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.