MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Conservation and Water Resources

By: Representative Foster

House Bill 1619

AN ACT TO AMEND SECTION 37-138-5, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF "ASBESTOS PROJECT" TO EXEMPT CERTAIN ACTIVITIES; TO AMEND SECTION 37-138-9, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE COMMISSION ON ENVIRONMENTAL QUALITY TO ADOPT REGULATIONS REQUIRING NOTIFICATION ONLY FOR CERTAIN ASBESTOS PROJECTS; TO AMEND SECTION 37-138-11, MISSISSIPPI CODE OF 1972, TO REQUIRE MANAGEMENT PLANNERS TO BE CERTIFIED TO CONDUCT CERTAIN PROJECTS; TO AMEND SECTION 37-138-25, MISSISSIPPI CODE OF 1972, TO EXEMPT PUBLIC EMPLOYEES FROM CERTIFICATION FEES UNDER CERTAIN CIRCUMSTANCES; TO REPEAL SECTION 37-138-14, MISSISSIPPI CODE OF 1972, WHICH PRESCRIBES CERTIFICATION REQUIREMENTS FOR AIR MONITORS; TO AMEND SECTIONS 37-138-3, 37-138-7, 37-138-13, 37-138-15, 37-138-17, 37-138-19, 37-138-21 AND 37-138-27, MISSISSIPPI CODE OF 1972, TO MAKE TECHNICAL AND CONFORMING AMENDMENTS; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 37-138-3, Mississippi Code of 1972, is amended as follows:

37-138-3. The purpose of this chapter is to provide for the accreditation and certification of persons who perform inspections and reinspections, prepare management plans and perform as * * * contractors, project designers, supervisors and workers in abatement projects for the purpose of identifying, evaluating and abating the hazard of asbestos-containing material in public and private elementary and secondary school buildings and in * * * public and commercial buildings in this state. It is the intent of this chapter that the cost of the administration of this chapter shall be borne fully by the certification fees provided for under this chapter.

SECTION 2. Section 37-138-5, Mississippi Code of 1972, is amended as follows:

37-138-5. (1) (a) "Abatement" means removal, encapsulation, enclosure or repair of or an operations and maintenance program for asbestos-containing materials.

 * * *

(b) "Asbestos-containing materials" (ACM) means any material or product which contains more than one percent (1%) asbestos.

(c) "Asbestos project" means a project for the abatement of ACM in school buildings, public buildings and commercial buildings except for (i) exclusions adopted by the commission in accordance with Section 37-138-9(a); (ii) abatement of asbestos-containing resilient floor tile, sheet vinyl flooring and associated adhesives, if there is a two-working-day advance notification to the commission of the abatement of asbestos-containing floor tile, sheet vinyl flooring and associated adhesives, unless sanding, grinding, burning or sawing occurs or that abatement is otherwise considered a "response action" or would cause the material to become "friable" as both those terms are defined under 40 C.F.R. Section 763.83; or (iii) projects in which removal of nonfriable asbestos or exterior building components occurs, unless that project is required to be regulated under federal law or regulations.

(d) "Certificate" means a document authorizing a person to perform certain specific activities related to the identification, evaluation or abatement of ACM in school buildings, public buildings and commercial buildings as described in this chapter.

(e) "Commercial building" means any privately owned building in which the public is invited or allowed access and any other privately owned building so located that the conduct of any asbestos abatement activities therein could reasonably expose any person or persons to ACM hazards, except that a commercial building shall not include any residence.

(f) "Commission" means the Mississippi Commission on Environmental Quality.

(g) "Contractor" means a person who enters into a contract for the performance of an asbestos project.

(h) "Director" means the Executive Director of the Mississippi Department of Environmental Quality.

(i) "Inspector" means a person employed to inspect or reinspect for presence of ACM, collect samples of ACM confirmation and provide written assessment of ACM.

(j) "Management plan" is a plan for abatement of ACM.

(k) "Management planner" means a person employed to develop a management plan.

(l) "Model plan" means the Model Accreditation Plan for states promulgated at Section I of Appendix C to Title 40, Part 763, subpart E of the Code of Federal Regulations.

