H.B. No. 1431
1-1 AN ACT
1-2 relating to the Hazard Communication Act, the Manufacturing
1-3 Facility Community Right-to-Know Act, the Public Employer Community
1-4 Right-to-Know Act, and the Nonmanufacturing Facilities Community
1-5 Right-to-Know Act; providing for the collection of fees; providing
1-6 administrative, civil, and criminal penalties.
1-7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-8 SECTION 1. Chapter 502, Health and Safety Code, is amended
1-9 to read as follows:
1-10 CHAPTER 502. HAZARD COMMUNICATION ACT
1-11 Sec. 502.001. Short Title. This chapter may be cited as the
1-12 Hazard Communication Act.
1-13 Sec. 502.002. Findings; Purpose. (a) The legislature finds
1-14 that:
1-15 (1) the health and safety of persons <living and>
1-16 working in this state may be improved by providing access to
1-17 information regarding hazardous chemicals to which those persons
1-18 may be exposed during normal employment activities, during
1-19 emergency situations, or as a result of proximity to the
1-20 manufacture or use of those chemicals; and
1-21 (2) many employers in this state have established
1-22 suitable information programs for their employees and that access
1-23 to the information is required of most <all manufacturing>
2-1 employers under the federal Occupational Safety and Health
2-2 Administration's (OSHA) Hazard Communication Standard.
2-3 (b) It is the intent and purpose of this chapter to assure
2-4 that employers provide<, if the OSHA standard is not in effect,
2-5 accessibility to> information regarding hazardous chemicals in the
2-6 workplace <is provided> to<:>
2-7 <(1)> employees who may be exposed to those chemicals
2-8 in their workplace <manufacturing or nonmanufacturing employer
2-9 workplaces;>
2-10 <(2) emergency service organizations responsible for
2-11 dealing with chemical hazards during an emergency; and>
2-12 <(3) the commissioner to make the information
2-13 available to the public through specific procedures>.
2-14 Sec. 502.0021. FEDERAL LAWS AND REGULATIONS. In this
2-15 chapter, a reference to a federal law or regulation means a
2-16 reference to the most current version of that law or regulation.
2-17 Sec. 502.003. Definitions. In this chapter:
2-18 (1) "Article" means a manufactured item:
2-19 (A) that is formed to a specific shape or design
2-20 during manufacture;
2-21 (B) that has end-use functions dependent in
2-22 whole or in part on its shape or design during end use; and
2-23 (C) that does not release, or otherwise result
2-24 in exposure to, a hazardous chemical under normal conditions of
2-25 use.
3-1 (2) "Board" means the Texas Board of Health.
3-2 (3) <(2)> "Chemical manufacturer" means an employer in
3-3 Standard Industrial Classification (SIC) Codes 20-39 with a
3-4 workplace where chemicals are produced for use or distribution.
3-5 (4) <(3)> "Chemical name" means:
3-6 (A) the scientific designation of a chemical in
3-7 accordance with the nomenclature system developed by the
3-8 International Union of Pure and Applied Chemistry (IUPAC) or the
3-9 Chemical Abstracts Service (CAS) rules of nomenclature; or
3-10 (B) a name that clearly identifies the chemical
3-11 for the purpose of conducting a hazard evaluation.
3-12 <(4) "Commissioner" means the commissioner of health.>
3-13 (5) "Common name" means a designation of
3-14 identification, such as a code name, code number, trade name, brand
3-15 name, or generic name, used to identify a chemical other than by
3-16 its chemical name.
3-17 (6) "Department" means the Texas Department of Health.
3-18 (7) "Designated representative" means the individual
3-19 or organization to whom an employee gives written authorization to
3-20 exercise the employee's rights under this chapter, except that a
3-21 recognized or certified collective bargaining agent is a designated
3-22 representative regardless of written employee authorization.
3-23 (8) "Director" means the director of the Texas
3-24 Department of Health.
3-25 (9) "Distributor" means a business in Standard
4-1 Industrial Classification Major Industry Group 516 or 517<, other
4-2 than a chemical manufacturer or importer,> that supplies hazardous
4-3 chemicals to an employer who must comply with this Act <other
4-4 distributors or to purchasers>.
4-5 (10) <(9)> "Employee" means a person who may be or may
4-6 have been exposed to hazardous chemicals in the person's workplace
4-7 under normal operating conditions or foreseeable emergencies, and
4-8 includes a person working for this state, a person working for a
4-9 political subdivision of this state, or a member of a volunteer
4-10 emergency service organization or, if the applicable OSHA standard
4-11 or MSHA standard is not in effect, a person working for a private
4-12 employer. Workers such as office workers or accountants who
4-13 encounter hazardous chemicals only in nonroutine, isolated
4-14 instances are not employees for purposes of this chapter <The term
4-15 does not include an office worker, a ground maintenance worker,
4-16 security personnel, or nonresident management unless the person's
4-17 job performance routinely involves potential exposure to hazardous
4-18 chemicals>.
4-19 (11) "Employer" means a person engaged in private
4-20 business who is regulated by the federal Occupational Safety and
4-21 Health Act of 1970 (Pub. L. No. 91-596), the Federal Coal Mine
4-22 Health and Safety Act of 1969 (Pub. L. No. 91-173), or the Federal
4-23 Mine Safety and Health Amendments Act of 1977 (Pub. L. No. 95-164)
4-24 on the effective date of this Act, or the state or a political
4-25 subdivision of the state, including a state, county, or municipal
5-1 agency, a public school, a college or university, a river authority
5-2 or publicly owned utility, a volunteer emergency service
5-3 organization, and other similar employers. The term does not
5-4 include any person to whom the federal Occupational Safety and
5-5 Health Act of 1970 (Pub. L. No. 91-596), the Federal Coal Mine
5-6 Health and Safety Act of 1969 (Pub. L. No. 91-173), or the Federal
5-7 Mine Safety and Health Amendments Act of 1977 (Pub. L. No. 95-164)
5-8 is applicable if that employer is covered by the OSHA standard or
5-9 the other two federal laws.
5-10 (12) <(10)> "Expose" or "exposure" means that an
5-11 employee is subjected to a hazardous chemical in the course of
5-12 employment through any route of entry, including inhalation,
5-13 ingestion, skin contact, or absorption. The term includes
5-14 potential, possible, or accidental exposure under normal conditions
5-15 of use or in a reasonably foreseeable emergency.
5-16 (13) <(11) "Fire chief" means the elected or paid
5-17 administrative head of a fire department.>
5-18 <(12)> "Hazardous chemical" or "chemical" means an
5-19 element, <chemical> compound, or mixture of elements or compounds
5-20 that is a physical hazard or health hazard as defined by the OSHA
5-21 standard in 29 CFR Section 1910.1200(c), or a hazardous substance
5-22 as defined by the OSHA standard in 29 CFR Section 1910.1200(d)(3),
5-23 or by OSHA's written interpretations. A hazard determination may
5-24 be made by employers who choose not to rely on the evaluations made
5-25 by their suppliers if there are relevant qualitative or
6-1 quantitative differences. A hazard determination shall involve the
6-2 best professional judgment.
6-3 (14) "Health hazard" has the meaning given that term
6-4 by the OSHA standard (29 CFR 1910.1200(c)).
6-5 (15) "Identity" means a chemical or common name, or
6-6 alphabetical or numerical identification, that is indicated on the
6-7 material safety data sheet (MSDS) for the chemical. The identity
6-8 used must permit cross-references to be made among the workplace
6-9 chemical list, the label, and the MSDS.
6-10 (16) <(13)> "Label" means any written, printed, or
6-11 graphic material displayed on or affixed to a container of
6-12 hazardous chemicals.
6-13 (17) <(14) "Manufacturing employer" means an employer
6-14 with a workplace classified in Standard Industrial Classification
6-15 (SIC) Codes 20-39 who manufactures or uses a hazardous chemical.>
6-16 <(15)> "Material Safety Data Sheet" ("MSDS") means a
6-17 document containing chemical hazard and safe handling information
6-18 that is prepared in accordance with the requirements of the OSHA
6-19 standard for that document.
6-20 (18) "MSHA standard" means the Hazard Communication
6-21 Standard issued by the Mining Safety and Health Administration.
6-22 (19) <(16) "Nonmanufacturing employer" or "employer"
6-23 means an employer with a workplace in Standard Industrial
6-24 Classification (SIC) Codes 46-49 (pipelines, transportation
6-25 services, communications, and electric, gas, and sanitary
7-1 services), 51 (wholesale trade, nondurable goods), 75 (automotive
7-2 repair, services, and garages), 76 (miscellaneous repair services),
7-3 80 (health services), 82 (educational services), and 84 (museums,
7-4 art galleries, and botanical and zoological gardens); this state
7-5 and its political subdivisions; and volunteer emergency service
7-6 organizations. If the OSHA standard is not in effect, "employer"
7-7 also includes manufacturing employer.>
7-8 <(17)> "OSHA standard" means the Hazard Communication
7-9 Standard issued by the Occupational Safety and Health
7-10 Administration and codified as 29 CFR Section 1910.1200.
7-11 (20) "Physical hazard" means a chemical for which
7-12 there is scientifically valid evidence that it is a combustible
7-13 liquid, a compressed gas, explosive, flammable, an organic
7-14 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
7-15 water-reactive in terms defined in the OSHA standard.
7-16 (21) "Temporary workplace" means a stationary
7-17 workplace that is staffed less than 20 hours a week. A temporary
7-18 workplace may be considered to be a work area of the headquarters
7-19 workplace from which employees are routinely dispatched. Temporary
7-20 workplaces may include pumping stations, emergency response sites,
7-21 and similar workplaces.
7-22 (22) <(18)> "Work area" means a room, a <or> defined
7-23 space, a utility structure, or an emergency response site in a
7-24 workplace where hazardous chemicals are present, produced, or used
7-25 and where employees are present.
8-1 (23) <(19)> "Workplace" means an establishment, job
8-2 site, or project, at one geographical location containing one or
8-3 more work areas, with or without buildings, that is staffed 20 or
8-4 more hours a week.
8-5 (24) <(20)> "Workplace chemical list" means a list of
8-6 hazardous chemicals developed under Section 502.005(a) <or 29 CFR
8-7 Section 1910.1200(e)(i)>.
8-8 Sec. 502.004. APPLICABILITY OF CHAPTER. (a) Except as
8-9 provided by Subsection (b) <If the OSHA standard is not in effect>,
8-10 this chapter applies only to employers who are not required to
8-11 comply with the OSHA standard, the Federal Coal Mine Health and
8-12 Safety Act of 1969 (Pub. L. No. 91-173), or the Federal Mine Safety
8-13 and Health Amendments Act of 1977 (Pub. L. No. 95-164)
8-14 <manufacturing employers and distributors>.
8-15 (b) Chemical manufacturers, importers, and distributors
8-16 shall provide MSDSs as required by Section 502.006. Penalties
8-17 provided by Sections 502.014, 502.015, and 502.016 may be assessed
8-18 against chemical manufacturers, importers, and distributors for
8-19 failure to provide MSDSs <If the OSHA standard is in effect,
8-20 manufacturing employers and distributors who are regulated by and
8-21 complying with the OSHA standard are required to comply only with
8-22 Sections 502.005(d) and (e); 502.006(a) and (d); 502.008;
8-23 502.012(d), (e), and (f); and 502.013(b), (c), (d), and (e)>.
8-24 (c) If an employer is covered by both this chapter and
8-25 Chapter 125, Agriculture Code, the employer is required to comply
9-1 only with this chapter <Nonmanufacturing employers who adopt and
9-2 comply with the OSHA standard may be certified by the commissioner
9-3 as being in compliance with this chapter, except for Sections
9-4 502.005(d) and (e); 502.006(a) and (d); 502.008; 502.012(d), (e),
9-5 and (f); and 502.013(b), (c), (d), and (e). The commissioner shall
9-6 make the certification annually>.
9-7 (d) This chapter, except Section <Sections 502.008(a) and>
9-8 502.009, does not apply to a <workplace where a> hazardous chemical
9-9 in a sealed and labeled package that is received and subsequently
9-10 sold or transferred in that package if:
9-11 (1) the seal and label remain <remains> intact while
9-12 the chemical is in the workplace; and
9-13 (2) the chemical does not remain in the workplace
9-14 longer than five working days.
9-15 (e) This chapter does not require labeling of the following
9-16 chemicals:
9-17 (1) any pesticide, as that term is defined in the
9-18 Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
9-19 Section 136 et seq.), when subject to the labeling requirements of
9-20 that Act and labeling regulations issued under that Act by the
9-21 Environmental Protection Agency;
9-22 (2) any food, food additive, color additive, drug,
9-23 cosmetic, or medical or veterinary device, including materials
9-24 intended for use as ingredients in those products such as flavors
9-25 and fragrances, as those terms are defined in the Federal Food,
10-1 Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) and
10-2 regulations issued under that Act, when they are subject to the
10-3 labeling requirements under that Act by the Food and Drug
10-4 Administration;
10-5 (3) any distilled spirits that are beverage alcohols,
10-6 wine, or malt beverages intended for nonindustrial use, as those
10-7 terms are defined in the Federal Alcohol Administration Act (27
10-8 U.S.C. Section 201 et seq.) and regulations issued under that Act,
10-9 when subject to the labeling requirements of that Act and labeling
10-10 regulations issued under that Act by the Bureau of Alcohol,
10-11 Tobacco, and Firearms; and
10-12 (4) any consumer product or hazardous substance, as
10-13 those terms are defined in the Consumer Product Safety Act (15
10-14 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
10-15 (15 U.S.C. Section 1261 et seq.), respectively, when subject to a
10-16 consumer product safety standard or labeling requirement of those
10-17 Acts or regulations issued under those Acts by the Consumer Product
10-18 Safety Commission.
