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 2-1 four dwelling units; or 2-2 (E) a manufacturing facility or building that is 2-3 part of a facility to which access is limited to workers and 2-4 invited guests under controlled conditions. 2-5 Sec. 161.402. MATERIAL SAFETY DATA SHEET REQUIRED; ASBESTOS 2-6 INSTALLATION OR REINSTALLATION PROHIBITED. The board shall adopt 2-7 rules designating the materials or replacement parts for which a 2-8 person must obtain a material safety data sheet before installing 2-9 the materials or parts in a public building. A person may not 2-10 install materials or replacement parts in a public building if: 2-11 (1) the person does not obtain a required material 2-12 safety data sheet; or 2-13 (2) the materials or parts, according to the material 2-14 safety data sheet, contain more than one percent asbestos and there 2-15 is an alternative material or part. 2-16 Sec. 161.403. INJUNCTION. (a) The attorney general or the 2-17 appropriate district or county attorney, in the name of the state, 2-18 may bring an action for an injunction or other process against a 2-19 contractor who is violating or threatening to violate this 2-20 subchapter. The action may be brought in a district court of 2-21 Travis County or of a county in which any part of the violation or 2-22 threatened violation occurs. 2-23 (b) The district court may grant any prohibitory or 2-24 mandatory relief warranted by the facts, including a temporary 2-25 restraining order, temporary injunction, or permanent injunction. 2-26 Sec. 161.404. CIVIL PENALTY. (a) A contractor who 2-27 violates this subchapter is subject to a civil penalty not to 3-1 exceed $10,000 a day for each violation. Each day of violation 3-2 constitutes a separate violation for purposes of penalty 3-3 assessment. 3-4 (b) In determining the amount of the civil penalty, the 3-5 court shall consider: 3-6 (1) the contractor's previous violations; 3-7 (2) the seriousness of the violation, including the 3-8 nature, circumstances, extent, and gravity of the violation; 3-9 (3) whether the health and safety of the public was 3-10 threatened by the violation; 3-11 (4) the demonstrated good faith of the contractor; and 3-12 (5) the amount necessary to deter future violations. 3-13 (c) The attorney general or the appropriate district or 3-14 county attorney, in the name of the state, may bring an action 3-15 under this section in a district court of Travis County or of a 3-16 county in which any part of the violation occurs. 3-17 (d) The party bringing the suit may: 3-18 (1) combine a suit to assess and recover civil 3-19 penalties with a suit for injunctive relief brought under Section 3-20 161.403; or 3-21 (2) file a suit to assess and recover civil penalties 3-22 independently of a suit for injunctive relief. 3-23 (e) A penalty collected under this section by the attorney 3-24 general shall be deposited in the state treasury to the credit of 3-25 the general revenue fund. A penalty collected under this section 3-26 by a district or county attorney shall be deposited to the credit 3-27 of the general fund of the county in which the suit was heard. 4-1 Sec. 161.405. RECOVERY OF COSTS. The party bringing a suit 4-2 under Section 161.403 or 161.404 may recover reasonable expenses 4-3 incurred in obtaining injunctive relief, civil penalties, or both, 4-4 including investigation costs, court costs, reasonable attorney's 4-5 fees, witness fees, and deposition expenses. 4-6 Sec. 161.406. ADMINISTRATIVE PENALTY. (a) The department 4-7 may impose an administrative penalty on a contractor who violates 4-8 this subchapter. 4-9 (b) The amount of the penalty may not exceed $10,000 a day 4-10 for a violation. Each day a violation continues or occurs is a 4-11 separate violation for the purpose of imposing a penalty. 4-12 (c) The penalty amount shall be based on: 4-13 (1) the seriousness of the violation, including the 4-14 nature, circumstances, extent, and gravity of the violation; 4-15 (2) the history of previous violations; 4-16 (3) the amount necessary to deter a future violation; 4-17 (4) efforts to correct the violation; and 4-18 (5) any other matter that justice may require. 4-19 (d) The enforcement of the penalty may be stayed during the 4-20 time the order is under judicial review if the contractor pays the 4-21 penalty to the clerk of the court or files a supersedeas bond with 4-22 the court in the amount of the penalty. A contractor who cannot 4-23 afford to pay the penalty or file the bond may stay the enforcement 4-24 by filing an affidavit in the manner required by the Texas Rules of 4-25 Civil Procedure for a party who cannot afford to file security for 4-26 costs, subject to the right of the department to contest the 4-27 affidavit as provided by those rules. 5-1 (e) The attorney general may sue to collect the penalty. 5-2 (f) A proceeding to impose the penalty is considered to be a 5-3 contested case under Chapter 2001, Government Code. 5-4 Sec. 161.407. REMEDIES CUMULATIVE. The civil penalty, 5-5 administrative penalty, and injunction authorized by this 5-6 subchapter are in addition to any other civil, administrative, or 5-7 criminal action provided by law. 5-8 SECTION 2. This Act takes effect September 1, 2001, and 5-9 applies only to the installation or reinstallation of asbestos on 5-10 or after that date. The installation or reinstallation of asbestos 5-11 before the effective date of this Act is governed by the law in 5-12 effect on the date the asbestos was installed, and the former law 5-13 is continued in effect for that purpose. _______________________________ _______________________________ President of the Senate Speaker of the House I certify that H.B. No. 1927 was passed by the House on April 5, 2001, by a non-record vote. _______________________________ Chief Clerk of the House I certify that H.B. No. 1927 was passed by the Senate on May 15, 2001, by the following vote: Yeas 30, Nays 0, 1 present, not voting. _______________________________ Secretary of the Senate APPROVED: __________________________ Date __________________________ Governor