(m) "Operations and maintenance program" means a program of work practices to maintain ACM in good condition, ensure cleanup of asbestos fibers previously released, and prevent further release by minimizing and controlling ACM disturbance or damage.

(n) "Person" means the state or other agency or institution thereof, any municipality, political subdivision, public or private corporation, individual, partnership, association or other entity, and includes any officer or governing or managing body of any municipality, political subdivision, or public or private corporation, or the United States or any officer or employee thereof.

(o) "Project designer" means a person who specifies engineering methods and work practices to be used during asbestos projects.

(p) "Public building" means any building owned by the state, counties, municipalities, institutions of higher learning, community colleges or any political subdivision.

(q) "School" means any elementary or secondary school as defined in Section 198 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 2854).

(r) "School building" means:

(i) Any structure suitable for use as a classroom, including a school facility such as a laboratory, library, school eating facility, or facility used for the preparation of food.

(ii) Any gymnasium or other facility which is specially designed for athletic or recreational activities or for an academic course in physical education.

(iii) Any other facility used for the instruction or housing of students or for the administration of educational or research programs.

(iv) Any maintenance, storage or utility facility, including any hallway, essential to the operation of any facility described in this definition of "school building" under paragraphs (i), (ii) or (iii).

(v) Any portico or covered exterior hallway or walkway.

(vi) Any exterior portion of a mechanical system used to condition interior space.

(s) "Supervisor" means a person designated by a contractor to be responsible for direction of day-to-day activities of an asbestos project.

(t) "Worker" means a person who works on an asbestos project other than a project designer, contractor, supervisor or management planner.

(2) The commission is authorized to adopt by promulgated regulation any or all additional definitions necessary to carry out the intent of this chapter.

SECTION 3. Section 37-138-7, Mississippi Code of 1972, is amended as follows:

37-138-7. The commission shall adopt regulations for certification of contractors, inspectors, management planners, project designers, * * * supervisors and workers. The regulations shall include an accreditation plan which shall be equivalent to paragraphs 1 through 3 of the Model Plan. The accreditation plan shall be no more stringent than the Model Plan * * *. The regulations and accreditation plan shall include the requirements for all training courses for accreditation of contractors, inspectors, management planners, project designers, * * * supervisors and workers.  * * * The Board of Trustees of State Institutions of Higher Learning shall designate a university which may offer all training courses set forth in the regulations and accreditation plan and that university may charge reasonable fees to offset costs of the courses offered. The commission shall not approve any training courses offered in Mississippi other than those courses offered at the designated university and those certified abatement worker courses that have received Environmental Protection Agency approval pursuant to Section III of Appendix C to Title 40, Part 763, Subpart E, of the Code of Federal Regulations.

SECTION 4. Section 37-138-9, Mississippi Code of 1972, is amended as follows:

37-138-9. The commission shall administer and enforce this chapter and shall have the following powers and duties under this chapter:

(a) To adopt, modify, repeal and promulgate, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the commission under this chapter, including but not limited to rules and regulations concerning the required accreditation training, the issuance and annual renewal of certificates, the assessment of annual fees and the assessment of penalties, reprimands, and the suspension and revocation of certificates, abatement emergencies and the exclusion of minor abatement and/or routine maintenance activities at commercial buildings, industrial facilities, public buildings and school buildings from any requirements of this chapter. Any rules and regulations adopted under this chapter shall be no more stringent than federal rules and regulations;

(b) To issue certificates for the positions of management planner, project designer, * * * contractor, supervisor, inspector and worker and to renew those certificates annually;

(c) To assess penalties, to issue reprimands and to suspend and revoke certificates;

(d) To assess annual fees for the issuance and annual renewal of certificates;

(e) To approve the accreditation of training courses administered to applicants for issuance and annual renewal of certificates and to develop an examination and grading system for testing applicants, to be administered by the designated university;

(f) To require notification of only those asbestos projects where regulated asbestos-containing materials are disturbed in excess of the standards set under Subpart M of 40 CFR Section 61 in a renovation or demolition project on a regulated building;

(g) Administration and expenditure of funds deposited in and expended by legislative appropriation from the Asbestos Abatement Accreditation and Certification Fund;