10-19 (f) This chapter does not apply to <the following>:
10-20 (1) any hazardous waste, as that term is defined by
10-21 the federal Solid Waste Disposal Act, as amended by the Resource
10-22 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
10-23 Section 6901 et seq.), when subject to regulations issued under
10-24 that Act by the Environmental Protection Agency;
10-25 (2) a chemical in a laboratory under the direct
11-1 supervision or guidance of a technically qualified individual if:
11-2 (A) labels on incoming containers of chemicals
11-3 are not removed or defaced;
11-4 (B) the employer complies with Sections 502.006
11-5 and 502.009 with respect to laboratory employees; and
11-6 (C) the laboratory is not used primarily to
11-7 produce hazardous chemicals in bulk for commercial purposes;
11-8 (3) tobacco or tobacco products;
11-9 (4) wood or wood products;
11-10 (5) articles;
11-11 (6) food, drugs, cosmetics, or alcoholic beverages in
11-12 a retail food sale establishment that are packaged for sale to
11-13 consumers;
11-14 (7) food, drugs, or cosmetics intended for personal
11-15 consumption by an employee while in the workplace;
11-16 (8) any consumer product or hazardous substance, as
11-17 those terms are defined in the Consumer Product Safety Act (15
11-18 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
11-19 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
11-20 demonstrate it is used in the workplace in the same manner as
11-21 normal consumer use and if the use results in a duration and
11-22 frequency of exposure that is not greater than exposures
11-23 experienced by consumers;
11-24 (9) any drug, as that term is defined in the Federal
11-25 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) <an
12-1 article that:>
12-2 <(A) is formed to a specific shape or design
12-3 during manufacture;>
12-4 <(B) has an end use function dependent in whole
12-5 or in part on the article's shape or design during end use; and>
12-6 <(C) does not release or otherwise result in
12-7 exposure to a hazardous chemical under normal conditions of use;>
12-8 <(2) a product intended for personal consumption by an
12-9 employee in the workplace;>
12-10 <(3) a retail food sale establishment or other retail
12-11 trade establishment, except processing and repair area;>
12-12 <(4) a food, food additive, color additive, drug, or
12-13 cosmetic as those terms are defined by the federal Food, Drug, and
12-14 Cosmetic Act (21 U.S.C. Section 201 et seq.) or a distilled
12-15 spirit, wine, or malt beverage as those terms are defined by the
12-16 federal Alcohol Administration Act (27 U.S.C. Section 201 et seq.);>
12-17 <(5) a chemical in a laboratory under the direct
12-18 supervision or guidance of a technically qualified individual if:>
12-19 <(A) labels on incoming containers of chemicals
12-20 are not removed or defaced;>
12-21 <(B) material safety data sheets received are
12-22 maintained and made accessible to employees and students;>
12-23 <(C) the laboratory complies with Sections
12-24 502.008 and 502.009; and>
12-25 <(D) the laboratory is not used primarily to
13-1 produce hazardous chemicals in bulk for commercial purposes;>
13-2 <(6) a product labeled in accordance with the federal
13-3 Insecticide, Fungicide, and Rodenticide Act (42 U.S.C. Section 136
13-4 et seq.);>
13-5 <(7) hazardous waste regulated in accordance with the
13-6 federal Resource Conservation and Recovery Act (42 U.S.C. Section
13-7 6901 et seq.)>; and
13-8 (10) <(8)> radioactive waste.
13-9 Sec. 502.005. WORKPLACE CHEMICAL LIST. (a) For the purpose
13-10 of worker right-to-know, an <An> employer shall compile and
13-11 maintain a workplace chemical list that contains the following
13-12 information for each hazardous chemical normally present <used or
13-13 stored> in the workplace or temporary workplace in excess of 55
13-14 gallons or 500 pounds or in excess of an amount that the board
13-15 determines by rule for certain highly toxic or dangerous hazardous
13-16 chemicals:
13-17 (1) the identity <chemical name and the common name>
13-18 used on the MSDS and container label; and
13-19 (2) <the nomenclature used in identifying the chemical
13-20 name;>
13-21 <(3)> the work area in which the hazardous chemical is
13-22 normally present <stored or used>.
13-23 (b) The employer shall update the workplace chemical list as
13-24 necessary but at least by December 31 of each <once a> year. Each
13-25 workplace chemical list shall be dated and signed by the person
14-1 responsible for compiling the information.
14-2 (c) The workplace chemical list may be prepared for the
14-3 workplace as a whole or for each work area or temporary workplace
14-4 and must be readily available to employees and their
14-5 representatives. All <New or newly assigned> employees shall be
14-6 made aware of the workplace chemical list before working with or in
14-7 a work area containing hazardous chemicals.
14-8 (d) <An employer or manufacturing employer shall give the
14-9 commissioner a workplace chemical list. An employer or
14-10 manufacturing employer beginning operation shall give the
14-11 commissioner the workplace chemical list not later than the 60th
14-12 day after the date on which the employer or manufacturing employer
14-13 begins operation.>
14-14 <(e)> An <employer or manufacturing> employer shall maintain
14-15 a workplace chemical list for at least 30 years. The <employer or
14-16 manufacturing> employer shall send complete records to the director
14-17 <commissioner> if the employer <business> ceases to operate <in
14-18 this state>.
14-19 Sec. 502.006. MATERIAL SAFETY DATA SHEET. (a) A chemical
14-20 manufacturer or distributor shall provide appropriate material
14-21 safety data sheets to employers who acquire <purchasers of>
14-22 hazardous chemicals in this state with each initial shipment and
14-23 with the first shipment after an MSDS is updated. The MSDSs must
14-24 conform to the most current requirements of the OSHA standard.
14-25 (b) An employer shall maintain a legible copy of a <the
15-1 most> current MSDS <received from a manufacturer or distributor>
15-2 for each hazardous chemical purchased. If the employer does not
15-3 have a current <manufacturer or distributor does not provide an>
15-4 MSDS for a hazardous chemical <on the workplace chemical list> when
15-5 the chemical is received at the workplace, the employer shall
15-6 request an MSDS in writing from the manufacturer or distributor in
15-7 a timely manner or shall otherwise obtain a current MSDS. The
15-8 manufacturer or distributor shall respond with an appropriate MSDS
15-9 in a timely manner.
15-10 (c) Material safety data sheets shall be readily available,
15-11 on request, for review by employees or designated representatives
15-12 at each workplace.
15-13 (d) A copy of an MSDS maintained by an employer under this
15-14 section shall be provided to the director <commissioner> on
15-15 request. <The commissioner shall request an MSDS from an employer
15-16 or manufacturing employer when a person requests an MSDS from the
15-17 commissioner and the person's request is based on that person's
15-18 review of an employer's or manufacturing employer's workplace
15-19 chemical list.>
15-20 Sec. 502.007. LABEL. (a) A label on an existing <incoming>
15-21 container of a hazardous chemical may not be removed or defaced
15-22 unless it is illegible, inaccurate, or does not conform to the OSHA
15-23 standard or other applicable labeling requirement. Primary
15-24 containers must be relabeled with at least the identity appearing
15-25 on the MSDS, the pertinent physical and health hazards, including
16-1 the organs that would be affected, and the manufacturer's name and
16-2 address. Except as provided by Subsection (b), secondary
16-3 containers must be relabeled with at least the identity appearing
16-4 on the MSDS and appropriate hazard warnings.
16-5 (b) An employee may not be required to work with a hazardous
16-6 chemical from an unlabeled container except for a portable
16-7 container intended for the immediate use of the employee who
16-8 performs the transfer.
16-9 Sec. 502.008. <EMERGENCY INFORMATION. (a) An employer or
16-10 manufacturing employer who normally stores a hazardous chemical in
16-11 an amount in excess of 55 gallons or 500 pounds or in excess of an
16-12 amount the board determines by rule for certain highly toxic or
16-13 dangerous hazardous chemicals shall provide to the fire chief of
16-14 the fire department having jurisdiction over the workplace, in
16-15 writing, the names and telephone numbers of knowledgeable
16-16 representatives of the employer or manufacturing employer who can
16-17 be contacted for further information or contacted in case of an
16-18 emergency.>
16-19 <(b) Each employer or manufacturing employer, on request,
16-20 shall provide a copy of the workplace chemical list to the fire
16-21 chief. The employer shall notify the fire chief of any significant
16-22 changes to the workplace chemical list.>
16-23 <(c) The fire chief or the fire chief's representative, on
16-24 request, may conduct on site inspections of the chemicals on the
16-25 workplace chemical list for the sole purpose of planning fire
17-1 department activities in case of an emergency.>
17-2 <(d) An employer or a manufacturing employer, on request,
17-3 shall give the fire chief a copy of the MSDS for any chemical on
17-4 the workplace chemical list.>
17-5 <(e) The fire chief shall make the workplace chemical list
17-6 and MSDSs available to members of the fire department and to other
17-7 personnel outside the fire department who are responsible for
17-8 preplanning emergency activities. The fire chief may not otherwise
17-9 distribute the information without approval of the employer or
17-10 manufacturing employer.>
17-11 <Sec. 502.009.> OUTREACH PROGRAM. (a) The director
17-12 <commissioner> shall develop an outreach program that:
17-13 (1) consists of an education and training program in
17-14 the form of instructional materials to assist employers in
17-15 fulfilling the requirements of Section 502.009 <502.010>; and
17-16 (2) includes the development and distribution of a
17-17 supply of informational leaflets concerning employer's duties,
17-18 employee rights, <the public's ability to obtain information under
17-19 this chapter,> the outreach program, and the effects of hazardous
17-20 chemicals.
17-21 (b) The director <commissioner> may contract with a public
17-22 institution of higher education or other public or private
17-23 organization to develop and implement the outreach program.
17-24 (c) The director <commissioner> shall develop and provide to
17-25 each employer a suitable form of notice providing employees with
18-1 information relating to employee rights under this chapter.
18-2 (d) The director <commissioner> shall publicize the
18-3 availability of information to answer inquiries from employees,
18-4 employers, or the public in this state concerning the effects of
18-5 hazardous chemicals.
18-6 (e) In cooperation with the director <commissioner>, an
18-7 employer may provide an outreach program in the community.
18-8 Sec. 502.009 <502.010>. EMPLOYEE EDUCATION PROGRAM. (a) An
18-9 employer shall provide<, at least once a year,> an education and
18-10 training program for employees who use or handle hazardous
18-11 chemicals.
18-12 (b) An employer shall develop, implement, and maintain at
18-13 the workplace a written hazard communication program for the
18-14 workplace that describes how the criteria specified in this chapter
18-15 will be met.
18-16 (c) An education and training program must include, as
18-17 appropriate:
18-18 (1) information on interpreting labels and MSDSs and
18-19 the relationship between those two methods of hazard communication;
18-20 (2) the location by work area, acute and chronic
18-21 effects, and safe handling of hazardous chemicals known to be
18-22 present in the employees' work area and to which the employees may
18-23 be exposed;
18-24 (3) the proper use of protective equipment and first
18-25 aid treatment to be used with respect to the hazardous chemicals to
19-1 which the employees may be exposed; and
19-2 (4) general safety instructions on the handling,
19-3 cleanup procedures, and disposal of hazardous chemicals.
19-4 (d) Training may be conducted by categories of chemicals.
19-5 An employer must advise employees that information is available on
19-6 the specific hazards of individual chemicals through the MSDSs.
19-7 Protective equipment and first aid treatment may be by categories
19-8 of hazardous chemicals.
19-9 (e) <Not later than the 30th day after an employer provides
19-10 an education and training program, the employer shall report to the
19-11 commissioner that the program has been provided to the employees.>
19-12 <(c)> An employer shall provide additional instruction to an
19-13 employee <employees> when the potential for exposure to hazardous
19-14 chemicals in the employee's work area increases significantly
19-15 <changes> or when the employer receives new and significant
19-16 information concerning the hazards of a chemical in the employee's
19-17 work area. The addition of new chemicals alone does not
19-18 necessarily require additional training.
19-19 (f) <(d)> An employer shall provide training to a new or
19-20 newly assigned employee before the employee works with or in a work
19-21 area containing a hazardous chemical.
19-22 (g) An employer shall keep the written hazard communication
19-23 program and a record of each training session given to employees,
19-24 including the date, a roster of the employees who attended, the
19-25 subjects covered in the training session, and the names of the
20-1 instructors. Those records shall be maintained for at least five
20-2 years by the employer. The department shall have access to those
20-3 records and may interview employees during inspections.
20-4 (h) Emergency service organizations shall provide, to their
20-5 members or employees who may encounter hazardous chemicals during
20-6 an emergency, information on recognizing, evaluating, and
20-7 controlling exposure to the chemicals.
20-8 (i) <(e) An employer shall keep a record of the dates of
20-9 training sessions given to employees.>
20-10 <(f) An education and training program must include, as
20-11 appropriate:>
20-12 <(1) information on interpreting labels and MSDSs and
20-13 the relationship between those two methods of hazard communication;>
20-14 <(2) the location, acute and chronic effects, and safe
20-15 handling of hazardous chemicals used by the employees;>
20-16 <(3) protective equipment and first aid treatment to
20-17 be used with respect to the hazardous chemicals used by the
20-18 employees; and>
20-19 <(4) general safety instructions on the handling,
20-20 cleanup procedures, and disposal of hazardous chemicals.>
20-21 <(g)> As part of an outreach program created in accordance
20-22 with Section 502.008 <502.009>, the director <commissioner> shall
20-23 develop an education and training assistance program to assist
20-24 employers who are unable to develop the programs because of size or
20-25 other practical considerations. The program shall be made
21-1 available to those employers on request.
21-2 Sec. 502.010 <502.011>. LIABILITY UNDER OTHER LAW.
21-3 Providing information to an employee does not affect:
21-4 (1) the liability of an employer with regard to the
21-5 health and safety of an employee or other person exposed to
21-6 hazardous chemicals;
21-7 (2) the employer's responsibility to take any action
21-8 to prevent occupational disease as required under other law; or
21-9 (3) any other duty or responsibility of a
21-10 manufacturer, producer, or formulator to warn ultimate users of a
21-11 hazardous chemical under other law.
21-12 Sec. 502.011 <502.012>. COMPLAINTS AND<,> INVESTIGATIONS<,
21-13 AND PENALTIES>. (a) The director <commissioner> or the director's
21-14 <commissioner's> representative shall investigate in a timely
21-15 manner a complaint received in writing from an employee or an
21-16 employee's designated representative relating to an alleged
21-17 violation of this chapter by an <a nonmanufacturing> employer.
21-18 (b) A complaint received from a person <an employee or an
21-19 employee's designated representative> relating to an alleged
21-20 violation <by a manufacturing employer> shall be referred <by the
21-21 complainant> to the federal Occupational Safety and Health
21-22 Administration (OSHA) or to the federal Mine Safety and Health
21-23 Administration (MSHA) if the complaint is related to an applicable
21-24 OSHA or MSHA requirement and the applicable OSHA or MSHA standard
21-25 is in effect. The director <commissioner> or the director's
22-1 <commissioner's> representative shall investigate the complaint if:
22-2 (1) the applicable OSHA or MSHA standard is not in
22-3 effect; or
22-4 (2) the complaint is based on a requirement of this
22-5 chapter.
