By Geren H.B. No. 1927 77R6448 YDB-F 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 2-1 four dwelling units; or 2-2 (E) a manufacturing facility or building that is 2-3 part of a facility that is limited to workers and invited guests 2-4 under controlled conditions. 2-5 Sec. 161.402. ASBESTOS INSTALLATION OR REINSTALLATION 2-6 PROHIBITED. A person may not install or reinstall building 2-7 materials or replacement parts that contain more than one percent 2-8 of asbestos in a public building unless there is not an alternative 2-9 material or replacement part. 2-10 Sec. 161.403. INJUNCTION. (a) The attorney general or the 2-11 appropriate district or county attorney, in the name of the state, 2-12 may bring an action for an injunction or other process against a 2-13 contractor who is violating or threatening to violate this 2-14 subchapter. The action may be brought in a district court of 2-15 Travis County or of a county in which any part of the violation or 2-16 threatened violation occurs. 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 constitutes a separate violation for purposes of penalty 2-24 assessment. 2-25 (b) In determining the amount of the civil penalty, the 2-26 court shall consider: 2-27 (1) the contractor's previous violations; 3-1 (2) the seriousness of the violation, including the 3-2 nature, circumstances, extent, and gravity of the violation; 3-3 (3) whether the health and safety of the public was 3-4 threatened by the violation; 3-5 (4) the demonstrated good faith of the contractor; and 3-6 (5) the amount necessary to deter future violations. 3-7 (c) The attorney general or the appropriate district or 3-8 county attorney, in the name of the state, may bring an action 3-9 under this section in a district court of Travis County or of a 3-10 county in which any part of the violation occurs. 3-11 (d) 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 (e) A penalty collected under this section by the attorney 3-18 general shall be deposited in the state treasury to the credit of 3-19 the general revenue fund. A penalty collected under this section 3-20 by a district or county attorney shall be deposited to the credit 3-21 of the general fund of the county in which the suit was heard. 3-22 Sec. 161.405. RECOVERY OF COSTS. The party bringing a suit 3-23 under Section 161.403 or 161.404 may recover reasonable expenses 3-24 incurred in obtaining injunctive relief, civil penalties, or both, 3-25 including investigation costs, court costs, reasonable attorney's 3-26 fees, witness fees, and deposition expenses. 3-27 Sec. 161.406. ADMINISTRATIVE PENALTY. (a) The department 4-1 may impose an administrative penalty on a contractor who violates 4-2 this subchapter. 4-3 (b) The amount of the penalty may not exceed $10,000 a day 4-4 for a violation. Each day a violation continues or occurs is a 4-5 separate violation for the purpose of imposing a penalty. 4-6 (c) The penalty amount shall be based on: 4-7 (1) the seriousness of the violation, including the 4-8 nature, circumstances, extent, and gravity of the violation; 4-9 (2) the history of previous violations; 4-10 (3) the amount necessary to deter a future violation; 4-11 (4) efforts to correct the violation; and 4-12 (5) any other matter that justice may require. 4-13 (d) The enforcement of the penalty may be stayed during the 4-14 time the order is under judicial review if the contractor pays the 4-15 penalty to the clerk of the court or files a supersedeas bond with 4-16 the court in the amount of the penalty. A contractor who cannot 4-17 afford to pay the penalty or file the bond may stay the enforcement 4-18 by filing an affidavit in the manner required by the Texas Rules of 4-19 Civil Procedure for a party who cannot afford to file security for 4-20 costs, subject to the right of the department to contest the 4-21 affidavit as provided by those rules. 4-22 (e) The attorney general may sue to collect the penalty. 4-23 (f) A proceeding to impose the penalty is considered to be a 4-24 contested case under Chapter 2001, Government Code. 4-25 Sec. 161.407. REMEDIES CUMULATIVE. The civil penalty, 4-26 administrative penalty, and injunction authorized by this 4-27 subchapter are in addition to any other civil, administrative, or 5-1 criminal action provided by law. 5-2 SECTION 2. This Act takes effect September 1, 2001, and 5-3 applies only to the installation or reinstallation of asbestos on 5-4 or after that date. The installation or reinstallation of asbestos 5-5 before the effective date of this Act is governed by the law in 5-6 effect on the date the asbestos was installed, and the former law 5-7 is continued in effect for that purpose.