DEPARTMENT OF STATE HEALTH SERVICES SEEKS ENFORCEMENT AUTHORITY OVER CITIES

The Department of State Health Services (DSHS) has requested an opinion from the attorney general as to whether DSHS can impose administrative penalties against cities relating to asbestos surveys.

Both federal and state law require a building owner to obtain an asbestos survey before demolishing or remodeling a public or commercial building. In 2001, the Texas Asbestos Health Protection Act (TAHPA) was amended to require cities to verify that an owner or the owner’s agent (e.g., a contractor) has performed an asbestos survey of such a building prior to the city issuing a building permit.

DSHS claims that cities are not enforcing the new requirement because “applicants and municipalities often do not understand the scope of activities [that require an asbestos survey].” The request seems to imply that it is the fault of cities that owners have faced large penalties for not conducting an asbestos survey.

The fact is that the owner of a building is responsible for compliance, not the city in which the building is located. The Texas Municipal League (TML), along with the Building Officials Association of Texas (BOAT), has written to the DSHS commissioner who requested the opinion. TML and BOAT have asked that the opinion request be withdrawn and have offered to assist DSHS with educating cities as to the asbestos requirements.

That approach is more reasonable than seeking to impose monetary penalties against cities that are tasked with enforcing a state-level program. The attorney general opinion request (RQ-0775-GA) is available at: http://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2008/pdf/RQ0775GA.pdf

Interested cities have until February 9, 2009, to submit comments.

TML member cities may use the material herein for any purpose.
No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the
Texas Municipal League.

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