22-6 (c) On presentation of appropriate credentials, an officer
22-7 or representative of the director <commissioner> may enter a
22-8 workplace at reasonable times to inspect and investigate
22-9 complaints.
22-10 (d) The department may find multiple violations by an
22-11 employer based on distinct requirements of this chapter <An
22-12 employer or manufacturing employer found to be in violation of this
22-13 chapter must comply not later than the 14th day after the date of
22-14 the finding. An employer or manufacturing employer that does not
22-15 comply before the 15th day after the date of written notification
22-16 of a violation is subject to an administrative penalty of not more
22-17 than $500 for each violation.>
22-18 <(e) An employer or manufacturing employer who knowingly
22-19 discloses false information or negligently fails to disclose a
22-20 hazard as required by this chapter is subject to a civil penalty of
22-21 not more than $5,000 for each violation.>
22-22 <(f) An employer or manufacturing employer who proximately
22-23 causes an injury to an individual by knowingly disclosing false
22-24 hazard information or knowingly failing to disclose hazard
22-25 information as required by this chapter is subject to a criminal
23-1 fine of not more than $25,000.>
23-2 <(g) This section does not affect any other right of an
23-3 employee or any other person to receive compensation for damages
23-4 under other law>.
23-5 Sec. 502.012. REPORTING FATALITIES AND INJURIES. (a)
23-6 Within 48 hours after the occurrence of an employee accident that
23-7 directly or indirectly involves chemical exposure or that involves
23-8 asphyxiation, and that is fatal to one or more employees or results
23-9 in the hospitalization of five or more employees, the employer of
23-10 any of the employees so injured or killed shall report the accident
23-11 either orally or in writing to the department.
23-12 (b) The report to the department shall relate the
23-13 circumstances of the accident, the number of fatalities, and the
23-14 extent of any injuries. If it is necessary to complete the
23-15 investigation of an incident, the department may require additional
23-16 reports in writing as necessary.
23-17 Sec. 502.013. ADVISORY COMMITTEE. The board shall appoint
23-18 an advisory committee to assist the department in reviewing
23-19 policies and procedures necessary to implement this chapter. The
23-20 advisory committee may consist of not more than 10 members
23-21 representing municipalities, counties, state agencies other than
23-22 the department, public institutions of higher education, public
23-23 employee organizations representing employees of those groups, and
23-24 the public.
23-25 Sec. 502.014. ADMINISTRATIVE PENALTY. (a) The director may
24-1 assess an administrative penalty against an employer who violates
24-2 this chapter, board rules adopted under this chapter, or an order
24-3 issued under this chapter.
24-4 (b) If the department finds one or more violations of this
24-5 chapter, the director may issue a notice of violation to the
24-6 employer. The notice of violation shall specifically describe the
24-7 violation, refer to the applicable section or subsection of the
24-8 chapter, and state the amount of the penalty, if any, to be
24-9 assessed by the director.
24-10 (c) An employer who receives a notice of violation may
24-11 respond to the department in writing within 15 days after the date
24-12 of receipt of the notice of violation in one of the ways provided
24-13 by Subsection (d), (e), or (f).
24-14 (d) If the employer disputes the validity of the violation
24-15 and has reason to believe that the findings of the department were
24-16 based on inaccurate or incomplete information, the employer may
24-17 request an informal conference with representatives of the
24-18 department. The purpose of an informal conference is to permit the
24-19 employer to meet with department representatives to discuss the
24-20 basis of the violation and to provide information to the
24-21 department. The department shall schedule the informal conference.
24-22 A request for an informal conference made in bad faith is a
24-23 violation of this chapter.
24-24 (e) The employer may correct the violation and certify to
24-25 the department that the corrections have been made.
25-1 (f) The employer may request a hearing.
25-2 (g) Following an informal conference, the department shall
25-3 respond in writing to the employer, stating whether the department
25-4 intends to withdraw the notice of violation or pursue it. If the
25-5 department intends to pursue the notice of violation, the employer
25-6 may respond as provided by either Subsection (h) or (i) within 10
25-7 days after the date of receipt of the department's correspondence.
25-8 (h) The employer may correct the violation and certify to
25-9 the department that the corrections have been made.
25-10 (i) The employer may request a hearing.
25-11 (j) A request for an informal conference or a statement by
25-12 an employer that the employer is in compliance with the provision
25-13 of this chapter does not waive the employer's right to a hearing.
25-14 (k) The director may not assess an administrative penalty
25-15 for any violation that has been corrected within 15 days after the
25-16 date of receipt of the notice of violation, the date of receipt of
25-17 the department's response by the employer, or 10 days after the
25-18 date of receipt by the employer of the department's response to the
25-19 informal conference provided for in Subsection (c), whichever is
25-20 later.
25-21 (l) In determining the amount of the penalty, the director
25-22 shall consider:
25-23 (1) the employer's previous violations;
25-24 (2) the seriousness of the violation;
25-25 (3) any hazard to the health and safety of the
26-1 employee;
26-2 (4) the employer's demonstrated good faith;
26-3 (5) the duration of the violation; and
26-4 (6) other matters as justice may require.
26-5 (m) Each day a violation continues may be considered a
26-6 separate violation.
26-7 (n) The penalty may not exceed $500 for each violation.
26-8 Sec. 502.0141. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
26-9 (a) An administrative penalty may be assessed only after an
26-10 employer charged with a violation is given an opportunity for a
26-11 hearing.
26-12 (b) If a hearing is held, the director shall make findings
26-13 of fact and shall issue a written decision regarding the occurrence
26-14 of the violation and the amount of the penalty that may be
26-15 warranted.
26-16 (c) If the employer charged with the violation does not
26-17 request a hearing in a timely manner, the director may assess a
26-18 penalty after determining that a violation has occurred and the
26-19 amount of the penalty that may be warranted.
26-20 (d) After making a determination under this section that a
26-21 penalty is to be assessed against an employer, the director shall
26-22 issue an order requiring that the employer pay the penalty.
26-23 (e) The director may consolidate a hearing held under this
26-24 section with another proceeding.
26-25 Sec. 502.0142. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
27-1 REVIEW. (a) Not later than the 30th day after the date an order
27-2 finding that a violation has occurred is issued, the director shall
27-3 inform the employer against whom the order is issued of the amount
27-4 of the penalty for the violation.
27-5 (b) Within 30 days after the date the director's order is
27-6 final as provided by Section 16(c), Administrative Procedure and
27-7 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
27-8 Statutes), the employer shall:
27-9 (1) pay the amount of the penalty;
27-10 (2) pay the amount of the penalty and file a petition
27-11 for judicial review contesting the occurrence of the violation, the
27-12 amount of the penalty, or both the occurrence of the violation and
27-13 the amount of the penalty; or
27-14 (3) without paying the amount of the penalty, file a
27-15 petition for judicial review contesting the occurrence of the
27-16 violation, the amount of the penalty, or both the occurrence of the
27-17 violation and the amount of the penalty.
27-18 (c) Within the 30-day period, an employer who acts under
27-19 Subsection (b)(3) may:
27-20 (1) stay enforcement of the penalty by:
27-21 (A) paying the amount of the penalty to the
27-22 court for placement in an escrow account; or
27-23 (B) giving to the court a supersedeas bond that
27-24 is approved by the court for the amount of the penalty and that is
27-25 effective until all judicial review of the director's order is
28-1 final; or
28-2 (2) request the court to stay enforcement of the
28-3 penalty by:
28-4 (A) filing with the court a sworn affidavit of
28-5 the employer stating that the employer is financially unable to pay
28-6 the amount of the penalty and is financially unable to give the
28-7 supersedeas bond; and
28-8 (B) giving a copy of the affidavit to the
28-9 director by certified mail.
28-10 (d) Subsection (c)(1) does not apply to the state or a
28-11 political subdivision. The penalty may not be enforced against the
28-12 state or a political subdivision until all judicial review has been
28-13 exhausted.
28-14 (e) If the director receives a copy of an affidavit under
28-15 Subsection (c)(2), the director may file with the court, within
28-16 five days after the date the copy is received, a contest to the
28-17 affidavit. The court shall hold a hearing on the facts alleged in
28-18 the affidavit as soon as practicable and shall stay the enforcement
28-19 of the penalty on finding that the alleged facts are true. The
28-20 employer who files an affidavit has the burden of proving that the
28-21 employer is financially unable to pay the amount of the penalty and
28-22 to give a supersedeas bond.
28-23 (f) If the employer does not pay the amount of the penalty
28-24 and the enforcement of the penalty is not stayed, the director may
28-25 refer the matter to the attorney general for collection of the
29-1 amount of the penalty.
29-2 (g) Judicial review of the order of the director:
29-3 (1) is instituted by filing a petition as provided by
29-4 Section 19, Administrative Procedure and Texas Register Act
29-5 (Article 6252-13a, Vernon's Texas Civil Statutes); and
29-6 (2) is under the substantial evidence rule.
29-7 (h) If the court sustains the occurrence of the violation,
29-8 the court may uphold or reduce the amount of the penalty and order
29-9 the employer to pay the full or reduced amount of the penalty. If
29-10 the court does not sustain the occurrence of the violation, the
29-11 court shall order that no penalty is owed.
29-12 (i) When the judgment of the court becomes final, the court
29-13 shall proceed under this subsection. If the employer paid the
29-14 amount of the penalty and if that amount is reduced or is not
29-15 upheld by the court, the court shall order that the appropriate
29-16 amount plus accrued interest be remitted to the employer. The
29-17 rate of the interest is the rate charged on loans to depository
29-18 institutions by the New York Federal Reserve Bank, and the interest
29-19 shall be paid for the period beginning on the date the penalty was
29-20 paid and ending on the date the penalty is remitted. If the
29-21 employer gave a supersedeas bond and if the amount of the penalty
29-22 is not upheld by the court, the court shall order the release of
29-23 the bond. If the employer gave a supersedeas bond and if the
29-24 amount of the penalty is reduced, the court shall order the release
29-25 of the bond after the employer pays the amount.
30-1 (j) All proceedings under this section are subject to the
30-2 Administrative Procedure and Texas Register Act (Article 6252-13a,
30-3 Vernon's Texas Civil Statutes).
30-4 Sec. 502.015. CIVIL PENALTY; INJUNCTION. (a) If it appears
30-5 that an employer has violated, is violating, or is threatening to
30-6 violate this chapter or any rule adopted or order issued under this
30-7 chapter, the director may request the attorney general or the
30-8 district, county, or city attorney of the municipality or county in
30-9 which the violation has occurred, is occurring, or may occur to
30-10 institute a civil suit for:
30-11 (1) injunctive relief to restrain the employer from
30-12 continuing the violation or threat of violation;
30-13 (2) the assessment and recovery of a civil penalty for
30-14 a violation; or
30-15 (3) both the injunctive relief and the civil penalty.
30-16 (b) The penalty may be in an amount not to exceed $2,000 a
30-17 day for each violation, with a total not to exceed $20,000 for that
30-18 violation.
30-19 (c) In determining the amount of the penalty, the court
30-20 shall consider the employer's history of previous violations, the
30-21 seriousness of the violation, any hazard to health and safety of
30-22 the public, the demonstrated good faith of the employer charged,
30-23 and other matters as justice may require.
30-24 (d) Any civil penalty recovered in a suit instituted by the
30-25 attorney general under this chapter shall be deposited in the state
31-1 treasury to the credit of the general revenue fund. Any civil
31-2 penalty recovered in a suit instituted by a local government under
31-3 this chapter shall be paid to the local government.
31-4 (e) This section does not affect any other right of an
31-5 employee or any other employer to receive compensation for damages
31-6 under other law.
31-7 Sec. 502.016. CRIMINAL PENALTY. An employer who is required
31-8 to disclose hazard information under this chapter and who
31-9 proximately causes an occupational disease or injury to an
31-10 individual by knowingly disclosing false hazard information or
31-11 knowingly failing to disclose hazard information provided on an
31-12 MSDS commits an offense that is punishable by a fine of not more
31-13 than $10,000 for each violation. Each day of violation constitutes
31-14 a separate offense, except that the fine may not exceed $100,000
31-15 for that violation. This section does not affect any other right
31-16 of an employee or any other employer to receive compensation for
31-17 damages under other law.
31-18 Sec. 502.017 <502.013>. EMPLOYEE NOTICE; RIGHTS OF
31-19 EMPLOYEES. (a) An employer shall post and maintain adequate
31-20 notice, at locations where notices are normally posted, informing
31-21 employees of their rights under this chapter. If the director
31-22 <commissioner> does not prepare the notice under Section
31-23 502.008 <502.009>, the employer shall prepare the notice.
31-24 (b) Employees who may be exposed to hazardous chemicals
31-25 shall be informed of the exposure and shall have access to the
32-1 workplace chemical list and MSDSs for the hazardous chemicals.
32-2 Employees, on request, shall be provided a copy of a specific MSDS
32-3 with any trade secret information deleted. In addition, employees
32-4 shall receive training concerning the hazards of the chemicals and
32-5 measures they can take to protect themselves from those hazards.
32-6 Employees shall be provided with appropriate personal protective
32-7 equipment. These rights are guaranteed.
32-8 (c) An employer <or a manufacturing employer> may not
32-9 discharge, cause to be discharged, otherwise discipline, or in any
32-10 manner discriminate against an employee because the employee has:
32-11 (1) filed a complaint;
32-12 (2) assisted an inspector of the department who may
32-13 make or is making an inspection under Section 502.011 <502.012>;
32-14 (3) instituted or caused to be instituted any
32-15 proceeding under or related to this chapter;
32-16 (4) testified or is about to testify in a proceeding
32-17 under this chapter; or
32-18 (5) exercised any rights afforded under this chapter
32-19 on behalf of the employee or on behalf of others.
32-20 (d) Pay, position, seniority, or other benefits may not be
32-21 lost as the result of the exercise of any right provided by this
32-22 chapter.
32-23 (e) A waiver by an employee of the benefits or requirements
32-24 of this chapter is void. An employer's <or a manufacturing
32-25 employer's> request or requirement that an employee waive any
33-1 rights under this chapter as a condition of employment is a
33-2 violation of this chapter.