(h) Reciprocal arrangements for accreditation and certification of management planners, project designers, air monitors, contractors, supervisors, inspectors and workers with other states that have established accreditation and certification programs that meet or exceed the accreditation and certification requirements of this chapter;

(i) To apply for, receive and expend any federal or state funds or contributions, gifts, devises, bequests or funds from any other source relating to this chapter;

(j) To commission or conduct studies relating to this chapter;

(k) To enter into, and to authorize the executive director to execute with the approval of the commission, contracts, grants and cooperative agreements with any federal or state agency or subdivision thereof, or any public or private institution * * * or any person, corporation or association in * * * carrying out * * * this chapter. The authority under this chapter shall not include contracts, grants or cooperative agreements which do not develop data or information usable by the commission in connection with this chapter, or which provide goods, services or facilities to the commission or the department, and shall exclude any monies for special interest groups for purposes of lobbying or otherwise promoting their special interests; and

(l) To discharge * * * other duties, responsibilities and powers as are necessary to implement * * * this chapter.

SECTION 5. Section 37-138-11, Mississippi Code of 1972, is amended as follows:

37-138-11. (1) It is unlawful for an individual who does not possess a valid management planner certificate to develop a management plan for any asbestos project, except a project conducted in a commercial or public building.

(2) To qualify for an asbestos management planner certificate, an applicant shall:

(a) (i) Have attained a Bachelor of Science degree in engineering or its equivalent from an accredited university and be licensed by the Mississippi Board of Registration for Professional Engineers and Land Surveyors as a registered professional engineer or, (ii) have attained a Bachelor of Science degree in architecture or its equivalent from an accredited university and be licensed as an architect by the Mississippi Board of Architecture or, (iii) have satisfactorily completed before April 1, 1990, an initial management planner training course approved by the United States Environmental Protection Agency and any applicable annual refresher training courses approved by the United States Environmental Protection Agency such that management planner training has been continuously current and is current as of April 1, 1990, for the purpose of satisfying this paragraph (a) only; however, this subparagraph (iii) shall apply only to applicants applying for a certificate before November 1, 1991; and

(b) Satisfactorily complete a commission-approved training course for asbestos management planners, except that a management planner training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and

(c) Demonstrate to the satisfaction of the commission that the applicant is familiar with and capable of complying fully with all applicable federal and state laws and regulations.

(3) Any certificate issued by the commission under this section and requirements (b) and (c) of subsection (2) of this section shall be renewed on an annual basis.

(4) Each applicant for a management planner certificate shall, on an annual basis, submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

SECTION 6. Section 37-138-13, Mississippi Code of 1972, is amended as follows:

37-138-13. (1) It is unlawful for any person who does not possess a valid project designer certificate to specify engineering methods and work practices under an asbestos project to another person.

(2) To qualify for a project designer certificate, an applicant shall:

(a) (i) Have attained a bachelor of science degree in engineering or its equivalent from an accredited university and be licensed by the Mississippi Board of Registration for Professional Engineers and Land Surveyors as a registered professional engineer or, (ii) have attained a bachelor of science degree in architecture or its equivalent from an accredited university and be licensed as an architect by the Mississippi Board of Architecture or, (iii) have satisfactorily completed before April 1, 1990, either a project designer training course or an asbestos abatement contractor training course and a supervisor's training course, each approved by the United States Environmental Protection Agency, and any applicable annual refresher training courses approved by the United States Environmental Protection Agency such that applicable training has been continuously current and is current as of April 1, 1990, for the purpose of satisfying this paragraph (a) only; however, this subparagraph (iii) shall apply only to applicants applying for a certificate before November 1, 1991;

(b) Satisfactorily complete a commission-approved training course for project designers, except that a project designer training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and

(c) Demonstrate to the satisfaction of the commission that the applicant and applicant's employees and agents are familiar with and capable of complying with all applicable federal and state laws and regulations.

(3) Any certificate issued by the commission under this section and requirements (b) and (c) of subsection (2) of this section shall be renewed on an annual basis.

