THE
November 10, 1989
Hans Mark, Ph.D. Opinion No. JM-1114
Chancellor
University of Texas System Re: Authority of a.state
201 West 7th Street agency to__.
remove asbestos
. ._ _.
Austin, Texas 78701 from a pUbliC DUllding
(RQ-1788)
Dear Dr. Mark:
Article 4477-3a, V.T.C.S., provides for regulation,
registration and licensing by the Department of ,Health (the
department) in connection with the removal or encapsulation
of asbestos from a public building. Section 2(a) of the
article provides:
A person may not enuaae in the business of
removing asbestos from a public building or
encapsulating asbestos from a public building
unless the person is licensed by the depart-
ment in accordance with this Act. (Emphasis
added.)
You ask, in connection with the above-quoted provision,
[i]f a state agency removes or encapsulates
asbestos from a public building, is it
engaged in the business of removing asbestos?
"Department" as used in the article refers to the Texas
Department of Health. V.T.C.S. art. 4477-3a, 5 l(3).
Section l(4) defines public building as "a building that is
open to the public or that has public access, including but
not limited to government buildings and public schools."
"Person" is defined in section l(1) as follows:
'Person' includes corporation, organization,
q overnment or aovernmental subdivision or
wencv , business trust, estate, trust,
partnership, association, and any other legal
entity. (Emphasis added.)
P. 5842
Dr. Hans Mark - Page 2 (JM-1114)
Also, section 2(c) of the article provides:
An individual licensed under this Act
shall supervise each project to remove
asbestos from a public building or encap-
sulate that absestos.
Section 9(a) of the article provides in part:
Each employee of a person required to be
licensed under this Act must register with
the department before the employee may remove
asbestos from a public building or encap-
sulate that asbestos.
you contend in your request letter that the University
of Texas (the university), as an institution of higher
education,
is not engaged 'in the business' of removing
asbestos, although from time to time certain
activities requiring the encapsulation or
removal of asbestos from buildings do occur
on the campus. These activities are inci-
dental to the University's educational and
research functions, and carried out by
University employees.
you add:
It should be noted that a negative answer
would not thwart the statutory scheme
concerning asbestos removal. For example,
the Act requires that an individual licensed
under the Act must supervise each project to
remove asbestos from a public building or
encapsulate that asbestos. In such
instances, independent contractors can be
hired to achieve the desired statutory
regulatory goals. The question here
surrounds whether employees of the University
and supervisors of the University must be
licensed and registered within the Act if
they engage in the removal or encapsulation
of asbestos.
We understand that your request was prompted by the
university's notification from the department that the
P- 5843
Dr. Hans Mark - Page 3 (JM-1114)
latter considers the university to be "a person" "engaged in
the business" of asbestos removal or encapsulation and thus
subject to licensure by the department under article 4477-3a
when the university removes or encapsulates asbestos from
campus buildings.
Article 4477-3a does not define the terms '*business"
and wengaqe in the business of" as used therein. The
Webster#s entry for the word wbusiness" includes definitions
ranging from llpurposeful activity" to "commercial or mer-
cantile activity engaged in as a means of livelihood.ll
Webster's Ninth New Collegiate Dictionary 190 (1983). Since
the word nperson11as used in the provision in question -- 'Ia
person may not engage in the business of removing asbestos
or encapsulating asbestos from a public building unless the
person is licensed" -- is specifically defined in the
article to include "government or governmental subdivision
or agency," we think that the accompanying language, "engage
in the business of," must have been intended by the
legislature to mean "engage in the activity of.” Few if any
governmental entities could be said to "engage in the
business" of asbestos removal in the sense of engaging in a
commercial or mercantile activity. If the legislature had
intended the words "engage in the business of" to carry the
latter, more restrictive meaning, we do not think it would
have defined "person," as used in the phrase 'Iaperson may
not engage in the business of," to include governmental
entities.
In support of this reading of the provisions in
question, we note that the bill analysis for the bill which
enacted article 4477-3a simply states, as the purpose of the
bill, that it "requires persons (corporations, orqaniza-
tions, agencies, et al.) who remove or encapsulate asbestos
from public buildings to obtain a license from the Texas
Department of Health." Bill Analysis, H.B. 36, 70th Leg.
(1987). The analysis further states that section 2 of the
bill, the provision of which is at issue here, ntreguires
license for persons who remove or encapsulate asbestos."
& We find nothing in the bill analysis or elsewhere in
the legislative history of the provision that reflects a
legislative intent that the language "engage in the business
of" should refer only to commercial activity such as would
be carried out by a private contractor or firm. !zz.eia.'
The purpose of House Bill 36 in enacting the provisions
of article 4477-3a was evidently to provide for safeguards
in connection with the hazards to workers and the general
P. 5844
Dr. Hans Mark - Page 4 (JM-1114)
public attendant on asbestos removal or encapsulation. YOU
point out in your request letter that an individual
supervising an asbestos removal or encapsulation project in
a public building must, in any case, be licensed pursuant to
section 2(c). However, if a state agency for which that
individual acted as supervisor on the project were not
itself subject to licensure under the article, the agency's
employees working on the project would not be required to
register with the department under section 9 of the article
unless they were also wemployeesw of the supervisor. Such
employees therefore would not have been required, under
section 9, to have completed a course in asbestos removal
and encapsulation approved by the United States Environ-
mental Protection Agency as a prerequisite to registration.
We think that article 4477-3a was intended to provide
safeguards not only from improper supervision, but also from
hazards that might result from untrained employees per-
forming asbestos removal and encapsulation -- hence the
article's registration requirement for wemployeesl' of
persons required to be licensed under the article. If a
state agency could engage a private contractor to supervise
an asbestos removal or encapsulation project but use its own
unregistered and untrained employees to perform the work, we
think the purpose of the article would be to that extent
defeated.
Therefore, in response to your question, we conclude
that if a state agency removes or encapsulates asbestos from
a public building, it is. "engaged in the business of
removing . . . or encapsulating asbestosflwithin the meaning
of article 4477-3a and must be licensed under that article
by the Department of Health.1
If a state agency removes or encapsu-
lates asbestos from a public building, it is
"engaged in the business of removing . . . or
encapsulating asbestos" within the meaning of
1. Please note that we do not here address, as you do
not raise, any issues with respect to the interaction of
article 4477-3a, V.T.C.S., with, or preemption by,
applicable federal law.
p. 5845
Dr. Hans Mark - Page 5 (JM-1114)
article 4477-3a and must be licensed under
that article by the Department of Health.
s k
.
Very ruly yo
A
-J I M MATTOX~
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOUMCCRHARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLHY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
P. 5846
Untitled Texas Attorney General Opinion
Combined Opinion