33-3 <Sec. 502.014. TRADE SECRETS. (a) An employer who believes
33-4 that all or a part of the information required under Section
33-5 502.005 or Section 502.008(b) or (d) is a trade secret may withhold
33-6 the information if:>
33-7 <(1) material safety data sheets are available to
33-8 employees in the area where they work;>
33-9 <(2) hazard information concerning the trade secret
33-10 chemicals, or an MSDS with trade secret information deleted, is
33-11 provided, on request, to the fire chief and the commissioner;>
33-12 <(3) all relevant information is provided to a
33-13 physician diagnosing and treating a person exposed to the chemical,
33-14 under requirements provided by the OSHA standard in 29 CFR Section
33-15 1910.1200(i)(2); and>
33-16 <(4) the employer can substantiate the trade secret
33-17 claim.>
33-18 <(b) The commissioner, on the commissioner's initiative or
33-19 on the request of an employee, the employee's designated
33-20 representative, a fire chief, or a person who made a request under
33-21 Section 502.006(d), may request any or all of the data
33-22 substantiating the trade secret claim to determine whether a claim
33-23 made under Subsection (a) is valid.>
33-24 <(c) When making a determination of a trade secret claim,
33-25 the commissioner shall conduct a reasonable search of available
34-1 literature to determine whether the hazard information is accurate.>
34-2 <(d) Based on a review of the health and safety information
34-3 made available by the employer and on other available information,
34-4 the commissioner shall sign and add an addendum to the MSDS
34-5 stating:>
34-6 <(1) the commissioner's opinion that the MSDS reflects
34-7 a prudent assessment of the scientific evidence regarding hazards;
34-8 or>
34-9 <(2) if the commissioner determines that the MSDS does
34-10 not reflect such a prudent assessment, the commissioner's opinion
34-11 of a prudent assessment of the scientific evidence.>
34-12 <(e) The commissioner shall complete the assessment not
34-13 later than the 90th day after the date on which the commissioner
34-14 receives the information substantiating the trade secret claim.>
34-15 <(f) If the commissioner receives information marked
34-16 "confidential" by the employer, the commissioner shall:>
34-17 <(1) protect the information from disclosure; and>
34-18 <(2) return the information to the employer when a
34-19 final determination is made.>
34-20 <(g) An employer whose trade secret claim is determined to
34-21 be invalid under this section may petition for judicial review not
34-22 later than the 30th day after the date on which the employer was
34-23 notified by the commissioner that the trade secret claim is
34-24 invalid. Judicial review is by trial de novo in a district court
34-25 in Travis County.>
35-1 Sec. 502.018 <502.015>. STANDARD FOR PHYSICIAN TREATMENT.
35-2 For the purposes of this chapter, the requirements in the OSHA
35-3 standard for physicians treating employees (29 CFR 1910.1200(l))
35-4 apply to physicians treating persons.
35-5 Sec. 502.019 <502.016>. RULES<; FEES>. <(a)> The board may
35-6 adopt rules and administrative procedures reasonably necessary to
35-7 carry out the purposes of this chapter.
35-8 <(b) The board may authorize the collection of fees from
35-9 manufacturing and nonmanufacturing employers for the filing of
35-10 workplace chemical lists required by this chapter or for other
35-11 community right-to-know purposes under the department's
35-12 jurisdiction. The fees shall be paid annually and may not exceed
35-13 $50 for each required submission. To minimize the fees, the
35-14 department by rule shall provide for consolidated filings for
35-15 employers with multiple or temporary workplaces if the workplace
35-16 chemical lists contain fewer than 25 items.>
35-17 SECTION 2. Subtitle D, Title 6, Health and Safety Code, is
35-18 amended by adding Chapters 505-507 to read as follows:
35-19 CHAPTER 505. MANUFACTURING FACILITY COMMUNITY
35-20 RIGHT-TO-KNOW ACT
35-21 Sec. 505.001. SHORT TITLE. This chapter may be cited as the
35-22 Manufacturing Facility Community Right-To-Know Act.
35-23 Sec. 505.002. FINDINGS; PURPOSE. (a) The legislature finds
35-24 that:
35-25 (1) the health and safety of persons living in this
36-1 state may be improved by providing access to information regarding
36-2 hazardous chemicals to which those persons may be exposed during
36-3 emergency situations or as a result of proximity to the manufacture
36-4 or use of those chemicals; and
36-5 (2) many facility operators in this state have
36-6 established suitable information programs for their communities and
36-7 that access to the information is required of most facility
36-8 operators under the federal Emergency Planning and Community
36-9 Right-To-Know Act (EPCRA).
36-10 (b) It is the intent and purpose of this chapter to ensure
36-11 that accessibility to information regarding hazardous chemicals is
36-12 provided to:
36-13 (1) fire departments responsible for dealing with
36-14 chemical hazards during an emergency;
36-15 (2) local emergency planning committees and other
36-16 emergency planning organizations; and
36-17 (3) the director to make the information available to
36-18 the public through specific procedures.
36-19 Sec. 505.003. FEDERAL LAWS AND REGULATIONS; OTHER STANDARDS.
36-20 (a) In this chapter, a reference to a federal law or regulation
36-21 means a reference to the most current version of that law or
36-22 regulation.
36-23 (b) In this chapter, a reference to Standard Industrial
36-24 Classification (SIC), to nomenclature systems developed by the
36-25 International Union of Pure and Applied Chemistry (IUPAC) or the
37-1 Chemical Abstracts Service (CAS), or to other information,
37-2 including information such as classification codes, performance
37-3 standards, systematic names, standards, and systems described in
37-4 publications sponsored by private technical or trade organizations,
37-5 means a reference to the most current version of the publication.
37-6 Sec. 505.004. DEFINITIONS. In this chapter:
37-7 (1) "Article" means a manufactured item:
37-8 (A) that is formed to a specific shape or design
37-9 during manufacture;
37-10 (B) that has end-use functions dependent in
37-11 whole or in part on its shape or design during end use; and
37-12 (C) that does not release, or otherwise result
37-13 in exposure to, a hazardous chemical under normal conditions of
37-14 use.
37-15 (2) "Board" means the Texas Board of Health.
37-16 (3) "Chemical name" means:
37-17 (A) the scientific designation of a chemical in
37-18 accordance with the nomenclature system developed by the
37-19 International Union of Pure and Applied Chemistry (IUPAC) or the
37-20 Chemical Abstracts Service (CAS) rules of nomenclature; or
37-21 (B) a name that clearly identifies the chemical
37-22 for the purpose of conducting a hazard evaluation.
37-23 (4) "Common name" means a designation of
37-24 identification, such as a code name, code number, trade name, brand
37-25 name, or generic name, used to identify a chemical other than by
38-1 its chemical name.
38-2 (5) "Department" means the Texas Department of Health.
38-3 (6) "Director" means the director of the Texas
38-4 Department of Health.
38-5 (7) "EPA" means the United States Environmental
38-6 Protection Agency.
38-7 (8) "EPCRA" or "SARA Title III" means the federal
38-8 Emergency Planning and Community Right-To-Know Act, also known as
38-9 the Superfund Amendments and Reauthorization Act of 1986, Title
38-10 III, Pub. L. No. 99-499 et seq.
38-11 (9) "Extremely hazardous substance" means any
38-12 substance as defined in EPCRA, Section 302, or listed by the United
38-13 States Environmental Protection Agency in 40 CFR Part 355,
38-14 Appendices A and B.
38-15 (10) "Facility" means all buildings, equipment,
38-16 structures, and other stationary items that are located on a single
38-17 site or on contiguous or adjacent sites, that are owned or operated
38-18 by the same person, or by any person who controls, is controlled
38-19 by, or is under common control with that person, and that is in
38-20 Standard Industrial Codes (SIC) 20-39.
38-21 (11) "Facility operator" or "operator" means the
38-22 person who controls the day-to-day operations of the facility.
38-23 (12) "Fire chief" means the elected or paid
38-24 administrative head of a fire department.
38-25 (13) "Hazardous chemical" has the meaning given that
39-1 term by 29 CFR 1910.1200(c), except that the term does not
39-2 include:
39-3 (A) any food, food additive, color additive,
39-4 drug, or cosmetic regulated by the Food and Drug Administration;
39-5 (B) any substance present as a solid in any
39-6 manufactured item to the extent exposure to the substance does not
39-7 occur under normal conditions of use;
39-8 (C) any substance to the extent it is used for
39-9 personal, family, or household purposes, or is present in the same
39-10 form and concentration as a product packaged for distribution and
39-11 use by the public;
39-12 (D) any substance to the extent it is used in a
39-13 research laboratory or a hospital or other medical facility under
39-14 the direct supervision of a technically qualified individual; and
39-15 (E) any substance to the extent it is used in
39-16 routine agricultural operations or is a fertilizer held for sale by
39-17 a retailer to the ultimate consumer.
39-18 (14) "Health hazard" has the meaning given that term
39-19 by the OSHA standard (29 CFR 1910.1200(c)).
39-20 (15) "Identity" means any chemical or common name, or
39-21 alphabetical or numerical identification, that is indicated on the
39-22 material safety data sheet (MSDS) for the chemical. The identity
39-23 used must permit cross-references to be made among the facility
39-24 chemical list, the label, and the MSDS.
39-25 (16) "Label" means any written, printed, or graphic
40-1 material displayed on or affixed to a container of hazardous
40-2 chemicals.
40-3 (17) "Local emergency planning committee" means a
40-4 committee formed under the requirements of EPCRA, Section 301, and
40-5 recognized by the state emergency response commission for the
40-6 purposes of emergency planning and public information.
40-7 (18) "Material safety data sheet" or "MSDS" means a
40-8 document containing chemical hazard and safe handling information
40-9 that is prepared in accordance with the requirements of the OSHA
40-10 standard for that document.
40-11 (19) "OSHA standard" means the Hazard Communication
40-12 Standard issued by the Occupational Safety and Health
40-13 Administration and codified as 29 CFR Section 1910.1200.
40-14 (20) "Physical hazard" means a chemical for which
40-15 there is scientifically valid evidence that it is a combustible
40-16 liquid, a compressed gas, explosive, flammable, an organic
40-17 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
40-18 water-reactive in terms defined in the OSHA standard.
40-19 (21) "State emergency response commission" means the
40-20 state emergency management council or other committee appointed by
40-21 the governor in accordance with EPCRA.
40-22 (22) "Threshold planning quantity" means the minimum
40-23 quantity of an extremely hazardous substance for which a facility
40-24 owner or operator must participate in emergency planning, as
40-25 defined by the EPA pursuant to EPCRA, Section 302.
41-1 (23) "Tier two form" means:
41-2 (A) a form specified by the department under
41-3 Section 505.006 for listing hazardous chemicals as required by
41-4 EPCRA; or
41-5 (B) a form accepted by the EPA under EPCRA for
41-6 listing hazardous chemicals together with additional information
41-7 required by the department for administering its functions related
41-8 to EPCRA.
41-9 (24) "Workplace chemical list" means a list of
41-10 hazardous chemicals developed under 29 CFR Section 1910.1200(e)(i).
41-11 Sec. 505.005. APPLICABILITY OF CHAPTER. (a) Facility
41-12 operators whose facilities are in SIC Codes 20-39 shall comply with
41-13 this chapter.
41-14 (b) This chapter does not apply to a hazardous chemical in a
41-15 sealed package that is received and subsequently sold or
41-16 transferred in that package if:
41-17 (1) the seal remains intact while the chemical is in
41-18 the facility;
41-19 (2) the chemical does not remain in the facility
41-20 longer than five working days; and
41-21 (3) the chemical is not an extremely hazardous
41-22 substance at or above the threshold planning quantity or 500
41-23 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
41-24 Appendices A and B.
41-25 (c) This chapter does not apply to:
42-1 (1) any hazardous waste, as that term is defined by
42-2 the federal Solid Waste Disposal Act, as amended by the Resource
42-3 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
42-4 Section 6901 et seq.), when subject to regulations issued under
42-5 that Act by the EPA;
42-6 (2) tobacco or tobacco products;
42-7 (3) wood or wood products;
42-8 (4) articles;
42-9 (5) food, drugs, cosmetics, or alcoholic beverages in
42-10 a retail food sale establishment that are packaged for sale to
42-11 consumers;
42-12 (6) foods, drugs, or cosmetics intended for personal
42-13 consumption by an employee while in the facility;
42-14 (7) any consumer product or hazardous substance, as
42-15 those terms are defined in the Consumer Product Safety Act (15
42-16 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
42-17 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
42-18 demonstrate it is used in the facility in the same manner as normal
42-19 consumer use and if the use results in a duration and frequency of
42-20 exposure that is not greater than exposures experienced by
42-21 consumers;
42-22 (8) any drug, as that term is defined by the Federal
42-23 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
42-24 it is in solid, final form for direct administration to the
42-25 patient, such as tablets or pills;
43-1 (9) the transportation, including storage incident to
43-2 that transportation, of any substance or chemical subject to this
43-3 chapter, including the transportation and distribution of natural
43-4 gas; and
43-5 (10) radioactive waste.
43-6 (d) The director shall develop an outreach program
43-7 concerning the public's ability to obtain information under this
43-8 chapter similar to the outreach program under Section 502.008.
43-9 Sec. 505.006. FACILITY CHEMICAL LIST. (a) For the purpose
43-10 of community right-to-know, a facility operator covered by this
43-11 chapter shall compile and maintain a tier two form that contains
43-12 information on hazardous chemicals present in the facility in
43-13 quantities that meet or exceed thresholds determined by the EPA in
43-14 40 CFR Part 370, or at any other reporting thresholds as determined
43-15 by board rule for certain highly toxic or extremely hazardous
43-16 substances.
43-17 (b) Multiple facilities may be reported on the same tier two
43-18 form, with appropriate facility identifiers, if the hazardous
43-19 chemicals or hazardous chemical categories present at the multiple
43-20 facilities are in the same ranges. In multiple facility
43-21 reporting, the reporting thresholds must be applied to each
43-22 facility rather than to the total quantities present at all
43-23 facilities.
43-24 (c) Each tier two form shall be filed annually with the
43-25 appropriate fee according to the procedures specified by board
44-1 rules. The facility operator shall furnish a copy of each tier two
44-2 form to the fire chief of the fire department having jurisdiction
44-3 over the facility and to the appropriate local emergency planning
44-4 committee.
44-5 (d) The tier two form shall be used to comply with the
44-6 updating requirements in EPCRA Section 311, but a fee may not be
44-7 associated with filing the report.
44-8 (e) A facility operator shall file the tier two form with
44-9 the department not later than the 90th day after the date on which
44-10 the operator begins operation or has a reportable addition, at the
44-11 appropriate threshold, of a previously unreported hazardous
44-12 chemical or extremely hazardous substance. The operator shall
44-13 furnish a copy of each tier two form to the fire chief of the fire
44-14 department having jurisdiction over the facility and to the
44-15 appropriate local emergency planning committee.
