Does a Texas state agency need an asbestos license to have its own workers remove asbestos from its buildings?

Texas AG Opinion JM-1114: Does a State Agency Need an Asbestos License to Do Its Own Removal?

Plain-English summary

The University of Texas System asked the Attorney General a licensing question that turned on the meaning of three ordinary words. Article 4477-3a of the Revised Civil Statutes said a person "may not engage in the business of removing asbestos from a public building" unless licensed by the Texas Department of Health. The Department had told the university that when it removed or encapsulated asbestos on campus, it was a "person" "engaged in the business" of asbestos removal and needed a license. The university disagreed, arguing that a public university is not "in the business" of asbestos removal; the removal it does is just incidental to running a campus, done by its own employees, not as a commercial venture.

The Attorney General sided with the Department. The key was the statute's own definition of "person," which expressly included a "government or governmental subdivision or agency." Given that, the phrase "engage in the business of" could not have been meant in the narrow commercial sense of a mercantile activity done for a living, because almost no government entity is "in the business" of asbestos removal in that sense. If the legislature had intended the narrow meaning, it would not have written the definition of "person" to include government agencies. So "engage in the business of" had to mean "engage in the activity of." A state agency that removes or encapsulates asbestos from a public building is therefore engaged in the business of doing so and must be licensed.

The opinion reinforced this reading with the statute's purpose and structure. The bill analysis for House Bill 36 described the law as requiring "persons (corporations, organizations, agencies, et al.)" who remove or encapsulate asbestos to get a license. And the licensing requirement worked together with a separate rule that each employee of a licensed person must register with the Department after completing an EPA-approved training course. If an agency could avoid licensure by hiring a licensed supervisor while using its own untrained, unregistered employees to do the actual work, the training safeguard would be defeated. Reading the statute to cover agencies kept that safeguard intact. The opinion expressly did not address any interaction with, or preemption by, federal law, since the university did not raise it.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas asbestos regulation has moved and been recodified since 1989. The licensing scheme once in article 4477-3a, V.T.C.S., was carried into the Health and Safety Code (the Texas Asbestos Health Protection provisions), and federal rules (EPA and OSHA) govern much of this area. Anyone dealing with a present-day asbestos project should check the current Health and Safety Code and Department of State Health Services rules, along with applicable federal requirements, rather than relying on the 1989 article number here.

Who this opinion affected (as of 1989)

State agencies, universities, and public school districts: The opinion told them they could not treat in-house asbestos removal as exempt from licensing. If an agency's own crews removed or encapsulated asbestos in a public building, the agency needed a Department of Health license, and its workers needed to register and complete EPA-approved training.

The Texas Department of Health: The opinion backed the Department's position that government agencies doing their own asbestos work fell within the licensing statute, giving it authority to require licensure and worker registration across public entities.

Workers and building occupants: By closing the in-house loophole, the opinion protected the people most exposed to asbestos hazards, the workers doing the removal and the public in the building, by keeping the training and registration safeguards in place regardless of who employed the crew.

Common questions

If a state agency uses its own employees to remove asbestos, does it still need a license?
Yes. The Attorney General concluded that a state agency removing or encapsulating asbestos from a public building is "engaged in the business of removing asbestos" and must be licensed by the Department of Health.

Doesn't "in the business of" mean a commercial contractor?
Not here. Because the statute defined "person" to include a government agency, the Attorney General read "engage in the business of" to mean "engage in the activity of," not just commercial or for-profit work.

Can an agency just hire a licensed supervisor and use its own untrained workers?
The opinion rejected that approach. If the agency itself is not licensed, its employees would not have to register or complete the EPA-approved training, which would defeat the statute's safety purpose.

Background and statutory framework

Article 4477-3a, V.T.C.S., enacted by House Bill 36 of the 70th Legislature (1987), set up licensing, registration, and regulation by the Texas Department of Health for the removal or encapsulation of asbestos from public buildings. Section 2(a) provided that a "person may not engage in the business of removing asbestos from a public building or encapsulating asbestos from a public building unless the person is licensed by the department." Section 1(4) defined a "public building" broadly as a building open to or with public access, including government buildings and public schools. Section 1(1) defined "person" to include a "corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity." Section 1(3) identified the "department" as the Texas Department of Health.

Because the article did not define "business" or "engage in the business of," the opinion looked to ordinary meaning. Webster's definitions of "business" ranged from "purposeful activity" to "commercial or mercantile activity engaged in as a means of livelihood." Webster's Ninth New Collegiate Dictionary 190 (1983). Given that "person" expressly included government agencies, the opinion concluded the legislature must have meant "engage in the business of" to signify "engage in the activity of," because few if any governmental entities could be said to be in the commercial business of asbestos removal. The bill analysis for House Bill 36 confirmed this, describing the law as requiring "persons (corporations, organizations, agencies, et al.)" who remove or encapsulate asbestos to obtain a license.

The opinion also read the licensing requirement together with the statute's other safeguards. Section 2(c) required a licensed individual to supervise each removal or encapsulation project, and section 9(a) required each employee of a person required to be licensed to register with the Department (after completing an EPA-approved course) before doing the work. If a state agency could hire a private contractor to supervise while using its own untrained, unregistered employees to perform the work, the training safeguard would be defeated. Reading the article to require an agency doing its own asbestos work to be licensed avoided that result. The opinion added a footnote that it did not address the interaction of article 4477-3a with, or preemption by, federal law, since the request did not raise it.

Citations

Statutory authorities:

• V.T.C.S. art. 4477-3a, § 2(a) (license required to engage in the business of removing or encapsulating asbestos from a public building); § 2(c) (licensed individual must supervise each project); § 9(a) (employee registration requirement)
• V.T.C.S. art. 4477-3a, § 1(1) (definition of "person," including a government agency); § 1(3) (Texas Department of Health); § 1(4) (definition of "public building")
• H.B. 36, 70th Leg. (1987) (enacting article 4477-3a; bill analysis describing the licensing requirement)

Secondary authority:

• Webster's Ninth New Collegiate Dictionary 190 (1983) (definition of "business")

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1114
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1114.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

November 10, 1989

Hans Mark, Ph.D.
Chancellor
University of Texas System
201 West 7th Street
Austin, Texas 78701

Opinion No. JM-1114

Re: Authority of a state agency to remove asbestos from a public building (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 engage in the business of removing asbestos from a public building or encapsulating asbestos from a public building unless the person is licensed by the department 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, § 1(3). Section 1(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 1(1) as follows:

'Person' includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity. (Emphasis added.)

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 encapsulate that asbestos.

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 encapsulate 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 incidental 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 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 "engage in the business of" as used therein. The Webster's entry for the word "business" includes definitions ranging from "purposeful activity" to "commercial or mercantile activity engaged in as a means of livelihood." Webster's Ninth New Collegiate Dictionary 190 (1983). Since the word "person" as used in the provision in question -- "a 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 "a person 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, organizations, 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, "requires license for persons who remove or encapsulate asbestos." Id. 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. See id.

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 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 "employees" 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 Environmental 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 performing asbestos removal and encapsulation -- hence the article's registration requirement for "employees" 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 asbestos" within the meaning of article 4477-3a and must be licensed under that article by the Department of Health.[Footnote 1]

SUMMARY

If a state agency removes or encapsulates asbestos from a public building, it is "engaged in the business of removing . . . or encapsulating asbestos" within the meaning of article 4477-3a and must be licensed under that article by the Department of Health.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General

Footnote 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.