1-1 By: Geren, et al. (Senate Sponsor - Harris) H.B. No. 1927 1-2 (In the Senate - Received from the House April 9, 2001; 1-3 April 9, 2001, read first time and referred to Committee on 1-4 Business and Commerce; May 7, 2001, reported favorably by the 1-5 following vote: Yeas 6, Nays 0; May 7, 2001, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the installation of asbestos in public buildings; 1-9 providing penalties. 1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-11 SECTION 1. Chapter 161, Health and Safety Code, is amended 1-12 by adding Subchapter Q to read as follows: 1-13 SUBCHAPTER Q. INSTALLATION OF ASBESTOS 1-14 Sec. 161.401. DEFINITIONS. In this subchapter: 1-15 (1) "Asbestos" means the asbestiform varieties of 1-16 chrysotile, amosite, crocidolite, tremolite, anthophyllite, and 1-17 actinolite. 1-18 (2) "Contractor" means a person who constructs, 1-19 repairs, or maintains a public building as an independent 1-20 contractor. The term includes a subcontractor. 1-21 (3) "Public building" means a building used or to be 1-22 used for purposes that provide for public access or occupancy. The 1-23 term does not include: 1-24 (A) an industrial facility to which access is 1-25 limited principally to employees of the facility because of 1-26 processes or functions that are hazardous to human safety or 1-27 health; 1-28 (B) a federal building or installation; 1-29 (C) a private residence; 1-30 (D) an apartment building with not more than 1-31 four dwelling units; or 1-32 (E) a manufacturing facility or building that is 1-33 part of a facility to which access is limited to workers and 1-34 invited guests under controlled conditions. 1-35 Sec. 161.402. MATERIAL SAFETY DATA SHEET REQUIRED; ASBESTOS 1-36 INSTALLATION OR REINSTALLATION PROHIBITED. The board shall adopt 1-37 rules designating the materials or replacement parts for which a 1-38 person must obtain a material safety data sheet before installing 1-39 the materials or parts in a public building. A person may not 1-40 install materials or replacement parts in a public building if: 1-41 (1) the person does not obtain a required material 1-42 safety data sheet; or 1-43 (2) the materials or parts, according to the material 1-44 safety data sheet, contain more than one percent asbestos and there 1-45 is an alternative material or part. 1-46 Sec. 161.403. INJUNCTION. (a) The attorney general or the 1-47 appropriate district or county attorney, in the name of the state, 1-48 may bring an action for an injunction or other process against a 1-49 contractor who is violating or threatening to violate this 1-50 subchapter. The action may be brought in a district court of 1-51 Travis County or of a county in which any part of the violation or 1-52 threatened violation occurs. 1-53 (b) The district court may grant any prohibitory or 1-54 mandatory relief warranted by the facts, including a temporary 1-55 restraining order, temporary injunction, or permanent injunction. 1-56 Sec. 161.404. CIVIL PENALTY. (a) A contractor who 1-57 violates this subchapter is subject to a civil penalty not to 1-58 exceed $10,000 a day for each violation. Each day of violation 1-59 constitutes a separate violation for purposes of penalty 1-60 assessment. 1-61 (b) In determining the amount of the civil penalty, the 1-62 court shall consider: 1-63 (1) the contractor's previous violations; 1-64 (2) the seriousness of the violation, including the 2-1 nature, circumstances, extent, and gravity of the violation; 2-2 (3) whether the health and safety of the public was 2-3 threatened by the violation; 2-4 (4) the demonstrated good faith of the contractor; and 2-5 (5) the amount necessary to deter future violations. 2-6 (c) The attorney general or the appropriate district or 2-7 county attorney, in the name of the state, may bring an action 2-8 under this section in a district court of Travis County or of a 2-9 county in which any part of the violation occurs. 2-10 (d) The party bringing the suit may: 2-11 (1) combine a suit to assess and recover civil 2-12 penalties with a suit for injunctive relief brought under Section 2-13 161.403; or 2-14 (2) file a suit to assess and recover civil penalties 2-15 independently of a suit for injunctive relief. 2-16 (e) A penalty collected under this section by the attorney 2-17 general shall be deposited in the state treasury to the credit of 2-18 the general revenue fund. A penalty collected under this section 2-19 by a district or county attorney shall be deposited to the credit 2-20 of the general fund of the county in which the suit was heard. 2-21 Sec. 161.405. RECOVERY OF COSTS. The party bringing a suit 2-22 under Section 161.403 or 161.404 may recover reasonable expenses 2-23 incurred in obtaining injunctive relief, civil penalties, or both, 2-24 including investigation costs, court costs, reasonable attorney's 2-25 fees, witness fees, and deposition expenses. 2-26 Sec. 161.406. ADMINISTRATIVE PENALTY. (a) The department 2-27 may impose an administrative penalty on a contractor who violates 2-28 this subchapter. 2-29 (b) The amount of the penalty may not exceed $10,000 a day 2-30 for a violation. Each day a violation continues or occurs is a 2-31 separate violation for the purpose of imposing a penalty. 2-32 (c) The penalty amount shall be based on: 2-33 (1) the seriousness of the violation, including the 2-34 nature, circumstances, extent, and gravity of the violation; 2-35 (2) the history of previous violations; 2-36 (3) the amount necessary to deter a future violation; 2-37 (4) efforts to correct the violation; and 2-38 (5) any other matter that justice may require. 2-39 (d) The enforcement of the penalty may be stayed during the 2-40 time the order is under judicial review if the contractor pays the 2-41 penalty to the clerk of the court or files a supersedeas bond with 2-42 the court in the amount of the penalty. A contractor who cannot 2-43 afford to pay the penalty or file the bond may stay the enforcement 2-44 by filing an affidavit in the manner required by the Texas Rules of 2-45 Civil Procedure for a party who cannot afford to file security for 2-46 costs, subject to the right of the department to contest the 2-47 affidavit as provided by those rules. 2-48 (e) The attorney general may sue to collect the penalty. 2-49 (f) A proceeding to impose the penalty is considered to be a 2-50 contested case under Chapter 2001, Government Code. 2-51 Sec. 161.407. REMEDIES CUMULATIVE. The civil penalty, 2-52 administrative penalty, and injunction authorized by this 2-53 subchapter are in addition to any other civil, administrative, or 2-54 criminal action provided by law. 2-55 SECTION 2. This Act takes effect September 1, 2001, and 2-56 applies only to the installation or reinstallation of asbestos on 2-57 or after that date. The installation or reinstallation of asbestos 2-58 before the effective date of this Act is governed by the law in 2-59 effect on the date the asbestos was installed, and the former law 2-60 is continued in effect for that purpose. 2-61 * * * * *