt
2-6 rules designating the materials or replacement parts for which a
2-7 person must obtain a material safety data sheet before installing
2-8 the materials or parts in a public building. A person may not
2-9 install materials or replacement parts in a public building if:
2-10 (1) the person does not obtain a required material
2-11 safety data sheet; or
2-12 (2) the materials or parts, according to the material
2-13 safety data sheet, contain more than one percent asbestos and there
2-14 is an alternative material or part.
2-15 Sec. 161.403. INJUNCTION. (a) The attorney general or the
2-16 appropriate district or county attorney, in the name of the state,
2-17 may bring an action for an injunction or other process against a
2-18 contractor who is violating or threatening to violate this
2-19 subchapter. The action may be brought in a district court of
2-20 Travis County or of a county in which any part of the violation or
2-21 threatened violation occurs.
2-22 (b) The district court may grant any prohibitory or
2-23 mandatory relief warranted by the facts, including a temporary
2-24 restraining order, temporary injunction, or permanent injunction.
2-25 Sec. 161.404. CIVIL PENALTY. (a) A contractor who
2-26 violates this subchapter is subject to a civil penalty not to
2-27 exceed $10,000 a day for each violation. Each day of violation
3-1 constitutes a separate violation for purposes of penalty
3-2 assessment.
3-3 (b) In determining the amount of the civil penalty, the
3-4 court shall consider:
3-5 (1) the contractor's previous violations;
3-6 (2) the seriousness of the violation, including the
3-7 nature, circumstances, extent, and gravity of the violation;
3-8 (3) whether the health and safety of the public was
3-9 threatened by the violation;
3-10 (4) the demonstrated good faith of the contractor; and
3-11 (5) the amount necessary to deter future violations.
3-12 (c) The attorney general or the appropriate district or
3-13 county attorney, in the name of the state, may bring an action
3-14 under this section in a district court of Travis County or of a
3-15 county in which any part of the violation occurs.
3-16 (d) The party bringing the suit may:
3-17 (1) combine a suit to assess and recover civil
3-18 penalties with a suit for injunctive relief brought under Section
3-19 161.403; or
3-20 (2) file a suit to assess and recover civil penalties
3-21 independently of a suit for injunctive relief.
3-22 (e) A penalty collected under this section by the attorney
3-23 general shall be deposited in the state treasury to the credit of
3-24 the general revenue fund. A penalty collected under this section
3-25 by a district or county attorney shall be deposited to the credit
3-26 of the general fund of the county in which the suit was heard.
3-27 Sec. 161.405. RECOVERY OF COSTS. The party bringing a suit
4-1 under Section 161.403 or 161.404 may recover reasonable expenses
4-2 incurred in obtaining injunctive relief, civil penalties, or both,
4-3 including investigation costs, court costs, reasonable attorney's
4-4 fees, witness fees, and deposition expenses.
4-5 Sec. 161.406. ADMINISTRATIVE PENALTY. (a) The department
4-6 may impose an administrative penalty on a contractor who violates
4-7 this subchapter.
4-8 (b) The amount of the penalty may not exceed $10,000 a day
4-9 for a violation. Each day a violation continues or occurs is a
4-10 separate violation for the purpose of imposing a penalty.
4-11 (c) The penalty amount shall be based on:
4-12 (1) the seriousness of the violation, including the
4-13 nature, circumstances, extent, and gravity of the violation;
4-14 (2) the history of previous violations;
4-15 (3) the amount necessary to deter a future violation;
4-16 (4) efforts to correct the violation; and
4-17 (5) any other matter that justice may require.
4-18 (d) The enforcement of the penalty may be stayed during the
4-19 time the order is under judicial review if the contractor pays the
4-20 penalty to the clerk of the court or files a supersedeas bond with
4-21 the court in the amount of the penalty. A contractor who cannot
4-22 afford to pay the penalty or file the bond may stay the enforcement
4-23 by filing an affidavit in the manner required by the Texas Rules of
4-24 Civil Procedure for a party who cannot afford to file security for
4-25 costs, subject to the right of the department to contest the
4-26 affidavit as provided by those rules.
4-27 (e) The attorney general may sue to collect the penalty.
5-1 (f) A proceeding to impose the penalty is considered to be a
5-2 contested case under Chapter 2001, Government Code.
5-3 Sec. 161.407. REMEDIES CUMULATIVE. The civil penalty,
5-4 administrative penalty, and injunction authorized by this
5-5 subchapter are in addition to any other civil, administrative, or
5-6 criminal action provided by law.
5-7 SECTION 2. This Act takes effect September 1, 2001, and
5-8 applies only to the installation or reinstallation of asbestos on
5-9 or after that date. The installation or reinstallation of asbestos
5-10 before the effective date of this Act is governed by the law in
5-11 effect on the date the asbestos was installed, and the former law
5-12 is continued in effect for that purpose.