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                                  * * * * *