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.