(4) Each applicant for a project designer certificate shall, on an annual basis, submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

SECTION 7. Section 37-138-15, Mississippi Code of 1972, is amended as follows:

37-138-15. (1) It is unlawful for any person who does not possess a valid contractor certificate to contract with another person for asbestos abatement on an asbestos project.

(2) To qualify for a contractor certificate, an applicant shall:

(a) Have earned a high school diploma or its equivalent;

(b) Satisfactorily complete a commission-approved training course for contractors, except that a contractor training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and

(c) Demonstrate to the satisfaction of the commission that the applicant and the applicant's employees, subcontractors and agents are familiar with and are capable of complying with all applicable federal and state laws and regulations.

(3) Any certificate issued by the commission under this section and requirements (b) and (c) of subsection (2) of this section shall be renewed on an annual basis.

(4) Applicants for a contractor certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

SECTION 8. Section 37-138-17, Mississippi Code of 1972, is amended as follows:

37-138-17. (1) It is unlawful for an individual who does not possess a valid supervisor certificate to direct an asbestos project.

(2) To qualify for an asbestos abatement supervisor certificate, an applicant shall:

(a) Have earned a high school diploma or its equivalent;

(b) Satisfactorily complete a commission-approved training course for supervisors, except that a supervisor training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and

(c) Demonstrate to the satisfaction of the commission that the applicant is familiar with and capable of complying with all applicable federal and state laws and regulations.

(3) Any certificate issued by the commission under this section and requirement (b) and (c) of subsection (2) of this section shall be renewed on an annual basis.

(4) Applicants for a supervisor certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of this certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

SECTION 9. Section 37-138-19, Mississippi Code of 1972, is amended as follows:

37-138-19. (1) It is unlawful for an individual who does not possess a valid inspector certificate to work as an asbestos inspector on an asbestos project.

(2) To qualify for an inspector certificate, an applicant shall:

(a) Have earned a high school diploma or its equivalent;

(b) Satisfactorily complete a commission-approved training course for inspectors, except that an inspector training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement; and

(c) Demonstrate to the satisfaction of the commission that the applicant is familiar with and capable of complying with all federal and state laws and regulations.

(3) Any certificate issued by the commission under this section and requirements (b) and (c) of subsection (2) of this section shall be renewed on an annual basis.

(4) Applicants for an inspector certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of the training course(s) specified in subsection (2)(b) above and shall pay the applicable annual fee.

SECTION 10. Section 37-138-21, Mississippi Code of 1972, is amended as follows:

37-138-21. (1) It is unlawful for an individual who does not possess a valid worker certificate to work as a worker on an asbestos project.

(2) It is unlawful for a contractor to employ a person as a worker on an asbestos project who does not possess a valid worker certificate in accordance with this section.

(3) To qualify for a worker certificate an individual shall:

(a) Satisfactorily complete a commission-approved training course for abatement workers, except that a worker training course approved by the United States Environmental Protection Agency satisfactorily completed shall be sufficient to meet this requirement;

(b) Demonstrate to the satisfaction of the commission that the applicant is familiar with and is capable of complying fully with all applicable federal and state laws and regulations; and

(c) Provide written proof satisfactory to the commission, on forms prepared by the commission, of a physical examination by a physician licensed by the State Board of Medical Licensure or by a physician licensed to practice medicine in any other state approving the applicant to work on an asbestos project. Requirement (c) of subsection (3) shall be renewed every three (3) years. A chest X-ray is not required for either the initial or any renewal application.

(4) Any certificate issued by the commission under this section and requirements (a) and (b) of subsection (3) of this section shall be renewed on an annual basis.

(5) Applicants for a worker certificate shall submit to the commission, on forms prepared by the commission, an application for issuance or renewal of the certificate, whichever is applicable, and a certificate that shows satisfactory completion of training course(s) specified in subsection (3)(a) above and shall pay the applicable annual fee.

SECTION 11. Section 37-138-25, Mississippi Code of 1972, is amended as follows:

37-138-25. (1) The commission may assess and collect fees for the issuance and annual renewal of certificates for management planner, project designer, * * * contractor, supervisor, inspector and worker under Sections 37-138-11 through 37-138-21 in amounts sufficient to fully administer this chapter. Any public employee shall be exempt from the fees required under this section if that employee only engages in asbestos abatement projects with the public agency by which the employee is employed. The fees assessed under this section are conditions precedent to the issuance and renewal of the certificates set forth in Sections 37-138-11 through 37-138-21.