44-16 (f) A facility operator shall file a material safety data
44-17 sheet with the department on the department's request.
44-18 (g) The department shall maintain records of the tier two
44-19 forms and other documents filed under this chapter or EPCRA for at
44-20 least 30 years.
44-21 (h) Except as provided by Section 505.015, documents filed
44-22 under this chapter are subject to the open records law, Chapter
44-23 424, Acts of the 63rd Legislature, Regular Session, 1973 (Article
44-24 6252-17a, Vernon's Texas Civil Statutes).
44-25 Sec. 505.007. DIRECT CITIZEN ACCESS TO INFORMATION. (a)
45-1 Except as otherwise provided by this section, a person may request
45-2 in writing copies of the facility's existing workplace chemical
45-3 list for community right-to-know purposes.
45-4 (b) Except as otherwise provided by this section, any
45-5 facility covered by this chapter shall furnish or mail, within 10
45-6 working days of the date of receipt of a request under Subsection
45-7 (a), either a copy of the facility's existing workplace chemical
45-8 list or a modified version of the most recent tier two form using a
45-9 500-pound threshold.
45-10 (c) Any facility that has received five requests under
45-11 Subsection (a) in a calendar month, four requests in a calendar
45-12 month for two or more months in a row, or more than 10 requests in
45-13 a year may elect to furnish the material to the department.
45-14 (d) Any facility electing to furnish the material to the
45-15 department under Subsection (c) may during that same filing period
45-16 inform persons making requests under Subsection (a) of the
45-17 availability of the information at the department and refer the
45-18 request to the department for that filing period. The notice to
45-19 persons making requests shall state the address of the department
45-20 and shall be mailed within seven days of the date of receipt of the
45-21 request, if by mail, and at the time of the request if in person.
45-22 Sec. 505.008. EMERGENCY PLANNING INFORMATION. (a) The fire
45-23 chief or the fire chief's representative, on request, may conduct
45-24 on-site inspections of the chemicals on the tier two form for the
45-25 sole purpose of planning fire department activities in case of an
46-1 emergency.
46-2 (b) A facility operator, on request, shall give the fire
46-3 chief or the local emergency planning committee such additional
46-4 information on types and amounts of hazardous chemicals present at
46-5 a facility as the requestor may need for emergency planning
46-6 purposes. A facility operator, on request, shall give the
46-7 director, the fire chief, or the local emergency planning committee
46-8 a copy of the MSDS for any chemical on the tier two form furnished
46-9 under Section 505.006 or for any chemical present at the facility.
46-10 (c) The board by rule may require certain categories of
46-11 facility operators under certain circumstances to implement the
46-12 National Fire Protection Association 704 identification system if
46-13 an equivalent system is not in use.
46-14 Sec. 505.009. COMPLAINTS AND INVESTIGATIONS. On
46-15 presentation of appropriate credentials, an officer or
46-16 representative of the director may enter a facility at reasonable
46-17 times to inspect and investigate complaints.
46-18 Sec. 505.010. ADMINISTRATIVE PENALTY. (a) The director may
46-19 assess an administrative penalty against an operator who violates
46-20 this chapter, board rules adopted under this chapter, or an order
46-21 issued under this chapter.
46-22 (b) If the department finds one or more violations of this
46-23 chapter, the director may issue a notice of violation to the
46-24 operator. The notice of violation shall specifically describe the
46-25 violation, refer to the applicable section or subsection of this
47-1 chapter, and state the amount of the penalty, if any, to be
47-2 assessed by the director.
47-3 (c) An operator who receives a notice of violation may
47-4 respond to the department in writing within 15 days of the date of
47-5 receipt of the notice of violation in one of the ways provided by
47-6 Subsection (d), (e), or (f).
47-7 (d) If the operator disputes the validity of the violation
47-8 and has reason to believe that the findings of the department were
47-9 based on inaccurate or incomplete information, the operator may
47-10 request an informal conference with representatives of the
47-11 department. The purpose of an informal conference is to permit the
47-12 operator to meet with department representatives to discuss the
47-13 basis of the violation and to provide information to the
47-14 department. The department shall schedule the informal conference.
47-15 A request for an informal conference made in bad faith is a
47-16 violation of this chapter.
47-17 (e) The operator may correct the violation and certify to
47-18 the department that the corrections have been made.
47-19 (f) The operator may request a hearing.
47-20 (g) Following an informal conference, the department shall
47-21 respond in writing to the operator, stating whether the department
47-22 intends to withdraw the notice of violation or pursue it. If the
47-23 department intends to pursue the notice of violation, the operator
47-24 may respond as provided by either Subsection (h) or (i) within 10
47-25 days of the date of receipt of the department's correspondence.
48-1 (h) The operator may correct the violation and certify to
48-2 the department that the corrections have been made.
48-3 (i) The operator may request a hearing.
48-4 (j) A request for an informal conference or a statement by
48-5 an operator that the operator is in compliance with the provisions
48-6 of this chapter does not waive the operator's right to a hearing.
48-7 (k) Except as provided in Subsection (l), the director may
48-8 not assess an administrative penalty for any violation that has
48-9 been corrected within 15 days of the date of the notice of
48-10 violation, the date of receipt of the department's response by the
48-11 employer, or 10 days after the date of receipt by the operator of
48-12 the department's response to the informal conference provided for
48-13 in Subsection (d), whichever is later.
48-14 (l) If a violation involves a failure to make a good faith
48-15 effort to comply with this chapter, the director may assess the
48-16 administrative penalty at any time.
48-17 (m) In determining the amount of the penalty, the director
48-18 shall consider:
48-19 (1) the operator's previous violations;
48-20 (2) the seriousness of the violation;
48-21 (3) any hazard to the health and safety of the public;
48-22 (4) the employer's demonstrated good faith;
48-23 (5) the duration of the violation; and
48-24 (6) other matters as justice may require.
48-25 (n) The penalty may not exceed $500 a day for each day a
49-1 violation continues, with a total not to exceed $5,000 for each
49-2 violation.
49-3 Sec. 505.011. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
49-4 (a) An administrative penalty may be assessed only after a
49-5 facility operator charged with a violation is given an opportunity
49-6 for a hearing.
49-7 (b) If a hearing is held, the director shall make findings
49-8 of fact and shall issue a written decision regarding the occurrence
49-9 of the violation and the amount of the penalty that may be
49-10 warranted.
49-11 (c) If the facility operator charged with the violation does
49-12 not request a hearing, the director may assess a penalty after
49-13 determining that a violation has occurred and the amount of the
49-14 penalty that may be warranted.
49-15 (d) After making a determination under this section that a
49-16 penalty is to be assessed against a facility operator, the director
49-17 shall issue an order requiring that the facility operator pay the
49-18 penalty.
49-19 (e) If a penalty is assessed on a complaint, the department
49-20 may allow the facility operator to make a grant to the local
49-21 emergency planning committee or a member organization instead of
49-22 paying the penalty. The department may specify that the operator
49-23 join the local emergency planning committee and attend all meetings
49-24 for one year or write an article, approved by the department,
49-25 concerning community right-to-know laws applicable in Texas for a
50-1 trade journal or other business publication.
50-2 (f) The director may consolidate a hearing held under this
50-3 section with another proceeding.
50-4 Sec. 505.012. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
50-5 REVIEW. (a) Not later than the 30th day after the date an order
50-6 finding that a violation has occurred is issued, the director shall
50-7 inform the facility operator against whom the order is issued of
50-8 the amount of the penalty for the violation.
50-9 (b) Except as provided by in Section 505.011(e), within 30
50-10 days after the date the director's order is final as provided by
50-11 Section 16(c), Administrative Procedure and Texas Register Act
50-12 (Article 6252-13a, Vernon's Texas Civil Statutes), the facility
50-13 operator shall:
50-14 (1) pay the amount of the penalty;
50-15 (2) pay the amount of the penalty and file a petition
50-16 for judicial review contesting the occurrence of the violation, the
50-17 amount of the penalty, or both the occurrence of the violation and
50-18 the amount of the penalty; or
50-19 (3) without paying the amount of the penalty, file a
50-20 petition for judicial review contesting the occurrence of the
50-21 violation, the amount of the penalty, or both the occurrence of the
50-22 violation and the amount of the penalty.
50-23 (c) Within the 30-day period, a facility operator who acts
50-24 under Subsection (b)(3) may:
50-25 (1) stay enforcement of the penalty by:
51-1 (A) paying the amount of the penalty to the
51-2 court for placement in an escrow account; or
51-3 (B) giving to the court a supersedeas bond that
51-4 is approved by the court for the amount of the penalty and that is
51-5 effective until all judicial review of the director's order is
51-6 final; or
51-7 (2) request the court to stay enforcement of the
51-8 penalty by:
51-9 (A) filing with the court a sworn affidavit of
51-10 the facility operator stating that the facility operator is
51-11 financially unable to pay the amount of the penalty and is
51-12 financially unable to give the supersedeas bond; and
51-13 (B) giving a copy of the affidavit to the
51-14 director by certified mail.
51-15 (d) If the director receives a copy of an affidavit under
51-16 Subsection (c)(2), the director may file with the court, within
51-17 five days after the date the copy is received, a contest to the
51-18 affidavit. The court shall hold a hearing on the facts alleged in
51-19 the affidavit as soon as practicable and shall stay the enforcement
51-20 of the penalty on finding that the alleged facts are true. The
51-21 facility operator who files an affidavit has the burden of proving
51-22 that the facility operator is financially unable to pay the amount
51-23 of the penalty and to give a supersedeas bond.
51-24 (e) If the facility operator does not pay the amount of the
51-25 penalty and the enforcement of the penalty is not stayed, the
52-1 director may refer the matter to the attorney general for
52-2 collection of the amount of the penalty.
52-3 (f) Judicial review of the order of the director:
52-4 (1) is instituted by filing a petition as provided by
52-5 Section 19, Administrative Procedure and Texas Register Act
52-6 (Article 6252-13a, Vernon's Texas Civil Statutes); and
52-7 (2) is under the substantial evidence rule.
52-8 (g) If the court sustains the occurrence of the violation,
52-9 the court may uphold or reduce the amount of the penalty and order
52-10 the facility operator to pay the full or reduced amount of the
52-11 penalty. If the court does not sustain the occurrence of the
52-12 violation, the court shall order that no penalty is owed.
52-13 (h) When the judgment of the court becomes final, the court
52-14 shall proceed under this subsection. If the facility operator paid
52-15 the amount of the penalty and if that amount is reduced or is not
52-16 upheld by the court, the court shall order that the appropriate
52-17 amount plus accrued interest be remitted to the facility operator.
52-18 The rate of the interest is the rate charged on loans to depository
52-19 institutions by the New York Federal Reserve Bank, and the interest
52-20 shall be paid for the period beginning on the date the penalty was
52-21 paid and ending on the date the penalty is remitted. If the
52-22 facility operator gave a supersedeas bond and if the amount of the
52-23 penalty is not upheld by the court, the court shall order the
52-24 release of the bond. If the facility operator gave a supersedeas
52-25 bond and if the amount of the penalty is reduced, the court shall
53-1 order the release of the bond after the facility operator pays the
53-2 amount.
53-3 (i) All proceedings under this section are subject to the
53-4 Administrative Procedure and Texas Register Act (Article 6252-13a,
53-5 Vernon's Texas Civil Statutes).
53-6 Sec. 505.013. CIVIL PENALTIES. (a) A person who knowingly
53-7 discloses false information or negligently fails to disclose a
53-8 hazard as required by this chapter is subject to a civil penalty of
53-9 not more than $5,000 for each violation.
53-10 (b) This section does not affect any other right of a person
53-11 to receive compensation under other law.
53-12 Sec. 505.014. CRIMINAL PENALTIES. (a) A person who
53-13 proximately causes an occupational disease or injury to an
53-14 individual by knowingly disclosing false information or knowingly
53-15 failing to disclose hazard information as required by this chapter
53-16 commits an offense punishable by a fine of not more than $25,000.
53-17 (b) This section does not affect any other right of a person
53-18 to receive compensation under other law.
53-19 Sec. 505.015. TRADE SECRETS. Facility operators must
53-20 substantiate trade secret claims to the administrator of the EPA in
53-21 accordance with EPCRA, Section 322.
53-22 Sec. 505.016. RULES; FEES. (a) The board may adopt rules
53-23 and administrative procedures reasonably necessary to carry out the
53-24 purposes of this chapter.
53-25 (b) The board may authorize the collection of annual fees
54-1 from facility operators for the filing of tier two forms required
54-2 by this chapter. Except as provided by Subsection (d), fees may be
54-3 used only to fund activities under this chapter. The fee for
54-4 facilities may not exceed:
54-5 (1) $100 for each required submission having no more
54-6 than 25 hazardous chemicals or hazardous chemical categories;
54-7 (2) $200 for each required submission having no more
54-8 than 50 hazardous chemicals or hazardous chemical categories;
54-9 (3) $300 for each required submission having no more
54-10 than 75 hazardous chemicals or hazardous chemical categories;
54-11 (4) $400 for each required submission having no more
54-12 than 100 hazardous chemicals or hazardous chemical categories; or
54-13 (5) $500 for each required submission having more than
54-14 100 hazardous chemicals or chemical categories.
54-15 (c) To minimize the fees, the board by rule shall provide
54-16 for consolidated filings of multiple tier two forms for facility
54-17 operators covered by Subsection (b) if each of the tier two forms
54-18 contains fewer than 25 items.
54-19 (d) The department may use up to 20 percent of the fees
54-20 collected under this section as grants to local emergency planning
54-21 committees to assist them to fulfill their responsibilities under
54-22 EPCRA. The department may use up to 15 percent of the fees
54-23 collected under this chapter and Chapter 506, or the amount of fees
54-24 paid by the state and its political subdivisions under Chapter 506,
54-25 whichever is greater, to administer Chapter 502.
55-1 CHAPTER 506. PUBLIC EMPLOYER COMMUNITY RIGHT-TO-KNOW ACT
55-2 Sec. 506.001. SHORT TITLE. This chapter may be cited as the
55-3 Public Employer Community Right-To-Know Act.
55-4 Sec. 506.002. FINDINGS; PURPOSE. (a) The legislature finds
55-5 that:
55-6 (1) the health and safety of persons living in this
55-7 state may be improved by providing access to information regarding
55-8 hazardous chemicals to which those persons may be exposed during
55-9 emergency situations or as a result of proximity to the manufacture
55-10 or use of those chemicals; and
55-11 (2) many facility operators in this state have
55-12 established suitable information programs for their communities and
55-13 that access to the information is required of most facility
55-14 operators under the federal Emergency Planning and Community
55-15 Right-To-Know Act (EPCRA).
