HBA-NMO C.S.H.B. 2621 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.H.B. 2621 By: Palmer Public Health 4/28/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Current Environmental Protection Agency regulations prohibit the use of certain asbestos-containing products. C.S.H.B. 2621 prohibits a person from installing or reinstalling asbestos-containing building materials in a public building, with exception. This bill also authorizes the attorney general, or appropriate district or county attorney, to bring an action for injunction against a contractor who violates this prohibition, and subjects a contractor who violates this prohibition to civil and administrative penalties. This bill does not require the removal of currently installed asbestoscontaining materials. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 161, Health and Safety Code, by adding Subchapter Q, as follows: SUBCHAPTER Q. INSTALLATION OF ASBESTOS Sec. 161.401. DEFINITIONS. Defines "asbestos," "contractor," and "public building." Sec. 161.402. ASBESTOS INSTALLATION OR REINSTALLATION PROHIBITED. Prohibits a person from installing asbestos-containing building materials or reinstalling asbestos-containing materials in a public building unless there is not an alternative material or replacement part. Sec. 161.403. INJUNCTION. Authorizes the attorney general or appropriate district or county attorney, in the name of the state, to institute and conduct an action in a district court of Travis County or of a county in which any part of the violation occurs for an injunction or other process against a contractor who is violating this subchapter. Authorizes the district court to grant any prohibitory or mandatory relief warranted by the facts, including a temporary restraining order, temporary injunction, or permanent injunction. Sec. 161.404. CIVIL PENALTY. (a) Provides that a contractor who violates this subchapter is subject to a civil penalty not to exceed $10,000 a day for each violation. Provides that each day of violation constitutes a separate violation for purposes of penalty assessment. Requires the court to consider certain factors in determining the amount of the civil penalty. (b) Authorizes the attorney general or appropriate district or county attorney, in the name of the state, to institute and conduct an action authorized by this section in a district court of Travis County or of a county in which any part of the violation occurs. (c) Authorizes the party bringing the suit to file a suit to assess and recover civil penalties independently of a suit for injunctive relief brought under Section 161.403, or in combination with such a suit. (d) Authorizes the party bringing the suit to recover specified reasonable expenses incurred in obtaining injunctive relief, civil penalties, or both. (e) Requires that a penalty collected under this section by the attorney general be deposited in the state treasury to the credit of the general revenue fund. Requires that a penalty collected under this section by a district or county attorney be deposited to the credit of the general fund of the county in which the suit was heard. Sec. 161.405. ADMINISTRATIVE PENALTY. Authorizes the Texas Board of Health to impose an administrative penalty on a contractor who violates this subchapter. Prohibits the amount of the penalty from exceeding $10,000, and provides that each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty. Requires that the amount of the penalty be based on certain factors. Authorizes that the enforcement of the penalty be stayed during the time the order is under judicial review under certain conditions. Authorizes the attorney general to sue to collect the penalty. Provides that a proceeding to impose the penalty is considered to be a contested case under Chapter 2001 (Administrative Procedure), Government Code. Sec. 161.406. REMEDIES CUMULATIVE. Provides that the civil penalty, administrative penalty, and injunction authorized by this subchapter are in addition to any other civil, administrative, or criminal action provided by law. SECTION 2. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 3. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute modifies the caption of the original to reflect changes made by the substitute. The substitute differs from the original in SECTION 1 (proposed Subchapter Q, Health and Safety Code), as follows: Modifies proposed Section 161.401 (Definitions) by altering the definition of "asbestos." Modifies proposed Section 161.402 (Asbestos Installation or Replacement Prohibited) by providing the new title of "Asbestos Installation or Reinstallation Prohibited." The substitute prohibits a person from installing asbestos-containing building materials or reinstalling asbestos-containing materials in a public building unless there is not an alternative material or replacement part, while the original would have prohibited a person from installing or replacing asbestos in a public building. Redesignates proposed Section 161.405 (Remedies Cumulative) as Section 161.406. Sets forth new Section 161.405 (Administrative Penalty). For a complete analysis of this new section please see the Section-by-Section Analysis of this document. The substitute modifies the original in SECTION 2 by making conforming changes.