(2) There is * * * established a special * * * fund to be known as the Asbestos Abatement Accreditation and Certification Act Fund (the fund) to be deposited in an approved state depository and expended by appropriation approval by the Legislature for the administration of this chapter as provided by law. The interest obtained from any investment or deposit of monies in the fund shall be deposited by the State Treasurer to that fund.  * * * All monies collected as fees for certificates provided by this chapter shall, not later than sixty (60) days next succeeding the month in which collections were made, be paid over to the fund.

(3) If the total of monies deposited into the fund exceeds the appropriation by the Legislature for the administration of this chapter, the monies shall be retained in the depository for the fund to be expended by appropriation approval by the Legislature for the administration of this chapter as provided by law in the next succeeding fiscal year.

(4) The commission may promulgate rules and regulations for the administration of and expenditures from the fund.

SECTION 12. Section 37-138-27, Mississippi Code of 1972, is amended as follows:

37-138-27. (1) Any person found by the commission to have violated * * * this chapter or any rule, * * * regulation or written order of the commission promulgated or issued under this chapter or any certificate issued under this chapter shall be subject to (a) a civil penalty of not more than Twenty-five Thousand Dollars ($25,000.00) for each violation, that penalty to be assessed and levied by order of the commission after notice and hearing in accordance with subsection (5) below of this section, and (b) a reprimand or a suspension or revocation of any certificate issued to the person under this chapter, that reprimand, suspension or revocation to be assessed and levied by order of the commission after notice and hearing as provided in subsection (5) * * * of this section.

(2) In lieu of, or in addition to, the penalty provided for in subsection (1)(a) of this section, the commission may institute and maintain in the name of the state * * * all proceedings necessary or appropriate to enforce * * * this chapter, rules and regulations promulgated under this chapter, and orders and certificates issued under this chapter in the appropriate circuit, chancery, county or justice court of the county in which venue may lie. The commission may obtain mandatory or prohibitory injunctive relief, either temporary or permanent.  * * * It shall not be necessary in those cases that the state plead or prove: (a) that irreparable damage would result if the injunction did not issue; (b) that there is no adequate remedy at law; or (c) that a written complaint or commission order has first been issued for the alleged violation.

(3) Any person who knowingly submits false or inaccurate information in support of an application for issuance or renewal of a certificate under this chapter or who willfully fails to comply with the conditions of the certificate issued by the commission or who willfully violates this chapter, or any rule, regulation or written order of the commission or emergency order issued by the director under the chapter shall, upon conviction, be guilty of a misdemeanor and fined not less than One Hundred Dollars ($100.00) within the discretion of the court. Each day of a continuing violation is a separate violation.

(4) In addition to or in lieu of filing a criminal complaint for the willful misconduct described in subsection (3) of this section, the commission may impose a civil penalty in accordance with subsection (1)(a) of this section, and shall impose a reprimand or a suspension or revocation of any certificate in accordance with subsection (1)(b) of this section.

(5) All proceedings and hearings before the commission regarding violations of this chapter or any rule or regulation, written order of the commission, emergency order of the director or certificate issued or renewed by the commission under this chapter or any certificate issued under this chapter and all appeals * * * shall be conducted in accordance with Sections 49-17-31 through 49-17-41.

(6) All fines, penalties and other sums recovered or collected by the commission for and on behalf of the state under this section shall be deposited in the Pollution Emergency Fund established under Section 49-17-68.  * * * The commission may receive and accept, from any funds and all available sources * * *, additional funds to be deposited in that fund and expended for the purpose of remedial, clean-up, or abatement actions involving pollution of the land, air or waters of the state in violation of Sections 49-17-1 through 49-17-43, any rule or regulation or written order of the commission promulgated or issued under those sections or any condition or limitation of a permit.

SECTION 13. Section 37-138-14, Mississippi Code of 1972, which requires certification and prescribes qualifications for air monitors, is repealed.

SECTION 14. This act shall take effect and be in force from and after July 1, 1997.