55-16 (b) It is the intent and purpose of this chapter to ensure
55-17 that accessibility to information regarding hazardous chemical is
55-18 provided to:
55-19 (1) fire departments responsible for dealing with
55-20 chemical hazards during an emergency;
55-21 (2) local emergency planning committees and other
55-22 emergency planning organizations; and
55-23 (3) the director to make the information available to
55-24 the public through specific procedures.
55-25 Sec. 506.003. FEDERAL LAWS AND REGULATIONS; OTHER STANDARDS.
56-1 (a) In this chapter, a reference to a federal law or regulation
56-2 means a reference to the most current version of that law or
56-3 regulation.
56-4 (b) In this chapter, a reference to nomenclature systems
56-5 developed by the International Union of Pure and Applied Chemistry
56-6 (IUPAC) or the Chemical Abstracts Service (CAS), or to other
56-7 information, including information such as classification codes,
56-8 performance standards, systematic names, standards, and systems
56-9 described in publications sponsored by private technical or trade
56-10 organizations, means a reference to the most current version of the
56-11 publication.
56-12 Sec. 506.004. DEFINITIONS. In this chapter:
56-13 (1) "Article" means a manufactured item:
56-14 (A) that is formed to a specific shape or design
56-15 during manufacture;
56-16 (B) that has end-use functions dependent in
56-17 whole or in part on its shape or design during end use; and
56-18 (C) that does not release, or otherwise result
56-19 in exposure to, a hazardous chemical under normal conditions of
56-20 use.
56-21 (2) "Board" means the Texas Board of Health.
56-22 (3) "Chemical name" means:
56-23 (A) the scientific designation of a chemical in
56-24 accordance with the nomenclature system developed by the
56-25 International Union of Pure and Applied Chemistry (IUPAC) or the
57-1 Chemical Abstracts Service (CAS) rules of nomenclature; or
57-2 (B) a name that clearly identifies the chemical
57-3 for the purpose of conducting a hazard evaluation.
57-4 (4) "Common name" means a designation of
57-5 identification, such as a code name, code number, trade name, brand
57-6 name, or generic name, used to identify a chemical other than by
57-7 its chemical name.
57-8 (5) "Department" means the Texas Department of Health.
57-9 (6) "Director" means the director of the Texas
57-10 Department of Health.
57-11 (7) "EPA" means the United States Environmental
57-12 Protection Agency.
57-13 (8) "EPCRA" or "SARA Title III" means the federal
57-14 Emergency Planning and Community Right-To-Know Act, also known as
57-15 the Superfund Amendments and Reauthorization Act of 1986, Title
57-16 III, Pub. L. No. 99-499 et seq.
57-17 (9) "Extremely hazardous substance" means any
57-18 substance as defined in EPCRA, Section 302, or listed by the United
57-19 States Environmental Protection Agency in 40 CFR Part 355,
57-20 Appendices A and B.
57-21 (10) "Facility" means all buildings, equipment,
57-22 structures, and other stationary items that are located on a single
57-23 site or on contiguous or adjacent sites, that are owned or operated
57-24 by the same person, or by any person who controls, is controlled
57-25 by, or is under common control with that person and that is
58-1 operated by the state or a political subdivision of the state.
58-2 (11) "Facility operator" or "operator" means the
58-3 person who controls the day-to-day operations of the facility.
58-4 (12) "Fire chief" means the elected or paid
58-5 administrative head of a fire department.
58-6 (13) "Hazardous chemical" has the meaning given that
58-7 term by 29 CFR 1910.1200(c), except that the term does not include:
58-8 (A) any food, food additive, color additive,
58-9 drug, or cosmetic regulated by the Food and Drug Administration;
58-10 (B) any substance present as a solid in any
58-11 manufactured item to the extent exposure to the substance does not
58-12 occur under normal conditions of use;
58-13 (C) any substance to the extent that it is used
58-14 for personal, family, or household purposes, or is present in the
58-15 same form and concentration as a product packaged for distribution
58-16 and use by the public;
58-17 (D) any substance to the extent it is used in a
58-18 research laboratory or a hospital or other medical facility under
58-19 the direct supervision of a technically qualified individual; and
58-20 (E) any substance to the extent it is used in
58-21 routine agricultural operations or is a fertilizer held for sale by
58-22 a retailer to the ultimate consumer.
58-23 (14) "Health hazard" has the meaning given that term
58-24 by the OSHA standard (29 CFR 1910.1200(c)).
58-25 (15) "Identity" means any chemical or common name, or
59-1 alphabetical or numerical identification, that is indicated on the
59-2 material safety data sheet (MSDS) for the chemical. The identity
59-3 used must permit cross-references to be made among the facility
59-4 chemical list, the label, and the MSDS.
59-5 (16) "Label" means any written, printed, or graphic
59-6 material displayed on or affixed to a container of hazardous
59-7 chemicals.
59-8 (17) "Local emergency planning committee" means a
59-9 committee formed under the requirements of EPCRA, Section 301, and
59-10 recognized by the state emergency response commission for the
59-11 purposes of emergency planning and public information.
59-12 (18) "Material safety data sheet" or "MSDS" means a
59-13 document containing chemical hazard and safe handling information
59-14 that is prepared in accordance with the requirements of the OSHA
59-15 standard for that document.
59-16 (19) "OSHA standard" means the Hazard Communication
59-17 Standard issued by the Occupational Safety and Health
59-18 Administration and codified as 29 CFR Section 1910.1200.
59-19 (20) "Physical hazard" means a chemical for which
59-20 there is scientifically valid evidence that it is a combustible
59-21 liquid, a compressed gas, explosive, flammable, an organic
59-22 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
59-23 water-reactive in terms defined in the OSHA standard.
59-24 (21) "Public employer" means:
59-25 (A) the state and political subdivisions of the
60-1 state, including state, county, and municipal agencies;
60-2 (B) public schools, colleges, and universities;
60-3 (C) river authorities and publicly owned
60-4 utilities;
60-5 (D) volunteer emergency service organizations;
60-6 and
60-7 (E) other similar employers who are not covered
60-8 by the federal Occupational Safety and Health Act of 1970 (Pub. L.
60-9 No. 91-596), the Federal Coal Mine Health and Safety Act of 1969
60-10 (Pub. L. No. 91-173), or the Federal Mine Safety and Health
60-11 Amendments Act of 1977 (Pub. L. No. 95-164).
60-12 (22) "State emergency response commission" means the
60-13 state emergency management council or other committee appointed by
60-14 the governor in accordance with EPCRA.
60-15 (23) "Threshold planning quantity" means the minimum
60-16 quantity of an extremely hazardous substance for which a facility
60-17 owner or operator must participate in emergency planning, as
60-18 defined by the EPA pursuant to EPCRA, Section 302.
60-19 (24) "Tier two form" means:
60-20 (A) a form specified by the department under
60-21 Section 506.006 for listing hazardous chemicals as required by
60-22 EPCRA; or
60-23 (B) a form accepted by the EPA under EPCRA for
60-24 listing hazardous chemicals together with additional information
60-25 required by the department for administering its functions related
61-1 to EPCRA.
61-2 (25) "Workplace chemical list" means a list of
61-3 hazardous chemicals developed under Section 502.005(a).
61-4 Sec. 506.005. APPLICABILITY OF CHAPTER. (a) Public
61-5 employers shall comply with this chapter.
61-6 (b) This chapter does not apply to a hazardous chemical in a
61-7 sealed package that is received and subsequently sold or
61-8 transferred in that package if:
61-9 (1) the seal remains intact while the chemical is in
61-10 the facility;
61-11 (2) the chemical does not remain in the facility
61-12 longer than five working days; and
61-13 (3) the chemical is not an extremely hazardous
61-14 substance at or above the threshold planning quantity or 500
61-15 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
61-16 Appendices A and B.
61-17 (c) This chapter does not apply to:
61-18 (1) any hazardous waste as that term is defined by the
61-19 federal Solid Waste Disposal Act, as amended by the Resource
61-20 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
61-21 Section 6901 et seq.), when subject to regulations issued under
61-22 that Act by the EPA;
61-23 (2) tobacco or tobacco products;
61-24 (3) wood or wood products;
61-25 (4) articles;
62-1 (5) food, drugs, cosmetics, or alcoholic beverages in
62-2 a retail food sale establishment that are packaged for sale to
62-3 consumers;
62-4 (6) food, drugs, or cosmetics intended for personal
62-5 consumption by an employee while in the facility;
62-6 (7) any consumer product or hazardous substance, as
62-7 those terms are defined by the Consumer Product Safety Act (15
62-8 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
62-9 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
62-10 demonstrate it is used in the facility in the same manner as normal
62-11 consumer use and if the use results in a duration and frequency of
62-12 exposure that is not greater than exposures experienced by
62-13 consumers;
62-14 (8) any drug, as that term is defined by the Federal
62-15 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
62-16 it is in solid, final form for direct administration to the
62-17 patient, such as tablets or pills;
62-18 (9) the transportation, including storage incident to
62-19 that transportation, of any substance or chemical subject to this
62-20 chapter, including the transportation and distribution of natural
62-21 gas; and
62-22 (10) radioactive waste.
62-23 (d) The director shall develop an outreach program
62-24 concerning the public's ability to obtain information under this
62-25 chapter similar to the outreach program under Section 502.008.
63-1 Sec. 506.006. FACILITY CHEMICAL LIST. (a) For the purpose
63-2 of community right-to-know, a facility operator covered by this
63-3 chapter shall compile and maintain a tier two form that contains
63-4 information on hazardous chemicals present in the facility in
63-5 quantities that meet or exceed thresholds determined by the EPA in
63-6 40 CFR Part 370, or at any other reporting thresholds as determined
63-7 by board rule for certain highly toxic or extremely hazardous
63-8 substances.
63-9 (b) Multiple facilities may be reported on the same tier two
63-10 form, with appropriate facility identifiers, if the hazardous
63-11 chemicals or hazardous chemical categories present at the multiple
63-12 facilities are in the same ranges. In multiple facility
63-13 reporting, the reporting thresholds must be applied to each
63-14 facility rather than to the total quantities present at all
63-15 facilities.
63-16 (c) Each tier two form shall be filed annually with the
63-17 appropriate fee according to the procedures specified by board
63-18 rules. The facility operator shall furnish a copy of each tier two
63-19 form to the fire chief of the fire department having jurisdiction
63-20 over the facility and to the appropriate local emergency planning
63-21 committee.
63-22 (d) A facility operator shall file the tier two form with
63-23 the department not later than the 90th day after the date on which
63-24 the operator begins operation or has a reportable addition, at the
63-25 appropriate threshold, of a previously unreported hazardous
64-1 chemical or extremely hazardous substance, but a fee may not be
64-2 associated with filing this report. The operator shall furnish a
64-3 copy of each tier two form to the fire chief of the fire department
64-4 having jurisdiction over the facility and to the appropriate local
64-5 emergency planning committee.
64-6 (e) A facility operator shall file a material safety data
64-7 sheet with the department on the department's request.
64-8 (f) The department shall maintain records of the tier two
64-9 forms and other documents filed under this chapter or EPCRA for at
64-10 least 30 years.
64-11 (g) Documents filed under this chapter are subject to the
64-12 open records law, Chapter 424, Acts of the 63rd Legislature,
64-13 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil
64-14 Statutes).
64-15 Sec. 506.007. DIRECT CITIZEN ACCESS TO INFORMATION. (a)
64-16 Except as otherwise provided by this section, a person may request
64-17 in writing copies of the facility's existing workplace chemical
64-18 list for community right-to-know purposes.
64-19 (b) Except as otherwise provided by this section, any
64-20 facility covered by this chapter shall furnish or mail, within 10
64-21 working days of the date of receipt of a request under Subsection
64-22 (a), either a copy of the facility's existing workplace chemical
64-23 list or a modified version of the most recent tier two form using a
64-24 500-pound threshold.
64-25 (c) Any facility that has received five requests under
65-1 Subsection (a) in a calendar month, four requests in a calendar
65-2 month for two or more months in a row, or more than 10 requests in
65-3 a year may elect to furnish the material to the department.
65-4 (d) Any facility electing to furnish the material to the
65-5 department under Subsection (c) may during that same filing period
65-6 inform persons making requests under Subsection (a) of the
65-7 availability of the information at the department and refer the
65-8 request to the department for that filing period. The notice to
65-9 persons making requests shall state the address of the department
65-10 and shall be mailed within seven days of the date of receipt of the
65-11 request, if by mail, and at the time of the request if in person.
65-12 Sec. 506.008. EMERGENCY PLANNING INFORMATION. (a) The fire
65-13 chief or the fire chief's representative, on request, may conduct
65-14 on-site inspections of the chemicals on the tier two form for the
65-15 sole purpose of planning fire department activities in case of an
65-16 emergency.
65-17 (b) A facility operator, on request, shall give the fire
65-18 chief or the local emergency planning committee such additional
65-19 information on types and amounts of hazardous chemicals present at
65-20 a facility as the requestor may need for emergency planning
65-21 purposes. A facility operator, on request, shall give the
65-22 director, the fire chief, or the local emergency planning committee
65-23 a copy of the MSDS for any chemical on the tier two form furnished
65-24 under Section 506.006 or for any chemical present at the facility.
65-25 (c) The board by rule may require certain categories of
66-1 facility operators under certain circumstances to implement the
66-2 National Fire Protection Association 704 identification system if
66-3 an equivalent system is not in use.
66-4 Sec. 506.009. COMPLAINTS AND INVESTIGATIONS. On
66-5 presentation of appropriate credentials, an officer or
66-6 representative of the director may enter a facility at reasonable
66-7 times to inspect and investigate complaints.
66-8 Sec. 506.010. ADMINISTRATIVE PENALTY. (a) The director may
66-9 assess an administrative penalty against an operator who violates
66-10 this chapter, board rules adopted under this chapter, or an order
66-11 issued under this chapter.
66-12 (b) If the department finds one or more violations of this
66-13 chapter, the director may issue a notice of violation to the
66-14 operator. The notice of violation shall specifically describe the
66-15 violation, refer to the applicable section or subsection of this
66-16 chapter, and state the amount of the penalty, if any, to be
66-17 assessed by the director.
66-18 (c) An operator who receives a notice of violation may
66-19 respond to the department in writing within 15 days of the date of
66-20 receipt of the notice of violation in one of the ways provided by
66-21 Subsection (d), (e), or (f).
66-22 (d) If the operator disputes the validity of the violation
66-23 and has reason to believe that the findings of the department were
66-24 based on inaccurate or incomplete information, the operator may
66-25 request an informal conference with representatives of the
67-1 department. The purpose of an informal conference is to permit the
67-2 operator to meet with department representatives to discuss the
67-3 basis of the violation and to provide information to the
67-4 department. The department shall schedule the informal conference.
67-5 A request for an informal conference made in bad faith is a
67-6 violation of this chapter.
67-7 (e) The operator may correct the violation and certify to
67-8 the department that the corrections have been made.
67-9 (f) The operator may request a hearing.
67-10 (g) Following an informal conference, the department shall
67-11 respond in writing to the operator, stating whether the department
67-12 intends to withdraw the notice of violation or pursue it. If the
67-13 department intends to pursue the notice of violation, the operator
67-14 may respond as provided by Subsection (h) or (i) within 10 days of
67-15 the date of receipt of the department's correspondence.
67-16 (h) The operator may correct the violation and certify to
67-17 the department that the corrections have been made.
67-18 (i) The operator may request a hearing.
67-19 (j) A request for an informal conference or a statement by
67-20 an operator that the operator is in compliance with the provisions
67-21 of this chapter does not waive the operator's right to a hearing.
67-22 (k) The director may not assess an administrative penalty
67-23 for any violation that has been corrected within 15 days of the
67-24 date of receipt of the notice of violation, the date of receipt of
67-25 the department's response by the employer, or 10 days after the
68-1 date of receipt by the operator of the department's response to the
68-2 informal conference provided for in Subsection (d), whichever is
68-3 later.
68-4 (l) In determining the amount of the penalty, the director
68-5 shall consider:
68-6 (1) the operator's previous violations;
68-7 (2) the seriousness of the violation;
68-8 (3) any hazard to the health and safety of the public;
68-9 (4) the employer's demonstrated good faith;
68-10 (5) the duration of the violation; and
68-11 (6) other matters as justice may require.
68-12 (m) The penalty may not exceed $50 a day for each day a
68-13 violation continues, with a total not to exceed $1,000 for each
68-14 violation.
68-15 Sec. 506.011. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
68-16 (a) An administrative penalty may be assessed only after a
68-17 facility operator charged with a violation is given an opportunity
68-18 for a hearing.
68-19 (b) If a hearing is held, the director shall make findings
68-20 of fact and shall issue a written decision regarding the occurrence
68-21 of the violation and the amount of the penalty that may be
68-22 warranted.
68-23 (c) If the facility operator charged with the violation does
68-24 not request a hearing, the director may assess a penalty after
68-25 determining that a violation has occurred and the amount of the
69-1 penalty that may be warranted.
69-2 (d) After making a determination under this section that a
69-3 penalty is to be assessed against a facility operator, the director
69-4 shall issue an order requiring that the facility operator pay the
69-5 penalty.
69-6 (e) If a penalty is assessed on a complaint, the department
69-7 may allow the facility operator to make a grant to the local
69-8 emergency planning committee or a member organization instead of
69-9 paying the penalty. The department may specify that the operator
69-10 join the local emergency planning committee and attend all meetings
69-11 for one year or write an article, approved by the department,
69-12 concerning community right-to-know laws applicable in Texas for a
69-13 trade journal or other business publication.
69-14 (f) The director may consolidate a hearing held under this
69-15 section with another proceeding.
69-16 Sec. 506.012. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
69-17 REVIEW. (a) Not later than the 30th day after the date an order
69-18 finding that a violation has occurred is issued, the director shall
69-19 inform the facility operator against whom the order is issued of
69-20 the amount of the penalty for the violation.
69-21 (b) Except as provided in Section 506.011(e), not later than
69-22 the 30th day after the date on which a decision or order charging a
69-23 facility operator with a penalty is final, the facility operator
69-24 shall pay the penalty in full, unless the facility operator seeks
69-25 judicial review of the amount of the penalty, the fact of the
70-1 violation, or both. The board may by rule provide for appeals by
70-2 the state and political subdivisions of the state.
70-3 Sec. 506.013. REFUND OF ADMINISTRATIVE PENALTY. Not later
70-4 than the 30th day after the date of a judicial determination that
70-5 an administrative penalty against a facility operator should be
70-6 reduced or not assessed, the director shall remit to the facility
70-7 operator the appropriate amount of any penalty payment already paid
70-8 plus accrued interest.
70-9 Sec. 506.014. RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
70-10 GENERAL. The attorney general at the request of the director may
70-11 bring a civil action to recover an administrative penalty under
70-12 this chapter.
70-13 Sec. 506.015. CIVIL PENALTIES. (a) A person who knowingly
70-14 discloses false information or negligently fails to disclose a
70-15 hazard as required by this chapter is subject to a civil penalty of
70-16 not more than $5,000 for each violation.
70-17 (b) This section does not affect any other right of a person
70-18 to receive compensation under other law.
70-19 Sec. 506.016. CRIMINAL PENALTIES. (a) A person who
70-20 proximately causes an occupational disease or injury to an
70-21 individual by knowingly disclosing false information or knowingly
70-22 failing to disclose hazard information as required by this chapter
70-23 commits an offense punishable by a fine of not more than $25,000.
70-24 (b) This section does not affect any other right of a person
70-25 to receive compensation under other law.
71-1 Sec. 506.017. RULES; FEES. (a) The board may adopt rules
71-2 and administrative procedures reasonably necessary to carry out the
71-3 purposes of this chapter.
71-4 (b) The board may authorize the collection of annual fees
71-5 from facility operators for the filing of tier two forms required
71-6 by this chapter. The fee may not exceed:
71-7 (1) $50 for each required submission having no more
71-8 than 75 hazardous chemicals or hazardous chemical categories; or
71-9 (2) $100 for each required submission having more than
71-10 75 hazardous chemicals or chemical categories.
71-11 (c) To minimize the fees, the board by rule shall provide
71-12 for consolidated filings of multiple tier two forms for facility
71-13 operators covered by Subsection (b) if each of the tier two forms
71-14 contains fewer than 25 items.
71-15 (d) The department may use up to 15 percent of the fees
71-16 collected under Chapter 505 and this chapter, or the amount of fees
71-17 paid by the state and its political subdivisions under this
71-18 chapter, whichever is greater, to administer Chapter 502.
71-19 CHAPTER 507. NONMANUFACTURING FACILITIES COMMUNITY
71-20 RIGHT-TO-KNOW ACT
71-21 Sec. 507.001. SHORT TITLE. This chapter may be cited as the
71-22 Nonmanufacturing Facilities Community Right-To-Know Act.
71-23 Sec. 507.002. FINDINGS; PURPOSE. (a) The legislature finds
71-24 that:
71-25 (1) the health and safety of persons living in this
72-1 state may be improved by providing access to information regarding
72-2 hazardous chemicals to which those persons may be exposed during
72-3 emergency situations or as a result of proximity to the use of
72-4 those chemicals; and
72-5 (2) many facility operators in this state have
72-6 established suitable information programs for their communities and
72-7 that access to the information is required of most facility
72-8 operators under the federal Emergency Planning and Community
72-9 Right-To-Know Act (EPCRA).
72-10 (b) It is the intent and purpose of this chapter to ensure
72-11 that accessibility to information regarding hazardous chemicals is
72-12 provided to:
72-13 (1) fire departments responsible for dealing with
72-14 chemical hazards during an emergency;
72-15 (2) local emergency planning committees and other
72-16 emergency planning organizations; and
72-17 (3) the director to make the information available to
72-18 the public through specific procedures.
72-19 Sec. 507.003. FEDERAL LAWS AND REGULATIONS. In this
72-20 chapter, a reference to a federal law or regulation means a
72-21 reference to the most current version of that law or regulation.
72-22 Sec. 507.004. DEFINITIONS. In this chapter:
72-23 (1) "Article" means a manufactured item:
72-24 (A) that is formed to a specific shape or design
72-25 during manufacture;
73-1 (B) that has end-use functions dependent in
73-2 whole or in part on its shape or design during end use; and
73-3 (C) that does not release, or otherwise result
73-4 in exposure to, a hazardous chemical under normal conditions of
73-5 use.
73-6 (2) "Board" means the Texas Board of Health.
73-7 (3) "Chemical name" means:
73-8 (A) the scientific designation of a chemical in
73-9 accordance with the nomenclature system developed by the
73-10 International Union of Pure and Applied Chemistry (IUPAC) or the
73-11 Chemical Abstracts Service (CAS) rules of nomenclature; or
73-12 (B) a name that clearly identifies the chemical
73-13 for the purpose of conducting a hazard evaluation.
73-14 (4) "Common name" means a designation of
73-15 identification, such as a code name, code number, trade name, brand
73-16 name, or generic name, used to identify a chemical other than by
73-17 its chemical name.
73-18 (5) "Department" means the Texas Department of Health.
73-19 (6) "Director" means the director of the Texas
73-20 Department of Health.
73-21 (7) "EPA" means the United States Environmental
73-22 Protection Agency.
73-23 (8) "EPCRA" or "SARA Title III" means the federal
73-24 Emergency Planning and Community Right-To-Know Act, also known as
73-25 the Superfund Amendments and Reauthorization Act of 1986, Title
74-1 III, Pub. L. No. 99-499 et seq.
74-2 (9) "Extremely hazardous substance" means any
74-3 substance as defined in EPCRA, Section 302, or listed by the United
74-4 States Environmental Protection Agency in 40 CFR Part 355,
74-5 Appendices A and B.
74-6 (10) "Facility" means all buildings, equipment,
74-7 structures, and other stationary items that are located on a single
74-8 site or on contiguous or adjacent sites and that are owned or
74-9 operated by the same person or by any person who controls, is
74-10 controlled by, or is under common control with that person. The
74-11 term does not include a facility subject to Chapter 505 or 506.
74-12 (11) "Facility operator" or "operator" means the
74-13 person who controls the day-to-day operations of the facility.
74-14 (12) "Fire chief" means the elected or paid
74-15 administrative head of a fire department.
74-16 (13) "Hazardous chemical" has the meaning given that
74-17 term by 29 CFR 1910.1200(c), except that the term does not include:
74-18 (A) any food, food additive, color additive,
74-19 drug, or cosmetic regulated by the Food and Drug Administration;
74-20 (B) any substance present as a solid in any
74-21 manufactured item to the extent exposure to the substance does not
74-22 occur under normal conditions of use;
74-23 (C) any substance to the extent that it is used
74-24 for personal, family, or household purposes, or is present in the
74-25 same form and concentration as a product packaged for distribution
75-1 and use by the general public;
75-2 (D) any substance to the extent it is used in a
75-3 research laboratory or a hospital or other medical facility under
75-4 the direct supervision of a technically qualified individual; and
75-5 (E) any substance to the extent it is used in
75-6 routine agricultural operations or is a fertilizer held for sale by
75-7 a retailer to the ultimate consumer.
75-8 (14) "Health hazard" has the meaning given that term
75-9 by the OSHA standard (29 CFR 1910.1200(c)).
75-10 (15) "Identity" means a chemical or common name, or
75-11 alphabetical or numerical identification, that is indicated on the
75-12 material safety data sheet (MSDS) for the chemical. The identity
75-13 used must permit cross-references to be made among the facility
75-14 chemical list, the label, and the MSDS.
75-15 (16) "Label" means any written, printed, or graphic
75-16 material displayed on or affixed to a container of hazardous
75-17 chemicals.
75-18 (17) "Local emergency planning committee" means a
75-19 committee formed under the requirements of EPCRA, Section 301, and
75-20 recognized by the state emergency response commission for the
75-21 purposes of emergency planning and public information.
75-22 (18) "Material safety data sheet" or "MSDS" means a
75-23 document containing chemical hazard and safe handling information
75-24 that is prepared in accordance with the requirements of the OSHA
75-25 standard for that document.
76-1 (19) "OSHA standard" means the Hazard Communication
76-2 Standard issued by the Occupational Safety and Health
76-3 Administration and codified as 29 CFR Section 1910.1200.
76-4 (20) "Physical hazard" means a chemical for which
76-5 there is scientifically valid evidence that it is a combustible
76-6 liquid, a compressed gas, explosive, flammable, an organic
76-7 peroxide, an oxidizer, pyrophoric, unstable (reactive), or
76-8 water-reactive in terms defined in the OSHA standard.
76-9 (21) "State emergency response commission" means the
76-10 state emergency management council or other committee appointed by
76-11 the governor in accordance with EPCRA.
76-12 (22) "Threshold planning quantity" means the minimum
76-13 quantity of an extremely hazardous substance for which a facility
76-14 owner or operator must participate in emergency planning, as
76-15 defined by the EPA pursuant to EPCRA, Section 302.
76-16 (23) "Tier two form" means:
76-17 (A) a form specified by the department under
76-18 Section 507.006 for listing hazardous chemicals as required by
76-19 EPCRA; or
76-20 (B) a form accepted by the EPA under EPCRA for
76-21 listing hazardous chemicals together with additional information
76-22 required by the department for administering its functions related
76-23 to EPCRA.
76-24 Sec. 507.005. APPLICABILITY OF CHAPTER. (a) Facility
76-25 operators who are not subject to Chapter 505 or 506 shall comply
77-1 with this chapter.
77-2 (b) This chapter does not apply to a hazardous chemical in a
77-3 sealed package that is received and subsequently sold or
77-4 transferred in that package if:
77-5 (1) the seal remains intact while the chemical is in
77-6 the facility;
77-7 (2) the chemical does not remain in the facility
77-8 longer than five working days; and
77-9 (3) the chemical is not an extremely hazardous
77-10 substance at or above the threshold planning quantity or 500
77-11 pounds, whichever is less, as listed by the EPA in 40 CFR Part 355,
77-12 Appendices A and B.
77-13 (c) This chapter does not apply to:
77-14 (1) any hazardous waste as that term is defined by the
77-15 federal Solid Waste Disposal Act, as amended by the Resource
77-16 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
77-17 Section 6901 et seq.), when subject to regulations issued under
77-18 that Act by the EPA;
77-19 (2) tobacco or tobacco products;
77-20 (3) wood or wood products;
77-21 (4) articles;
77-22 (5) food, drugs, cosmetics, or alcoholic beverages in
77-23 a retail food sale establishment that are packaged for sale to
77-24 consumers;
77-25 (6) food, drugs, or cosmetics intended for personal
78-1 consumption by an employee while in the facility;
78-2 (7) any consumer product or hazardous substance, as
78-3 those terms are defined by the Consumer Product Safety Act (15
78-4 U.S.C. Section 2051 et seq.) and Federal Hazardous Substances Act
78-5 (15 U.S.C. Section 1261 et seq.), respectively, if the employer can
78-6 demonstrate it is used in the facility in the same manner as normal
78-7 consumer use and if the use results in a duration and frequency of
78-8 exposure that is not greater than exposures experienced by
78-9 consumers;
78-10 (8) any drug, as that term is defined by the Federal
78-11 Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), when
78-12 it is in solid, final form for direct administration to the
78-13 patient, such as tablets or pills;
78-14 (9) the transportation, including storage incident to
78-15 that transportation, of any substance or chemical subject to this
78-16 chapter, including the transportation and distribution of natural
78-17 gas; and
78-18 (10) radioactive waste.
78-19 (d) The director shall develop an outreach program
78-20 concerning the public's ability to obtain information under this
78-21 chapter similar to the outreach program under Section 502.008.
78-22 Sec. 507.006. FACILITY CHEMICAL LIST. (a) For the purpose
78-23 of community right-to-know, a facility operator covered by this
78-24 chapter shall compile and maintain a tier two form that contains
78-25 information on hazardous chemicals present in the facility in
79-1 quantities that meet or exceed thresholds determined by the EPA in
79-2 40 CFR Part 370, or at any other reporting thresholds as determined
79-3 by board rule for certain highly toxic or extremely hazardous
79-4 substances.
79-5 (b) Multiple facilities may be reported on the same tier two
79-6 form, with appropriate facility identifiers, if the hazardous
79-7 chemicals or hazardous chemical categories present at the multiple
79-8 facilities are in the same ranges. In multiple facility reporting,
79-9 the reporting thresholds must be applied to each facility rather
79-10 than to the total quantities present at all facilities.
79-11 (c) Each tier two form shall be filed annually with the
79-12 appropriate fee according to the procedures specified by board
79-13 rules. The facility operator shall furnish a copy of each tier two
79-14 form to the fire chief of the fire department having jurisdiction
79-15 over the facility and to the appropriate local emergency planning
79-16 committee.
79-17 (d) The tier two form shall be used to comply with the
79-18 updating requirements in EPCRA, Section 311, but a fee may not be
79-19 associated with filing the report.
79-20 (e) A facility operator shall file the tier two form with
79-21 the department not later than the 90th day after the date on which
79-22 the operator begins operation or has a reportable addition, at the
79-23 appropriate threshold, of a previously unreported hazardous
79-24 chemical or extremely hazardous substance. The operator shall
79-25 furnish a copy of each tier two form to the fire chief of the fire
80-1 department having jurisdiction over the facility and to the
80-2 appropriate local emergency planning committee.
80-3 (f) A facility operator shall file a material safety data
80-4 sheet with the department on the department's request.
80-5 (g) The department shall maintain records of the tier two
80-6 forms and other documents filed under this chapter or EPCRA for at
80-7 least 30 years.
80-8 (h) Except as provided by Section 507.012, documents filed
80-9 under this chapter are subject to the open records law, Chapter
80-10 424, Acts of the 63rd Legislature, Regular Session, 1973 (Article
80-11 6252-17a, Vernon's Texas Civil Statutes).
80-12 Sec. 507.007. EMERGENCY PLANNING INFORMATION. (a) The fire
80-13 chief or the fire chief's representative, on request, may conduct
80-14 on-site inspections of the chemicals on the tier two form for the
80-15 sole purpose of planning fire department activities in case of an
80-16 emergency.
80-17 (b) A facility operator, on request, shall give the fire
80-18 chief or the local emergency planning committee such additional
80-19 information on types and amounts of hazardous chemicals present at
80-20 a facility as the requestor may need for emergency planning
80-21 purposes. A facility operator, on request, shall give the
80-22 director, the fire chief, or the local emergency planning committee
80-23 a copy of the MSDS for any chemical on the tier two form furnished
80-24 under Section 507.006 or for any chemical present at the facility.
80-25 (c) The board by rule may require certain categories of
81-1 facility operators under certain circumstances to implement the
81-2 National Fire Protection Association 704 identification system if
81-3 an equivalent system is not in use.
81-4 Sec. 507.008. COMPLAINTS AND INVESTIGATIONS. On
81-5 presentation of appropriate credentials, an officer or
81-6 representative of the director may enter a facility at reasonable
81-7 times to inspect and investigate complaints.
81-8 Sec. 507.009. ADMINISTRATIVE PENALTY. (a) The director may
81-9 assess an administrative penalty against a facility operator who
81-10 violates this chapter, board rules adopted under this chapter, or
81-11 an order issued under this chapter.
81-12 (b) If the department finds one or more violations of this
81-13 chapter, the director may issue a notice of violation to the
81-14 operator. The notice of violation shall specifically describe the
81-15 violation, refer to the applicable section or subsection of this
81-16 chapter, and state the amount of the penalty, if any, to be
81-17 assessed by the director.
81-18 (c) An operator who receives a notice of violation may
81-19 respond to the department in writing within 15 days of the date of
81-20 receipt of the notice of violation in one of the ways provided by
81-21 Subsection (d), (e), or (f).
81-22 (d) If the operator disputes the validity of the violation
81-23 and has reason to believe that the findings of the department were
81-24 based on inaccurate or incomplete information, the operator may
81-25 request an informal conference with representatives of the
82-1 department. The purpose of an informal conference is to permit the
82-2 operator to meet with department representatives to discuss the
82-3 basis of the violation and to provide information to the
82-4 department. The department shall schedule the informal conference.
82-5 A request for an informal conference made in bad faith is a
82-6 violation of this chapter.
82-7 (e) The operator may correct the violation and certify to
82-8 the department that the corrections have been made.
82-9 (f) The operator may request a hearing.
82-10 (g) Following an informal conference, the department shall
82-11 respond in writing to the operator, stating whether the department
82-12 intends to withdraw the notice of violation or pursue it. If the
82-13 department intends to pursue the notice of violation, the operator
82-14 may respond as provided by either Subsection (h) or (i) within 10
82-15 days of the date of receipt of the department's correspondence.
82-16 (h) The operator may correct the violation and certify to
82-17 the department that the corrections have been made.
82-18 (i) The operator may request a hearing.
82-19 (j) A request for an informal conference or a statement by
82-20 an operator that the operator is in compliance with the provisions
82-21 of this chapter does not waive the operator's right to a hearing.
82-22 (k) Except as provided in Subsection (l), the director may
82-23 not assess an administrative penalty for any violation that has
82-24 been corrected within 15 days of the date of receipt of the notice
82-25 of violation, the date of receipt of the department's response by
83-1 the employer, or 10 days after the date of receipt by the operator
83-2 of the department's response to the informal conference provided
83-3 for in Subsection (d), whichever is later.
83-4 (l) If a violation involves a failure to make a good-faith
83-5 effort to comply with this chapter, the director may assess the
83-6 administrative penalty at any time.
83-7 (m) In determining the amount of the penalty, the director
83-8 shall consider:
83-9 (1) the operator's previous violations;
83-10 (2) the seriousness of the violation;
83-11 (3) any hazard to the health and safety of the public;
83-12 (4) the operator's demonstrated good faith;
83-13 (5) the duration of the violation; and
83-14 (6) other matters as justice may require.
83-15 (n) The penalty may not exceed $50 for each day a violation
83-16 continues, with a total not to exceed $1,000 for each violation.
83-17 Sec. 507.010. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
83-18 (a) An administrative penalty may be assessed only after a
83-19 facility operator charged with a violation is given an opportunity
83-20 for a hearing.
83-21 (b) If a hearing is held, the director shall make findings
83-22 of fact and shall issue a written decision regarding the occurrence
83-23 of the violation and the amount of the penalty that may be
83-24 warranted.
83-25 (c) If the facility operator charged with the violation does
84-1 not request a hearing, the director may assess a penalty after
84-2 determining that a violation has occurred and the amount of the
84-3 penalty that may be warranted.
84-4 (d) After making a determination under this section that a
84-5 penalty is to be assessed against a facility operator, the director
84-6 shall issue an order requiring that the facility operator pay the
84-7 penalty.
84-8 (e) If a penalty is assessed on a complaint, the department
84-9 may allow the facility operator to make a grant to the local
84-10 emergency planning committee or a member organization instead of
84-11 paying the penalty. The department may specify that the operator
84-12 join the local emergency planning committee and attend all meetings
84-13 for one year or write an article, approved by the department,
84-14 concerning community right-to-know laws applicable in Texas for a
84-15 trade journal or other business publication.
84-16 (f) The director may consolidate a hearing held under this
84-17 section with another proceeding.
84-18 Sec. 507.011. PAYMENT OF ADMINISTRATIVE PENALTY; JUDICIAL
84-19 REVIEW. (a) Not later than the 30th day after the date an order
84-20 finding that a violation has occurred is issued, the director shall
84-21 inform the facility operator against whom the order is issued of
84-22 the amount of the penalty for the violation.
84-23 (b) Except as provided by Section 507.010(e), within 30 days
84-24 after the date the director's order is final as provided by Section
84-25 16(c), Administrative Procedure and Texas Register Act (Article
85-1 6252-13a, Vernon's Texas Civil Statutes), the facility operator
85-2 shall:
85-3 (1) pay the amount of the penalty;
85-4 (2) pay the amount of the penalty and file a petition
85-5 for judicial review contesting the occurrence of the violation, the
85-6 amount of the penalty, or both the occurrence of the violation and
85-7 the amount of the penalty; or
85-8 (3) without paying the amount of the penalty, file a
85-9 petition for judicial review contesting the occurrence of the
85-10 violation, the amount of the penalty, or both the occurrence of the
85-11 violation and the amount of the penalty.
85-12 (c) Within the 30-day period, a facility operator who acts
85-13 under Subsection (b)(3) may:
85-14 (1) stay enforcement of the penalty by:
85-15 (A) paying the amount of the penalty to the
85-16 court for placement in an escrow account; or
85-17 (B) giving to the court a supersedeas bond that
85-18 is approved by the court for the amount of the penalty and that is
85-19 effective until all judicial review of the director's order is
85-20 final; or
85-21 (2) request the court to stay enforcement of the
85-22 penalty by:
85-23 (A) filing with the court a sworn affidavit of
85-24 the facility operator stating that the facility operator is
85-25 financially unable to pay the amount of the penalty and is
86-1 financially unable to give the supersedeas bond; and
86-2 (B) giving a copy of the affidavit to the
86-3 executive director by certified mail.
86-4 (d) If the director receives a copy of an affidavit under
86-5 Subsection (c)(2), the director may file with the court, within
86-6 five days after the date the copy is received, a contest to the
86-7 affidavit. The court shall hold a hearing on the facts alleged in
86-8 the affidavit as soon as practicable and shall stay the enforcement
86-9 of the penalty on finding that the alleged facts are true. The
86-10 facility operator who files an affidavit has the burden of proving
86-11 that the facility operator is financially unable to pay the amount
86-12 of the penalty and to give a supersedeas bond.
86-13 (e) If the facility operator does not pay the amount of the
86-14 penalty and the enforcement of the penalty is not stayed, the
86-15 director may refer the matter to the attorney general for
86-16 collection of the amount of the penalty.
86-17 (f) Judicial review of the order of the director:
86-18 (1) is instituted by filing a petition as provided by
86-19 Section 19, Administrative Procedure and Texas Register Act
86-20 (Article 6252-13a, Vernon's Texas Civil Statutes); and
86-21 (2) is under the substantial evidence rule.
86-22 (g) If the court sustains the occurrence of the violation,
86-23 the court may uphold or reduce the amount of the penalty and order
86-24 the facility operator to pay the full or reduced amount of the
86-25 penalty. If the court does not sustain the occurrence of the
87-1 violation, the court shall order that no penalty is owed.
87-2 (h) When the judgment of the court becomes final, the court
87-3 shall proceed under this subsection. If the facility operator paid
87-4 the amount of the penalty and if that amount is reduced or is not
87-5 upheld by the court, the court shall order that the appropriate
87-6 amount plus accrued interest be remitted to the facility operator.
87-7 The rate of the interest is the rate charged on loans to depository
87-8 institutions by the New York Federal Reserve Bank, and the interest
87-9 shall be paid for the period beginning on the date the penalty was
87-10 paid and ending on the date the penalty is remitted. If the
87-11 facility operator gave a supersedeas bond and if the amount of the
87-12 penalty is not upheld by the court, the court shall order the
87-13 release of the bond. If the facility operator gave a supersedeas
87-14 bond and if the amount of the penalty is reduced, the court shall
87-15 order the release of the bond after the facility operator pays the
87-16 amount.
87-17 (i) All proceedings under this section are subject to the
87-18 Administrative Procedure and Texas Register Act (Article 6252-13a,
87-19 Vernon's Texas Civil Statutes).
87-20 Sec. 507.012. TRADE SECRETS. Facility operators must
87-21 substantiate trade secret claims to the administrator of the EPA in
87-22 accordance with EPCRA, Section 322.
87-23 Sec. 507.013. RULES; FEES. (a) The board may adopt rules
87-24 and administrative procedures reasonably necessary to carry out the
87-25 purposes of this chapter.
88-1 (b) The board may authorize the collection of annual fees
88-2 from facility operators for the filing of tier two forms required
88-3 by this chapter. Except as provided by Subsection (d), fees may be
88-4 used only to fund activities under this chapter. The fee may not
88-5 exceed:
88-6 (1) $50 for each required submission having no more
88-7 than 75 hazardous chemicals or hazardous chemical categories; or
88-8 (2) $100 for each required submission having more than
88-9 75 hazardous chemicals or chemical categories.
88-10 (c) To minimize the fees, the board by rule shall provide
88-11 for consolidated filings of multiple tier two forms for facility
88-12 operators covered by Subsection (b) if each of the tier two forms
88-13 contains fewer than 25 items.
88-14 (d) The department may use up to 20 percent of the fees
88-15 collected under this section as grants to local emergency planning
88-16 committees to assist them to fulfill their responsibilities under
88-17 EPCRA.
88-18 SECTION 3. This Act takes effect September 1, 1993.
88-19 SECTION 4. The importance of this legislation and the
88-20 crowded condition of the calendars in both houses create an
88-21 emergency and an imperative public necessity that the
88-22 constitutional rule requiring bills to be read on three several
88-23 days in each house be suspended, and this rule is hereby suspended.